Lawyer's Oath and Ethical Duties
Lawyer's Oath and Ethical Duties
I, ____ of ____ do solemnly swear that I will maintain my allegiance to the
Republic of the Philippines; I will support its Constitution and obey the
laws as well as the legal orders of the duly constituted authorities therein;
I will do no falsehood, nor consent to the doing of any in court; I will not
wittingly nor willingly promote or sue any groundless, false, or unlawful
suit, or give aid nor consent to the same, I will delay no man for money or
malice, and will conduct myself as a lawyer according to the best of my
knowledge and discretion, with all good fidelity as well to the courts as to
my clients; and I impose upon myself this voluntary obligation without any
mental reservation or purpose of evasion. So help me God.
An applicant who has passed the required examination or has been
otherwise found to be entitled to admission to the bar, shall take and
subscribe before the Supreme Court the corresponding oath of office. The
oath is thus, a prerequisite to the admission to the practice of law, while the
signing in the Roll is the last act that finally signified membership in the bar,
giving the applicant the right to call himself “attorney”.
Four-fold Duties of a Lawyer
1.) Duties to Society- to uphold the Constitution, obey the laws of the
land and promote respect for the law and legal processes;
2.) Duties to the Legal Profession (Bar) - to uphold the dignity, and
integrity of the legal profession;
3.) Duties to the Courts - to be candid with and promote respect for the
courts and judicial officers, and assist the courts in rendering speedy
and efficient justice;
4.) Duties to the Client - to observe candor, fairness and loyalty to the
client; hold the client’s money and property in trust; serve the client
with competence and diligence; and to preserve the confidence of
the client.
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CANON 1: A lawyer shall uphold the Constitution, obey the laws of the land,
and promote respect for law and legal processes.
The lawyer assumes responsibilities well beyond the basic requirements of
good citizenship to uphold the Constitution. As a servant of the law, a
lawyer should make himself an example for others to emulate. The primary
duty of lawyers is n ot to their clients but to the a dministration of justice.
Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral, or
deceitful conduct.
Unlawful Conduct
- Refers to the transgression of any provision of law, which need not to
be penal.
Dishonest Conduct
- Dishonesty is defined as disposition to lie, cheat, deceive, or defraud;
untrustworthiness; lack of integrity; lack of honesty; probity or
integrity in principle; lack of fairness and straightforwardness;
disposition to defraud, deceive or betray.
Immoral Conduct
- Defined as the conduct which is so willful, flagrant, or shameless as
to show indifference to the opinion of good and respectable
members of the community.
a.) Gross Immorality - when immoral conduct is gross when it is so
corrupt as to constitute a criminal act, or so unprincipled as to be
reprehensible to a high degree, or when committed under such
scandalous or revolting circumstances as to shock the community’s
sense of decency. (Ex: Abandonment of family and cohabiting with
another woman; lawyer who had carnal knowledge of a woman
through a promise to marry; bigamy; lawyer taking advantage of his
position in an academic institution and soliciting sexual favors to a
student by compulsion and in consideration of not failing her; selling
real property which is part of public domain)
Moral Character distinguished from Good Reputation
- Moral Character: the objective reality of what a person really is.
- Good Reputation: the opinion of the public generally entertained of a
person or the estimate in which he is held by the public where he is
known.
Plagiarism
- The rule exonerating judges from charges of plagiarism applies to
lawyers. Judges should not be charged so long as they do not depart,
as officers of the court in the administration of justice.
Moral Turpitude
- Defined as everything which is done contrary to justice, modesty, or
good morals; an act of baseness, vileness or depravity in the private
and social duties which a man owes his fellowmen, or to society in
general (Ex: Falsification of public document; estafa; bribery; murder;
abduction; seduction; violation of BP 22; murder)
Rule 1.02 - A lawyer shall not counsel or abet activities aimed at defiance
of the law or at lessening confidence in the legal system.
A lawyer should not promote an organization known for violating the law
nor assist it in a scheme which is dishonest. He should not allow his
services to be engaged by an organization whose members are violating the
law and defend them should they get caught.
[ NOTE: A lawyer advances the honor of his profession and the best
interest of his client when he renders service with exact compliance with
the strictest principle of moral law. ]
Rule 1.03 - A lawyer shall not, for any corrupt motive or interest, encourage
any suit or proceeding or delay any man’s cause.
PURPOSE: To prevent barratry and ambulance chasing.
Barratry
- The offense of frequently exciting and stirring up quarrels and suits,
either at law or otherwise. The person engaging in such is called a
barretor or b arrator.
Ambulance Chasing
- The wanton and inofficious intermeddling in the disputes of others in
which the intermeddler has no interest whatsoever.
- Also known as intermeddling of an uninterested party to encourage a
lawsuit.
Rule 1.04 - A lawyer shall encourage his clients to avoid, end, or settle a
controversy if it will admit of a fair settlement.
The duty of lawyers to represent their clients with zeal goes beyond merely
presenting their clients’ respective causes in court. The useful function of a
lawyer is not only to conduct litigation but to avoid it whenever possible by
advising settlement withholding suit.
[ NOTE: If a lawyer finds that his client’s cause is defenseless, he is duty
bound to advise the latter to acquiesce and submit, rather than traverse
tue incontrovertible. ]
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CANON 2: A lawyer shall make his legal services available in an efficient
and convenient manner compatible with the independence, integrity, and
effectiveness of the profession.
Rule 2.02 - A lawyer shall not reject, except for valid reasons, the cause of
the defenseless and o ppressed.
REASON: it is the lawyer’s prime duty to see to it that justice is accorded to
all without discrimination.
Defenseless
- Those who are not in the position to defend themselves due to
poverty, weakness, ignorance or other similar reasons.
Oppressed
- The victims of cruelty, unlawful exaction, domination or excessive
use of authority.
When may a lawyer decline employment?
A lawyer should decline professional employment regardless of how
attractive the offer may be if his acceptance will involve, among others:
1.) A violation of any of the rules of the legal profession;
2.) Advocacy in any matter which he had intervened while in government
service;
3.) Nullification of a contract which he prepared;
4.) Employment with a collection agency, which solicits business to
collect claims;
5.) Employment, the nature of which might easily be used as a means of
advertising his professional services or his skill;
6.) Any matter in which he knows or has reason to believe that he or his
partner will be an essential witness for the prospective client.
Rule 2.02 - In such cases, even if the lawyer does not accept a case, he
shall not refuse to render legal advice to the person concerned if only to
the extent necessary to safeguard the latter’s rights.
If for valid reasons, a lawyer cannot accept a case, he should instead give
immediate legal advice and refer the case to another lawyer who can
provide prompt assistance.
Reason: Legal aid is not a matter of charity, but a public responsibility. It is
a means for the correction of social imbalance that may and often do lead
to injustice, for which reason it is the public responsibility of the bar.
Exception: Consultation creates a lawyer-client relationship. Although there
is no lawyer-client relationship created, as when the lawyer categorically
refuses to accept a case, the lawyer is still bound to give legal advice to
the oppressed and defenseless to protect the latter’s right.
“If only to the extent necessary to safeguard the latter’s rights.”
This means advising a person on what preliminary steps to take until he
has secured the services of counsel. However, he shall refrain from doing
so when there is conflict of interest between him and prospective clients
or between a present client and a prospective one.
Rule 2.03 - A lawyer shall not do or permit to be done any act designed
primarily to solicit legal business.
PURPOSE: To prohibit professional touting. The legal profession is a branch
of administration of justice and not a money-making trade.
The practice of law is a profession, not a business. It is highly unethical for
an attorney to advertise his talents and skills as a merchant advertises his
wares.
Best Advertising Possible for Lawyers
- A well-merited reputation for professional capacity and fidelity to
trust based on his character and conduct.
Rule 2.04 - A lawyer shall not charge rates lower than those customarily
prescribed unless the circumstances so warrant.
PURPOSE: To avoid any demeaning and degrading competition, lawyers as
much as possible should be in unison in respecting such custom or
tradition.
Exception: Valid justifications, such as when the client is a relative or a
fellow lawyer or is too poor that it would be inhumane to charge him even
the customary rates of attorney’s fees.
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CANON 3: A lawyer in making known his legal services shall use only true,
honest, fair, dignified, and objective information or statement of facts.
PURPOSE: Legal services, unlike other personal services rendered by other
professionals or skilled workers, require a certain degree of dignity to be
maintained.
Any false pretense by a lawyer intended to defraud, mislead, deceive, or to
tout on his qualifications or quality of his legal services is unethical,
whether done by him personally or through another with his permission.
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 qualification or legal services.
The practice of law is a profession, not a business.
Instances of Permissible Advertising:
1.) Writing legal articles;
2.) Engaging in business or other occupations except when such could
be deemed improper, be seen as indirect solicitation, or would be the
equivalent of law practice;
3.) Publication in reputable law lists, but only of brief biographical and
informative data;
4.) Use of an ordinary professional card;
5.) Notice of other local lawyers and publishing in a legal journal of one’s
availability to act as an associate for them;
6.) The offer of free legal services to the indigent, even when
broadcasted over the the radio or tendered through circulation of
printed matter to the general public;
7.) Seeking a public office, which can only be held by a lawyer or, in
dignified manner, a position as a full-time corporate counsel;
8.) Simple announcement of the opening of a law firm or of changes in
the partnership, associates, firm name, or office address, being for
the convenience of the profession;
9.) And etc. (see Mem-aid)
Professional Calling Cards may only contain the following details:
1.) Lawyer’s Name;
2.) Name of the law firm with which he is connected;
3.) Address;
4.) Telephone number; and
5.) Special branch of law practiced.
Rule 3.02 - In the choice of a firm name, no false, misleading or assumed
name shall be used. The continued use of the name of a deceased partner
is permissible provided that the firm indicates in all its communications
that said partner is deceased.
If a partner died, the continued use of the name is desired by the surviving
partners, the name of the deceased may still be used provided, in all
communications of the law firm, there is an indication that said partner is
already dead.
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 law concurrently.
PURPOSE: To prevent the law firm or partners from making use of the
name of the public official to attract business and to avoid suspicion of
undue influence.
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.
PURPOSE: To prevent some lawyers from gaining an unfair advantage over
others through the use of gimmickry, press agentry, or other artificial
means.
[ NOTE: The lawyer is not required to decline genuine media attention to
advocacies which have generated public interest. In some instances, his
advocacy needs the indispensable participation of media, such as the
advocacy to expose government corruption. ]
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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.
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CANON 5: A lawyer shall keep abreast of legal developments, participate in
continuing legal education programs, support efforts to achieve high
standards in law schools as well as in the practical training of law students
and assist in disseminating information regarding the law and
jurisprudence.
PURPOSE: Legal education should be a continuing concern.
After admission to practice, a lawyer incurs a three-fold obligation:
First, he owes it to himself to continue improving his knowledge of the law;
Second, he owes it to his profession to take an active interest in the
maintenance of high standards of legal obligation; and
Third, he owes it to the public to make the law a part of its social
consciousness.
Rules on Mandatory Continuing Legal Education (MCLE) for Members of the
IBP
The purpose is to ensure that throughout their career, they keep abreast
with law and jurisprudence, maintain the ethics of the profession and
enhance the standards of the practice of law.
Requirements for Completion of MCLE
Members of the IBP, unless exempted under Rule 7, shall complete every 3
years at least 36 hours of continuing legal education activities.
➔ Parties Exempted from MCLE:
1.) President, Vice President, and the Secretaries and Undersecretaries
of executive departments;
2.) Senators and Members of the House of Representatives;
3.) Chief Justice and Associate Justices of the Supreme Court,
incumbent and retired justices of the judiciary, incumbent members
of the Judicial and Bar Council and incumbent court lawyers covered
by the Philippine Judicial Academy Program of Continuing Legal
Education;
4.) Chief State Counsel, Chief State Prosecutor and Assistant Secretaries
of the Department of Justice;
5.) Solicitor-General and the Assistant Solicitors-General;
6.) Government Corporate Counsel, Deputy and Assistant Government
Corporate Counsel;
7.) Chairman and Members of the Constitutional Commissions;
8.) Ombudsman, the Overall Deputy Ombudsman, the Deputy
Ombudsman, and the Special Prosecutor of the Office of the
Ombudsman;
9.) Heads of government agencies exercising quasi-judicial functions;
10.) Incumbent deans, bar reviewers, and professors of law who have
teaching experience for at least 10 years accredited in law schools;
11.) Chancellor, Vice-Chancellor, and members of the Corps of
Professional Lecturers of the Philippine Judicial Academy;
12.) Governors and Mayors.
➔ Other Parties Exempted from MCLE
1.) Those who are not in law practice, private or public;
2.) Those who have retired from law practice with the approval of the
IBP Board of Governors; and
3.) Those granted exemption for good cause in accordance Section 3,
Rule 7 of the MCLE Rules.
What Constitutes Non-Compliance:
1.) Failure to complete education requirement within the compliance
period;
2.) Failure to provide attestation of compliance or exemption;
3.) Failure to provide satisfactory evidence of compliance;
4.) Failure to satisfy the education requirement and furnish the evidence
of such compliance within 60 days from receipt of non-compliance
notice; and
5.) Any other act foregoing or intended to circumvent or evade
compliance with the MCLE requirements.
➔ Non-compliance Procedures:
1.) The non-compliant member shall receive a Notice of
Non-compliance; and
2.) He shall be given 60 days from the date of notification to file a
response clarifying the deficiency or otherwise showing compliance
with the requirements.
➔ Consequence of Non-Compliance
1.) The member concerned shall pay a non-compliance fee;
2.) His membership fee shall continue to accrue at active rate during the
period of delinquency; and
3.) He shall be listed as a delinquent member of the IBP upon the
recommendation of the MCLE Committee.
Reinstatement
- The involuntary listing as a delinquent member shall be terminated
when the member provides proof of compliance with the MCLE
requirement, including the payment of non-compliance fee.
- B.M. No. 1922 requires practicing members of the bar to indicate in all
pleadings filed before the courts or quasi-judicial bodies the number
and date of issue of their MCLE Certificate of Compliance or
Certificate of Exemption, as may be applicable, for the immediately
preceding compliance period. Failure to disclose would subject the
counsel to appropriate penalty and disciplinary action.
➔ Prescribed Penalty for Non-Disclosure of Current MCLE Compliance
or Exemption
1.) The lawyer shall be imposed a fine of P2,000 for the first offense,
P3,000 for the second offense; and P4,000 for the third offense;
2.) In addition to the fine, counsel may be listed as a delinquent member
of the Bar pursuant to Sec. 2, Rule 13 of B.M. No. 850 and its
implementing rules and regulations;
3.) The non-compliant lawyer shall be discharged from the case and the
clients shall be allowed to secure the services of a new counsel with
the concomitant right to demand the return of fees already paid to
the non-compliant lawyer.
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CANON 6: These canons shall apply to lawyers in government services in
the discharge of their official tasks.
Applicability of CPR to Lawyers in Government Service
The CPR does not cease to apply to a lawyer simply because he has joined
the government service.
PURPOSE: A member of the Bar who assumes public office does not shed
his professional obligations.
Generally speaking, a lawyer who holds a government office may not be
disciplined as a member of the Bar for misconduct in the discharge of his
duties as a government official. The accountability of the government
official (who also happens to be a lawyer) in the discharge of his duties as
such is separate from his accountability as a member of the Philippine Bar.
However, if said violation also constitutes a violation of his oath as a
lawyer, then he may be disciplined by this Court as a member of the Bar.
Rule 6.01 - The primary duty of a lawyer engaged in public prosecution is
not to convict but to see that justice is done. The suppression of facts or
the concealment of witnesses capable of establishing the innocence of the
accused is highly reprehensible and is cause for disciplinary action.
Public Prosecutor
- He is a quasi-judicial officer. The representative of a sovereignty
whose obligation and interest in a criminal prosecution is not that it
shall win a case but that justice shall be done. He has the solemn
responsibility to assure the public that while guilt shall not escape,
innocence shall not suffer. [JOSE V. CA]
- He should see to it that the accused is given fair and impartial trial
and not deprived of any of his statutory or constitutional rights. He
should recommend the acquittal of the accused whose conviction is
on appeal, if he finds no legal basis to sustain the conviction.
Rule 6.02 - A lawyer in the government service shall not use his public
position to promote or advance his private interests, nor allow the latter to
interfere with his public duties.
Applicability of the Rule:
1.) Lawyers in government service allowed by law to engage in private
practice concurrently; and
2.) Those who, though prohibited from engaging in the practice of law,
have friends, former associates and relatives who are in the active
practice of law.
Public Officials and Employees during their incumbency shall NOT:
1.) Own, control, manage or accept employment as officer, employee,
consultant, counsel, broker, agent, trustee or nominee in any private
enterprise regulated, supervised or licensed by their office unless
expressly allowed by law;
2.) Recommend any person to any position in a private enterprise which
has a regular or pending official transaction with their office:
3.) Engage in the private practice of their profession unless authorized
by the Constitution or law, provided that such practice will not
conflict or tend to conflict with their official functions; and
4.) Use or divulge confidential or classified information officially known
to them by reason of their office and not available to the public.
Rule 6.03 - A lawyer shall not, after leaving government service, accept
engagement or employment in connection with any matter in which he has
intervened while in said service.
PURPOSE: To avoid conflict of interests, to preclude the lawyer from using
secrets or information learned in his official capacity, or to prevent the
appearance of impropriety.
Any Matter
- Refers to any discrete, isolatable act, as well as identifiable
transaction or conduct involving a particular situation and specified
party, and not merely an act of drafting, enforcing, or interpreting
government or agency proceeding, regulations or laws or briefing
abstract principles of law.
Intervene
- Includes an act of a person who has the power to influence the
subject proceedings.
Forbidden Office
- A member of the legislature may not accept an appointment in an
office which was created nor had its emoluments increased during
the lawmaker’s term of office.
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CANON 7: A lawyer shall at all times uphold the integrity and dignity of the
legal profession and support of the activities of the Integrated Bar.
A lawyer who disobeys the law disrespects it. Thus, he disregards legal
ethics and disgraces the dignity of the legal profession. [CATU v. RELLOSA]
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 lawyer is expected to be honest from the moment he applies for
admission to the bar. However, the falsity referred to in this canon must be
knowingly done.
Consequences of Knowingly Making a False Statement or Suppression of a
Material Fact in the Application for Admission to the Bar:
1.) If the false statement or suppression of material fact is discovered
before the candidate could take the bar examinations, he will be
denied permission to take the e xaminations;
2.) If the false statement or suppression of material fact was discovered
after the candidate had passed the bar examinations but before
having taken his oath, he will not be allowed to take his oath as a
lawyer; and
3.) If the discovery was made after the candidate had taken his oath as
a lawyer, his name will be stricken from the Roll of Attorneys.
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.
A lawyer should aid in guarding the Bar against admission to the profession
of candidates unfit or unqualified for being deficient in either moral
character or education. Moreover, public policy requires that the practice of
law be limited to individuals found duly qualified in education and
character.
Rule 7.03 - A lawyer shall not engage in conduct that adversely reflects on
his fitness to practice law, nor shall he, whether in public or private life,
behave in a scandalous manner to the discredit of the legal profession.
Generally, a lawyer may not be suspended or disbarred for misconduct in
his non-professional or private capacity.
Exception: The misconduct outside the lawyer’s professional dealings is so
gross a character as to show him morally unfit for the office and unworthy
of the privilege which his licenses and the law confer on him.
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CANON 8: A lawyer shall conduct himself with courtesy, fairness, and
candor towards his professional colleagues, and shall avoid harassing
tactics against opposing counsel.
Lawyers must participate in the battle for justice with the armors of
courtesy and fairness. They should avoid doing those very things, which
they would not want to be done with them as members of the Bar.
Rule 8.01 - A lawyer shall not, in his professional dealings, use language
which is abusive, offensive, or otherwise improper.
Any kind of language which attacks without foundation the integrity of the
opposing counsel or the dignity of the court may be stricken off the
records or may subject a lawyer to disciplinary action.
Language to be Used
Though a lawyer's language may be forceful and emphatic, it should always
be dignified and respectful, befitting the dignity of the legal profession.
➔ General Rule: Want of intention to undermine the integrity of the
Court is no excuse for the language employed by the private
respondent for it is a well settled rule that derogatory words are to
be taken in the ordinary meaning attached to them by impartial
observers.
◆ Exceptions:
1.) Statements made in the course of Judicial proceedings are absolutely
privileged. This absolute privilege remains regardless of the
defamatory tenor and of the presence of malice if the same are
relevant, pertinent, or material to the cause in hand or subject of the
inquiry. T est of Relevancy must be employed.
2.) Utterances made out of impulse in the course of an argument may be
forgiven and should not be penalized.
3.) Strong language used by an attorney as a reply to the insulting
remarks of a judge. If a judge desires not to be insulted, he should
start using temperate language himself.
➔ Instances of Disrespectful Language (see Mem-Aid pg. 25)
Rule 8.02 - A lawyer shall not, directly or indirectly, encroach upon the
professional employment of another lawyer, however, it is the right of any
lawyer, without fear or favor, to give proper advice and assistance to those
seeking relief against unfaithful or neglectful counsel.
Part of professional courtesy to observe respect for the lawyer-client
relationship existing between another lawyer and his clients.
Professional Encroachment
- A person without a retained lawyer is a legitimate prospective client
for any lawyer whom he approaches for legal services. But as soon as
he had retained one and had not dismissed the retained counsel,
efforts on the part of another lawyer to take him as a client
constitutes an act of encroaching upon the employment of another
lawyer.
Instances of Professional Encroachment
1.) Promise of a better service;
2.) Lowering attorney’s fees; or
3.) Downgrading the qualifications or services of the first lawyer.
Rules on Accepting Employment on a Matter Previously Handled by
Another Lawyer:
1.) A lawyer may properly accept employment to handle a matter which
has been previously handled by another lawyer, provided that the
first lawyer has been given notice by the client that his services have
been terminated;
2.) In the absence of such notice or termination by the client, a lawyer
retained to take over a case from a peer in the bar should do so only
after he shall have obtained conformity of the counsel whom he
would substitute;
3.) In the absence of such conformity of the counsel by the counsel, the
new lawyer should at least give sufficient notice to such counsel of
the contemplated substitution;
4.) His entry of appearance without notice to the first lawyer is an
improper encroachment upon the professional employment of the
original counsel; and
5.) The notice will enable the lawyer sought to be charged to assert and
protect any right to compensation.
[ NOTE: A lawyer, who acquired knowledge of the malpractice of the
member of the Bar, has the duty to inform the Supreme Court or the IBP of
such malpractices to the end that the malpractice be properly disciplined. ]
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CANON 9: A lawyer shall not, directly or indirectly, assist in the
unauthorized practice of law.
Unauthorized Practice of Law
- It is committed when a person, not a lawyer, pretends to be one and
performs acts which are exclusive to members of the bar.
- Shyster: a non-lawyer pretending to be a lawyer.
Rule 9.01 - A lawyer shall not delegate to any unqualified person the
performance of any task which by law may only be performed by a member
of the bar in good standing.
PURPOSE: Because of the fiduciary and personal character of the
lawyer-client relationship and inherently complex nature of our legal
system, the public can be better assured of the requisite responsibility and
competence if the practice of law is confined to those who are subject to
the requirements and regulations imposed upon members of the legal
profession.
Rule 9.02 - A lawyer shall not divide or stipulate to divide a fee for legal
services with persons not licensed to practice law, except:
1.) Where there is a pre-existing agreement with a partner or associate
that, upon the latter’s death, money shall be paid over a reasonable
period of time to his estate or to persons specified in the agreement;
or
2.) Where a lawyer undertakes to complete unfinished legal business of
a deceased lawyer; or
3.) Where a lawyer or law firm includes non-lawyer employees in a
retirement plan, even if the plan is based in whole or in part on a
profit-sharing agreement.
PURPOSE: So that the public will not be confused as to whom to consult in
case of necessity and so that the bar will not in a chaotic condition
because of the fact that non-lawyers are not amenable to disciplinary
measures.
The first and second exceptions to the rule strictly speaking, represent
compensation for legal services rendered by the deceased lawyer during his
lifetime which is paid to his estate or heirs.
On the other hand, the third exception strictly speaking, is not a division of
legal fees but a pension representing deferred wages for the employees’
past services.
--
[Discussion: Canon 10 - Canon 13; 17 May 2020]
What is the basis of a Lawyer’s duties?
CANON 10 - A lawyer owes candor, fairness and good faith to the Court.
Obligations Related to Candor
1.) Not to suppress material and vital facts which bear on the merit or
lack of merit of the complaint or petition;
2.) To volunteer to the court any development of the case which has
rendered the issue raised moot and academic;
3.) To disclose to court any decision adverse to his position of which
opposing counsel is apparently ignorant and which court should
consider in deciding a case;
4.) Not to represent himself as a lawyer for a client, appear in court, and
present pleadings in the latter’s behalf, only to claim later that he
was not authorized to do so.
Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the doing
of any in court; nor shall he mislead, or allow the Court to be misled by any
artifice.
- The basis of this provision is that candor is of the very essence of
honorable membership in the legal profession.
- A lawyer should volunteer any information any development of the
case that has rendered the case moot and academic even if it would
demerit his own case.
Rule 10.02 - A lawyer shall not knowingly misquote or misrepresent the
contents of a paper, the language or the argument of opposing counsel, or
the text of a decision or authority, or knowingly cite as law a provision
already rendered inoperative by repeal or amendment, or assert as a fact
that which has not been proved.
PURPOSE: If not faithfully and exactly quoted, the decisions and rulings of
the court may lose their proper and correct meaning, to the detriment of
other courts, lawyers and the public who may thereby be misled.
- According to the case of the Insular Life, it is the decision of the
Supreme Court that forms part of the legal system of the Philippines.
- Lawyers, litigants and courts should quote Supreme Court decisions
word per word and punctuation by punctuation in order to avoid the
public from being misled by such decisions.
- In the case of Allied Banking, a SCRA syllabus is not a work of the
court, nor does it represent the Court’s decision. A lawyer should not
cite the SCRA syllabus in place of the original text of the decision
and lawyers should refrain from citing the SCRA syllabus but may
refer from such text.
- Paraphrasing a particular doctrine enunciated by the Supreme Court
is permissible because it is within the bounds of reasonable debate.
Rule 10.03 - A lawyer shall observe the rules of procedure and shall not
misuse them defeat the ends of justice.
A lawyer owed fidelity to the cause of his client, but not at the expense of
truth and administration of justice. The filing of multiple baseless suits is
an abuse of the Court’s processes and improper conduct that tends to
impede, obstruct and degrade the administration of justice and will be
punished as contempt of court.
- In the case of Sutero Lee (?), the Supreme Court ruled that the filing
of multiple baseless actions is a violation of Rule 10.03 because the
cases filed by the lawyer were without merit.
--
CANON 11 - A lawyer shall observe and maintain the respect due to the
courts and to judicial officers and should insist on similar conduct by
others.
PURPOSE: Respect for the courts guarantees the stability of our democratic
institutions. Disrespect to the court and judicial officers destroys that high
esteem and regard toward the court which is essential in the orderly
administration of justice.
Is there a duty to remain respectful to the Court when the Court Orders are
erroneous?
- Court Orders no matter how erroneous must be respected because
of the respect and consideration that should be extended to the
judicial branch of the government, because of the authority vester
upon them.
However, If the Order is void or without the Court’s jurisdiction, the
party refusing the void Court order does not incur a violation.
Rule 11.01 - A lawyer shall appear in court properly attired.
One must appear in Court properly attired because it is a temple of justice.
Dressing accordingly maintains the dignity and responsibility of the legal
profession. Non-compliance could give rise to a violation of Sec. 1, Rule 71
of ROC and be held guilty for direct contempt.
Rule 11.02 - A lawyer shall punctually appear at hearings.
PURPOSE:
1.) Punctuality is demanded by the respect which a lawyer owes to the
court, the opposing counsel and to all the parties to the case;
2.) Lack of punctuality interferes with the administration of justice
Rule 11.03 - A lawyer shall abstain from scandalous, offensive, or menacing
language or behavior before the Courts,
The language of a lawyer written or vocal must represent the dignity of the
Court.
Does Rule 11.03 stand if you committed it outside the Court?
- (In Re: Kapunan) The Supreme Court held that comments made
against the Court must not go beyond a respectful attitude outside
the Court. She must remain, at all times, a respectful attitude
towards the Court. The courteous demeanor of a lawyer as a citizen
and as an officer of the Court must be upheld inside and outside the
Court.
Rule 11.04 - A lawyer shall not attribute to a judge motives not supported
by the record or have no materiality to the case.
- In the case of Adorio, the Supreme Court ruled that the allegations of
irregularities are uncalled for.
Rule 11.05 - A lawyer shall submit grievances against a Judge to the proper
authorities only.
- i wiLl nOt DiScUsS tHiS aNymOrE bEcAuSe It iS IncLuDeD iN yOuR
pAPeR [insert spongebob meme here ok Atty. Barbie :c ]
--
CANON 12 - A lawyer shall exert every effort and consider it his duty to
assist in the speedy and efficient administration of justice.
CONSTITUTIONAL BASIS: All persons shall have the right to a speedy
disposition of their cases before all judicial, quasi-judicial or administrative
bodies. (Art. 3, sec.6)
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 preference. He should also be ready to with the
original documents for comparison with copies.
- A lawyer, when he appears in trial, should be ready with his laws,
original documents, pieces of evidence that would support his
position and a systematic.
- A lawyer without adequate preparation cannot serve in the
administration of justice nor can he properly represent his client.
Note: Rule 12.01 should be read in relation to Rule 18.02 which
requires a lawyer to handle legal matters with adequate preparation.
- In Re: Soriano, the Supreme Court ruled that Atty. Soriano failed to
discharge his duty because he did not check the status of the case
he has been assigned to. His proper appearance in the case
notwithstanding that the case has been rendered terminated, it
created an illusory belief that a final judgement can still be
overturned.
Rule 12.02 - A lawyer shall not file multiple actions arising from the same
cause.
Constitutes forum shopping or repetitious suits from the same act.
➔ There is forum-shopping when, between an action pending before
this Court and another one, there exist:
1.) Identity of Parties, or at least such parties as represent the
same interests in both actions;
2.) Identity of Rights asserted and relief prayed for, the relief being
founded on the same facts; and
3.) The identity of the two preceding particulars is such that any
judgement rendered in the other action, will, regardless of
which party is successful amount to red judicata in the action
under consideration; said requisites also constitutive of the
requisites for a uteur action pendant or l is pendens.
Rule 12.03 - A lawyer shall not, after obtaining extensions of time to file
pleadings, memoranda or briefs, let the period lapse without submitting
the same or offering an explanation for his failure to do so.
- In the case of Heirs of Ramon Gayares v. Pacific Asia Overseas Corp.,
the Supreme Court ruled that motions for extensions are not granted
as a matter of right.
Rule 12.04 - A lawyer shall not unduly delay a case, impede the execution
of a judgment or misuse Court processes.
PURPOSE: Once a judgement becomes final and executory, the prevailing
party should not be denied the fruits of his victory by some subterfuge
devised by the losing party. Unjustified delay in the enforcement of a
judgement sets at naught the role of courts in disposing justiciable
controversies with finality.
- A lawyer who insists filing an appeal notwithstanding the fact that it
would be unmeritorous exposes the lawyer to liability because it
constitutes as delaying the disposition of your client.
- But a lawyer cannot decide on his own whether or not to appeal or
not, he must transmit the judgement of the Court to his client.
Rule 12.05 - A lawyer shall refrain from talking to his witness during a
break or recess in the trial, while the witness is still under examination.
PURPOSE: A lawyer is not allowed to speak with his witness during a break
because it gives the suspicion that the witness is merely being coached.
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.
- Refers to the character of a witness, the purpose of a witness is to
shed a side of the case.
➔ Rights and Obligations of a Witness under the Rules of Court (Rule
132, sec. 3)
A witness must answer questions, although his answer may tend to
establish a claim against him. However, it is the right of a witness:
1.) To be protected from irrelevant, improper, or insulting
questions, and from harsh or insulting demeanor;
2.) Not to be examined except only as to matters pertinent to the
issue;
3.) Not to be detained longer than the interests of justice require;
4.) Not to give an answer which will tend to subject him to a
penalty for an offense unless otherwise provided by law;
5.) Not to give an answer which will tend to degrade his
reputation, unless it be 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 final conviction for an
offense.
Rule 12.08 - A lawyer shall avoid testifying in behalf of his client, except:
a.) on formal matters, such as the mailing, authentication or custody of an
instrument, and the like; or
b.) on substantial matters, in cases where his testimony is essential to the
ends of justice, in which event he must, during his testimony, entrust the
trial of the case to another counsel.
PURPOSE: There is a difference between the function of a witness and that
of an advocate. A witness is to tell the facts as he recalls them in answer
to questions while an advocate is a partisan. The lawyer will find it hard to
dissociate his relation to his client as an attorney and his relation to the
party as a witness.
Generally, a lawyer is not allowed to testify on behalf of his client with the
exception of: (1) on formal matters and (2) on substantial matters.
- A lawyer cannot both play the witness and the one asking the
questions, to avoid this absurdity, he must entrust this duty to a
different counsel.
- A lawyer as a counsel, is a partisan who owes their loyalty to their
client.
➔ Instances When a Lawyer May NOT Testify as a Witness in a Case
Which He is Handling for a Client
1.) He cannot serve conflicting interests;
2.) Having accepted a retainer, he cannot be a witness against his
client;
3.) When such would adversely affect any lawful interest of the
client with respect to which confidence has been reposed on
him;
4.) When he is to violate the confidence of his client; and
5.) When as an attorney, he is to testify on the theory of the case.
➔ Instances When a Lawyer MAY Testify as a Witness in a Case Which
He is Handling for a Client
1.) On formal matters, such as the mailing, authentication, or
custody of an instrument and the like,
2.) Acting as an expert on his fee;
3.) 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;
4.) Deposition; and
5.) Acting as an arbitrator.
--
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.
A lawyer must not display or boast of being influential to the court. This
will erode the confidence of the public on the fair administration of justice.
Rule 13.01 - A lawyer shall not extend extraordinary attention or hospitality
to, nor seek opportunity for cultivating familiarity with Judges.
PURPOSE: A lawyer must rely on the merits of his case and should avoid
using his influence and connection to win his case. His cases must be won
because they are meritorious and not because of connections, clout,
dominance or influence.
- The unusual attention and hospitality extended to a judge would give
rise to suspicion.
- A lawyer is not allowed to be alone with the Judge in the latter’s
chamber, except when both lawyers (petitioner’s and defense) are
both present.
Rule 13.02 - A lawyer shall not make public statements in the media
regarding a pending case tending to arouse public opinion for or against a
party.
PURPOSE: Newspaper publications by a lawyer as to pending or anticipated
litigation may interfere with a fair trial in the courts and otherwise
prejudice the due administration of justice. However, if the extremity of a
particular case justifies a statement to the public, it is unprofessional to
make it anonymously.
Subjudice Rule
- The Subjudice Rule applies until the matter is completed. The
Subjudice Rule restricts comments and disclosures pertaining to
judicial proceedings to avoid prejudging the issue, influencing the
court, or obstructing the administration of justice. It governs what
public statements, whether orally or in published writings, can be
made about matters pending in legal proceedings before the courts.
The rule applies where court proceedings are ongoing, and through all
stages of appeal until the matter is completed. It is not limited to
parties in a case or their lawyers; it applies to the public and public
officials including legislators.
- Hence, if the information will unduly influence the Trial judge, it
would be considered as a violation of the subjudice rule.
- But if the case is terminated and a lawyer is merely stating his
post-litigation criticism, it is allowed. But there are limitations, the
right to criticize is recognized in concluded litigations because then
the court’s actuations are thrown open to the public consumption
and discussion, however, it is the cardinal condition of all such
criticism that it shall be bona fide and shall not spill over the walls of
decency and propriety.
➔ Principle of Open Justice
The principle of open justice refers to the public right to scrutinize
and criticize court proceedings. The principle assists in preventing
judicial arbitrariness or idiosyncrasy and maintaining public
confidence in the administration of justice.
➔ Post-litigation Criticisms
The guarantees of free speech and free press include the right to
criticize judicial conduct. The administration of law is a matter of
vital public concern. Whether the law is wisely or badly enforced is,
therefore, a fit subject for a proper comment. As a citizen and officer
of the court, a lawyer is expected not only to exercise the right but
also to consider it his duty to expose the shortcomings and
indiscretions of courts and judges.
➔ When Public Statements are Contemptuous Even When the Case Has
Been Terminated
1.) Where it tends to bring the court into disrespect or, in other words,
to scandalize the Court;
2.) Where there is a clear and present danger that the administration of
justice would be impeded. [PEOPLE v. GODOY]
Rule 13.03 - A lawyer shall not brook or invite interference by another
branch or agency of the government in the normal course of judicial
proceedings.
PURPOSE: To preserve the independence of the judges in the performance
of their duties.
- The decisions of the judiciary should be impartial and not subject to
influence by the other branches of the government.
- A lawyer should not invite the President or any other person to
interfere by reason of j udicial independence.
--
Nature of Attorney-Client Relationship
An Attorney-Client Relationship is punctuated by trust, candor and honesty.
However the lawyer’s devotion to his client is subservient to his duty to the
court and profession to his society.
The Nature of Attorney-Client Relationship is characterized as:
- Strictly personal
- Highly confidential
- Fiduciary
[NOTE: Non-delegable, what may not be delegated is the relationship
itself.]
- It’s the confidence of the client to the lawyer that cannot be
delegated but the work of the lawyer is. The lawyer has the power to
delegate to his associates.
How is the attorney-client relationship made?
Through a retainer which can either be General or Special.
- General Retainer: Act of client engaging the lawyer
Example: Corporation X engages Atty. A to handle any legal concerns
that Corp. X has.
- Special Retainer: In special cases only.
Example Corp. X wants to recover money from Mr. Y and engages
Atty. X to file a case against Mr. Y.
!!! R
etainer may also refer to the fee.
CANON 14: A lawyer shall not refuse his services to the needy.
CONSTITUTIONAL BASIS: Free access to the Courts and quasi-judicial
bodies and adequate legal assistance shall not be denied to any person by
reason of poverty.
As a general rule, the lawyer is not obligated to act as counsel to a person
who wants him to be a lawyer.
However, by virtue of Canon 14, refusal is the exception that a lawyer can
decline employment.
Exceptions to Right to Decline Employment:
Generally, a lawyer is not bound to accept every case that is referred to
him by a prospective client except:
1.) A lawyer shall not decline to represent a person solely on account of
the latter’s race, sex, creed, or status of life because of his own
opinion regarding the guilt of said person (Rule 14.01, CANON 14);
2.) A lawyer shall not decline, except for serious and sufficient cause, an
appointment as counsel de officio or as amicus curiae or a request
from the IBP or any of its chapters for rendition of free legal aid (Rule
14.02, CANON 14).
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 because of his own
opinion regarding the guilt of said person
- Even if the lawyer believes that a person has committed a crime, he
may still represent him because the law presumes the accused is
innocent until his guilt has been proven beyond reasonable doubt.
Rule 14.02- A lawyer shall not decline, except for serious and sufficient
cause, an appointment as counsel de officio or as amicus curiae or a
request from the IBP or any of its chapters for rendition of free legal aid.
Generally, a lawyer appointed as counsel de officio, amicus curiae, or as
requested by the IBP or any of its chapters may not refuse such an
appointment except if such refusal is because of a serious and sufficient
cause.
Counsel de Officio
- A counsel appointed by the court as opposed to counsel de parte
who is the party’s choice.
Amicus Curiae
- A friend of the court, an experienceD and impartial attorney who
helps the court who may be invited by the Court to appear as amici
curiae to help in the disposition of issues submitted to it (Rule 138-A,
Sec. 36, Rules of Court).
➔ Can it also be voluntary?
YES.
➔ What would be the grounds?
1. The appointment may be made by invitation or through a motion to
intervene.
2. The appearance has always been a favor and privilege, not a right.
3. If amply represented by counsel, it could be denied unless the matter
is on public interest.
In the case of Forest Hills Countryclub, the Supreme Court ruled that the
appearance of amicus curiae has always been a favor and not a right.
The refusal to the appointment must be reasonable.
In Ledesma vs. Honorable Clemaho, the lawyer was appointed as counsel
de officio and also an election-registrar which requires his full time. He
wanted to deny the appointment as counsel de officio.
- The SC held that he cannot be relieved because of the indispensable
role of a member of the Bar to defend the accused. Such is not a
sufficient and reasonable cause for him to be relieved of his
responsibilities.
Is a counsel de officio entitled to compensation?
YES. As per Sec. 32, Rule 138, he may be compensated subject to the
availability of funds of the Court
Is an amicus curiae entitled to compensation?
There is no provision explicitly allowing compensation.
Rule 14.03 - A lawyer may not refuse to accept representation of an
indigent client if:
a.) he is not in a position to carry out the work effectively or competently;
b.) he labors under a conflict of interest between him and the prospective
client or between a present client and the prospective client.
A lawyer may not refuse to accept representation of an indigent client
unless he is not in a position to carry the work effectively or competently
or if he labors in a conflict of interest to another client.
Indigent
An indigent is someone who has no money or property for his shelter, food,
for his family.
➔ Can someone gainfully employed be indigent?
YES. What is required is that his expenses cannot recover his basic
necessities.
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.
The standard of care and competence to his paying clients must also be
exercised to non-playing clients. It's to secure justice to those who seek its
aid. Legal profession as an employment is only a second priority, public
service comes first.
--
CANON 15 - A lawyer shall observe candor, fairness, and loyalty in all his
dealings and transactions with his client.
Confidentiality Rule
The Confidentiality Rule mandates that an attorney is not permitted to
disclose communications made to him in his professional character by a
client, unless the latter consents. This obligation to preserve the
confidences and secrets of a client arises at the inception of their
relationship. It even survives the death of the client.
Rule 15.01 - Rule 15.01. - A lawyer, in conferring with a prospective client,
shall ascertain as soon as practicable whether the matter would involve a
conflict with another client or his own interest, and if so, shall forthwith
inform the prospective client
As far as this provision is concerned, jurisprudence provides that in
conferring with a prospective client, a lawyer must observe the
requirements laid down in CANON 15 by ascertaining as soon as practicable
whether representing said client would involve a conflict with another then
seek the written consent of all concerned after a full disclosure of the
facts. Failure to do so would lead to charge of double-dealing
PURPOSE: To protect the lawyer from the suspicion of the client.
Conflict of Interest
In broad terms, lawyers are deemed to represent conflicting interests
when, on behalf of one client, it is their duty to contend for that which
duty to another client requires them to oppose.
➔ Kinds of Conflict of Interest
1.) Concurrent Representation (Multiple) - occurs when a lawyer
represents clients whose objectives are averse to each other,
no matter how slight or remote such adverse interests may be.
2.) Sequential Representation (Successive) - occurs when a law
firm takes a present client who has an interest adverse to the
interest of a former client of the same law firm.
Potential Conflict of Interest
A matter which could be determined at the initial conferment with a
prospective client.
Rationale for the Prohibition against Conflict of Interest
1.) The law seeks to assure clients that their lawyers will represent
them with undivided loyalty;
2.) The prohibition against conflicts of interest seeks to enhance the
effectiveness of legal representation;
3.) A client has a legal right to have the lawyer safeguard confidential
information pertaining to it;
4.) Conflicts rules help ensure that lawyers will not exploit clients, such
as by inducing a client to make a gift or grant in the lawyer’s favor;
and
5.) Some conflict-of-interest rules protect the interests of the legal
system in obtaining adequate presentations to tribunals.
Lawyers must NOT Represent New Clients Whose Interests Oppose that of
Former Clients
An attorney owes his client undivided allegiance. An attorney may not,
without being guilty of professional misconduct, act as counsel for a person
whose interest conflicts with that of his former client. This rule is so
absolute that good faith and honest intention on the erring lawyer’s part do
not make it inoperative. The reason for this is that a lawyer acquires
knowledge of his former client’s doings, whether documented or not, that
he would ordinarily not have acquired were it not for the trust and
confidence that his client placed on him in light of their relationship.
[LEGASPI v. FAJARDO]
--
Rule 15.02 - A lawyer shall be bound by the rule on privilege
communication in respect of matters disclosed to him by a prospective
client.
- Privileged communication is granted to information obtained or
disclosed by a prospective client.
- For the client to freely discuss the circumstances of the case to
protect the information disclosed.
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.
This outlines the proscription on conflict interest which flows from the
duty of the lawyer to observe fidelity to his client.
➔ Does the duty still stand even after termination of a relationship?
YES. The duty or proscription of conflicting interest still subsists.
It presupposes that there are inconsistencies of interest between one
client from another.
Tests to Determine Conflicting Interests:
1.) Conflicting Duties - whether a lawyer is duty-bound to fight for an
issue or claim in behalf of one client and, at the same time, to
oppose that claim for the other client.
- To illustrate, can the creditor and debtor be represented by the same
attorney? NO. He will not be able to provide his duty to give
undivided fidelity and loyalty to his client.
- When it’s the same suit concerning present clients, the lawyer still
cannot subsequently represent the opposing party in the first case
because it would invite suspicion and double-dealing.
- Even if the cases are unrelated, it is still improper to represent one
party who is the opposing party in another case he is handling.
2.) Invitation of Suspicion - whether the acceptance of a new relation
would prevent the full discharge of the lawyer’s duty of undivided
fidelity and loyalty to the client or invite suspicion of unfaithfulness
or double-dealing in the performance of that duty;
3.) Use of Prior Knowledge Obtained - whether the lawyer would be
called upon in the new relation to use against a former client any
confidential information acquired through their connection or
previous employment.
- Parties where the opposing party is the current client and a former
client.
- Rule 138. If the matter is totally unrelated, the lawyer can represent
the new client notwithstanding the fact that the former client is the
opposing party in the case.
EXCEPTION TO CONFLICT OF INTEREST:
1.) If there is written consent of all the parties concerned (only applies
to when one party is the present client and the other is a former
client. NOT when parties are both PRESENT CLIENTS in the same
case);
2.) In instances where a party is involved in a criminal case and a civil
case.
➔ What if there is an execution of written consent between creditor and
debtor to be represented in the same case?
NO. Impermissible and highly unethical under Rule 15.03 because it
would be absurd to sustain the claims on behalf of X and refute the
same as the defense of Y.
Effects of Conflict of Interest
- Disqualification
- Ground for setting aside judgement because it will be presumed that
there was violation of due process
Determination when there is a Conflict of Interest:
1.) Are they both present clients in pending cases? It doesn’t matter
whether they are related or unrelated, the presumption is always
there is suspicion if you represent them both. A and B are both
existing present clients in 2 cases where they are opposed to each
other, parties to different.
2.) Representing a former client and an existing client, what matters is if
those cases are somehow related.
Rule 15.04 - A lawyer may, with the written consent of all concerned, act
as mediator, conciliator or arbitrator in settling disputes.
The lawyer is made an intermediary, representing all the parties concerned
made to adjust the relationship by amicable handling the dispute.
- If A and B are commonly represented by
- With respect to present client, all engagements involved or actions
similar.
- With respect to former clients, check engagement of a new client is
related to directly or indirectly to the one handled for the former
client.
Rule 15.05 - A lawyer when advising his client, shall give a candid and
honest opinion on the merits and probable results of the client's case,
neither overstating nor understating the prospects of the case.
- Honest opinion on the probable judgement of the case. Mananalo ba
or matatalo ba.
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 impress 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.
PURPOSE: To avoid confusion to let the client know in which capacity he is
acting in.
- While a lawyer is not barred from acting in different capacities, the
standard of good faith is a degree higher compared to others who has
the same profession. Even if the transaction involved does not
concern his services as an attorney, a higher degree of good faith
must be exercised.
--
[Discussion: Canon 16 - Canon 19; 13 June 2020]
Final Exam Coverage: Pertinent Rules of Court Admission to the Integrated
Bar
Code of Professional Responsibility
Pertinent Rules on MCLE
Rules on Suspension and Disbarment Excluding Specific Guidelines of
Admin Proceeding in the IBP
--
CANON 16 - A lawyer shall hold in trust all moneys and properties of his
client that may come into his profession.
Characterizes high fidelity of the lawyer with the property of his clients
Rule 16.01 - A lawyer shall account for all money or property collected or
received for or from the client.
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.
[ NOTE: The source of the duty in Rule 16.01 and Rule 16.02 is derived from
law of agency. There’s a special degree of accountability on the part of the
lawyer. As far as the rules are concerned, the lawyer will keep his funds
separate from the money of his client to avoid misappropriation. ]
Rule 16.03 - A lawyer shall deliver the funds and property of his client
when due or upon demand. However, he shall have a lien over the funds
and may apply so much thereof as may be necessary to satisfy his lawful
fees and disbursements, giving notice promptly thereafter to his client. He
shall also have a lien to the same extent on all judgments and executions
he has secured for his client as provided for in the Rules of Court.
(1st sentence of 16.03) A lawyer shall deliver the funds of his client when it
is due or upon demand
- In the event that the lawyer fails, it will give rise to the presumption
that the fund was misappropriated.
(2nd sentence of 16.03) However, he shall have a lien over the funds. May
apply so much thereof according to his fees.
- He may have a right to keep the same. This provision assumes that
the client has already agreed on the attorney’s fees (Note: There’s
PRIOR CONSENT of the client).
- The lawyer may reduce the fees he is entitled to from the fund that
was entrusted to him from the client. If there is no consent, he must
return all the money and may file a case demanding the recovery of
attorney’s fees.
Rule 16.04 - A lawyer shall not borrow money from his client unless the
client's interest are fully protected by the nature of the case or by
independent advice. Neither shall a lawyer lend money to a client except,
when in the interest of justice, he has to advance necessary expenses in a
legal matter he is handling for the client.
Rule on Prohibited Purchase
As per Art. 1491 of the CC, its elements are:
1.) Attorney-client relationship.
2.) Property or interest in litigation.
3.) Attorney takes part as counsel in the case.
1.) Attorney by himself or another, purchases the property during the
pendency of the case.
Example: A house that was the object of the case cannot be purchased by
the client. A is the owner of the residential house and B is the lessee of A.
B did not pay the rent and wanted to eject B. A filed a case against B to
eject B. Can C (lawyer of A) purchase the house of A?
- NO. It will be VOID subject to Art. 1491 because all the elements are
present in this case.
- But if the purchase was done during the termination of the case, no
violation of Art. 1491.
- The prohibition does not include Contingent Contracts where for
example, a person who is insolvent made a condition that the
attorney’s fees will be 50% of the amount of the estate to be claimed
from the client's father’s property. A contract of a contingent fee is
not covered by 1491 because the transaction takes place after the
FINALITY of the judgment. Hence, it was not during the pendency of
the case. The Contingent Fee arrangement is therefore valid.
--
CANON 17 - A lawyer owes fidelity to the cause of his client and he shall be
mindful of the confidence reposed in him.
- A general statement of the fiduciary relationship between client and
lawyer.
--
CANON 18 - A lawyer shall serve his client with competence and diligence.
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.
A lawyer shall not accept a legal service which he knows he is not
competent enough or does not have the specialization to handle the case
UNLESS he collaborates with a COMPETENT counsel (who specializes in the
matter) and renders such service with the consent of the client.
18.02 - A lawyer shall not handle any legal matter without adequate
preparation.
- Self-explanatory. A lawyer shall not a handle a matter without being
prepared.
18.03 - A lawyer shall not neglect a legal matter entrusted to him, and his
negligence in connection therewith shall render him liable.
What if the fault is not on the lawyer but his secretary?
To illustrate: 2 days before, a lawyer asked his clerk to file the MR on a
specific date and the MR was filed 2 days after the deadline imposed by
the Court. Hence, the MR was denied and the case was dismissed and had
become final and executory. The lawyer said it was not his fault and that
the mistake was due on his secretary.
➔ The SC ruled that it was not a sufficient excuse because it turns the
others to a scapegoat of the lawyer’s negligence and incompetence.
Trivializing this rule would lead to an unending litigation.
As to the Effect on the Client
- A person is bound by the acts and omission of his counsel.
- Hence, the mistake of a lawyer is binding to his client.
Exception: When the negligence is gross in character. It will not be binding
on the client because it would lead to the client’s deprivation of due
process.
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CANON 19 - A lawyer shall represent his client with zeal within the bounds
of the law.
A lawyer shall represent his client with zeal, but not so far as to act in
defiance to the purpose of the law.
Rule 19.01 - A lawyer shall employ only fair and honest means to attain the
lawful objectives of his client and shall not present, participate in
presenting or threaten to present unfounded criminal charges to obtain an
improper advantage in any case or proceeding.
Rule 19.02 - A lawyer who has received, in the course of the representation,
perpetrated a fraud upon a person or tribunal, shall promptly call upon the
client to rectify the same, and failing which he shall terminate the
relationship with such client in accordance with the Rules of Court.
19.03 - A lawyer shall not allow his client to dictate the procedure in
handling the case.
Speaks of a domain where the lawyer is supreme.
- If substantial, need ng consent ni client. Attorney cannot compromise
the substantial issue of the matter without the authority of client A.
What if the controversy involved is the conduct of Attorney C’s order of
presentation of evidence?
➔ As long as it’s procedural, or ordinary judicial procedure, it is within
the exclusive management of the attorney.
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CANON 20- Lawyer shall only charge reasonable fees
Requisites for entitlement of lawyer to attorney:
1.) Attorney-client relationship
2.) Rendition of service by a lawyer
What if there is no agreement to the payment of attorney’s fees?
Lawyer entitled to payment based on q uantum-meruit.
Quantum meruit is authorized when:
- There is no express contract;
- When although there is a contract, fee agreed on is unreasonable;
- Void due to defects of the contract;
- When the lawyer did not finish the case.
Rule 20.01 - A lawyer shall be guided by the following factors in
determining his fees: (a) the time spent and the extent of the service
rendered or required; (b) the novelty and difficulty of the questions
involved; (c) The importance of the subject matter; (d) The skill demanded;
(e) The probability of losing other employment as a result of acceptance of
the proffered case; (f) The customary charges for similar services and the
schedule of fees of the IBP chapter to which he belongs; (g) The amount
involved in the controversy and the benefits resulting to the client from the
service; (h) The contingency or certainty of compensation; (i) The character
of the employment, whether occasional or established; and (j) The
professional standing of the lawyer.
- Should consider the time spent
- Difficulty
- Subject matter
- Probability of losing employment when the lawyer takes the case
(arises when there is conflict of interest)
- Customary charges and schedule of fees in accordance to the IBP
Chapter he belongs to
- Amount
20.02 - A lawyer shall, in case of referral, with the consent of the client, be
entitled to a division of fees in proportion to the work performed and
responsibility assumed.
Division of fees in case of referral.
Fees
- refer to a single billing of a client to two or more lawyers, in
proportion to the work they have performed (applies only when they
do not belong in the same firm).
20.03-
- Pertains to acceptance or non-acceptance of any money except the
one given by the client.
- Reason for this is lawyer’s absolute fidelity to his client. As far as his
professional employment is considered, he must not accept any fee
from anyone aside his client.
20.04- Lawyer can not file a judicial action for recovery of his fees.
- 2 remedies the attorney can seek for recovery of fee: 1.) Retaining
Lien; and 2.) Charging Lien
- Retaining Lien- Attorney can keep the documents in his possession
until payment has been delivered.
- Charging Lien- ight to a portion of the judgment that was won for the
client through professional services. It is a specific lien and only
covers a lawyer's claim on money obtained in a particular action.
CANON 21- Confidentiality of attorney and client.
- As far as the provisions are concerned, duty of confidentiality applies
to current and prospective clients. This is to encourage the client to
disclose everything so the lawyer would have a full grasp on the
confidentiality involved.
- Rule 30, sec. 24: An attorney, reasonably believed by the client,
cannot be examined….
- Duration of the duty is perpetual. Unless removed by the client
himself or his heirs.
- Is a complaint filed in the RTC, is it still privileged
communication? NO.
- If it hasn’t been filed, it remains a privileged communication
between an attorney and a client.
Rule 21.01 - Lawyer to refrain from reveal the confidences or secrets of the
client.
Exception: when the client waives the privilege after informing the client of
the consequences, when required by law, when necessary to collect his
fees or to defend himself and judicial action.
Privilege communication can not be invoked to prejudice the lawyer or
expose him to injustice.
Rule 21.02 - The fact that a lawyer knows everything about his client’s case
cannot use the same to his client’s disadvantage.
Rule 21.03 - There must be written consent of his client to disclose
information regarding auditing, book keeping of another party. (?)
Rule 21.04 - A lawyer can disclose the affairs of his client to his partners
and associates in a firm unless prohibited by client. A firm is understood as
being one person.
Rule 21.05 - A lawyer must adopt measures to prevent people from
disclosing the confidential information of his client (like when employing
special services).
Rule 21.06 - Lawyer can not disclose confidential information of his client
to his family. Doing so reduces the legal profession.
Rule 21.07 - Privilege communication applies to prospective clients.
Attorney-client relationship exists when:
1.) There was…
2.) Client made the communication in confidence.
3.) Legal advice sought was made in his professional capacity. Not
merely for information.
4.) jhjb
Hypo: X believed that Mr. X was a lawyer even though he wasn’t. Would it
still be privileged?
- Yes. A person who is an attorney or reasonably believed by the client
to be licensed in the legal profession makes the communication
privilege (Rule 130, sec.24 b, Rule 130). If there was no
misrepresentation and the client engaged someone he knew was not
licensed to practice law, communication is not privileged. The person
is merely an agent.
Hypo: X committed murder. X asked Attorney A what is murder, what is the
maximum penalty and the standing doctrine for murder. Is this considered
privileged communication?
- NO. Merely seeking information and not seeking legal advice.
Hypo: Custodial documents intended for safe-keeping?
- NOT covered by privileged communication.
Hypo: X killed Y. X told Atty. A that he was the one who killed Y. Privileged
communication?
- YES. The law encourages the client for full disclosure of
circumstances for a crime he may have committed.
Hypo: What if X wants to kill Y without implication and asks Atty. A how to
get away with murder. Privileged communication?
- NO. If the services of a lawyer were sought for the furtherance of
crime or fraud, not privileged communication. (Rule 130, sec. 24 as
amended 2019. Rules on Evidence)
Methods of Termination of Service
- By client.
- By death.
- By the lawyer withdrawing his services (Rule 22.01)
Hypo: A engaged the services of Atty. X for a case he will file against
defendant B in consideration of 100k pesos as contingency fee. In the
course of that case, Atty. X was not able to produce a document.
- Client has absolute right to dismiss services.
Can he recover quantum-merit?
- If negligent (being the just cause), he cannot recover. But if there was
no just cause, he can.
Hypo: X asked Atty. Y to draft a Contract of Sale and was executed to Z.
Does the engagement end?
- Because it is transactional, relationship is terminated.
Rule 22.01 - When can the lawyer withdraw his services?
Rule 22.01 - A lawyer may withdraw his services in any of the following
case:
(a) When the client pursues an illegal or immoral course of conduct in
connection with the matter he is handling;
(b) When the client insists that the lawyer pursue conduct violative of
these canons and rules;
(c) When his inability to work with co-counsel will not promote the best
interest of the client;
(d) When the mental or physical condition of the lawyer renders it difficult
for him to carry out the employment effectively;
(e) When the client deliberately fails to pay the fees for the services or fails
to comply with the retainer agreement;
(f) When the lawyer is elected or appointed to public office; and
(g) Other similar cases.
Rules when changing counsel (Rule 138, sec. 26): Sec. 26. Change of
attorneys — An attorney may retire at any time from any action or special
proceeding, by the written consent of his client filed in court. He may also
retire at any time from an action or special proceeding, without the
consent of his client, should the court, on notice to the client and attorney,
and on hearing, determine that he ought to be allowed to retire. In case of
substitution, the name of the attorney newly employed shall be entered on
the docket of the court in place of the former one, and written notice of
the change shall be given to the adverse party.
Atty. A was engaged by X to handle a certain matter. X dismissed Atty. A.
Can X engage the services of Atty. B?
Rule 22.02 - A lawyer who withdraws or is discharged shall, subject to a
retainer lien, immediately turn over all papers and property to which the
client is entitled, and shall cooperative with his successor in the orderly
transfer of the matter, including all information necessary for the proper
handling of the matter.