Uploaded by Eman Dulatas

ETHICS

advertisement
Legal Ethics - practice of law
Q: What constitutes practice of law?
L E G A L E T H I C S.
Q: What is legal ethics?
A: It is a branch of moral science which treats of
the duties which an attorney owes to the court,
to his client, to his colleagues in the profession
and to the public as embodied in the Constitution,
Rules of Court, the Code of Professional
Responsibilities, Canons of Professional Ethics,
jurisprudence, moral laws and special laws.
(Justice George Malcolm) (1993, 1996 Bar
Question)
Q: What are the sources of ethical standards in
the Philippine judiciary?
A: Practice of law means any activity, in or out of
court, which requires the application of law, legal
procedure, knowledge, training, and experience.
“To engage in the practice of law is to perform
those acts which are characteristics of the
profession. Generally, to practice law is to give
notice or render any kind of service, which device
or service requires the use in any degree of legal
knowledge or skill.” (Cayetano v. Monsod, G.R.
No. 100113, Sept. 3, 1991)
Q: Who is a practicing lawyer?
A: A practicing lawyer is one engaged in the
practice of law, who by license is an officer of the
court and is empowered to appear, prosecute and
defend a client’s cause.
A:
1.
Primary
a. Bar
i. Canons of Professional Ethics
ii. Code of Professional Responsibility
b.
c.
2.
Bench
i. Canons of Judicial Ethics
ii. Code of Judicial Ethics
iii. New Code of Judicial Conduct for
the Philippine Judiciary
Other personnel – Code of Conduct
for Court Personnel
Secondary
a. Decisions/resolution of the Supreme
Court
b. Supreme Court Circulars
c. Order/resolution of other courts
d. IBP Issuances
Q: “What is legal is moral.” State your comment
on the correctness or incorrectness of this
proposition.
A: The statement is not necessarily correct. There
are several acts of a lawyer, which may be legal
but not necessarily moral. This is precisely the
purpose of the legal ethics, which governs the
ethical and moral behavior of a lawyer. (1993 Bar
Question)
I. PRACTICE OF LAW
A. CONCEPTS
A practicing lawyer is a member of the Philippine
Bar who appears for and in behalf of parties in
courts of law and quasi-judicial agencies.
Q: What does the term “practicing lawyer”
include?
A: It includes:
1.
2.
3.
4.
Government employees and incumbent
elective officials not allowed by law to
practice.
Lawyers who by law are not allowed to
appear in court;
Supervising lawyers of students enrolled in
law student practice in duly accredited
legal clinics of law schools and lawyers of
Non-Government Organizations (NGOs)
and People’s Organizations (POs) who by
the nature of their work already render
free legal aid to indigent and pauper
litigants; and
Lawyers not covered under subparagraphs
(i) to (iii) (of Sec. 4, B.M. 2012) including
those who are employees in the private
sector but do not appear for and in behalf
of parties in courts of law and quasijudicial agencies.
Q: Differentiate bar from bench.
A:
Bar refers to the whole
body of attorneys and
counselors,
collectively,
the
members of the legal
profession
Bench refers to the
whole
body
of
judges.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
1
UST Golden Notes 2011
Q: What is a bar association?
A: It is an association of the members of the legal
profession like the IBP where membership is
integrated or compulsory.
appointing him. His authority is provided in a
special power of attorney or general power of
attorney or letter of attorney. He is not
necessarily a lawyer.
Q: Who is an attorney of record?
Q: Who is an amicus curiae?
A: An amicus curiae is an experienced and
impartial attorney invited by the court to appear
and help in the disposition of the issues
submitted to it. It implies friendly intervention of
counsel to call the attention of the court to some
matters of law or facts which might otherwise
escape its notice and in regard to which it might
be wrong. Amicus curiae appears in court not to
represent any particular party but only to assist
the court. (plural: Amici Curiae) (1993, 1996, 1998
Bar Question)
Q: What is amicus curiae par excellence?
A: It is a bar association who appears in court as
amicus curiae or a friend of the court. It acts
merely as a consultant to guide the court in a
doubtful question or issue pending before it.
Q: What is assumpsit?
A: Literally means “he has undertaken”. It is an
action for the recovery of damages by reason of
the breach or non performance of a simple
contract, either express or implied, or whether
made orally or in writing. Assumpsit was the word
always used in pleadings by the plaintiff to set
forth the defendant’s undertaking or promise.
(2006 Bar Question)
Note: Claims in action of assumpsit were ordinarily
divided into (a) common or indebitatus assumpsit,
brought usually on an implied promise, and (b)
special assumpsit, founded on an express promise.
Q: Who is an attorney ad hoc?
A: Attorney ad hoc is a person appointed by the
court to defend an absentee defendant in the suit
in which the appointment was made.
Q: Distinguish attorney-at-law from attorney in
Fact.
A: Attorney-at-law is that class of persons who
are licensed officers of the court empowered to
appear, prosecute and defend, and upon whom
peculiar duties, responsibilities and liabilities are
developed by law as consequence, while an
attorney in fact is simply an agent whose
authority is strictly limited by the instrument
2
A: Attorney of record is an attorney whose name
is entered in the records of an action or suit as
the lawyer of a designated party thereto.
Q: Who is a counsel/attorney de officio?
A: A counsel/attorney de officio is an attorney
appointed by the court to defend an indigent
defendant in a criminal action. (1998 Bar
Question)
Note: In a criminal action, if the defendant appears
without an attorney, he must be informed by the
court that it is his right to have an attorney before
being arraigned and must be asked if he desires the
aid of an attorney. If he desires and is unable to
employ an attorney, the court must assign a counsel
de officio to defend him. He is also designated as
counsel of indigent litigants. The appointment of a
counsel de officio in that instance is a matter of right
on the part of the defendant.
On appeal in criminal cases, the appellate court must
also appoint a counsel de officio if, as shown by the
certificate of the clerk of court of the trial court, a
defendant is confined in prison or without means to
employ an attorney or desires to be defended de
officio. (Secs. 6-8, Rule 116 and Sec. 13, Rule 122)
Q: Who is a counsel de parte?
A: Private counsel of a party, secured by him,
without intervention from the government.
Q: Who is an in-house or house counsel?
A: He is one who acts as attorney for business
though carried as an employee of that business
and not as an independent lawyer.
Q: Who is a lead counsel?
A: A lead counsel is a lawyer on either side of a
litigated action who is charged with the principal
management and direction of a party’s case, as
distinguished from his juniors or subordinates.
Q: Who is an Of Counsel?
A: He is an experienced lawyer, usually a retired
member of the judiciary, employed by law firms
as consultants.
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics - practice of law
Q: What is pro se?
A: It is an appearance by a lawyer in his own
behalf. (1995 Bar Question)
lawyer for legal advice for purposes of
prosecuting or defending a suit in behalf and
usually for a fee.
Q: What is the nature of the practice of law?
Q: Who is a trial lawyer?
A: A trial lawyer is one who personally handles
cases in court, administrative agencies or boards
and engages in actual trial work, either for the
prosecution or for the defense of cases of clients.
(2006 Bar Question)
Q: Who is a public prosecutor?
A: He is a quasi-judicial officer and as such, he
should seek equal and impartial justice. He
should be as much concerned with seeing that no
innocent man suffers as in seeing that no guilty
man escapes. His primary duty is not to convict
but to see to it that justice is done. He should see
to it that the accused is given fair and partial trial
and not deprived of any of his statutory or
constitutional rights.
Consequently, 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.
He should
recommend the acquittal of the accused whose
conviction is on appeal, if he finds no legal basis
to sustain the conviction.
A: The practice of law is not a natural property or
constitutional right but a mere privilege. It is not a
right granted to anyone who demands it but a
privilege to be extended or withheld in the
exercise of sound judicial discretion. It is in the
nature of a franchise conferred only for merit
which must be earned by hard study, learning and
good conduct. It is a privilege accorded only to
those who measure up to certain rigid standards
of mental and moral fitness. Those standards are
neither dispensed with nor lowered after
admission. The attorney’s continued enjoyment
of the privilege conferred depends upon his
complying with the ethics and rules of the
profession.
Q: Can the practice of law be a business?
A: No. The practice of law is a profession and not
a business as it is an essential part in the
administration of justice, a profession in pursuit
of which pecuniary reward is considered merely
incidental; it is a pursuit of learned art in the
interest of public service.
Q: Why is law a profession and not a trade?
Q: Who is a private prosecutor?
A: A private prosecutor may intervene in the
prosecution of a criminal action when the
offended party is entitled to indemnity and has
not waived expressly, reserved or instituted the
civil action for damages. All criminal actions
commenced by complaint or information shall be
prosecuted under the direction and control of the
prosecutor. In case of heavy work schedule of the
public prosecutor or in the event of lack of public
prosecutors, the private prosecutor may be
authorized in writing by the Chief of the
Prosecution Office or the Regional State
Prosecutor to prosecute the case subject to the
approval of the Court. Once so authorized to
prosecute the criminal action, the private
prosecutor shall continue to prosecute the case
up to the end of the trial even in the absence of
the public prosecutor, unless the authority is
revoked or otherwise withdrawn (Sec. 5 Rule 110
RRC as amended, May 1, 2002).
Q: Who is a client?
A: A client is one who engages the services of a
A: Law is a profession and not a trade because its
basic ideal is to render public service and secure
justice for those who seek its aid. The gaining of a
livelihood is only a secondary consideration.
(2006 Bar Question)
Note: But while the practice of law is a privilege, a
lawyer cannot be prevented from practicing law
except for valid reasons, the practice of law not
being a matter or State’s grace of favor. He holds
office during good behavior and can only be
deprived of it for misconduct ascertained and
declared by judgment of the Supreme Court after
opportunity to be heard has been afforded him.
Q: May a corporation practice law?
A: No. It is well-settled rule that a corporation
cannot engage in the practice of law. It may,
however, hire an attorney to attend to and
conduct its own legal business or affairs. But it
cannot practice law directly or indirectly by
employing a lawyer to practice for it or to appear
for others for its benefit because of the following
reasons:
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
3
UST Golden Notes 2011
1.
Nature of the privilege and on the
confidential and trust relation between
attorney and client.
B. QUALIFICATIONS
Q: Who may practice law?
2.
A corporation cannot perform the
conditions required for membership in the
Bar, such as the possession of good moral
character
and
other
special
disqualifications, the taking of an oath and
becoming an officer of the court, subject
to its discipline, suspension or removal.
A: Any person heretofore duly admitted as a
member of the bar, or hereafter admitted as such
in accordance with the provisions of the rule, and
who is in good and regular standing, is entitled to
practice law. [Sec. 1, Rule 138, Revised Rules of
Court (RRC)]
3.
The relation of trust and confidence
cannot arise where the attorney is
employed by a corporation to practice for
it, his employer and him owing, at best, a
secondary and divided loyalty to the
clientele of his corporate employer.
Q: A criminal case was filed against Atty.
Javellana which resulted to his arrest and
temporary detention at the house of the clerk of
court where his case was pending. Despite his
detention, Atty. Javellana continues with his
normal activities including his practice of law, in
appearing as counsel for certain cases.
4.
The intervention of the corporation is
destructive of that confidential and trust
relation and is obnoxious to the law.
Can Atty. Javellana still engage in the practice of
law despite his arrest and detention?
Q: State the essential criteria in determining
engagement in the practice of law.
A: C A H A
1.
Compensation – implies that one must
have presented himself to be in the active
practice and that his professional services
are available to the public for
compensation, as a source of livelihood or
in consideration of his said services.
2.
Application of law, legal principle, practice
or procedure which calls for legal
knowledge, training and experience;
3.
Habituality – implies customary or
habitually holding oneself out to the
public as a lawyer. Practice of law is more
than an isolated appearance for it consists
in frequent or customary action; and
4.
Attorney-Client relationship - engaging in
the practice of law presupposes the
existence of a lawyer-client relationship.
Thus, activities like teaching of law or
writing law books or articles which involve
no attorney-client relationship do not
qualify a lawyer as being engaged in the
practice of his profession as a lawyer.
A: As a detention prisoner, Javellana is not
allowed to practice his profession as a necessary
consequence of his status as a detention prisoner.
The trial court's order was clear that Javellana "is
not to be allowed liberty to roam around but is to
be held as a detention prisoner." The prohibition
to practice law referred to all other cases, except
in cases where Javellana would appear in court to
defend himself. (Pro Se)
All prisoners whether under preventive detention
or serving final sentence can not practice their
profession nor engage in any business or
occupation, or hold office, elective or appointive,
while in detention. This is a necessary
consequence of arrest and detention. (People v.
Maceda, G.R. Nos. 89591-96, Jan. 24, 2000)
Q: Is a clerk of court allowed to practice law?
A: No, except if it is an isolated practice.
Q: What are the requisites if a clerk of court
wishes to practice law?
A:
1.
2.
Written permission which must be
approved by the Supreme Court; and
Approved leave of absence with justifiable
reasons.
Note: Notarial act is practice of law. Notarization of
a single document is not an isolated transaction
therefore a permit must be secured in order to
prevent the violation of law.
4
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics - practice of law
Q: Atty. Ladaga, a Clerk of Court, appeared as
counsel for and in behalf of his cousin in a
criminal case for falsification of public
documents before the METC of Quezon City. The
appearance of Atty. Ladaga in said case was
without the previous permission of the Court.
Q: What are the powers of the Supreme Court in
relation to regulating the practice of law?
A: Yes. "Private practice" of a profession, which is
prohibited, does not pertain to an isolated court
appearance; rather, it contemplates a succession
of acts of the same nature habitually or
customarily holding one's self to the public as a
lawyer. It is true that he filed leave applications
corresponding to the dates he appeared in court
but he failed to obtain a prior permission from
the head of the Department. (Oca v. Atty. Ladaga,
A.M. No. P-99-1287, Jan. 26, 2001)
A: DPD-DRO-PEE
1. Define them;
2. Prescribe the qualifications of a candidate
and the subjects of the bar examinations;
3. Decide who will be admitted to practice;
4. Discipline, suspend or disbar any unfit and
unworthy member of the bar;
5. Reinstate any disbarred or indefinitely
suspended attorney;
6. Ordain the integration of the Philippine
Bar;
7. Punish for contempt any person for
unauthorized practice of law;
8. Exercise overall supervision of the legal
profession; and
9. Exercise any other power as may be
necessary to elevate the standards of the
bar and preserve its integrity.
Q: What branch of the government has the
power to admit persons in the practice of law?
Q: Can the legislature enact laws to regulate the
practice of the law?
A: The Constitution vests the power of control
and regulation in the Supreme Court. The
constitutional power to admit candidates to the
legal profession is a judicial function and involves
the exercise of discretion. Petition to that end is
filed with the Supreme Court as are other
proceedings invoking judicial function. (In Re:
Almacen, G.R. No. L-27654, Feb. 18, 1970) (1995
Bar Question)
A: No. It is noteworthy that unlike the 1935 and
1973 Constitution, the 1987 Constitution no
longer provides for the power of the legislature to
repeal, alter and supplement the Rules
promulgated by the Supreme Court.
Did Atty. Ladaga violate the Code of Conduct and
Ethical Standards for Public Officials and
Employees by engaging in private practice?
Note: Art VIII Sec. 5 (5) of the Constitution provides
that the authority to decide who may be admitted to
the bar naturally and logically belongs to the
judiciary represented by the Supreme Court in view
of the nature of its judicial function and in the role
played by attorneys in the administration of justice.
Note: The SC acts through a Bar Examination
Committee in the exercise of its judicial function to
admit candidates to the legal profession. The
committee is composed of a member of the court
who acts as a chairman and 8 members of the bar
who act as examiners in the 8 bar subjects with one
subject assigned to each examiner.
Acting as a sort of liaison officer between the Court
and the Bar Chairman, on one hand, and the
individual members of the committee, on the other,
is the Bar Confidant who is at the same time a
deputy clerk of the Court. He does not possess any
discretion with respect to the matter of admission of
examinees to the Bar. (In Re: Lanuevo, A.C. No. 1162,
Aug. 29, 1975)
However, the legislature, in the exercise of police
power may enact laws regulating the practice of
law to protect the public and promote public
welfare.
Note: The legislature may not pass a law that will
control the SC in the performance of its functions to
decide who may enjoy the privilege of practicing law
and any law of that kind is unconstitutional being an
invalid exercise of legislative power.
(In Re:
Cunanan, Resolution, Mar. 18, 1954)
Q: Can Senate pass a law lowering the passing
rate for candidates?
A: No, the admission, suspension, disbarment and
reinstatement of attorney at law in the practice of
the profession and the supervision have been
indisputably a judicial function and responsibility
and remains vested with the Supreme Court. The
Constitution has not conferred on Congress equal
responsibility which the Constitution recognizes
as to be continuously residing in the Supreme
Court. (Ibid)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
5
UST Golden Notes 2011
Q: Enumerate the initial requirements for
admission to the bar.
A: Under Sections 2, 5 and 6 of Rule 138, the
applicant must be: (C21GRENAPOS)
1.
2.
3.
4.
5.
Citizen of the Philippines;
At least 21 years of age;
Of Good moral character;
Resident of the Philippines;
Must produce before the SC satisfactory
Evidence of good moral character;
6. No charges against him, involving moral
turpitude, have been filed or are pending
in any court in the Philippines (Sec. 2, Rule
138, RRC);
7. Must have complied with the Academic
requirements;
8. Must Pass the bar examinations
9. Take the lawyer’s Oath; and
10. Sign the Roll of Attorneys.
Note: Section 5 of Rule 138, RRC, now provides that
before being admitted to the examination, all
applicants for admission to the bar shall satisfactorily
show that they have successfully completed all the
prescribed courses for the degree of Bachelor of
Laws or its equivalent degree in a law school or
university officially recognized by the Philippine
Government or by the proper authority in the foreign
jurisdiction where the degree has been granted.
Section 5 now also provides that a Filipino citizen
“who graduated from a foreign law school shall be
admitted to the bar examination only upon
submission to the Supreme Court of certifications
showing: (a) completion of all courses leading to the
degree of Bachelor of Laws or its equivalent degree;
(b) recognition or accreditation of the law school by
the proper authority; and (c) completion of all fourth
year subjects in the Bachelor of Laws academic
program in a law school duly recognized by the
Philippine Government.”
A Filipino citizen who completed and obtained his or
her degree in Bachelor of Laws or its equivalent in a
foreign law school must also present proof of
completion of a separate bachelor’s degree.
The Supreme Court has directed the Clerk of Court,
through the Office of the Bar Confidant, to
circularize its resolution approving the said
amendments among all law schools in the country.
(Bar Matter No. 1153, Re: Letter of Atty. Estelito P.
Mendoza Proposing Reforms in the Bar Examinations
through Amendments to Rule 138 of the Rules of
Court, Mar. 9, 2010)
Q: How many times can a law graduate take up
the bar?
6
A: Bar Matter (B.M.) 1161 which regulates the
conduct of the bar examinations, limits the
examination up to five times only.
Note: B.M. 1161 – also requires submission of the
dean of a certification that the candidate has no
derogatory record in school and if any in detail and
status thereof.
Q: Ching was born on April 1964 of Filipino
mother and Chinese father. He was conditionally
admitted to take the bar examination because of
questions arising to his citizenship.
Upon
passing the bar he was required to take further
proof of citizenship and was not allowed to take
the oath.
Can he elect Philippine citizenship, 14 years after
reaching the age of majority (required under the
1935 Constitution)?
A: No, Ching is not qualified to be a lawyer for
having elected Philippine citizenship 14 years
after reaching the age of majority. Ching offered
no reason why he delayed the election of
Philippine citizenship. The procedure is not a
tedious process. All that is required is to execute
an affidavit and file the same in the nearest
registry. (In Re: Application for Admission to the
Philippine Bar of Vicente Ching, B.M. 914, Oct. 1,
1999)
Q: Atty. Melendrez filed a petition to disqualify
Meling from taking the bar exams and to impose
disciplinary penalty as a member of the
Philippine Shari'a Bar. He alleges that Meling, in
his application to take the bar, failed to disclose
the fact that he has 3 pending criminal cases.
Also, Meling has been using the title “Attorney"
in his communications as secretary to the
Mayor.
Should Meling be disqualified from admission to
the bar?
A: Meling's deliberate silence and non-revelation
of his pending criminal cases constitute
concealment. The disclosure requirement is
imposed to determine whether there is
satisfactory evidence of good moral character of
the applicant. By concealing the existence of such
cases, the applicant flunks the test of fitness even
if the cases are ultimately proven unwarranted or
insufficient to impugn or affect the good moral
character of the applicant.
Note: The issue of Meiling’s disqualification from
admission to the bar is rendered moot since he did
not pass the bar.
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics - practice of law
Q: May sanctions be imposed on Meling as
member of the Philippine Shari'a Bar?
A: It was highly improper for Meling, as member
of the Shari'a Bar, to use the title "Attorney".
Only members of the Philippine bar, who have
obtained the necessary degree in the study of law
and successfully passed the bar exams, been
admitted to the IBP and remain members in good
standing are authorized to practice law and thus
use the title. Meling was suspended from
membership in the Philippine Shari'a Bar. (In the
Matter of the Disqualification of Bar Examinee
Haron S. Meling, B.M. No. 1154, June 8, 2004)
Q: Alauya, a member of Shari’a Bar and a clerk
of court in Shari’a District Court, wrote a letter
to a corporation claiming to be a lawyer, affixing
“Attorney” before his name. Can a member of
the Shari’a Bar affix the designation lawyer
before their name?
A: The Court reprimanded him for claiming to be
a lawyer since persons who pass the Shari'a Bar
are not full-fledged members of the Philippine
Bar. The title of "attorney" is reserved to those
who are admitted to the Integrated Bar of the
Philippines and remain members thereof in good
standing. (Alawi v. Alauya, A.M. No. SDC-97-2-P,
Feb. 24, 1997)
Q: Telesforo Diao was admitted to the Bar in
1953, after two years, Severino Martinez
charged him with having falsely represented in
his application for such Bar examination that he
had the requisite academic qualifications. The
SolGen recommended that Diao’s name be
erased from the Roll of Attorneys because Diao
had not completed the prescribed pre-legal
education, to wit: Diao did not complete his high
school training and Diao never attended
Quisumbing College, and never obtained his A.A.
Diploma therefrom.
Should Diao’s name be erased from the Roll of
Attorneys?
A: Yes. Passing the bar examination is not the
only qualification to become an attorney-at-law.
Taking the prescribed courses of legal study is
equally essential. Where it is found that the
requirement was not complied with, the one who
has been admitted to the bar after successfully
passing the bar may be stricken of record on the
ground that his admission was obtained under
false pretenses. (Diao v. Martinez, A.C. No. 244,
Mar. 29, 1963)
Q: While the examination was in progress, the
headwatcher, Lilian Mendigorin, reported that
examinee Amparo was found reading a piece of
paper containing notes in Criminal Law. He at
first refused to surrender the paper, but later
gave it to Mendigorin when she threatened to
report the matter to the authorities. A verbal
report was relayed to the Bar Chairman who
forthwith gave instructions that no investigation
be then made in order to forestall any
commotion that might disturb the other
candidates. Amparo was permitted to continue
answering
the
questions.
Headwatcher
Mendigorin thereafter submitted a special
report on the incident. He was still allowed to
take the exams for the last Sunday of the Bar.
Amparo did not pass the 1974 Bar Exams. Should
Amparo be allowed to take the 1975 Bar Exams?
A: No. It is clear that Amparo, in the course of the
examination in Criminal Law, had possession of
the piece of paper containing notes on the
durations of penalties and that he knew that it is
contrary to the rules to bring notes and books
inside the examination room. It thus results that
he knowingly violated Section 10, Rule 138 of the
Rules of Court, which pertinently provides that
"Persons taking the examination shall not bring
papers, books or notes into the examination
rooms."
Amparo's impression that the notes had no
"material use" to him is correct, in the sense that
they bore no reference to any question asked in
the examination in Criminal Law; even so he
committed an overt act indicative of an attempt
to cheat by reading the notes. His refusal to
surrender the paper containing the notes when
first demanded; his eventual surrender of it only
after he was informed that he would be reported;
and the facts that the notes pertained to Criminal
Law and the examination then in Criminal Law, all
these override and rebut his explanation that he
merely read the notes to find out what they were
as he had forgotten about them.
Amparo is guilty of (1) bringing notes into the
examination room and (2) attempted cheating. (In
Re: Pedro Amparo, G.R. No. 000, July 18, 1975)
(1974 Bar Question)
Q: Mike Adelantado, an aspiring lawyer,
disclosed in his petition to take the 2003 bar
examinations that there were two civil cases
pending against him for nullification of contract
and damages.
He was thus allowed to
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
7
UST Golden Notes 2011
conditionally take the bar, and subsequently
placed third in the said exams.
5.
6.
In 2004, after the two civil cases had been
resolved, Mike Adelantado filed his petition to
take the Lawyer’s Oath and sign the Roll of
Attorneys before the Supreme Court. The Office
of the Bar Confidant, however, had received two
anonymous letters: the first alleged that at the
time Mike Adelantado filed his petition to take
the bar, he had two other civil cases pending
against him, as well as a criminal case for
violation of B.P. 22; the other letter alleged that
Mike Adelantado, as Sangguniang Kabataan
chairperson, had been signing the attendance
sheets of SK meetings as “Atty. Mike
Adelantado.” Having passed the bar, can Mike
already use the appellation “attorney”? Explain
your answer.
A: No. Only those who have been admitted to the
Philippine Bar can be called “Attorney” (Alawi v.
Alauya, A.M. No. SDC-97-2-P, Feb. 24, 1997).
Passing the Bar examination is not sufficient for
admission of a person to the Philippine Bar. He
still has to take the oath of office and sign the
Attorney’s Roll as prerequisites to admission.
Q: Should Mike be allowed to take his oath as a
lawyer and sign the Roll of Attorneys? Explain
your answer.
A: No, he should not be allowed to take his oath
and sign the Attorney’s Roll. Rule 7.01 of the
Code of Professional Responsibility provides that
“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”. Mr. Adelantado made a
false statement in his application to take the bar
by revealing only that there were two civil cases
pending against him. This is sufficient ground to
deny him admission to the bar (In Re: Galang, 66
SCRA 245 [1975]). He also showed lack of good
moral character in using the title “attorney”
before admission to the Bar (Aguirre v. Rana, 403
SCRA 342 [2003]). (2005 Bar Question)
Q: Enumerate the continuing requirements for
the practice of law after admission to the Bar.
A: He must: MIP-MEJ
1. Remain a Member of the Bar;
2. Regularly pay all IBP membership dues;
3. Regularly pay the Professional Tax Receipt
(PTR);
4. Comply with the Mandatory Continuing
Legal Education (MCLE);
8
Faithfully observe the rules and Ethics of
the legal profession; and
Be continually subject to Judicial
disciplinary control.
Q: What are the obligations of a newly
constituted lawyer?
A:
1.
Pay the full annual membership dues;
Note: Lawyers who are senior citizens are
not exempt from payment of IBP dues, since
the Senior Citizens Act which exempts senior
citizens from payment of taxes does not
include exemption from payment of
membership and association fees.
2.
3.
4.
5.
Undergo Mandatory Continuing Legal
Education or MCLE;
Undergo Mandatory Legal Aid Service;
Pay Professional Tax Receipt; and
Prove that he is a person of good moral
character.
C. APPEARANCE OF NON-LAWYERS IN COURTS
Q: May a non-lawyer appear in court?
A:
GR: No. Only those who are licensed to practice
law can appear and handle cases in court.
XPN:
1. Law Student Practice
2. Non-lawyers in Court
3. Non-lawyers in Administrative Tribunal
1. LAW STUDENT PRACTICE
Law student practice rule – A law student who has
successfully completed 3rd year of the regular
four-year prescribed law curriculum and is
enrolled in a recognized law school's clinical legal
education program approved by the Supreme
Court, may appear without compensation in any
civil, criminal or administrative case before any
trial court, tribunal, board or officer, to represent
indigent clients accepted by the legal clinic of the
law school (Sec. 1, Rule 138-A).
The appearance of the law student authorized by
this rule, shall be under the direct supervision and
control of a member of the Integrated Bar of the
Philippines duly accredited by the law school.
Any and all pleadings, motions, briefs,
memoranda or other papers to be filed, must be
signed by the supervising attorney for and in
behalf of the legal clinic. (Sec. 2, Rule 138-A)
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics - practice of law
Note: The law student shall comply with the
standards of professional conduct governing
members of the Bar. Failure of an attorney to
provide adequate supervision of student practice
may be a ground for disciplinary action (Circular
No.19, dated December 19, 1986).
be convicted not because he is guilty but because he
does not know how to establish his innocence.
Where an accused was not duly represented by a
member of the bar during trial, the judgment should
be set aside, and the case remanded to the trial
court for a new trial. (People v. Santocildes, Jr., G.R.
No. 109149, Dec. 21, 1999)
2. NON-LAWYERS IN COURT
a.
b.
Cases before the MTC: A party to the
litigation, may conduct his own case or
litigation in person, with the aid of an agent
or friend appointed by him for that purpose
(Sec. 34, Rule 138, RRC);
Before any other court, a party may conduct
his litigation personally. But if he gets
someone to aid him, that someone must be
authorized member of the Bar (Sec. 34, Rule
138, RRC)
Note: A non-lawyer conducting his own
litigation is bound by the same rules in
conducting the trial case. He cannot after
judgment, claim that he was not properly
represented.
c.
Criminal case before the MTC in a locality
where a duly licensed member of the Bar is
not available, the judge may appoint a nonlawyer who is a:
i.
Resident of the province; AND
ii. Of good repute for probity and ability to
aid the accused in his defense; (Sec. 7,
Rule 116 RRC)
d.
Any official or other person appointed or
designated to appear for the Government of
the Philippines in accordance with law. (Sec.
33, Rule 138 RRC)
Note: Such person shall have all the rights of a
duly authorized member of the bar to appear in
any case in which said government has an
interest direct or indirect. (Sec. 33,Rule 138,
RRC)
Q: May a party represent himself?
A: In civil cases, an individual litigant has the right
to conduct his litigation personally. In criminal
cases, in grave and less grave offenses, an
accused who is a layman must always appear by
counsel; he cannot conduct his own defense
without violating his right to due process of law.
Note: Even the most intelligent of the educated men
may have no skill in the science of law, particularly in
the rules of procedure and without counsel; he may
With regard to a juridical person, it must always
appear in court through a duly licensed member of
the bar, except before MTC where it may be
represented by its agent or officer who need not be
a lawyer.
Note: Partnership with a non-lawyer is VOID. In the
formation of partnership for the practice of law, no
person should be admitted or held out as a
practitioner or member who is not a member of the
legal profession duly authorized to practice, and
amenable to professional discipline.
Q: A, a mere high school graduate, with the aid
of a friend who is a college undergraduate, filed
a complaint for recovery of a sum of money in
the amount of Four Thousand (P4,000.00) Pesos
in the Metropolitan Trial Court of his town. The
Clerk of Court told A that his complaint might be
dismissed for insufficiency as to form because
neither he nor his friend who is assisting him is a
lawyer. Is the Clerk of Court correct?
A: The Clerk of Court is not correct. In the Justice
of the Peace courts (now known as Municipal
Trial Court or Municipal Circuit Trial Courts or
Metropolitan Trial Court), a party may conduct his
litigation in person, with the aid of an agent or
friend appointed by him for that purpose, or with
the aid of an attorney. (Sec. 34, Rule 138, Rules of
Court). (1999 Bar Question)
3. NON-LAWYERS IN ADMINISTRATIVE TRIBUNAL
a.
Under the Labor Code, non-lawyers may
appear before the NLRC or any Labor Arbiter,
if:
i.
They represent themselves; OR
ii.
They represent their organization or
members thereof; (Art 222, PD 442,
as amended) (2002 Bar Question)
iii.
If they are duly accredited members
of any legal aid office duly recognized
by the Department of Justice, or the
Integrated Bar of the Philippines in
cases referred to by the latter.
(Lapena, 2009)
Note: He is not, however, entitled to attorney’s
fees under Article 222 of the Labor Code for not
being a lawyer. (Five J. Taxi v. NLRC, G.R. No.
111474, August 22, 1994)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
9
UST Golden Notes 2011
b.
Under the Cadastral Act, a non-lawyer can
represent a claimant before the Cadastral
Court. (Sec. 9, Act no. 2259)
Q: Kanlaon Construction and Reluya’s, et al. case
were assigned before two labor arbiters. The
Engineers as co-defendant, without written
authority to represent Kanlaon Construction,
admitted the complaints against them. By virtue
of such, the labor arbiters adjudicated the case
in favor of Reluya and the others.
Can an engineer represent a co-defendant in a
case before the labor arbiter?
A: No, the appearance of the engineer on behalf
of Kanlaon Construction required written proof of
authorization. It was incumbent upon the arbiters
to ascertain this authority especially since both
engineers were named co-respondents in the
cases before the arbiters. Absent this authority,
whatever statements and declarations the
engineers made before the arbiters could not
bind Kanlaon.
Nevertheless, even assuming that the engineers
were authorized to appear as representatives of
Kanlaon, they could bind the latter only in
procedural matters before the arbiters and the
Commission. Kanlaon's liability arose from
engineer’s alleged promise to pay. A promise to
pay amounts to an offer to compromise and
requires a special power of attorney or the
express consent of Kanlaon. The authority to
compromise cannot be lightly presumed and
should be duly established by evidence. (Kanlaon
Construction v. NLRC, G.R. No. 126625, Sept. 18,
1997)
Q: What are the limitations on appearance of
non-lawyers before the courts?
A:
1.
He should confine his work to nonadversary contentions;
2.
He should not undertake purely legal
work, such as the examination or crossexamination of witnesses, or the
presentation of evidence; and
3.
His services should not be habitually
rendered. He should not charge or collect
attorney’s fees. (PAFLU v. Binalbagan
Isabela Sugar Co. L-23959, November
1971)
Pro Se (Section 34, Rule 138)
Q: Maderada filed charges against Judge
Mediodea for "gross ignorance of the law
amounting to grave misconduct" for failing "to
observe and apply the Revised Rule on Summary
Procedure" in the civil case. On the other hand,
Judge Mediodea maintained that Maderada, in
appearing as counsel on her own behalf, failed
to secure authority from the Court and to file her
leave of absence every time she appeared in
court.
Can Maderada appear as counsel for herself and
her co-plaintiff even if she is not a lawyer?
A: Section 34 of Rule 138 of the Rules of Court
allows persons who are not lawyers by profession
to litigate their own case in court. The right of
complainant to litigate her case personally cannot
be taken away from her. Her being an employee
of the judiciary does not remove from her the
right to proceedings in propria persona or to selfrepresentation. Clearly, in appearing for herself,
complainant was not customarily or habitually
holding herself out to the public as a lawyer.
Neither was she demanding payment for such
services. Hence, she cannot be said to be in the
practice of law.
However, it was also clearly established that
complainant had appeared on behalf of her coplaintiff in the aforementioned case, for which act
the former cannot be completely exonerated.
Obviously, because she was already defending
the rights of another person when she appeared
for her co-plaintiff, it cannot be argued that
complainant was merely protecting her rights.
That their rights may be interrelated will not give
complainant authority to appear in court. The
undeniable fact remains that she and her coplaintiff are two distinct individuals. The former
may be impairing the efficiency of public service
once she appears for the latter without
permission from the Court. (Maderada v. Judge
Mediodea, A.M. No. MTJ-02-1459, Oct. 14, 2003)
Q: Ferdinand Cruz sought permission to enter his
appearance for and on his behalf before the RTC
as the plaintiff in a Civil Case for Abatement of
Nuisance. Cruz, a fourth year law student,
anchors his claim on Section 34 of Rule 138 of
the Rules of Court that a non-lawyer may appear
before any court and conduct his litigation
personally.
Judge Mijares denied the motion with finality. In
the same Order, the trial court held that for the
10
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics - practice of law
Note: If the court determines that a party
cannot properly present his/her claim or
defense and needs assistance, the court
may, in its discretion, allow another
individual who is not an attorney to assist
that party upon the latter’s consent (Sec. 17,
Rule of Procedure for Small Claims Cases).
failure of Cruz to submit the promised document
and jurisprudence and for his failure to satisfy
the requirements or conditions under Rule 138-A
of the Rules of Court, his appearance was
denied.
Did the court act with grave abuse of discretion
amounting to lack or excess of jurisdiction when
it denied the appearance of Cruz as party
litigant?
A: Yes. The law recognizes the right of an
individual to represent himself in any case to
which he is a party. The Rules state that a party
may conduct his litigation personally or with the
aid of an attorney, and that his appearance must
either be personal or by a duly authorized
member of the Bar. The individual litigant may
personally do everything in the course of
proceedings from commencement to the
termination of the litigation. Considering that a
party personally conducting his litigation is
restricted to the same rules of evidence and
procedure as those qualified to practice law, Cruz,
not being a lawyer himself, runs the risk of falling
into the snares and hazards of his own ignorance.
Therefore, Cruz as plaintiff, at his own instance,
can personally conduct the litigation of his Case.
He would then be acting not as a counsel or
lawyer, but as a party exercising his right to
represent himself.
The trial court must have been misled by the fact
that Cruz is a law student and must, therefore, be
subject to the conditions of the Law Student
Practice Rule. It erred in applying Rule 138-A,
when the basis of Cruz's claim is Section 34 of
Rule 138. The former rule provides for conditions
when a law student may appear in courts, while
the latter rule allows the appearance of a nonlawyer as a party representing himself. (Cruz v.
Mijares, et al., G.R. No. 154464, Sept. 11, 2008)
4. PROCEEDINGS WHERE LAWYERS ARE
PROHIBITED FROM APPEARING
Q: What are the proceedings to which lawyers
are prohibited from appearing?
A:
1.
Proceedings before the Small Claims Court
-No attorney shall appear in behalf of or
represent a party at the hearing, unless
the attorney is the plaintiff or defendant
(Sec. 17, Rule of Procedure for Small
Claims Cases)
2.
Proceedings before the Katarungang
Pambarangay - during the pre-trial
conference under the Rules of Court,
lawyers are prohibited from appearing for
the parties. Parties must appear in
person
only
except
minors
or
incompetents who may be assisted by
their next of kin who are not lawyers.
(Formerly Sec. 9, P.D. No. 1508; Sec. 415,
Local Government Code of 1991, R.A.
7160)
D. SANCTIONS FOR PRACTICE OR APPEARANCE
WITHOUT AUTHORITY
1. SANCTIONS AGAINST UNAUTHORIZED
PRACTICE OF LAW OF LAWYERS
Q: What are the remedies against unauthorized
practice of law of lawyers?
A: DICEDA
1. Declaratory relief;
2. Petition for Injuction;
3. Contempt of court;
4. Criminal complaint for Estafa against a
person who falsely represented himself to
be an attorney to the damage of a party;
5. Disqualification and complaints for
disbarment; or
6. Administrative complaint against the
erring lawyer or government official.
Q: KWD, a GOCC, hired respondent, Atty. I, as
private legal counsel for one (1) year effective
with the consent of the Office of the
Government Corporate Counsel (OGCC) and the
Commission on Audit (COA). The controversy
erupted when two (2) different groups, herein
referred to as the Dela Peña board and
Yaphockun board, laid claim as the legitimate
Board of Directors of KWD. Dela Peña board
appointed respondents Atty. N, V and M as
private collaborating counsels for all cases of
KWD and its Board of Directors, under the direct
supervision and control of Atty. I. Meanwhile,
the OGCC had approved the retainership
contract of atty. C as new legal counsel of KWD
and stated that the retainership contract of Atty.
I had expired. The termination of Atty. I’s
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
11
UST Golden Notes 2011
contract was said to be justified by the fact that
the Local Water Utilities Administration had
confirmed the Yaphockun board as the new
Board of Directors of KWD and that said board
had terminated Atty. I’s services and requested
to hire another counsel. Complainants then filed
a disbarment complaint against counsels V and
M alleging that respondents acted as counsel for
KWD without legal authority. Are respondents
validly authorized to appear as counsels of
KWD?
A: No. Attys. N, V and M had no valid authority to
appear as collaborating counsels of KWD. Nothing
in the records shows that Atty. N was engaged by
KWD as collaborating counsel. While the 4th
Whereas Clause of Resolution appointing Atty. N
partly states that he and Atty. I "presently stand
as KWD legal counsels," there is no proof that the
OGCC and COA approved Atty. N’s engagement as
legal counsel or collaborating counsel. Insofar as
Attys. V, Jr. and M are concerned, their
appointment as collaborating counsels of KWD
under Resolution No. 009 has no approval from
the OGCC and COA. In the case of Atty. I, he also
appeared as counsel of KWD without authority,
after his authority as its counsel had expired.
Under Section 27, Rule 138 of the Rules of Court,
a member of the bar may be disbarred or
suspended from his office as attorney by the
Supreme Court for xxx corruptly or willfully
appearing as an attorney for a party to a case
without authority to do so. Disbarment, however,
is the most severe form of disciplinary sanction,
and, as such, the power to disbar must always be
exercised with great caution, and should be
imposed only for the most imperative reasons
and in clear cases of misconduct affecting the
standing and moral character of the lawyer as an
officer of the court and member of the bar.
Accordingly, disbarment should not be decreed
where any punishment less severe such as a
reprimand, suspension or fine, would accomplish
the end desired. (Vargas v. Atty. Ignes, Atty.
Mann, Atty. Viajar and Atty. Nadua, A.C. No.
8096, July 5, 2010)
Note: In any case, an unauthorized appearance of an
attorney may be ratified by the client either
expressly or impliedly. Ratification retroacts to the
date of the lawyer’s first appearance and validates
the action taken by him. (Sps. Agbulos v. Gutierrez,
G.R. No. 176530, June 16, 2009)
2. SANCTIONS AGAINST UNAUTHORIZED
PRACTICE OF LAW OF PERSONS WHO ARE NOT
LAWYERS
12
Q. What are the remedies against unauthorized
practice of law of persons who are not lawyers?
A:
1.
2.
3.
4.
Declaratory relief;
Petition for Injunction;
Contempt of court;
Criminal complaint for Estafa against a
person who falsely represented himself to
be an attorney to the damage of a party;
Q. what are the sanctions against unauthorized
practice of law of persons who are not lawyers?
A: He may be punished with contempt of court,
severe censure and three (3) months
imprisonment because of the highly fraudulent
and improper conduct tending directly to impede,
obstruct, degrade, and make a mockery of the
administration of justice. (Manangan v. CFI, G.R.
No. 82760, August 30,1990; Lapena, 2009)
Note: A disbarred lawyer has no more authority to
appear in Court as a lawyer. A lawyer who was
previously disbarred but continued to represent
himself as a lawyer was found guilty of indirect
contempt and fine with imprisonment in case of
failure to pay within five (5) days. (Lemoine v. Atty.
Balon, Jr., A.C. No. 5829, October 28,2003)
Contempt of Court
Q: What is the nature of the power of contempt?
A: It is exercised on the preservative and not on
the vindictive principle and on corrective rather
than the retaliatory idea of punishment, for
purposes that are impersonal. It is criminal in
nature. The power to punish for contempt is
inherent in all courts. It is essential in the
observance of order in judicial proceedings and to
enforcement of judgment orders and writs.
Q: What are the kinds of contempt?
A:
1.
Direct – Consists of misbehavior in the
presence of or so near a court or judge as
to interrupt or obstruct the proceedings
before the court or the administration of
justice; punished summarily.
2.
Indirect – One committed away from the
court involving disobedience of or
resistance to a lawful writ, process, order,
judgment or command of the court, or
tending to belittle, degrade, obstruct,
interrupt or embarrass the court; not
summary in nature.
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics - practice of law
3.
4.
Civil – Is the failure to do something
ordered to be done by a court or a judge
for the benefit of the opposing party
therein. It is remedial in nature.
Criminal – Conduct directed against the
authority and dignity of a court or of a
judge, as in unlawfully assailing or
discrediting the authority or dignity of a
court or of a judge, or in doing a duly
forbidden act. Intent is necessary.
Note: Where the punishment imposed,
whether against a party to a suit or a
stranger, is wholly or primarily to protect or
vindicate the dignity and power, either by
fine payable to the government or by
imprisonment, or both, it is deemed a
judgment in criminal case.
Where the punishment is by fine directed to
be paid to a party in the nature of damages
for the wrong inflicted, or by imprisonment
as coercive measure to enforce the
performance of some act for the benefit of
the party or in aid of the final judgment or
decree rendered in his behalf, the contempt
judgment will, if made before final decree,
be treated as in the nature of an
interlocutory order.
Q: What are the two-fold aspects of the exercise
of the power of contempt?
A:
1.
The proper punishment of the guilty party
for his disrespect to the court or its order;
and
2.
To compel his performance of some act or
duty required of him by the court which
he refuses to perform.
Note: The question of whether the contempt
committed is civil or criminal, does not affect the
jurisdiction or the power of a court to punish the
same. (Halili v. CIR, G.R. No. L-24864, Nov. 19, 1985)
Q: Enumerate the acts of a lawyer that
constitutes contempt?
A:
1.
2.
3.
4.
5.
6.
Misbehavior as officer of court
Disobedience or resistance to court order
Abuse or interference with judicial
proceedings
Obstruction in administration of justice
Misleading the courts
Making false allegations, criticisms, insults,
veiled threats against the court
7.
8.
9.
Aiding in unauthorized practice of law
(suspended or disbarred)
Unlawful retention of client’s funds; and
Advise client to commit contemptuous
acts.
Note: "A practicing lawyer and officer of the court
facing contempt proceedings cannot just be allowed
to voluntarily retire from the practice of law which
would negate the inherent power of the court to
punish him for contempt" (Montecillo v. Gica, 60
SCRA 234). (1998 Bar Question)
Q: A judge cited complainant, a driver at the
Engineering Department of the Makati City Hall,
in contempt for using the former’s parking
space, and refused to accept the driver’s
apology. He sentenced the driver to five (5) days
imprisonment and a fine of (P1, 000.00). Is the
judge administratively liable for grave abuse of
authority in citing the driver for contempt of
court?
A: Yes. The Court does not see how the improper
parking by the driver could even in the remotest
manner, disrupt the speedy administration of
justice, as claimed by the judge. At most, it would
cause the Judge inconvenience or annoyance, but
still, this does not fall under any of the acts for
which a person could be cited for contempt.
Neither does it appear from the records, nor from
the evidence presented, that the complainant
intended any disrespect toward respondent
Judge. In fact, upon being summoned, the driver
immediately apologized for his mistake. Worse,
the Judge immediately detained the driver,
thereby preventing him from resorting to the
remedies provided under the Rules of Court. Such
abusive behavior on the part of respondent judge
fails to show his integrity, which is essential not
only to the proper discharge of the judicial office,
but also to his personal demeanor. (Nunez v. Ibay,
A.M. No. RTJ-06-1984, June 30, 2009)
Q: Dela Cruz misrepresented himself as a lawyer
in the application for habeas corpus of Gamido.
What punishment should the court impose on
Dela Cruz?
A: The Court declared him guilty of indirect
contempt for maliciously and falsely portraying
himself as a member of the bar, appearing in
court and filing pleadings. (In the Matter of the
Application for Habeas Corpus of Maximino
Gamido; Gamido v. New Bilibid Prison, G.R.
146783, July 29, 2002)
Q: Are the power to hold a person in contempt
and the power to disbar the same?
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
13
UST Golden Notes 2011
A: No. The power to punish for contempt and the
power to disbar are separate and distinct, and
that the exercise of one does not exclude the
exercise of the other. (People v. Godoy, G.R. Nos.
115908-09, Mar. 29, 1995)
Q: In the course of the testimony of an almost
illiterate victim of swindling travel syndicate, the
trial judge addressed these words to the
witness: “You have no business coming to court
without being sure of your facts; the way I look
at it, you are here to blackmail these
businessman into giving you free airplane
travel”. The private prosecutor stood up to move
that the remarks of the court regarding the
alleged blackmail be made of record for
purposes of an appeal or other future
proceedings. The trial judge countered with an
order directing the lawyer to show cause why he
should not be held in direct contempt, for
allegedly “threatening the court” with possible
future action. May the contempt citation be
upheld? Explain.
A: The contempt citation may not be sustained. A
judge should exercise proper judicial decorum. He
should be considerate of witness and others in
attendance upon his court. He should be
courteous and civil, for it is unbecoming of a
judge to utter intemperate language during the
hearing of a case (Retuya v. Equipilog; Santos v.
Cruz)
It was the right of counsel to put on record said
remarks for the protection of his witness and
client. (In Re: Aguas). (1987 Bar Question)
Q: Balajadia filed a criminal case against
petitioners. In paragraph 5 of the complaintaffidavit, Balajadia appeared to have asserted
that he is a "practicing lawyer”. However,
certifications issued by the Office of the Bar
Confidant and the Integrated Bar of the
Philippines showed that he has never been
admitted to the Philippine Bar. Hence,
petitioners filed a case against him claiming that
he is liable for indirect contempt for
misrepresenting himself as a lawyer.
Balajadia, on his defense, claimed that the
allegation that he is a practicing lawyer was an
honest mistake. He stated that the secretary of
Atty. Aquino prepared the subject complaintaffidavit copying in verbatim paragraph 5 of
Atty. Aquino’s complaint-affidavit. Hence, it was
inadvertently alleged that respondent is a
“practicing lawyer in Baguio City” which
14
statement referred to the person of Atty. Aquino
and his law office address.
Is Balajadia liable for indirect contempt?
A: No. Respondent Balajadia never intended to
project himself as a lawyer to the public. It was a
clear inadvertence on the part of the secretary of
Atty. Aquino. The allegation that he is a practicing
lawyer cannot, by itself, establish intent as to
make him liable for indirect contempt.
In several cases, the Court ruled that the
unauthorized practice of law by assuming to be
an attorney and acting as such without authority
constitutes indirect contempt which is punishable
by fine or imprisonment or both. The liability for
the unauthorized practice of law under Section
3(e), Rule 71 of the Rules of Court is in the nature
of criminal contempt and the acts are punished
because they are an affront to the dignity and
authority of the court, and obstruct the orderly
administration of justice. (Tan v. Balajadia, G.R.
No. 169517, March 14, 2006)
Q: An administrative complaint was filed against
Malinao, court interpreter of the CFI of
Catbalogan Samar. He was charged with illegal
practice of law for appearing in court as attorney
when he is not and collecting fees from his client
as a means of livelihood; grave misconduct in
office for instigating persons in his barrio to grab
land, rob or coerce and incite them telling them
not to be afraid as he is a court employee and
has influence over judges; falsification for
unfaithfully filing his time record in the CFI as he
made it appear that he is present on certain
dates but in truth, he was appearing as counsel
in front of certain judges. He was also charged
with violation of executive order and civil service
law as it is prohibited for a civil service employee
like him to engage in private practice of any
profession without permission from the
Department Head.
Malinao defended that “his participation for
defendant’s cause (in the cases where he
appeared as counsel) was gratuitous as they
could not engage the services of counsel by
reason of poverty and absence of one in the
locality”. Is Malinao guilty of the charges filed
against him?
A: Yes. The SC held that Malinao, by appearing as
counsel without being a member of the bar
constitutes illegal practice of law.
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics - practice of law
He also did not secure the permission from his
superiors and, worse, he falsified his time record
of service to conceal his absence from his office
on the dates in question. The number of times
that Malinao acted as counsel under the above
circumstances would indicate that he was doing it
as a regular practice obviously for considerations
other than pure love of justice. He was dismissed
from his position as court interpreter with
prejudice to reemployment in the judicial branch
of the government. (Zeta v Malinao, A.M. No. P220 , December 20, 1978)
3.
E. PUBLIC OFFICIALS AND THE PRACTICE OF LAW
8.
4.
5.
6.
7.
Government Prosecutors. (People v.
Villanueva, G.R. No. L-19450, May 27,
1965)
President, Vice-President, members of the
cabinet, their deputies and assistants.
(Sec. 13, Art VII, 1987 Constitution)
Members
of
the
Constitutional
Commission. (Sec. 2, Art IX-A, 1987
Constitution)
Ombudsman and his deputies. (Sec. 8 [2nd
par], Art. IX, 1987 Constitution)
All governors, city and municipal Mayors.
(R.A. No. 7160, Sec. 90)
Those prohibited by Special law. (1990 Bar
Question)
Q: Who are the public officials?
A: Public officials include elective and appointive
officials and employees, permanent or
temporary, whether in the career or non-career
service, including military and police personnel,
whether or not they receive compensation,
regardless of amount (Sec. 3[b], RA 6713)
Q: Who are the public officials who are restricted
from engaging in the practice of law in the
Philippines?
1.
Q: What are the prohibited acts or omissions of
public officers?
Note: The word “appearance” includes not
only arguing a case before any such body but
also filing a pleading on behalf of a client as
“by simply filing a formal motion, plea or
answer”. (Ramos v. Manalac, G.R. No. L2610, June 16, 1951)
A:
1.
2.
Accepting or having any member of his
family accept employment in a private
enterprise which has pending official
business with him during the pendency
thereof or within one year after
termination. (Sec. 3[d], RA 3019)
Neither can he allow his name to appear in
such pleading by itself or as part of a firm
name under the signature of another
qualified lawyer because the signature of an
agent amounts to a signing of a non-qualified
senator or congressman, the office of an
attorney being originally of agency, and
because he will, by such act, be appearing in
court or quasi-judicial or administrative body
in violation of the constitutional restriction.
(In re: David, Adm Case No. 98, July 13, 1953)
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.
(Sec. 7[b], RA 6713)
Note: These prohibitions shall continue to
apply for a period of 1 year after resignation,
or separation from public office. The 1 year
prohibition shall also apply in connection
with any matter before the office he used to
be with.
Q: Who are the public officials who cannot
engage in the private practice of law in the
Philippines?
A: JOPPCOMS
1. Judges and other officials as employees of
the Supreme Court. (Rule 148, Sec. 35,
RRC)
2. Officials and employees of the OSG. (Ibid.)
No Senator or member of the House of
Representatives may personally “appear”
as counsel before any court of justice or
before the Electoral Tribunals, or quasijudicial and other administration bodies.
(Sec. 14, Art. VI, 1987 Constitution)
2.
Under the Local Government Code (Sec.
91, R.A. 7160,) Sanggunian members may
practice their professions provided that if
they are members of the Bar, they shall
not:
a. Appear as counsel before any court in
any civil case wherein a local
government unit or any office,
agency, or instrumentality of the
government is the adverse party
b. Appear as counsel in any criminal
case wherein an officer or employee
of the national or local government is
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
15
UST Golden Notes 2011
c.
d.
accused of an offense committed in
relation to his office
Collect any fee for their appearance
in
administrative
proceedings
involving the local government unit
of which he is an official
Use property and personnel of the
government except when the
Sanggunian member concerned is
defending the interest of the
government. (1992, 2000 Bar
Questions)
Note: while certain local elective officials (like
governors, mayors, provincial board members and
councilors) are expressly subjected to a total or
partial proscription to practice their profession or
engage in any occupation, no such interdiction is
made on punong barangay and the members of the
Sangguniang Barangay.
Expressio unius est
exclusion alterius. Since they are excluded from
any prohibition, the presumption is that they are
allowed to practice their profession. However, he
should procure prior permission or authorization
from the head of his Department, as required by
the Civil Service Regulations. (Catu v. Rellosa, A.C.
No. 5738, February 19, 2008)
3.
Under Sec. 1, R.A. 910, as amended, a
retired justice or judge receiving pension
from the government, cannot act as
counsel:
a.
b.
c.
4.
In any civil case in which the
Government, or any of its subdivision
or agencies is the adverse party; or
In a criminal case wherein an officer
or employee of the Government is
accused of an offense in relation to
his office; nor
Collect any fees for his appearance in
any administrative proceedings to
maintain an interest adverse to the
government, provincial or municipal,
or to any of its legally constituted
officers. (Sec. 1, R.A. 910)
Civil service officers and employees
without permit from their respective
department heads. (Noriega v. Sison, G.R.
No. L- 24548, Oct. 27, 1983)
Note: Misconduct in office as a public official may be
a ground for disciplinary action if it is of such
character as to affect his qualification as lawyer or
show moral delinquency.
PROHIBITION OR DISQUALIFICATION OF FORMER
GOVERNMENT ATTORNEYS
(Refer to Rule 6.03, Canon 6, CPR)
Note: The restriction against a public official from
using his public position as a vehicle to promote or
advance his private interests extends beyond his
tenure on certain matters in which intervened as a
public official. (Agpalo, 2004).
F. LAWYERS AUTHORIZED TO REPRESENT THE
GOVERNMENT
Q: Who are persons authorized to represent the
government?
A:
1. Solicitor General
Q: What are the possible actions that the
Sol Gen may undertake in the discharge of
his duties?
A: The Sol Gen, in his discretion, may pursue
any of the following actions:
1.
2.
3.
4.
Prosecute
Not to prosecute
To abandon a prosecution already
started; or
To take a position adverse to the
people of the Philippines in a criminal
case or to that of a government
agency or official, when he believes
that justice will be served by taking a
different stand.
Q: In a case between two government
agencies, should the Sol Gen refrain from
performing his duty?
A: No. It is incumbent upon him to present
to the court what he considers as would
legally uphold the best interest of the
government.
Q: In the above question, what is the
remedy of the government office adversely
affected by the position taken by the Sol
Gen?
A: The government agency adversely
affected, if it still believes in the merits of its
case, may appear on its own behalf through
its legal officer or representative.
2. Any person appointed to appear for the
government of the Philippines in accordance
with law. (Sec. 33, Rule 138 RRC)
16
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics - practice of law
G. LAWYER’S OATH
Q: State the lawyer’s oath.
A:
“I, __________________, do solemnly swear that
I will maintain 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 willingly nor wittingly 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
court as to my clients; and I impose upon myself
this voluntary obligations without any mental
reservation or purpose of evasion. So help me
God.” (Form 28, RRC)
Q: What is the importance of the lawyer’s oath?
A: By taking the lawyer’s oath, a lawyer becomes
the guardian of truth and the rule of law and an
indispensable instrument in the fair and impartial
administration of justice. Good moral character
includes, at least, common honesty. Deception
and other fraudulent acts are not merely
unacceptable practices that are disgraceful and
dishonorable; they reveal a basic moral flaw.
(Olbes v. Deciembre, A.C. No. 5365, Apr. 27, 2005)
Note: The lawyer’s oath is not a mere ceremony or
formality for practicing law to be forgotten
afterwards nor is it mere words, drift and hollow,
but a sacred trust that every lawyer must uphold and
keep inviolable at all times.
Q: State the significance of the lawyer's oath.
What, in effect, does a lawyer represent to a
client when he accepts a professional
employment for his services?
A: "The significance of the oath is that it not only
impresses upon the attorney his responsibilities
but it also stamps him as an officer of the court
with rights, powers and duties as important as
those of the judges themselves. It is a source of
his obligations and its violation is a ground for his
suspension, disbarment or other disciplinary
action." (Agpalo, Legal Ethics, 1992 ed., p. 59).
Q: Under the terms of the Last Will and
Testament of the late Ogan, his residuary estate
was divided among his seven children. One of
them, Necitas Ogan-Occeña, was named in the
will as executrix of the estate. As such, she
retained her husband, Atty. Samuel C. Occeña,
as her lawyer. The settlement of the estate have
been pending for thirteen (13) years when it was
transferred under the sala of Judge Ruiz who
found out that the principal cause of delay was
the failure of Atty. Occeña to obey lawful court
orders such as the submission of the latest
inventory of all securities of the estate, take
possession of all certificates of stocks or their
replacements belonging to the estate and as well
as its inventory, and by willfully prolonging the
litigation through his various maneuvers, such as
instituting actions for Atty. Occeña’s claim for
attorney’s fee and filing other cases before the
court thus prolonging the settlement of the case.
Did Occeña’s acts constitute a gross violation of
his oath as a lawyer?
A: Atty. Occeña’s acts of disobeying lawful court
orders and willfully prolonging the litigation
through his maneuvers constitute a gross
violation of his lawyer’s oath that he will not
willingly sue any groundless, false or unlawful suit
or delay no man for money of malice. (Re:
Administrative Case against Samuel Occena, A. C.
No. 2841, July 3, 2002)
Q: Argosino passed the bar examinations held in
1993. The Court however deferred his oathtaking due to his previous conviction for
Reckless Imprudence Resulting in Homicide. The
criminal case which resulted in Argosino’s
conviction arose from the death of a neophyte
during fraternity initiation rites. Various
certifications show that he is a devout Catholic
with a genuine concern for civic duties and
public service. Also, it has been proved that Mr.
Argosino has exerted all efforts to atone for the
death of Raul. Should Argosino be allowed to
take his lawyer's oath?
A: The practice of law is a privilege granted
only to those who possess the strict intellectual
and moral qualifications required of lawyers who
are instruments in the effective and efficient
administration of justice. The SC recognizes that
Mr. Argosino is not inherently of bad moral fiber
given the various certifications that he is a devout
Catholic with a genuine concern for civic duties
and public service and that it has been proved
that he has exerted all efforts to atone for the
death of Raul and the court gave him the benefit
of the doubt, taking judicial notice of the general
tendency of youth to be rash, temerarious and
uncalculating. (Re: Petition of Al Argosino to Take
the Lawyer’s Oath, B.M. No. 712, Mar. 19, 1997)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
17
UST Golden Notes 2011
Q: Grande was the private offended party in a
criminal case while Atty. De Silva was the
counsel for the accused. During the course of the
proceedings, Atty. De Silva tendered a check in
favor of Grande in order for the latter to desist
from participating as a witness against her client.
Eventually, Grande accepted the check and
refused to participate as a complaining witness
thereby leading to the dismissal of the case.
However, to Grande’s consternation, the check
bounced because Atty. De Silva’s account was
already closed. When the court ordered Atty. De
Silva to comment on the charges against her, she
deliberately refused to accept all the notices
coming from the court. Is Atty. De Silva guilty of
breach of trust? Did she violate her oath as a
lawyer by issuing a bouncing check and by
refusing to accept the notices sent to her coming
from the court?
A: Yes, Atty. De Silva had committed a breach of
trust in issuing a bouncing check which amounted
to deceit and violation of the lawyer’s oath. The
nature of the office of an attorney requires that a
lawyer shall be a person of good moral character.
Since this qualification is a condition precedent to
a license to enter upon the practice of law, the
maintenance thereof is equally essential during
the continuance of the practice and the exercise
of the privilege. Gross misconduct which puts the
lawyer's moral character in serious doubt may
render her unfit to continue in the practice of
law. The loss of moral character of a lawyer for
any reasons whatsoever shall warrant her
suspension or disbarment, because it is important
that members of the legal brotherhood must
conform to the highest standards of morality. Any
wrongdoing which indicates moral unfitness for
the profession, whether it is professional or nonprofessional justifies disciplinary action.
Moreover, the attitude of Atty. De Silva in
deliberately refusing to accept the notices served
on her betrays a deplorably willful character or
disposition which stains the nobility of the legal
profession. Her conduct not only underscores her
utter lack of respect for authority; it also brings to
the fore a darker and more sinister character flaw
in her psyche which renders highly questionable
her moral fitness to continue in the practice of
law: a defiance for law and order which is at the
very core of her profession. (Grande v. Atty. De
Silva, A.C. No. 4838, July 29, 2003)
18
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
Canons 1-6
II. DUTIES AND RESPONSIBILITIES OF A
LAWYER
1.
2.
Q: What are the four-fold duties of a lawyer?
3.
A:
1.
2.
Public/Society – He must not undertake
any action which violates his responsibility
to the society as a whole, he must be an
example in the community for his
uprightness as a member of the society.
The lawyer must be ready to render legal
aid, foster legal reforms, be guardian of
due process, and aware of his special role
in the solution of special problems and be
always ready to lend assistance in the
study and solution of social problems.
(Canon 1-6, CPR)
Bar/Legal Profession – Observe candor,
fairness, courtesy and truthfulness in his
conduct towards other lawyers, avoid
encroachment in the business of other
lawyers and uphold the honor of the
profession. (Canon 7-9, CPR)
4.
5.
6.
Chapter 2.
The lawyer and the legal profession.
Canons 7-9
7.
8.
3.
4.
Courts – A lawyer must maintain towards
the court a respectful attitude, defend
against unjust criticisms, uphold the
court’s authority and dignity, obey court
orders and processes, assists in the
administration of justice. (Canon 10-13,
CPR)
Clients – The lawyer owes entire devotion
to the interest of his client, warm and zeal
in the maintenance of the defense of his
rights and exertion of utmost learning
ability to the end that nothing be taken or
withheld from his client except in
accordance with law. He owes a duty of
competent and zealous representation to
the client, and should preserve his client’s
secrets, preserve his funds and property
and avoid conflicts of interest. (Canon 1422, CPR)
CANONS OF PROFESSIONAL.
RESPONSIBILITY
(Overview).
Chapter 1.
Lawyer and Society.
Uphold the Constitution and obey the
laws of the land and legal processes
Make legal services available in an
efficient and convenient manner
Use of true, honest, fair, dignified and
objective information in making known
legal services
Participate in the improvement of the
legal system
Keep abreast of legal development and
participate in continuing legal education
program and assist in disseminating
information regarding the law and
jurisprudence
Applicability of the CPR to lawyers in the
government service
9.
At all times uphold integrity and dignity of
the profession and support the activities
of the IBP
Conduct himself with courtesy, fairness
and candor toward his colleagues and
avoid harassing tactics against opposing
counsel
Not to directly or indirectly assist in the
unauthorized practice of law
Chapter 3.
The lawyer and the courts.
Canons 10-13
10. Owes candor, fairness and good faith to
the court
11. Observe and maintain the respect due to
the courts and judicial officers and insist in
similar conduct
12. Duty to assist in the speedy and efficient
administration of justice
13. Rely upon the merits of his cause, refrain
from any impropriety which tends to
influence courts, or give the appearance
of influencing the courts
Chapter 4.
The lawyer and the client.
Canons 14-22
14. Not to refuse his services to the needy;
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
19
UST Golden Notes 2011
15. Observe candor, fairness and loyalty in all
his dealings and transactions with clients
16. Hold in trust all the moneys and property
of his client that may come to his
possession
17. Owes fidelity to client’s cause and be
mindful of the trust and confidence
reposed in him
18. Serve client with competence and
diligence
19. Represent client with zeal and within the
bounds of law
20. Charge only fair and reasonable fees;
21. Preserve the confidence and secrets of
client even after the attorney-client
relation is terminated
22. Withdraw services only for good cause
and upon notice
Q: What is the first and most important duty of
an attorney? Why?
A: The first and most important duty of the
lawyer is his duty to the court. The reason is that
the attorney is an officer of the court. He is an
officer of the court in the sense that his main
mission is to assist the court in the administering
of justice. His public duties take precedence over
his private duties.
Q: How should a lawyer view representation of
the poor, the marginalized, and the oppressed
before our courts of justice?
A: As an officer of the court, the lawyer has the
duty of representing the poor, the marginalized
and the oppressed without expecting to be
compensated for his services. One of the main
duties of the lawyer is to maintain the rule of law.
The rule of law cannot be maintained if the poor,
the marginalized or the oppressed are not
afforded legal services to protect their rights
against the rich and the privileged. The lawyer
should consider it as a duty and not as a
charitable work. (1988 Bar Question)
Note: The duty of a counsel de oficio is to render
effective service and to exert his best efforts on
behalf of an indigent accused. He has a high duty to
a poor litigant as to a paying client. (1991, 1993,
1994, 1996, 1998, 2001, 2002, 2004 Bar Questions)
A. LAWYER AND THE SOCIETY
1. RESPECT FOR LAW AND LEGAL PROCESSES
Note: Laws refers to all laws, and not just those of
general application. Thus, they include presidential
decrees, executive orders, and administrative rules
20
and regulations enforcing or implementing existing
laws. (CPR Annotated, PhilJA)
Legal processes pertain to all the proceedings in an
action or proceeding. (CPR Annotated, PhilJA)
CANON 1, CPR
- A LAWYER SHALL UPHOLD THE
CONSTITUTION, OBEY THE LAWS OF THE
LAND, AND PROMOTE RESPECT FOR LAW
AND FOR LEGAL PROCESSES.
Q: What is the two-fold duty imposed by the
Canon 1 of the Canons of Professional
Responsibility?
A:
1.
2.
Personally obey the laws and the legal
processes; and
Inspire respect and obedience thereto.
(CPR Annotated, PhilJA)
Note: The portion of Canon 1 which calls for lawyers
to “promote respect for law and for legal processes”
is a call to uphold the ‘Rule of Law’. (Funan, 2009)
Q. What is the Rule of Law?
A: “The supremacy of the law”. It provides
that decisions should be made by the
application of known legal principles or laws
without the intervention of discretion in
their application. (Black’s Law Dictionary)
Note: The lawyer’s duty to uphold the Constitution,
the laws and the rule of law is imposed upon him at
the very moment he becomes a lawyer after reciting
the lawyer’s oath of office. All lawyers therefore are
sworn constitutionalists. (Funa, 2009)
A lawyer’s oath to uphold the cause of justice is
superior to his duty to his client; its primacy is
indisputable. (Cobb-Perez v. Lantin, No. L-22320, July
29, 1968)
Q. Peter Donton filed a complaint against Atty.
Emmanuel Tansingco and others, as the notary
public who notarized the Occupancy Agreement,
for estafa thru falsification of public document.
Atty. Tansingco in his complaint stated that he
prepared and notarized the Occupancy
Agreement at the request of Mr. Stier, an owner
and long-time resident of a real property located
at Cubao, Quezon City. Since Mr. Stier is a U.S.
Citizen and thereby disqualified to own real
property in his name, he agreed that the
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
property be transferred in the name of Mr.
Donton, a Filipino.
Donton averred that Atty. Tansingco’s act of
preparing the Occupancy Agreement, despite
knowledge that Stier is a foreign national,
constitutes serious misconduct and is a
deliberate violation of the Code. Donton prayed
that Atty. Tansingco be disbarred. Is Atty.
Tansingco guilty of serious misconduct?
A. Yes. Atty. Tansingco is liable for violation of
Canon 1 and Rule 1.02 of the Code.
Q: What are the acts punishable under this Rule?
A: Act which are unlawful, dishonest, immoral or
deceitful.
Q: Define Unlawful Conduct.
A: It refers to a transgression of any provision of
law which need not be a penal law. The presence
of evil intent on the part of the lawyer is not
essential in order to bring his act or omission
within the terms of this Rule.
Q: Define Dishonest Conduct.
A lawyer should not render any service or give
advice to any client which will involve defiance of
the laws which he is bound to uphold and obey.
Atty. Tansingco had sworn to uphold the
Constitution. Thus, he violated his oath and the
Code when he prepared and notarized the
Occupancy Agreement to evade the law against
foreign ownership of lands. Atty. Tansingco used
his knowledge of the law to achieve an unlawful
end. Such an act amounts to malpractice in his
office, for which he may be suspended. (Donton v.
Atty. Tansingco, A.C. No. 6057, June 27, 2006)
Q: Prosecutor Coronel entered his appearance
on behalf of the State before a Family Court in a
case for declaration of nullity of marriage, but he
failed to appear in all the subsequent
proceedings. When required by the Department
of Justice to explain, he argued that the parties
in the case were ably represented by their
respective counsels and that his time would be
better
employed
in
more
substantial
prosecutorial functions, such as investigations,
inquests and appearances in court hearings. Is
Atty. Coronel’s explanation tenable?
A: Atty. Coronel’s explanation is not tenable. The
role of the State’s lawyer in nullification of
marriage cases is that of protector of the
institution of marriage (Art 48, FC). “The task of
protecting marriage as an inviolable social
institution requires vigilant and zealous
participation and not mere pro forma
compliance” (Malcampo-Sin v. Sin, G.R. No.
137590, Mar. 26, 2001). This role could not be left
to the private counsels who have been engaged
to protect the private interest of the parties.
(2006 Bar Question)
Rule 1.01, Canon 1, CPR: A lawyer shall not
engage in unlawful, dishonest, immoral or
deceitful conduct.
A: Dishonest conduct refers to the disposition to
lie, cheat, deceive, defraud, or betray; be
untrustworthy; lacking in integrity, honesty,
probity, integrity in principle, fairness and
straightforwardness.
Q: Define Immoral Conduct.
A: Immoral Conduct refers to a conduct which is
willful, flagrant, or shameless, and which shows a
moral indifference to the opinion of the good and
respectable members of the community. To
warrant disciplinary action, the act must not only
be merely immoral but GROSSLY IMMORAL.
Note: Grossly immoral conduct is one that is so
corrupt and false as to constitute a criminal act or so
unprincipled or disgraceful as to be reprehensible to
a high degree. (Figueroa v. Barranco, SBC Case No.
519, July 31, 1997)
Q: What are the instances of Gross Immorality
and the resulting consequences?
A:
1.
2.
3.
4.
Abandonment of wife and cohabiting with
another woman. DISBARRED. (Obusan v.
Obusan, Jr., Adm. Case No. 1392 April 2,
1984)
A lawyer who had carnal knowledge with a
woman through a promise of marriage
which he did not fulfill. DISBARRED. (In re:
Disbarment of Armando Puno, A.C. No.
389,February 28, 1967)
Seduction of a woman who is the niece of
a married woman with whom respondent
lawyer had an adulterous relation.
DISBARRED. (Royong v. Oblena, A.C. No.
376, April 30, 1963)
Lawyer arranging marriage of his son to a
woman with whom the lawyer had illicit
relations.
DISBARRED.
(Mortel
v.
Aspiras,A.M. No. 145, December 28, 1956)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
21
UST Golden Notes 2011
5.
6.
7.
8.
9.
10.
11.
12.
13.
Lawyer inveigling a woman into believing
that they have been married civilly to
satisfy his carnal desires. DISBARRED.
(Terre v. Terre, A.M. No. 2349 July 3, 1992)
Lawyer taking advantage of his position as
chairman of the college of medicine and
asked a lady student to go with him to
Manila where he had carnal knowledge of
her under threat that if she refused, she
would flunk in all her subjects.
DISBARRED. (Delos Reyes v. Aznar, A.M.
No. 1334 November 28, 1989)
Bigamy perpetrated by the lawyer.
DISQUALIFIED FROM ADMISSION TO THE
BAR. (Royong vs. Oblena, A.C. No. 376,
April 30, 1963)
Concubinage coupled with failure to
support illegitimate children. SUSPENDED
INDEFINITELY. (Laguitan v. Tinio, A.M. No.
3049, December 4, 1989)
Maintaining adulterous relationship with a
married
woman.
SUSPENDED
INDEFINITELY. (Cordova v. Cordova, A.M.
No. 3249, November 29, 1989)
A retired judge who penned a decision 7
months after he retired, antedating the
decision and forcing his former court staff
to include it in the expediente of the case.
DISBARRED. (Radjaie v. Alovera, A.C. No.
4748, August 4,2000)
Forging a Special Power of Attorney.
SUSPENDED FOR 3 YEARS. (Rural Bank of
Silay, Inc. v. Pilla, A.C. No. 3637, January
24,2001)
Attempting to engage in an opium deal
SUSPENDED FOR 1 YEAR. ( Piatt v. Abordo,
58 Phil. 350, September 1, 1933)
Facilitating the travel of a person to the
U.S. using spurious travel documents.
DISBARRED. (Sebastian v. Calis, A.C. No.
5118, September 9, 1999)
Q: Atty. Adaza obtained a loan from Orbe with
interest. He then issued two checks as
installment. However, the first check was
dishonored. The other check was not accepted
for being a stale check. Efforts were exerted by
Orbe to see him but her efforts turned to be
futile.
After a criminal case was filed, Atty. Adaza went
to Orbe’s house and promised to pay the checks.
Orbe then agreed to have the service of the
warrant of arrest withheld but, again, Atty.
Adaza failed to make good of his promise. Did
the act of Atty. Adaza’s in issuing worthless
checks constitute gross misconduct?
22
A: Yes. A member of the bar may be removed or
suspended from office as an attorney for any
deceit, malpractice, or misconduct in office. The
word "conduct" used in the rules is not limited to
conduct exhibited in connection with the
performance of the lawyer's professional duties
but it also refers to any misconduct, although not
connected with his professional duties, that would
show him to be unfit for the office and unworthy
of the privileges which his license and the law
confer upon him. The grounds expressed in
Section 27, Rule 138, of the Rules of Court are not
limitative and are broad enough to cover any
misconduct, including dishonesty, of a lawyer in
his professional or private capacity.
Such
misdeed puts his moral fiber, as well as his fitness
to continue in the advocacy of law, in serious
doubt. Atty.Adaza's issuance of worthless checks
and his contumacious refusal to comply with his
just obligation for nearly eight years is appalling
and hardly deserves compassion from the Court.
(Orbe v. Atty. Adaza, A.C. No. 5252, May 20,
2004)
Q: Atty. Danilo Velasquez was charged before
IBP Committee on Bar Discipline with Gross
Misconduct and Gross Immoral Conduct by
complainant Mecaral. Complainant Mecaral was
his secretary and she became his lover and
common-law wife. Atty. Velasquez then brought
her to the mountainous Upper San Agustin in
Caibiran, Biliran where he left her with a
religious group known as the Faith Healers
Association of the Philippines, of which he was
the leader. Although he visited her daily, his
visits became scarce, prompting her to return
home to Naval, Biliran. Furious, Atty. Velasquez
brought her back to San Agustin where, on his
instruction, his followers tortured, brainwashed
and injected her with drugs. When she tried to
escape, the members of the group tied her
spread-eagled to a bed. Made to wear only a Tshirt and diapers and fed stale food, she was
guarded 24 hours a day by the women members.
Her mother sought the help of the Provincial
Social Welfare Department which immediately
dispatched two women volunteers to rescue her.
The religious group refused to release her,
however, without the instruction of Atty.
Velasquez. Is Atty. Velasquez guilty of gross
immoral conduct and violated Canon 1 of the
Code of Professional Responsibility?
A: Yes. Atty. Velasquez’ act of converting his
secretary into a mistress is grossly immoral which
no civilized society in the world can countenance.
The subsequent detention and torture of the
complainant is gross misconduct [which] only a
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
beast may be able to do. Certainly, the Atty.
Velasquez had violated Canon 1 of the Code of
Professional Responsibility.
When a lawyer’s moral character is assailed, such
that his right to continue practicing his cherished
profession is imperiled, it behooves him to meet
the charges squarely and present evidence, to the
satisfaction of the investigating body and this
Court, that he is morally fit to keep his name in
the Roll of Attorneys. Atty. Velasquez has not
discharged the burden. (Mecaral v. Velasquez,
A.C. No. 8392, June 29, 2010)
Q: What are the acts which do not constitute
gross immorality?
A:
1.
2.
3.
Stealing a kiss from a client (Advincula v.
Macabata, A.C. No. 7204, March 7, 2007)
Live-in
relationship
involving
two
unmarried persons
Failure to pay a loan
- A lawyer may not be disciplined for
failure to pay a loan. The proper remedy
is the filing of an action for collection of a
sum of money in regular courts (Toledo v.
Abalos, A.C. No. 5141, September 29,
1999)
Exception: A deliberate failure to pay just
debts and the issuance of worthless checks
(Lao v. Medel, A.C. No. 5916 July 1, 2003)
Having incurred just debts, a lawyer has the
moral duty and legal responsibility to settle
them when they become due. He should
comply with his just contractual obligations,
act fairly and adhere to high ethical
standards to preserve the court’s integrity,
since he is an employee thereof. (Cham v.
Paita-Moya, A.C. No.7494, June 27, 2008).
Note: Just debts include unpaid rentals,
electric bills, claims adjudicated by a court of
law, and claims the existence and justness
which are admitted by the debtor (Cham v.
Paita-Moya, A.C. No.7494 June 27, 2008)
Q: Differentiate morality from immoral conduct
and grossly immoral conduct.
A:
Morality
as
understood in law is
a human standard
based on natural
moral law which is
Immoral conduct has
been defined as that
conduct which is
willful, flagrant, or
shameless and which
embodied in man’s
conscience
and
which guides him to
do good and avoid
evil.
shows
a
moral
indifference to the
opinion of the good
and
respectable
members
of
the
community (Arciga v.
Maniwang, A.M. No.
1608, Aug. 14, 1981).
Q: Define deceitful conduct.
A: An act that has the proclivity for fraudulent
and deceptive misrepresentation, artifice or
device that is used upon another who is ignorant
of the fact, to the prejudice and damage of the
party imposed upon. (CPR Annotated, PhilJA)
Note: By indicating “IBP Rizal 259060” in his
pleadings and thereby misrepresenting to the public
and the courts that he had paid his IBP dues to the
Rizal Chapter, Atty. Llamas is guilty of violating the
Code of Professional Responsibility which provides:
Rule 1.01 – A lawyer shall not engage in unlawful,
dishonest, immoral or deceitful conduct. His act is
also a violation of Rule 10.01 which provides that: A
lawyer shall not do any falsehood, nor consent to the
doing of any in court; nor mislead or allow the court
to be misled by any artifice. (Santos Jr. v. Atty.
Llamas, A.C. No. 4749, Jan. 20, 2000)
Q: Atty. Limon was Docena’s lawyer in a civil
case. During that case, he asked Docena to post
a supersedeas bond to stay execution of the
appealed decision.
Docena forwarded the
money to Atty. Limon. Later, the case was
decided in their favor. They were unable to
recover the money because the clerk of court
said no such bond had ever been filed. IBP
suspended Atty. Limon for one year.
Is disbarment warranted?
A: Yes. Atty. Limon’s allegation that the money
was payment of his fees was overcome by other
evidence. The law is not a trade nor craft but a
profession. Its basic ideal is to render public
service and to secure justice for those who seek
its aid. If it has to remain an honorable
profession and attain its basic ideal, lawyers
should not only master its tenets and principles
but should also, by their lives, accord continuing
fidelity to them. By extorting money from his
client through deceit, Limon has sullied the
integrity of his brethren in the law and has
indirectly eroded the people’s confidence in the
judicial system. He is disbarred for immoral,
deceitful and unlawful conduct. (Docena v. Atty.
Limon, A.C. No. 2387, Sept. 10, 1998)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
23
UST Golden Notes 2011
Q: Atty. Llorente and Atty. Salayon were election
officers of the COMELEC. They helped conduct
and oversee the 1995 elections. Then Senatorial
candidate Pimentel, Jr. alleged that Atty.
Llorente and Atty. Salayon tampered with the
votes received by him. Pimentel Jr. filed an
administrative complaint for their disbarment.
The two lawyers argued that the discrepancies
were due to honest mistake, oversight and
fatigue. They also argued that the IBP Board of
Governors had already exonerated them from
any offense and that the motion for
reconsideration filed by Pimentel Jr. was not
filed in time. Are Attys. Llorente and Salayon
guilty of violating the Code of Professional
Responsibilities?
A: Yes. Atty. Llorente and Atty. Salayon do not
dispute the fact that massive irregularities
attended the canvassing of the Pasig City election
returns. The only explanation they could offer for
such irregularities is that the same could be due
to honest mistake, human error, and/or fatigue
on the part of the members of the canvassing
committees who prepared the Statements of
Votes (SOVs). There is a limit, we believe, to what
can be construed as an honest mistake or
oversight due to fatigue, in the performance of
official duty.
Here, by certifying as true and correct the SoVs in
question, Atty. Llorente and Atty. Salayon
committed a breach of Rule 1.01 of the Code
which stipulates that a lawyer shall not engage in
“unlawful, dishonest, immoral or deceitful
conduct.” By express provision of Canon 6, this is
made applicable to lawyers in the government
service. In addition, they likewise violated their
oath of office as lawyers to “do no falsehood.”
(Pimentel, Jr. v. Atty. Llorente and Atty. Salayon,
A.C. No. 4680, Aug. 29, 2000)
Q: An administrative complaint for disbarment
against Atty. Iris was filed for allegedly carrying
an immoral relationship with Carlos, husband of
complainant Leslie. Atty. Iris contended that
her relationship with Carlos is licit because they
were married. And when she discovered Carlos’
true civil status she cut off all her ties with him.
Is Atty. Iris guilty of committing gross immoral
conduct warranting her disbarment?
A: No, her relationship with Carlos, clothed as it
was with what Atty. Iris believed was a valid
marriage, cannot be considered immoral.
Immorality connotes conduct that shows
indifference to the moral norms of the
community. Moreover for such conduct to
24
warrant disciplinary action, the same must be
“grossly immoral”, that is it must be so corrupt
and false as to constitute a criminal act or so
unprincipled as to be reprehensible to a high
degree. Atty. Iris’ act of immediately distancing
herself from Carlos upon discovering his true civil
status belies that alleged moral indifference and
proves that she had no intention of flaunting the
law and the high moral standard of the legal
profession. (Ui v. Atty Bonifacio, A.C. No. 3319,
June 8, 2000)
Q: Catherine and Atty. Rongcal maintained an
illicit affair.
Catherine filed a case for
disbarment against Atty. Rongcal based on gross
immoral
conduct
alleging
that
he
misrepresented himself to be single when he
was in fact married, and due to the false
pretenses she succumbed to his sexual
advances. Will her petition prosper?
A: Yes. Good moral character is a continuing
condition in a privilege of law practice. The mere
fact of sexual relation between two unmarried
adults is not sufficient to warrant administrative
sanction for such illicit behavior, it is not with
respect to betrayal of the marital vow of fidelity.
Atty. Rongcal is guilty of immorality in violation of
Rule 1.01 that a lawyer should not engage in
unlawful, dishonest, immoral or deceitful
conduct. But his remorse over his indiscretion and
the fact of ending the illicit relationship mitigates
the liability. Hence a penalty of imposing a fine
will suffice with a warning that the same will be
dealt more severely. (Vitug v. Rongcal, A.C. No.
6313, Sept. 7, 2006)
Q: Patricia and Simeon were teen sweethearts. It
was after their child was born that Simeon first
promised he would marry her after he passes
the bar examinations.
Their relationship
continued and Simeon allegedly made more
than twenty or thirty promises of marriage.
Patricia learned that Simeon married another
woman. Meanwhile, Simeon successfully passed
the 1970 bar examinations after four attempts.
But before he could take his oath, Patricia filed a
petition to disqualify Simeon to take the
Lawyer’s Oath on the ground of gross immoral
conduct. Does the act of Simeon in engaging in
premarital relations with Patricia and making
promises to marry her constitute gross immoral
conduct?
A: SC ruled that the facts do not constitute gross
immoral conduct warranting a permanent
exclusion of Simeon from the legal profession.
His engaging in premarital sexual relations with
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
complainant and promises to marry suggests a
doubtful moral character on his part but the same
does not constitute grossly immoral conduct. The
Court has held that to justify suspension or
disbarment the act complained of must not only
be immoral, but grossly immoral. A grossly
immoral act is one that is so corrupt and false as
to constitute a criminal act or so unprincipled or
disgraceful as to be reprehensible to a high
degree. It is willful, flagrant, or shameless act,
which shows a moral indifference to the opinion
of respectable members of the community.
(Figueroa v. Barranco, Jr., G.R. No. 97369, July 31,
1997)
Note: Mere intimacy between a man and woman,
both of whom possess no impediment to marry,
voluntarily carried on and devoid of any deceit on
the part of the former, is neither so corrupt nor so
unprincipled as to warrant the imposition of
disciplinary sanction against him, even if as a result
of such relationship a child was born out of wedlock.
(CPR Annotated, PhilJA)
Q: Define moral turpitude.
A: Moral turpitude imports an act of baseness,
vileness or depravity in the duties which one
person owes to another or to society in general
which is contrary to the usual accepted and
customary rule of right and duty which a person
should follow. The question as to whether an
offense involves moral turpitude is for the
Supreme Court to decide. (1992, 1993, 1997,
2004 Bar Questions)
Q: What are examples of acts that involve moral
turpitude and their consequences?
A:
1.
2.
3.
4.
5.
Conviction of estafa and/or BP 22.
DISBARRED. (In the Matter of Disbarment
Proceedings v. Narciso N. Jaramillo, A.C.
No. 229, April 30,1957)
Conviction of bribery/ attempted bribery.
DISBARRED. (In Re: Dalmacio De los
Angeles, A.C. No. L-350, Angust 7,1959); 7
C.J.S., p. 736;5 Am. Jur. P. 428)
Conviction of murder. DISBARRED. (In Re:
Disbarment Proceedings Against Atty.
Diosdado Q. Gutierrez,A.C. No.L- 363, July
31,1962)
Conviction of homicide. DISBARRED.
(Soriano v. Dizon, A.C. No. 6792, January
25,2006)
Conviction of illegal marriage before
admission to the bar. DISQUALIFIED FROM
BEING ADMITTED TO THE BAR. (Villasanta
v. Peralta, 101 Phil.313, April 30, 1957)
6.
Conviction of falsification of public
document.
REMOVED
FROM
HIS
OFFICE/NAME ERASED FROM ROLL OF
ATTORNEYS. (Ledesma de Jesus-Paras v.
Quinciano Vailoces,A.C. No. 439, April
12,1961)
7. Conviction of estafa through falsification
of
public
document.
DISBARRED.
(Villanueva v. Sta. Ana, CBD Case No. 251,
July 11, 1995)
8. Conviction of abduction. SUSPENDED
FROM OFFICE FOR 1 YEAR. (In Re Basa, 41
Phil. 275, December 7,1920)
9. Conviction of concubinage. SUSPENDED
FROM OFFICE FOR 1 YEAR. (In re Isada, 60
Phil. 915, November 16,1934)
10. Conviction of smuggling. DISBARRED. (In
re Rovero, A.C. No. 126, October 24,1952)
Note: Moral turpitude implies something immoral
regardless of the fact that it is punishable by law or
not. It must not merely be mala prohibita, but the
act itself must be inherently immoral. The doing of
the act itself, and not the its prohibition by statute
fixes the moral turpitude. (Zari v. Flores, Adm.
Matter No. 2170-MC P-1356)
Q: Resurreccion as defendant delivered to Atty.
Sayson
an
amount
representing
the
compensation or settlement money in a case for
homicide thru reckless imprudence. However,
Atty. Sayson did not turn over the amount to his
client, forcing Resurreccion to pay the same
amount again. Atty. Sayson was later convicted
for estafa. Should Atty. Sayson be disbarred?
A: Yes. Good moral character is not only a
condition precedent to admission to the legal
profession, but it must also remain extant in
order to maintain one’s good standing in that
exclusive and honored fraternity. Act of moral
turpitude (i.e. done contrary to justice, honesty &
good morals) such as estafa or falsification
renders one unfit to be a member of the legal
profession. (Resurreccion v. Atty. Sayson, G.R. No.
88202, Dec. 14, 1998)
Note: When lawyers are convicted of frustrated
homicide, the attending circumstances, not the mere
fact of their conviction would demonstrate their
fitness to remain in the legal profession. (Soriano v.
Dizon, A.C. No. 6792, Jan. 25, 2006)
Rule 1.02, Canon 1, CPR – A lawyer shall not
counsel or abet activities aimed at defiance
of the law or at lessening confidence in the
legal system. (1994, 1998 Bar Questions)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
25
UST Golden Notes 2011
Note: A lawyer should not promote nor hold an
organization known to be 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.
Q: Atty. Asilo, a lawyer and a notary public,
notarized a document already prepared by
spouses Roger and Luisa when they approached
him. It is stated in the document that Roger and
Luisa formally agreed to live separately from
each other and either one can have a live-in
partner with full consent of the other. What is
the liability of Atty. Asilo, if any?
A: Atty. Asilo may be held administratively liable
for violating Rule 1.02 of the CPR - a lawyer shall
not counsel or abet activities aimed at defiance of
the law or at lessening confidence in the legal
system. An agreement between two spouses to
live separately from each other and either one
could have a live-in partner with full consent of
the other, is contrary to law and morals. The
ratification by a notary public who is a lawyer of
such illegal or immoral contract or document
constitutes malpractice or gross misconduct in
office. He should at least refrain from its
consummation. (In Re: Santiago, A.C. No. 923,
June 21, 1940; Panganiban v. Borromeo, 58 Phil.
367; In Re: Bucana, A.C. No. 1637, July 6, 1976)
(1998 Bar Question)
Rule 1.03, Canon 1, CPR – A lawyer shall not,
for any corrupt motive or interest, encourage
any suit or proceeding or delay any man’s
cause.
5.
6.
7.
A: A lawyer owes to society and to the court the
duty not to stir up litigation.
Q: What is the difference between barratry and
ambulance chasing?
A: Barratry is an offense of frequently exciting
and stirring up quarrels and suits, either at law or
otherwise; lawyer’s act of fomenting suits among
individuals and offering his legal services to one
of them.
Note: Barratry is not a crime under the
Philippine laws. However, it is proscribed by the
rules of legal ethics. (CPR Annotated, PhilJA)
Ambulance chasing is an act of chasing victims of
accidents for the purpose of talking to the said
victims (or relatives) and offering his legal
services for the filing of a case against the
person(s) who caused the accident(s) (1993 Bar
Question). It has spawned a number of
recognized evils such as (FSMD):
1.
2.
3.
Q: Enumerate the unprofessional acts prohibited
by Rule 1.03.
4.
1.
2.
3.
Volunteering advice to bring lawsuit
except where ties of blood, relationship
and trust make it a duty to do so
Hunting up defects in titles or other
causes of action and informing thereof to
be employed to bring suit or collect
judgment, or to breed litigation by seeking
out claims for personal injuries or any
other grounds to secure them as clients
Employing agents or runners for like
purposes
Paying direct or indirect reward to those
who bring or influence the bringing of
such cases to his office
Searching for unknown heirs and soliciting
their employment of him
Initiating a meeting of a club and inducing
them to organize and contest legislation
under his guidance
Purchasing notes to collect them by
litigation at a profit
Q: What is crime of maintenance?
Note: Aimed against the practice of “barratry”,
“stirring up litigation” and “ambulance chasing”.
A:
26
4.
Fomenting of litigation with resulting
burdens on the courts and the public;
Subordination of perjury;
Mulcting of innocent persons by
judgments, upon manufactured causes of
action; and
Defrauding of injured persons having
proper causes of action but ignorant of
legal rights and court procedures by
means of contracts which retain
exorbitant percentages of recovery and
illegal charges for court costs and
expenses and by settlement made for
quick returns of fees and against just
rights of the injured persons (Hightower v.
Detroit Edison Co. 247 NW 97, 1993)
Note: Volunteer advice to bring lawsuit comes within
the prohibition, except where ties of blood,
relationship and trust make it a duty to do so.
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
Q: Does the rule absolutely prohibit all forms of
voluntary giving of advice?
however, the final decision to settle a claim rests
upon the client. (CPR Annotated, PhilJA)
A: No. It may be allowed when the giving of
advice is motivated by a desire to protect one
who does not recognize that he may have legal
problems or who is ignorant of his legal rights or
obligations. (CPR Annotated, PhilJA)
Q: Jon de Ysasi III was employed by his father, in
their farm in Negros Occidental. During the
entire period of Jon de Ysasi III's illnesses, his
father took care of his medical expenses and Jon
de Ysasi III continued to receive compensation.
However, later on, without due notice, his father
ceased to pay Jon de Ysasi III’s salary. Jon de
Ysasi III made oral and written demands from
Atty. Sumbingco (Jon de Ysasi's auditor and legal
adviser) for an explanation for the sudden
withholding of his salary, as well as for the
remittance of his salary. Both demands,
however, were not acted upon. Jon de Ysasi III
filed a case in court. Can the lawyers who have
been employed by the parties be admonished
for not trying to reconcile the parties before the
filing of suit?
Q: When does voluntary giving of advice become
improper?
A: When it is motivated by a desire to obtain
personal benefit, secure personal publicity, or
cause legal action to be taken merely to harass or
injure another. (CPR Annotated, PhilJA)
Q: While Atty. Ambo Lancia was on his way to
office in Makati, he chanced upon a vehicular
accident involving a wayward bus and a small
Kia whose driver, a Mr. Malas, suffered serious
physical injuries. Coming to the succor of the
badly injured Mr. Malas, Atty. Lancia drove him
to the nearest hospital. On their way to the
hospital, Mr. Malas found out that Atty, Lancia
was a practicing lawyer. In gratitude for his help,
Mr. Malas retained Atty. Lancia to file suit
against the bus company and its driver.
If you were Atty. Lancia, would you accept the
case?
A: I will not accept the case if I were Atty. Lancia
because it is difficult to dismiss the suspicion that
Atty. Lancia had assisted Mr. Malas for the
purpose of soliciting legal business. It is not clear
from the facts how Mr. Malas learned that Atty.
Lancia was a practicing lawyer. This could have
happen only if Atty. Lancia introduced himself as
a lawyer. Moreover, Atty. Lancia may be utilized
as a witness. (1994 Bar Question)
Rule 1.04, Canon 1, CPR – A lawyer shall
encourage his clients to avoid, end or settle a
controversy if it will admit of a fair
settlement. (2004 Bar Question)
Note: It is the duty of the lawyer to temper his
client’s propensity to litigate and resist his client’s
whims and caprices for the lawyer also owes duty to
the court. Lawyer should be a mediator for concord
and a conciliator for compromise rather than an
initiator of controversy and a predator of conflict.
The rule requires that lawyers encourage settlement
only when the same is fair. It should be noted that
the duty and the right of the lawyer is limited to
encouraging the client to settle. Ultimately,
A: Yes. The conduct of the respective counsel of
the parties, as revealed by the records, sorely
disappoints the Court and invites reproof. Both
counsels may well be reminded that their ethical
duty as lawyers to represent their clients with
zeal goes beyond merely presenting their clients'
respective causes in court. It is just as much their
responsibility, if not more importantly, to exert all
reasonable efforts to smooth over legal conflicts,
preferably out of court and especially in
consideration of the direct and immediate
consanguineous ties between their clients. Once
again, the useful function of a lawyer is not only
to conduct litigation but to avoid it whenever
possible by advising settlement or withholding
suit. He is often called upon less for dramatic
forensic exploits than for wise counsel in every
phase of life. He should be a mediator for concord
and a conciliator for compromise, rather than a
virtuoso of technicality in the conduct of litigation.
Rule 1.04 of the Code of Professional
Responsibility explicitly provides that "a lawyer
shall encourage his client to avoid, end or settle
the controversy if it will admit of a fair
settlement." (De Ysasi v. NLRC, G.R. No. 104599,
Mar. 11, 1994)
2. EFFICIENT AND CONVENIENT LEGAL
PROCESSES
CANON 2, CPR
- A LAWYER SHALL MAKE HIS LEGAL
SERVICES AVAILABLE IN AN EFFICIENT AND
CONVENIENT MANNER COMPATIBLE WITH
THE INDEPENDENCE, INTEGRITY AND
EFFECTIVENESS OF THE PROFESSION.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
27
UST Golden Notes 2011
Rationale: It is the lawyer’s prime duty to see to it
that justice is accorded to all without discrimination.
Rule 2.01, Canon 2, CPR – A lawyer shall not
reject, except for valid reasons, the cause of
the defenseless or the oppressed.
Q: Who are considered Defenseless?
A: Defenseless are those are not in a position to
defend themselves due to poverty, weakness,
ignorance or other similar reasons.
Q: Who are considered Oppressed?
A: Oppressed are those who are the victims of the
cruelty, unlawful, exaction, domination or
excessive use of authority.
Note: By specific authority the court may appoint an
attorney to render professional aid to a destitute
appellant in a criminal case who is unable to employ
an attorney. Correspondingly a duty is imposed upon
a lawyer so assigned to “render the required
service”. A lawyer so appointed as counsel for an
indigent prisoner, the Canons of Professional Ethics
demands, should always “exert his best efforts” in
the indigent’s behalf. (People v. Estebia, G.R. No. L26868, Feb. 27, 1969)
The inability to pay for legal services is not a valid
reason to refuse acceptance of a case. This is
because the profession is a branch of the
administration of justice and not a mere moneygetting trade. (CPR Annotated, PhilJA)
Note: A lawyer who accepts the cause of a person
unable to pay his professional fees shall observe the
same standard of conduct governing his relation
with paying client.
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.
Rule on Mandatory Legal Aid Service.
BM No. 2012
PROPOSED RULE ON MANDATORY.
LEGAL AID SERVICE FOR PRACTICING.
LAWYERS.
RESOLUTION.
(February 10, 2009).
Acting on the Memorandum dated January 27,
2009 of Justice (now Chief Justice) Renato C.
Corona re: Comment of the Integrated Bar of the
Philippines on our Suggested Revisions to the
28
Proposed Rule of Mandatory Legal Aid Service for
Practicing Lawyers, the Court Resolved to
approve the same.
This Resolution shall take effect on July 1, 2009
following publication of the said Rule and its
implementing regulations in at least two (2)
newspapers of general circulation.
Q: What is the rule on Mandatory Legal Aid
Service?
A: The mandatory Legal Aid Service mandates
every practicing lawyer to render a minimum of
60 hours of free legal aid services to indigent
litigants yearly.
Note: Rule on Mandatory Legal Aid Service (B.M. No.
2012): Pursuant to an en banc Resolution of the
Supreme Court, this Rule took effect on January 1,
2010, provided its implementing regulations have
been published prior to the said date.
Q: What is the purpose of the rule?
A: The rule seeks to enhance the duty of lawyers
to society as agents of social change and to the
courts as officers thereof by helping improve
access to justice by the less privileged members
of society and expedite the resolution of cases
involving them. Mandatory free legal service by
members of the bar and their active support
thereof will aid the efficient and effective
administration of justice especially in cases
involving indigent and pauper litigants. (Sec. 2,
B.M. No. 2012)
Q: What is the scope of the rule?
A: It shall govern the mandatory requirement for
practicing lawyers to render free legal aid services
in all cases (whether, civil, criminal or
administrative) involving indigent and pauper
litigants where the assistance of a lawyer is
needed. It shall also govern the duty of other
members of the legal profession to support the
legal aid program of the Integrated Bar of the
Philippines. (Sec 3, B.M. No. 2012)
Q: Who are the practicing lawyers for the
purpose of this rule?
A: Practicing lawyers are members of the
Philippine Bar who appear for and in behalf of
parties in courts of law and quasi-judicial
agencies, including but not limited to the National
Labor
Relations
Commission,
National
Conciliation and Mediation Board, Department of
Labor and Employment Regional Offices,
Department of Agrarian Reform Adjudication
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
Board and National Commission for Indigenous
Peoples.
The term “practicing lawyers” shall exclude:
1.
2.
3.
4.
Government employees and incumbent
elective officials not allowed by law to
practice;
Lawyers who by law are not allowed to
appear in court;
Supervising lawyers of students enrolled in
law student practice in duly accredited
legal clinics of law schools and lawyers of
non-governmental organizations (NGOs)
and peoples’ organizations (POs) like the
Free Legal Assistance Group who by the
nature of their work already render free
legal aid to indigent and pauper litigants;
and
Lawyers not covered under subparagraphs
1 to 3 including those who are employed
in the private sector but do not appear for
and in behalf of parties in courts of law
and quasi-judicial agencies.(Sec. 4[a], B.M.
2012)
Q: What are free legal aid services?
A: Free legal aid services refer to appearance in
court or quasi-judicial body for and in behalf of an
indigent or pauper litigant and the preparation of
pleadings or motions. It shall also cover assistance
by a practicing lawyer to indigent or poor litigants
in court-annexed mediation and in other modes
of alternative dispute resolution (ADR). Services
rendered when a practicing lawyer is appointed
counsel de oficio shall also be considered as free
legal aid services and credited as compliance
under the Rule. (Sec. 4[d], B.M. 2012)
Q: What are the requirements for mandatory
legal aid service?
A: Under the Rule, a practicing lawyer, among
others, shall coordinate with the Clerk of Court or
the Legal Aid Chairperson of one’s Integrated Bar
of the Philippines (IBP) Chapter for cases where
the lawyer may render free legal aid service.
1.
Q: Who are these indigent and pauper litigants?
A: Under Section 19, Rule 141, Rules of Court,
Indigent litigants are those:
1.
Whose gross income and that of their
immediate family do not exceed an
amount double the monthly minimum
wage of an employee; and
2.
Who do not own real property with a fair
market value as stated in the current tax
declaration of more than three hundred
thousand (P300,000.00) pesos shall be
exempt from the payment of legal fees
Note: A party may be authorized to litigate his
action, claim or defense as an indigent if the court
upon an ex-parte application and hearing, is satisfied
that the party is one who has no money or property
sufficient and available for food, shelter and basic
necessities for himself and his family. (Section 21,
Rule 3, RRC)
Note: For this purpose, a practicing lawyer
shall coordinate with the Clerk of Court for
cases where he may render free legal aid
service. He may also coordinate with the IBP
Legal Aid Chairperson of the IBP Chapter to
inquire about cases where he may render
free legal aid service. In this connection, the
IBP Legal Aid Chairperson of the IBP Chapter
shall regularly and actively coordinate with
the Clerk of Court. (Sec. 5[a] second par.,
B.M. 2012)
2.
The practicing lawyer shall report
compliance with the requirement within
10 days of the last month of each quarter
of the year. (Sec. 5[a] third par., B.M.
2012)
3.
A practicing lawyer shall be required to
secure and obtain a certificate from the
Clerk of Court attesting to the number of
hours spent rendering free legal aid
services in a case. (Sec. 5[b] B.M. 2012)
Q: What does legal aid cases include?
A: It includes actions, disputes, and controversies
that are criminal, civil and administrative in
nature in whatever stage wherein indigent and
pauper litigants need legal representation. (Sec.
4[c], B. M.2012)
Every practicing lawyer is required to
render a minimum of 60 hours of free
legal aid services to indigent litigants in a
year. Said 60 hours shall be spread within
the period of 12 months, with a minimum
of 5 hours of free legal aid services each
month. However, where it is necessary
for the practicing lawyer to render legal
aid service for more than 5 hours in one
month, the excess hours may be credited
to the said lawyer for the succeeding
periods. (Sec. 5[a] first par., B.M. 2012)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
29
UST Golden Notes 2011
4.
5.
6.
Said compliance report shall be submitted
to the Legal Aid Chairperson of the IBP
Chapter within the Court’s jurisdiction.
(Sec. 5[c] B.M. 2012)
compliance period under the Rules on MCLE shall
be credited the following:
1.
2.
The IBP chapter shall, after verification,
issue a compliance certificate to the
concerned lawyer. The IBP Chapter shall
also submit compliance reports to the
IBP’s National Committee on Legal Aid
(NCLA) for recording and documentation.
The submission shall be made within
forty-five (45) days after the mandatory
submission of compliance reports by the
practicing lawyers. (Sec. 5[d] B.M. 2012)
Practicing lawyers shall indicate in all
pleadings filed before the courts or quasijudicial bodies the number and date of
issue of their certificate of compliance for
the immediately preceding compliance
period. (Sec 5[e] B.M. 2012)
3.
4.
5.
6.
A lawyer who renders mandatory legal aid service
for the required number of hours in a year for at
least two consecutive years within the three yearperiod covered by a compliance period under the
Rules on MCLE shall be credited the following:
Q: What should the certificate from the Clerk of
Court, attesting the number of hours spent
rendering free legal services, contain?
1.
2.
3.
A: The certificate shall contain the following
information:
1. The case or cases where the legal aid
service was rendered, the party or parties
in the said case(s), the docket number of
the said case(s) and the date(s) the service
was rendered
2. The number of hours actually spent
3. The number of hours actually spent
attending mediation, conciliation or any
other mode of ADR on a particular case
4. A motion (except a motion for extension
of time to file a pleading or for
postponement of hearing or conference)
or pleading filed on a particular case shall
be considered as one (1) hour of service.
(Sec 5[b] B.M. 2012)
4.
5.
6.
A:
1.
2.
Q: What credits should be given to a lawyer who
renders mandatory legal aid service?
A: A lawyer who renders mandatory legal aid
service for the required number of hours in a year
for the three year-period covered by a
30
One (1) credit unit for legal ethics
One (1) credit unit for trial and pretrial
skills
One (1) credit unit for alternative dispute
resolution
Two (2) credit units for legal writing and
oral advocacy
Two (2) credit units for substantive and
procedural laws and jurisprudence
Three (3) credit units for such subjects as
may be prescribed by the MCLE
Committee under Section 2(g), Rule 2 of
the Rules on MCLE. (Sec. 8, B.M. 2012)
Q: What is the sanction in case of noncompliance of the rule on mandatory legal aid
service?
Note: The Clerk of Court shall issue the certificate in
triplicate, one (1) copy to be retained by the
practicing lawyer, one (1) copy to be retained by the
Clerk of Court and one (1) copy to be attached to the
lawyer's compliance report. (Sec 5[b][iv]second
par., B.M. 2012)
Two (2) credit units for legal ethics
Two (2) credit units for trial and pretrial
skills
Two (2) credit units for alternative dispute
resolution
Four (4) credit units for legal writing and
oral advocacy
Four (4) credit units for substantive and
procedural laws and jurisprudence
Six (6) credit units for such subjects as may
be prescribed by the MCLE Committee
under Section 2(g), Rule 2 of the Rules on
MCLE
At the end of every calendar year, any
practicing lawyer who fails to meet the
minimum prescribed 60 hours of legal aid
service each year shall be required by the
IBP, through the National Committee on
Legal Aid (NCLA), to explain why he was
unable to render the minimum prescribed
number of hours.
If no explanation has been given or if the
NCLA finds the explanation unsatisfactory,
the NCLA shall make a report and
recommendation to the IBP Board of
Governors that the erring lawyer be
declared a member of the IBP who is not
in good standing.
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
3.
4.
5.
6.
7.
8.
Upon
approval
of
the
NCLA’s
recommendation, the IBP Board of
Governors shall declare the erring lawyer
as a member not in good standing.
The notice to the lawyer shall include a
directive to pay P4,000.00 penalty which
shall accrue to the special find for the legal
aid program of the IBP.
The “not in good standing” declaration
shall be effective for a period of 3 months
from the receipt of the erring lawyer of
the notice from the IBP Board of
Governors.
During the said period, the lawyer cannot
appear in court or any quasi-judicial body
as counsel.
Provided, however, that the “not in good
standing” status shall subsist even after
the lapse of the 3-month period until and
unless the penalty shall have been paid.
Any lawyer who fails to comply with his
duties under this Rule for at least 3
consecutive shall be the subject of
disciplinary proceedings to be instituted
motu proprio by the Committee on Bar
Discipline.(Sec. 7, B.M. 2012)
Note: The falsification of a certificate or any
contents thereof by any Clerk of Court or by any
Chairperson of the Legal Aid Committee of the IBP
local chapter where the case is pending or by the
Director of a legal clinic or responsible officer of an
NGO (non-governmental organizations) or PO
(people’s organizations) shall be a ground for an
administrative case against the said Clerk of Court or
Chairperson. This is without prejudice to the filing of
the criminal and administrative charges against the
malfeasor. (Sec. 7[e] B.M. 2012)
AN ACT PROVIDING A MECHANISM FOR FREE
LEGAL ASSISTANCE AND FOR OTHER PURPOSES
R.A. NO. 9999
FEB. 23, 2010
Note: Otherwise known as the “Free Legal
Assistance Act of 2010”. (Sec. 1, R.A. 9999)
Q: What are the purposes of R.A. No. 9999?
A: To:
1. Encourage lawyers and professional
partnerships to provide free legal
assistance
2. Solicit the assistance of lawyers and
professional partnerships in the private
practice of law in providing quality legal
assistance to indigent litigants through a
system of tax incentives
3.
4.
5.
Provide relief to the Public Attorney’s
Office (PAO) and other associations
accredited by the Supreme Court from the
numerous cases it handles
Provide indigent litigants the opportunity
to acquire the services of the
distinguished law firms and legal
practitioners of the country for free
Ensure that the right of every individual to
counsel as mandated in the Constitution is
protected and observed 2
Q: How are the services availed of?
A: PAO, Department of Justice (DOJ) and other
legal aid clinics accredited by the Supreme Court
shall refer pauper litigants to identified lawyers
and professional partnerships.
PAO, DOJ or the accredited legal aid clinic shall
issue a certification that services were rendered
by the lawyer or the professional partnership
under this act. The certification shall include the
cost of the actual services given.
Q: What are the incentives given to lawyers
rendering free legal services?
A: A lawyer or professional partnerships
rendering actual free legal services, as defined by
the Supreme Court, shall be entitled to an
allowable deduction from the gross income, the
amount that could have been collected for the
actual free legal services rendered or up to ten
percent (10%) of the gross income derived from
the actual performance of the legal profession,
whichever is lower: Provided, That the actual free
legal services herein contemplated shall be
exclusive of the minimum sixty (60)-hour
mandatory legal aid services rendered to indigent
litigants as required under the Rule on Mandatory
Legal Aid Services for Practicing Lawyers, under
BAR Matter No. 2012, issued by the Supreme
Court. (Sec. 5, R.A. 9999)
Q: What are the salient features of R.A. No.
9999?
A:
1.
2.
The law will allow indigent litigants to
acquire the services of renowned lawyers
and law firms for free
In exchange for the services rendered by
the lawyer or the law firm, they will be
given tax incentives equivalent to the cost
of the services rendered to the indigent
litigant
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
31
UST Golden Notes 2011
3.
4.
It will help relieve the Public Attorney’s
Office (PAO) of its numerous case load
involving indigent litigants who shall be
referred to lawyers or law firms in the
private practice
It should entice renowned and
distinguished firms and lawyers in the
practice as their services shall still be
compensated commensurately through
the tax incentives
Note: The DOJ, in cooperation with the
Philippine Information Agency (PIA), is
hereby mandated to conduct an annual
Information, Education and Communication
(IEC) campaign in order to inform the
lawyers of the procedures and guidelines in
availing tax deductions and inform the
general public that a free legal assistance to
those who cannot afford counsel is being
provided by the State. (Sec. 6, R.A. 9999)
Rule 2.02, Canon 2, CPR – 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.
Q: What does rendering of legal advice include?
A: It shall include preliminary steps that should be
taken, at least, until the person concerned has
obtained the services of a proper counsel’s
representation. Even though no attorney-client
relationship is created between the parties, the
lawyer, by providing interim advice, preserves the
dignity of the profession by inspiring public faith
in the profession. (CPR Annotated, PhilJA)
Note: If only to the extent necessary to safeguard
the latter’s right means such as advising him what
preliminary steps to take until he shall have secured
the services of counsel. However, he shall refrain
from giving this preliminary advice if there is a
conflict of interest between a present client and a
prospective one. Extending such legal advice will
create and establish an attorney-client relationship
between them and may involve a violation of the
rule prohibiting a lawyer from representing
conflicting interest.
Rule 2.03, Canon 2, CPR – A lawyer shall not
do or permit to be done any act designated
primarily to solicit legal business. (1997 Bar
Question)
Q: Why is legal profession not considered as a
business?
32
A: It is not a business because it is a:
1.
2.
3.
4.
Relation, as an “officer of the court”, to
the administration of justice involving
thorough sincerity, integrity and reliability
Duty of public service
Relation to clients with the highest degree
of fiduciary
Relation to the colleagues at the bar
characterized by candor, fairness, and
unwillingness to resort to current business
methods of advertising and encroachment
on their practice, or dealing directly with
their clients. (2006 Bar Question)
Note: The best type of advertisement for a lawyer is
a well-deserved reputation for competence,
honestly and fidelity to private trust and public duty.
Q: Atty. David agreed to give ½ of his
professional fees to an intermediary or
commission agent and he also bound himself not
to deal directly with the clients. Can he be
subject to disciplinary action?
A: Yes. The agreement is void because it was
tantamount to malpractice which is the practice
of soliciting cases of law for the purpose of gain
either personally or through paid agents or
brokers. Malpractice ordinarily refers to any
malfeasance or dereliction of duty committed by a
lawyer.
The meaning of malpractice is in
consonance with the notion that the practice of
law is a profession not a business. The lawyer
may not seek or obtain employment by himself or
through others, to do so would be unprofessional.
(Tan Tek Beng v. David, A. C. No. 1261, Dec. 29,
1983)
Q: Are advertisements of lawyers and law firms
allowed in Philippine jurisdiction?
A:
GR: No advertisements allowed. The most
worthy and effective advertisement possible is
the establishment of a well-merited reputation
for professional capacity and fidelity to trust.
Note: Lawyers may not advertise their services or
expertise nor should they resort to indirect
advertisements for professional employment,
such as furnishing or inspiring newspaper
comments, or procuring his photograph to be
published in connection with causes in which the
lawyer has been engaged or concerning the
manner of their conduct, the magnitude of the
interest involved, the importance of the lawyer's
position, and all other self-laudation.
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
Note: Advertising is NOT malum in se and what
the prohibition tries to prevent is advertising that
tends to degrade the dignity of the profession.
A:
1.
2.
3.
4.
5.
XPN: LEPO-LABAN-PD
1.
Reputable Law lists, in a manner
consistent with the standards of
conduct imposed by the canons, of brief
biographical and informative data, are
allowed.
2. Advertisements
or
simple
announcement of the Existence of a
lawyer or his law firm posted anywhere
it is proper such as his place of business
or residence except courtrooms and
government buildings.
3. Ordinary simple Professional Card. It
may contain only a statement of his
name, the name of the law firm which
he is connected with, address,
telephone number and the special
branch of law practiced.
4. A 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, is not
objectionable.
5. Advertisements or announcement in
any Legal publication, including books,
journals, and legal magazines and in
telephone directories. (Ulep v. Legal
Clinic, Inc., B.M. No. 553, June 17, 1993)
6. Writing legal Articles
7. Engaging in Business and other
occupations except when such could be
deemed improper, be seen as indirect
solicitation or would be the equivalent
of a law practice
8. Activity of an association for the
purpose of legal representation.
9. Notice to other local lawyers and
publishing in a legal journal of one’s
availability to act as an associate for
them
10. Seeking a Public office, which can only
be held by a lawyer or, in a dignified
manner, a position as a full time
corporate counsel
11. Listing in a phone Directory, but not
under a designation of a special branch
of law. (Atty. Khan Jr. v. Atty. Simbillo,
A.C. No. 5299, Aug. 19, 2003)
Q: What is the rationale for the prohibition on
advertisements?
The profession is primarily for public
service;
Commercializes the profession
Involves self-praise and puffing
Damages public confidence
May increase lawsuits and result in
needless litigation
Note: It is highly unethical for an attorney to
advertise his talents or skill as a merchant advertises
his wares. (In re: Tagorda, 53 Phil 42, Mar. 23, 1929)
Q:
What
solicitation?
activities
constitute
indirect
A:
1.
2.
Writing and selling for publication articles
of general nature on legal subjects
Writing unsolicited article on a legal
subject.
Note: If engaged in another profession or occupation
concurrently with the practice of law, the lawyer
shall make clear to his client whether he is acting as
a lawyer or in another capacity.
Q: Atty. Dulcinea writes a regular column in a
newspaper of general circulation and articles on
unforgettable legal stories in a leading magazine.
Her by-line always includes the name of her firm
where she is a name partner. Would you
consider this as improper advertising? Explain
your answer.
A: Atty. Dulcinea’s by-line including the firm name
where she belongs is improper because it is an
indirect way of solicitation or is an advertisement
of the law firm.
Q: A paid advertisement appeared in the July 5,
2000 issue of Philippine Daily Inquirer, which
reads: "ANNULMENT' OF MARRIAGE Specialist
532-4333/521-2667." Similar advertisements
were published in the August 2 and 6, 2000
issues of the Manila Bulletin and August 5, 2000
issue of The Philippine Star.
A staff member of the SC called up the published
telephone number and pretended to be an
interested party. She spoke to Mrs. Simbillo,
who claimed that her husband, Atty. Simbillo,
was an expert in handling annulment cases and
can guarantee a court decree within four to six
months, provided the case will not involve
separation of property or custody of children.
Mrs. Simbillo also said that her husband charges
a fee of P48,000.00, half of which is payable at
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
33
UST Golden Notes 2011
the time of filing of the case and the other half
after a decision thereon has been rendered.
Does the appearance of the following:
"ANNULMENT' OF MARRIAGE Specialist 5324333/521-2667", in a newspaper, amount to
advertising and solicitation of legal services
prohibited by the Code of Professional
Responsibility and the Rules of Court?
A: Yes. It has been repeatedly stressed that the
practice of law is not a business. It is a profession
in which duty to public service, not money, is the
primary consideration. Lawyering is not primarily
meant to be a money-making venture, and law
advocacy is not a capital that necessarily yields
profits. The gaining of a livelihood should be a
secondary consideration. The duty to public
service and to the administration of justice should
be the primary consideration of lawyers, who
must subordinate their personal interests or what
they owe to themselves. (Atty. Khan Jr. v. Atty.
Simbillo, A.C. No. 5299, Aug. 19, 2003)
Note: The rule against solicitation applies to a lawyer
who offers monetary reward to those who can serve
as witness/es in the case, which he is handling. (CPR
Annotated, PhilJA)
Note: Solicitation of employment is a ground for
suspension or disbarment.
Q: Facing disciplinary charges for advertising as a
lawyer, Atty. A argues that although the calling
card of his businessman friend indicates his law
office and his legal specialty, the law office is
located in his friend’s store. Decide.
A: This appears to be a circumvention of the
prohibition on improper advertising. There is no
valid reason why the lawyer’s businessman friend
should be handling out calling cards which
contains the lawyer’s law office and legal
specialty, even if his office is located in his friend’s
store. What makes it more objectionable is the
statement of his supposed legal specialty. (2001
Bar Question)
Q: A lawyer who had just paid his bill at a
respectable car repair shop noticed that another
customer was having a heated argument with
the shop manager. It turned out that the
customer’s car which was undergoing repair had
been driven by one of the shop employees and
had crashed against another car which was also
being repaired. The lawyer approached the two
who are arguing, identified himself as a
practicing lawyer, and volunteered to help settle
the matter amicably. At a subsequent
34
conference at the lawyer’s office, an amicable
settlement was actually reached by the parties.
Did the lawyer commit an infraction of
professional ethics? Explain.
A: There is no infraction of professional ethics. It
does not appear from the facts that the lawyer
who helped to settle the matter amicably had in
view the retention of his services for a possible
litigation or payment, promise or discharge of
consideration in his favor. If all that the lawyer did
was to help settle the matter amicably, then he
should even be commended for helping
contending parties avoid a lawsuit.
But if the purpose of the lawyer in helping to
settle the matter amicably is to charge a fee or to
carry favor by judging one side against the other,
then he is guilty of improper solicitation, which is
unethical. (1986 Bar Question)
Rule 2.04, Canon 2,CPR – A lawyer shall not
charge rates lower than those customarily
prescribed unless the circumstances so
warrant. (1997, 2005 Bar Questions)
Q: Dante wants to file a case against his wife for
support; he secured the services of Atty. Reyes,
his cousin and a private practitioner. However,
Dante does not have sufficient money to pay for
legal services. Nevertheless, Atty. Reyes
accepted the case and promised to charge a
lower rate. Did Atty. Reyes violate the Code of
Professional Responsibilities?
A: No, Atty. Reyes did not violate the CPR.
GR: A lawyer shall not charge rates lower than
those customarily prescribed.
XPN: When clients are relatives, co-lawyers, or
are indigents. These are the valid
justifications.
The case of Dante falls under the valid
justifications, so Atty. Reyes did not commit any
unethical act.
Note: What the rule prohibits is a competition in
the matter of charging professional fees for the
purpose of attracting clients in favor of the lawyer
who offers lower rates. The rule does not prohibit a
lawyer from charging a reduced fee or none at all to
an indigent. (Comments of the IBP Committee)
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
3. TRUE, HONEST, FAIR, DIGNIFIED AND OBJECTIVE
INFORMATION ON LEGAL SERVICES
CANON 3, CPR
- A LAWYER IN MAKING KNOWN HIS LEGAL
SERVICES SHALL USE ONLY TRUE, HONEST,
FAIR, DIGNIFIED AND OBJECTIVE
INFORMATION OR STATEMENT OF FACTS
(1993,1997,1998,2001,2002,2003 Bar
Questions)
Rationale: The practice of law is not a trade like the
sale of commodities to the general public where
‘the usual exaggerations in trade, when the proper
party had the opportunity to know the facts, are
not in themselves fraudulent.”
Q: Is giving of advice on legal matters through
the medium of a newspaper column or radio or
television broadcast improper?
A: Yes, as giving of legal advice through such
medium cannot be undertaken by a layman
because that service constitutes practice of law.
Nor can it be undertaken by a lawyer because
that work involve indirect advertising, violation
of the confidential relation of attorney and
client, and a breach of the traditional standards
of the profession. (Agpalo, Legal and Judicial
Ethics)
Q: Atty. E has a daily 10-minute radio program
billed as a “Court of Common Troubles.” The
program is advertised by the radio station as a
public service feature for those who seek but
cannot afford to pay for legal advice. Its
sponsors include a food processing company and
a detergent manufacturing firm which share
with the radio station the monthly remuneration
of Atty. E. Is there any impropriety in Atty. E’s
role under the above arrangement?
A: Giving advice on legal matters through the
medium of a newspaper column or radio station
or television broadcast is improper. It would
involve indirect advertising and violation of the
confidential relation between the lawyer and the
client. (Agpalo, Legal Ethics) (1997 Bar Question)
Rule 3.01, Canon 3, CPR – 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. (1997 Bar
Question)
A:
1.
2.
3.
4.
Misstatements of fact
Suggestions that the ingenuity or prior
record of a lawyer rather than the justice
of the claim are the principal factors
likely to determine the result
Inclusion of information irrelevant on
selecting a lawyer
Representations concerning the quality
of service, which cannot be measured or
verified. (CPR Annotated, PhilJA)
Q: Atty. Lana a famous family lawyer, asked his
secretary to draft the contents of his new calling
card. The secretary inserted in such draft the
phrase, the “best family lawyer in the
Philippines”. The draft was checked by Atty.
Lana and approved it. The new calling cards
were then made and Atty. Lana gave it to
prospective clients. Did Atty. Lana commit any
unethical act?
A: Yes, under Rule 3.01 of CPR, violation of Rule
3.01 is unethical, whether done by him personally
or through another with his permission.
Rule 3.02, Canon 3, CPR – 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. (1994, 1996, 2001 Bar Questions)
Q: What is the reason in allowing a firm to use
the name of a deceased partner?
A: All the partners have by their joint and several
efforts over a period of years contributed to the
good will attached to the firm name. In the case
of a firm having widespread connections, this
good will is disturbed by a change in firm name
every time a partner dies, and that reflects a loss
in some degree of the good will to the building up
of which the surviving partners have contributed
their time, skill and labor through a period of
years. (CPR Annotated, PhilJA)
Note: The doctrine in, “In the matter of the petition
for authority to continue use of the firm Ozaeta,
Romulo, De Leon etc., and petition for authority to
continue use of firm name – Sycip, Salazar, Feliciano,
etc.” (July 30, 1979) that a law firm cannot continue
using the name of a deceased partner due to the
possibility of deception upon the public, is
abandoned by Rule 3.02.
Q: Cite some examples of information in lawyer
advertising, that could be considered deceptive.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
35
UST Golden Notes 2011
Note: No name not belonging to any of the partners
or associates may be used in the firm name for any
purpose.
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. The
use of a cross after the name of the deceased
partner is sufficient indication. It is advisable though
that the year of the death be also indicated.
Note: At the hearing, the respondent admitted that
the letterhead of the Cristal-Tenorio Law Office
listed Felicismo R. Tenorio Jr., Gerardo A. Panghulan,
and Maricris D. Battung as senior partners. She
admitted that the first two are not lawyers but
paralegals. They are listed in the letterhead of her
law office as senior partners because they have
investments in her law office. That is a blatant
misrepresentation.
(Cambaliza v. Atty. CristalTenorio, A.C. No. 6290, July 14, 2004)
Rule 3.03, Canon 3, CPR – 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.
Q: Is a Filipino lawyer allowed to practice under
a name of a foreign law firm?
A: Filipino lawyers cannot practice law under the
name of a foreign law firm, as the latter cannot
practice law in the Philippines and the use of a
foreign law firm in the country is unethical.
(Dacanay v. Baker and McKenzie, A.C. No. 2131,
May 10, 1985)
Rationale: 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.
Q: Samonte alleges that when she went to
Branch 220, RTC, Quezon City, to inquire about
the reason for the issuance of the temporary
restraining order, Atty. Rolando Gatdula (Clerk
of Court) blamed her lawyer for writing the
wrong address in the complaint for ejectment,
and told her that if she wanted the execution to
proceed, she should change her lawyer and
retain the law office of Atty. Gatdula, at the
same time giving his calling card with the name
"Baligod, Gatdula, Tacardon, Dimailig and
Celera" with office at Rm. 220 Mariwasa Bldg.,
717 Aurora Blvd., Cubao, Quezon City, otherwise
she will not be able to eject the defendant Dave
Knope. Samonte told Atty. Gatdula that she
could not decide because she was only
representing her sister. To her consternation,
36
the RTC Branch 220 issued an order granting the
preliminary injunction as threatened by Atty.
Gatdula despite the fact that the MTC, Branch 37
had issued an Order directing the execution of
the Decision in Civil Case No. 37-14552.
Samonte filed an administrative case for
misconduct, alleging that Atty. Gatdula is
engaged in the private practice of law. Did Atty.
Gatdula violate the Code of Conduct and Ethical
Standards for the Public Officials and
Employees?
A: Yes. Samonte by her failure to appear at the
hearings, failed to substantiate her allegation that
it was Atty. Gatdula who gave her calling card
"Baligod, Gatdula, Tacardon, Dimailig and Celera
Law Offices" and that he tried to convince her to
change counsels. However, that while Atty.
Gatdula
vehemently
denies
Samonte's
allegations, he does not deny that his name
appears on the calling card attached to the
complaint, which admittedly came into the hands
of Samonte.
The card clearly gives the impression that he is
connected with the said law firm. The
inclusion/retention of his name in the
professional card constitutes an act of solicitation
which violates Section 7 sub-par. (b) (2) of R.A.
6713, otherwise known as "Code of Conduct and
Ethical Standards for the Public Officials and
Employees" which declares it unlawful for a
public official or employee to, among others:
(2) Engage in the private practice of their
profession unless authorized by the Constitution
or law, provided that such practice will not
conflict or tend to conflict with official functions.
(Samonte v. Gatdula, A.M. No. 99-1292, Feb. 26,
1999)
Rule 3.04, Canon 3, CPR - 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.
Note: The purpose of the rule is to prevent some
lawyers from gaining an unfair advantage over
others through the use of gimmickry, press agentry
or other artificial means.
Q: Fiscal Salva conducted the investigation of the
case concerning the killing of Monroy, in the
session hall of the Municipal Court of Pasay City
to accommodate the public and members of the
press. Also, he told the press that “if you want
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
to ask question, I am allowing you to do so and
the questions will be reproduced as my own”. Is
the act of the fiscal in sensationalizing the case
unethical?
opposing candidate is better qualified. (ABA Opinion
189 (1938); Funa, 2009)
A: Yes.
Fiscal Salva should be publicly
reprehended and censured for the uncalled and
wide publicity and sensationalism that he had
given to and allowed in connection with his
investigation, whatever be his motive, which is
considered and found to be contempt of court
(Cruz v Salva, G.R. No. L-12871, July 25, 1959)
CANON 5, CPR
- 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
(2003,2006,2008 Bar Questions).
5. PARTICIPATION IN LEGAL EDUCATION
4. PARTICIPATE IN THE IMPROVEMENT
OF THE LEGAL SYSTEM
CANON 4, CPR
- A LAWYER SHALL PARTICIPATE IN THE
DEVELOPMENT OF THE LEGAL SYSTEM BY
INITIATING OR SUPPORTING EFFORTS IN
LAW REFORM AND IN THE
ADMINISTRATION OF JUSTICE
(2008 BAR QUESTION).
Note: By reason of education and experience,
lawyers are especially qualified to recognize
deficiencies in the legal system and to initiate
corrective measures therein. Thus they should
participate in proposing and supporting legislation
and programs to improve the system, without regard
to the general interests or desires of clients or
former clients. (Ethical Consideration 8-1, 1978,
Model Code of Professional Responsibility, American
Bar Association)
E.g.:
1.
2.
Note: This duty carries with it the obligation to be
well informed of the existing laws, and to keep
abreast with legal developments, recent enactment
and jurisprudence. It is imperative that they be
conversant with basic legal principles. Unless they
faithfully comply with such duty, they may not be
able to discharge competently and diligently their
obligations as members of the Bar. Worse, they may
become susceptible to committing mistakes. (Dulalai
Jr. v. Cruz, A.C. No. 6854, Apr. 27, 2007, citing
Santiago v. Rafanan, A.C. No. 6252 Oct. 5, 2004)
Q: What is the three-fold obligation of a lawyer?
A:
1.
2.
Presenting position papers or resolutions
for the introduction of pertinent bills in
Congress; or
Petitions with the SC for the amendment
of the Rules of Court.
Note: Every man owes some of his time to the up
building of the profession to which he belongs.
(Report of the IBP Committee)
Note: Lawyers also have the duty to assist the
Judicial and Bar Council (JBC) is appraising accurately
the qualifications of candidates for judicial office.
A lawyer may with propriety endorse a candidate
and seek that endorsement from other lawyers. A
lawyer should not use or attempt to use the power
or prestige of the judicial office to secure such
endorsement. On the other hand, the lawyer whose
endorsement is sought should have the courage and
moral stamina to refuse the request for
endorsement if he believes the candidate lacks the
essential qualifications for the office or believes the
3.
He owes it to himself to continue
improving his knowledge of the laws
He owes it to his profession to take an
active interest in the maintenance of high
standards of legal education
He owes it to the lay public to make the
law a part of their social consciousness.
CANON 6, CPR
-THESE CANONS SHALL APPLY TO LAWYERS
IN GOVERNMENT SERVICES IN THE
DISCHARGE OF THEIR TASKS
(1992,1993,2000,2001,2006 BAR
QUESTIONS).
Note: Canons shall apply to lawyers in government
service in the discharge of their tasks. Lawyers
should be more sensitive in the performance of their
professional obligations as their conduct is subject to
constant scrutiny of the public.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
37
UST Golden Notes 2011
Rule 6.01, Canon 6, CPR – The primary duty
of a lawyer engaged in public prosecution is
not to convict but to see to it 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. (1992, 1993 Bar
Questions)
2.
Q: What is the foremost duty of a lawyer?
3.
A: The foremost duty of a lawyer is not to his
client but to the administration of justice. To this
end, his client’s success is wholly subordinate.
4.
Note: His conduct ought to and must always be
scrupulously observant of law and ethics, while a
lawyer must advocate his clients cause in utmost
earnestness and with the maximum skill he can
marshal; he is not at liberty to resort to illegal means
for his client’s interest. It is the duty of an attorney
to employ for the purpose of maintaining the causes
confided in him such means as are consistent with
truth and honor. (Valencia v. Cabanting, A.M. Nos.
1302, 1391, 1543; Apr. 26, 1991)
Q: From the viewpoint of legal ethics, why
should it be mandatory that the public
prosecutor be present at the trial of a criminal
case despite the presence of a private
prosecutor?
A: The public prosecutor must be present at the
trial of the criminal case despite the presence of a
private prosecutor in order to see to it that the
interest of the State is well-guarded and
protected, should the private prosecutor be
found lacking in competence in prosecuting the
case. Moreover, the primary duty of a public
prosecutor is not to convict but to see to it that
justice is done (Rule 6.01, CPR). A private
prosecutor would be naturally interested only in
the conviction of the accused. (2001 Bar
Question)
Rule 6.02, Canon 6, CPR – 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.
Q: What are the restrictions on lawyers who are
also public officials and employees during their
incumbency?
A: They must not: PERU
38
1.
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;
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;
Recommend any person to any position in
a private enterprise which has a regular or
pending official transaction with their
office;
Use or divulge confidential or classified
information officially known to them by
reason of their office and not available to
the public.
Q: What is the difference between rule 6.02 and
6.01?
A: Unlike rule 6.01, 6.02 is not limited to public
prosecutors, or public lawyers engaged principally
in criminal prosecution cases. The restriction
applies particularly to lawyers in government
service, who are allowed by law to engage in
private law practice, and 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. (CPR Annotated,
PhilJA) prohibits lawyers from representing a
private client even if the interests of the former
government client and the new client are entirely
parallel.
Rule 6.03, Canon 6, CPR – A lawyer shall
not, after leaving government service,
accept engagement or employment in
connection with any matter in which he had
intervened while in said service. (1992,
1993, 2001 Bar Questions)
Note: The intervention must be substantial.
Q: Atty. Madrigal worked in the Supreme Court,
under the division which handles the case of Mr.
Roxas. Before the promulgation of the decision
of the case, Atty. Madrigal resigned and started
to work in the law firm which handles the case
of Mr. Roxas. Is Atty. Madrigal allowed to use
the information he got to help in the case
handled by the firm?
A: No, such act is unethical and is violative of Rule
6.03 of the CPR.
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
Note: Sec. 7(b) of R.A. 6713 prohibits former public
official or employee for a period of 1 year after
retirement or separation from office to practice his
profession in connection with any other matter
before the office he used to be with.
Q: What is the meaning of “any matter” and
“intervene”?
A: “Any matter”, according to the American Bar
Association formal opinion, is any discrete
isolatable act, as well as identifiable transaction
or conduct involving a particular situation and
specific 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.
(PCGG v. Sandiganbayan, G.R. Nos. 151809-12,
Apr. 12, 2005)
Q: Former Solicitor General Estelito Mendoza
filed a petition with the CFI praying for the
assistance and supervision of the court in the
GenBank’s liquidation. Mendoza gave advice on
the procedure to liquidate the GenBank.
Subsequently, President Aquino established the
PCGG to recover alleged ill-gotten wealth of
former President Marcos, his families and
cronies.
The
PCGG
filed
with
the Sandiganbayan a complaint for reversion,
reconveyance, restitution, accounting and
damages against Tan, et al. and issued several
writs of sequestration on properties they
allegedly acquired. Tan, et al. were represented
by former SolGen Mendoza, who has then
resumed his private practice of law. The PCGG
filed motions to disqualify Mendoza as counsel
for Tan, et al. The motions alleged that
Mendoza, as then SolGen and counsel to Central
Bank, “actively intervened” in the liquidation of
GenBank, which was subsequently acquired by
Tan, et al.
Is Rule 6.03 of the CPR applicable to Mendoza?
A: No. The advice given by Mendoza on the
procedure to liquidate the GenBank is not the
“matter” contemplated by Rule 6.03 of the CPR.
ABA Formal Opinion No. 342 is clear in stressing
that the “drafting, enforcing or interpreting
government or agency procedures, regulations or
aws, or briefing abstract principles of law” are
acts which do not fall within the scope of the
term “matter” and cannot disqualify.
It is submitted that the court should apply Rule
6.03 in all its strictness for it correctly disfavors
lawyers who “switch sides”. It is claimed that
“switching sides” carries the danger that former
government
employee
may
compromise
confidential official information in the process.
However, this concern does not cast shadow in
the case at bar. The act of Mendoza in informing
the Central Bank on the procedure on how to
liquidate the GenBank is a different matter from
the subject matter of the civil case which is about
the sequestration of the shares of Tan et. al. in
Allied Bank.
Consequently, the danger that confidential official
information might be divulged is still nil, if not
inexistent. To be sure, there are no inconsistent
sides to be bothered about in this case. For there
is no question that in lawyering for Tan et. al.,
Mendoza is indirectly defending the validity of the
action of the Central Bank in liquidating GenBank
and selling it later to Allied Bank. Their interests
coincide instead of colliding. (PCGG v.
Sandiganbayan, G.R. Nos. 151809-12, April 12,
2005)
Q: Distinguish adverse-interest conflicts and
congruent-interest representation conflicts?
A:
Adverse-interest
conflicts Exist where
the matter in which
the
former
government lawyer
represents a client in
private practice is
substantially related
to the matter that the
lawyer dealt with
while employed by
the government and
the interests of the
government and the
interests
of
the
current and former
are adverse
Congruent-interest
representation
conflicts are unique to
government lawyers
and apply primarily to
former government
lawyers.
(CPR
Annotated, PhilJA)
Note: The restriction provided under the rule covers
engagement or employment which means that he
cannot accept any work or employment from
anyone that will involve or relate to the matter in
which he intervened as a public official, except on
behalf of the body or authority which he served
during his public employment. (CPR Annotated,
PhilJA)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
39
UST Golden Notes 2011
B. THE LAWYER AND.
THE LEGAL PROFESSION
CANON 7, CPR
- A LAWYER SHALL AT ALL TIMES UPHOLD
THE INTEGRITY AND DIGNITY OF THE LEGAL
PROFESSION AND SUPPORT THE ACTIVITIES
OF THE INTEGRATED BAR.
1. INTEGRATED BAR OF THE PHILIPPINES
Q: What is Integrated Bar of the Philippines?
A: It is an official national body composed of all
persons whose names now appear or may
hereafter be included in the Roll of Attorneys of
the Supreme Court. (Sec. 1, Rule 139-A, RRC)
Note: IBP is a national organization of lawyers
created on 16 January 1973 under Rule 139-A, Rules
of Court, and constituted on 4 May 1973 into a body
corporate by Presidential Decree No. 181.
Note: Integrated bar is a State-organized Bar, to
which every lawyer must belong as distinguished
from bar associations organized by individual
lawyers themselves, membership in which is
voluntary.
Q: What is Integration of the Bar?
A: The Integration of the Philippine Bar means
the official unification of the entire lawyer
population, and this requires membership and
financial support of every attorney as condition
sine qua non to the practice of law and the
retention of his name in the Roll of Attorneys of
the Supreme Court (Pineda,1999).
Note: The Philippines is divided into 9 Regions of the
Integrated Bar. (Sec.3, Rule 139-A, RRC)
Note: A Chapter of the Integrated Bar shall be
organized in every province. (Sec. 4, Rule 139-A, RRC)
Each Chapter shall have its own local government as
provided for by uniform rules to be prescribed by
the Board of Governors and approved by the
Supreme Court. (Sec. 4, Rule 139-A, RRC)
Note: The Integrated Bar shall have a House of
Delegates of not more than one hundred twenty
members who shall be apportioned among all the
Chapters as nearly as may be according to the
number of their respective members, but each
Chapter shall have at least one Delegate.
The term of the office of Delegate shall begin on the
date of the opening of the annual convention of the
House and shall end on the day immediately
preceding the date of the opening of the next
succeeding annual convention. No person may be a
Delegate for more than two terms. (Sec. 5,Rule 139 A, RRC)
Q: Is the integration of the IBP constitutional?
A: Yes, the practice of law is not a vested right but
a privilege clothed with public interest. Hence, it
is far and just that the exercise of that privilege be
regulated to assure compliance with the lawyer's
public responsibilities. Given existing Bar
conditions, the most efficient means of doing so is
by integrating the Bar through a rule of court that
requires all lawyers to pay annual dues to the
Integrated Bar. (In the Matter of the Integration
of the Bar of the Philippines, 49 SCRA 22, Jan. 9,
1973)
a. The Board of Governors
Note: Integration of the bar is essentially a process
by which every member of the bar is afforded an
opportunity to do his share in carrying out the
objectives of the bar as well as obliged to bear his
portion of its responsibilities. (CPR Annotated,
PhilJA)
Q: What are the fundamental purposes of the
IBP?
A:
1.
2.
3.
40
To elevate the standards of the legal
profession;
Improve the administration of justice; and
Enable the Bar to discharge its public
responsibility more effectively. (Sec. 2,
Rule 139-A, RRC)
Q: Who governs the IBP?
A: The Integrated Bar shall be governed by
a Board of Governors. (Sec. 6, Rule 139-A, RRC)
Q: How many and what is the procedure in the
selection of the Board of governors?
A: Nine Governors shall be elected by the House
of Delegates from the nine Regions on the
representation basis of one Governor from each
Region. Each Governor shall be chosen from a list
of nominees submitted by the Delegates from the
Region, provided that not more than one
nominee shall come from any Chapter. The
President and the Executive Vice President, if
chosen by the Governors from outside of
themselves as provided in section 7 of this Rule,
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
shall ipso facto become members of the Board.
(Sec. 6, Rule 139-A, RRC)
Q: What is the term of the members of the
Board?
A: The members of the Board shall hold office for
a term of one year from the date of their election
and until their successors shall have been duly
elected and qualified. No person may be a
Governor for more than two terms. (Sec. 6, Rule
139-A, RRC)
Q: When is the regular meeting of the Board?
A: The Board shall meet regularly once every
three months, on such date and at such time and
place as it shall designate. A majority of all the
members of the Board shall constitute a quorum
to do business. Special meetings may be called by
the president or by five members of the Board.
(Sec. 6, Rule 139-A, RRC)
Note: Subject to the approval of the Supreme Court,
the Board shall adopt By-Laws and promulgate
Canons
of Professional
Responsibility for
all
members of the Integrated Bar. The By-Laws and
the Canons may be amended by the Supreme Court
motu proprio or upon the recommendation of the
Board of Governors.
The Board shall prescribe such other rules and
regulations as may be necessary and proper to carry
out the purposes of the Integrated Bar as well as the
provisions of this Rule. (Sec. 6, Rule 139-A, RRC)
need not be members of the Integrated
Bar. (Sec. 7, Rule 139-A, RRC)
Q: What is the officers’ term of office?
A: The President and the Executive Vice President
shall hold office for a term of one year from the
date of their election and until their successors
shall have duly qualified. The Executive Vice
President shall automatically become the
President for the next succeeding full term.
The Presidency shall rotate from year to year
among all the nine Regions in such order of
rotation as the Board of Governors shall
prescribe. No persons shall be President or
Executive Vice President of the Integrated Bar for
more than one term. (Sec. 7, Rule 139-A, RRC)
Q: What are the basic qualifications for one who
wishes to be elected governor for a particular
region?
A:
1.
2.
3.
4.
Q: Who are the officers of the IBP? How are they
selected?
A: The Integrated Bar shall have a/an:
1.
2.
3.
4.
5.
President
Executive Vice President who shall be
chosen by the Governors immediately
after the latter’s election either from
among themselves or from other
members of the Integrated Bar, by the
vote of at least five Governors. Each of
the regional members of the Board shall
be ex officio Vice President for the Region
which he represents.
Secretary
Treasurer
Such other officers and employees as may
be required by the Board of Governors, to
be appointed by the President with the
consent of the Board, and to hold office at
the pleasure of the Board or for such term
as it may fix. Said officers and employees
He is a member in good standing of the
IBP
He is included in the voters list of his
chapter or he is not disqualified by the
Integration Rule, by the By-Laws of the
Integrated Bar, or by the By-Laws of the
Chapter to which he belongs
He does not belong to a chapter from
which a regional governor has already
been elected, unless the election is the
start of a new season or cycle
He is not in the government service. (In
Re: Petition to disqualify Atty. De Vera,
A.C. No. 6052, Dec. 11, 2003)
Q: Is a candidate required to be morally fit in
order to be qualified to run as an officer?
A: There is nothing in the by-laws which explicitly
provides that one must be morally fit before he
can run for IBP governorship. For one, this is so
because the determination of moral fitness of a
candidate lies in the individual judgment of the
members of the House of Delegates. Indeed,
based on each member’s standard of morality, he
is free to nominate and elect any member, so
long as the latter possesses the basic
requirements under the law. For another,
basically the disqualification of a candidate
involving lack of moral fitness should emanate
from his disbarment or suspension from the
practice of law by the Court, or conviction by final
judgment of an offense which involves moral
turpitude. (Ibid.)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
41
UST Golden Notes 2011
Q: In the event of vacancy, who performs
the duties of the President?
A:
a.
In the event the President is absent or
unable to act, his duties shall be
performed by the Executive Vice President
candidate for any elective office in the Integrated
Bar or by any other member, directly or
indirectly, in any form or manner, by himself or
through another person:
1.
2.
b.
In the event of the death, resignation, or
removal of the President, the Executive
Vice President shall serve as Acting
President during the remainder of the
term of the office thus vacated
c.
In the event of the death, resignation,
removal or disability of both the President
and the Executive Vice President, the
Board of Governors shall elect an Acting
President to hold office until the next
succeeding election or during the period
of disability. (Sec. 8, Rule 139-A, RRC)
Note: The filling of vacancies in the House of
Delegates, Board of Governors, and all other
positions of Officers of the Integrated Bar shall be as
provided in the By-Laws. Whenever the term of an
office or position is for a fixed period, the person
chosen to fill a vacancy therein shall serve only for
the unexpired term. (Sec. 8, Rule 139-A, RRC)
Q: How is the mandate in Sec. 13 of Rule 139-A
of the Rules of Court stating that the IBP is nonpolitically manifested?
A: By strictly providing that every activity tending
to impair this basic feature is strictly prohibited
and shall be penalized accordingly. No lawyer
holding an elective, judicial, quasi-judicial or
prosecutory office in the Government or any
political subdivision or instrumentality thereof
shall be eligible for election or appointment to
any position in the Integrated Bar or any Chapter
thereof. A Delegate, Governor, Officer or
employee of the Integrated Bar, or an officer or
employee of any Chapter thereof shall be
considered ipso facto resigned from his position
as of the moment he files his certificate of
candidacy for any elective public office or accepts
appointment to any judicial, quasi judicial, or
prosecutory office in the Government or any
political subdivision or instrumentality thereof.
(Sec. 13, Rule 139-A, RRC)
Q: What are the prohibited acts and practices
relative to the elections of IBP officers?
A: The following acts and practices relative to
elections are prohibited, whether committed by a
42
3.
4.
5.
Distribution, except on election day, of
election campaign materials;
Distribution, on election day, of election
campaign materials other than a
statement of the bio data of the candidate
on not more than one page of a legal size
sheet of paper; or causing the distribution
of such statement to be done by persons
other than those authorized by the officer
presiding at the elections;
Campaigning for or against any candidate,
while holding an elective, judicial, quasijudicial or prosecutory office in the
Government or any political subdivision,
agency or instrumentality thereof;
Formation of tickets, single slates, or
combinations of candidates as well as the
advertising thereof; and
For the purpose of inducing or influencing
a member to withhold his vote, or to vote
for or against a candidate:
a.
b.
c.
Payment of the dues or other
indebtedness of any member;
Giving of food, drink, entertainment,
transportation or any article of value,
or any similar consideration to any
person; or
Making a promise or causing an
expenditure to be made, offered or
promise to any person. (Sec. 4, IBP
By-Laws; In the Matter of the Inquiry
into the 1989 Elections of the
Integrated Bar of the Philippines,
A.M. No. 491, October 6, 1989)
Q: In the election of national officers of the IBP,
the Supreme Court received reports of
electioneering
and
extravagance
that
characterized the campaign conducted by the 3
candidates (Paculdo, Nisce and Mrs. Drilon) for
President of the IBP. It is alleged that they used
government planes, give free accommodations
to voters to expensive hotels and there has been
intervention of public officials to influence the
voting. Is there a violation of the IBP by-laws? Is
there sufficient ground for the Supreme Court to
suspend the oath taking of the officials?
A: Yes. The candidates for the national positions
in the IBP conducted their campaign preparatory
to the election on June 3, 1989 in violation of
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
Section 14 of the IBP by-laws and the Rules of
Court, that the IBP shall be strictly non-political.
Also the ethics of the legal profession imposed on
all lawyers has been violated corollary to their
obligation to obey and uphold the constitution
and the laws, the duty to promote respect for law
and legal processes and to abstain activities
aimed at the defiance of the law or at lessening
confidence in the legal system. (In Re: IBP
Elections, B.M. 491, Oct. 6, 1989)
Q: A presidential aspirant was the guest of honor
at a testimonial dinner for the officers and new
members of a provincial chapter of the IBP. In
his speech, the presidential aspirant announced
that the IBP would play a major role in his
administration. The officers of the chapter, after
the speech, declared their unqualified support
for the “presidentiable’s candidacy” and
enjoined all members to do likewise. Comment
on this announcement of support of the IBP
chapter.
A: The announcement of support of the IBP
chapter is not proper. The Integrated Bar of the
Philippines is strictly non-political. A delegate,
governor, officer or employee of the IBP or any
chapter thereof shall be considered ipso facto
resigned from his position as of the moment he
files his certificate of candidacy for any elective
public office (Sec. 4, Art. 1, By Laws of the
Intergrated Bar of the Philippines). The IBP
chapter’s announcement of support for a
presidential aspirant is engaging in a partisan
political activity. (1997 Bar Question)
Q: May a delegate or governor or any national or
local officer of the IBP receive any
compensation, allowance or emolument from
the funds of the Integrated Bar?
A: No. Except as may be specifically authorized or
allowed by the Supreme Court, no Delegate or
Governor and no national or local Officer or
committee
member
shall
receive
any
compensation, allowance or emolument from
the funds of the Integrated Bar for any service
rendered therein or be entitled to reimbursement
for any expense incurred in the discharge of his
functions.(Sec. 14, Rule 139-A, RRC)
b. Membership and Dues
Membership
Note: Membership in the National IBP is integrated
or compulsory (Santos-Ong, 2009; Pineda, 1999).
A lawyer does not automatically become a member
of the IBP chapter where he resides or works after
becoming a full-fledged member of the Bar. He has
the discretion to choose the IBP Chapter he wants to
join. (Garcia v. De Vera, A.C. 6052, December
11,2003)
Note: Unless he otherwise registers his preference
for a particular Chapter, a lawyer shall be considered
a member of the Chapter of the Province, city,
political subdivision or area where his office or, in
the absence thereof, his residence is located. In no
case shall any lawyer be a member of more than one
Chapter. (Sec. 4,Rule 139-A, RRC)
Q: Is the requirement of good moral character a
continuing requirement?
A: Yes. Well settled is the rule that good moral
character is not only a condition precedent for
admission to the legal profession, but it must also
remain intact in order to maintain one’s good
standing in that exclusive and honored fraternity.
(Tapucar v. Tapucar, A.C. No. 4148, July 30, 1998)
Note: The nature of the office of any attorney at law
requires that he shall be a person of good moral
character. This qualification is not only a condition
precedent to the admission to the practice of law; its
continued possession is also essential for remaining
in the practice of law. (People vs. Tuanda, Adm.
Case No. 3360, Jan. 30, 1990)
Note: The requirement of good moral character has
four general purposes, namely:
1.
2.
3.
4.
To protect the public
To protect the public image of lawyers
To protect prospective clients
To protect errant lawyers from themselves.
Each purpose is as important as the other.
(Garrido v. Attys. Garrido and Valencia, A.C.
No. 6593, Feb. 4, 2010)
Note: There is no such thing as retirement in the IBP
as understood in labor law. A lawyer, however, may
voluntary terminate his bar membership. (In Re:
Atty. Jose Principe, Bar Matter No. 543, September
20,1990)
Q: What is the procedure for voluntary
termination of membership in the IBP?
A: A member may terminate his membership by
filing a written notice to that effect with the
Secretary of the Integrated Bar, who shall
immediately bring the matter to the attention of
the Supreme Court. Forthwith he shall cease to be
a member and his name shall be stricken by the
Court from the Roll of Attorneys. (Sec.11, Rule
139-A, RRC)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
43
UST Golden Notes 2011
Note: Re-instatement may be made by the Court in
accordance with rules and regulations prescribed by
the Board of Governors and approved by the Court.
(Sec.11, Rule 139-A, RRC)
Membership Dues
Note: Every member of the Integrated shall pay such
annual dues as the Board of Governors shall
determine with the approval of the Supreme Court.
A fixed sum equivalent to ten percent (10%) of the
collections from each Chapter shall be set aside as a
Welfare Fund for disabled members of the Chapter
and the compulsory heirs of deceased members
thereof. (Sec. 9,Rule 139-A, RRC)
Q: Who determines the amount of annual dues
to be paid by members?
A: Every member of the Integrated Bar shall pay
such annual dues as the Board of Governors shall
determine with the approval of the Supreme
Court. (Sec. 9, Rule 139-A, RRC)
Q: Is the provision requiring payment of a
membership fee void?
A: No. It is quite apparent that the fee is indeed
imposed as a regulatory measure, designed to
raise funds for carrying out the purposes and
objectives of the integration. There is nothing in
the Constitution that prohibits the court, under
its constitutional power and duty to promulgate
rules concerning the admission to the practice of
law and the integration of the Philippine bar. (In
the Matter of IBP Membership dues delinquency
of Atty. Marcial Edillon, A.M. No. 1928, Aug. 3,
1978)
Q: What is the effect of non-payment of IBP
dues?
A: Default in the payment of annual dues for six
months shall warrant suspension of membership
in the Integrated Bar, and default in such
payment for one year shall be a ground for the
removal of the name of the delinquent member
from the Roll of Attorneys (Sec. 10, Rule 139-A,
RRC) subject to the requirement of due process.
(Funa, 2009)
Q: The Integrated Bar of the Philippines adopted
a resolution recommending to the court the
removal of the name Marcial A. Edillon, a duly
licensed practicing attorney, from its Roll of
Attorneys for stubborn refusal to pay his
membership dues to the IBP since its
constitution, notwithstanding due notice.
Is Edillon correct in his objection that the court is
44
without power to compel him to become a
member of the IBP, hence, Sec. 1 of Rule 139-A
of the Rules of Court is unconstitutional for it
impinges on his constitutional right of freedom
to associate (and not to associate)?
A: No. To compel a member of the Integrated Bar
is not violative of his constitutional freedom to
associate. Integration does not make a lawyer a
member of any group of which he is not already a
member. He became a member of the Bar when
he passed the Bar Examinations. All that
integration actually does is to provide an official
national organization for the well-defined but
unorganized and incohesive group of which every
lawyer is already a member.
Assuming that the questioned provision does in a
sense compel a lawyer to be a member of the
Integrated Bar, such compulsion is justified as an
exercise of the police power of the State. (In the
Matter of IBP Membership Dues Delinquency of
Atty. Edillon, A.C. No. 1928,December 19, 1980)
Q: Atty. Llamas, for a number of years, has not
indicated the proper PTR and IBP OR Nos. and
data in his pleadings. He only indicated “IBP
Rizal 259060” but he has been using this for at
least 3 years already. Atty. Llamas averred that
he is only engaged in a “limited” practice of law
and under R.A. 7432, as a senior citizen, he is
exempted from payment of income taxes and
included in this exemption, is the payment of
membership dues. Is Atty. Llamas correct?
A: Rule 139-A requires that every member of the
Integrated Bar shall pay annual dues and default
thereof for six months shall warrant suspension
of membership and if nonpayment covers a
period of 1-year, default shall be a ground for
removal of the delinquent’s name from the Roll of
Attorneys. It does not matter whether or not
Atty. Llamas is only engaged in “limited” practice
of law. Moreover, the exemption invoked by Atty.
Llamas does not include exemption from
payment of membership or association dues.
(Santos Jr. v. Atty. Llamas, A.C. No. 4749, Jan. 20,
2000)
Note: The exemption granted by R.A. 7432 to senior
citizens from paying individual income tax does not
exempt lawyers who are likewise senior citizens
from paying IBP dues and privilege tax. (Ibid) As
regards dues, they are not entitled to 20% discount.
(Pineda, 1999)
Q: Atty. Arevalo sought exemption from
payment of IBP dues for the alleged unpaid
accountability for the years 1977-2005. He
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
alleged that after being admitted to the
Philippine Bar in 1961, he became part of the
Philippine Civil Service then migrated to, and
worked in, the USA in December 1986 until his
retirement in the year 2003. He maintained that
he cannot be assessed IBP dues for the years
that he was working in the Philippine Civil
Service since the Civil Service law prohibits the
practice of one’s profession while in government
service, and neither can he be assessed for the
years when he was working in the USA.
Is Atty. Arevalo entitled to exemption from
payment of his dues during the time that he
was inactive in the practice of law?
A: No. The Integration of the Philippine Bar
means the official unification of the entire lawyer
population. This requires membership and
financial support of every attorney as condition
sine qua non to the practice of law and the
retention of his name in the Roll of Attorneys of
the Supreme Court.
Payment of dues is a necessary consequence of
membership in the IBP, of which no one is
exempt. This means that the compulsory nature
of payment of dues subsists for as long as one’s
membership in the IBP remains regardless of the
lack of practice of, or the type of practice, the
member is engaged in. There is nothing in the law
or rules which allow exemption from payment of
membership dues. At most, as correctly observed
by the IBP, he could have informed the Secretary
of the Integrated Bar of his intention to stay
abroad before he left. In such case, his
membership in the IBP could have been
terminated and his obligation to pay dues could
have been discontinued. (Letter of Atty. Arevalo,
Jr. Requesting Exemption from Payment of Dues,
B.M. No. 1370, May 9, 2005)
2. UPHOLDING THE DIGNITY
AND INTEGRITY OF THE PROFESSION
Rule 7.01, Canon 7, CPR – 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. (1995, 1997, 2004,
2005 Bar Questions)
Note: The concealment of an attorney in his
application to take the bar exams of the fact that he
had been charged with or indicted for an alleged
crime, is ground for revocation of his license to
practice law.
Q: Is honest mistake a valid excuse?
A: An honest mistake in making false statement
may be a valid excuse but the burden of proof lies
on the one who alleges it.
On the other hand, to be liable for suppressing a
fact or information in the application, the
suppression must be:
1.
2.
Deliberately or knowingly made; and
The fact or information suppressed must
be material. (CPR Annotated, PhilJA)
Note: In order to determine whether or not a factual
declaration is material or not, reference should be
made to the requirements in applying for admission
to the bar. (CPR Annotated, PhilJA)
Q: What are the consequences of knowingly
making a false statement or suppression of a
material fact in the application for admission to
the Bar?
A: Consequences of knowingly making a false
statement or suppression of a material fact in the
application for admission to the Bar:
1.
2.
3.
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 examinations.
If the false statement or suppression of
material fact was discovered after the
candidate had passed the examinations
but before having been taken his oath, he
will not be allowed to take his oath as a
lawyer.
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.
Q: What is the effect if what is concealed is a
crime NOT involving moral turpitude?
A: Concealment will be taken against him. It is
the fact of concealment and not the commission
of the crime itself that makes him morally unfit to
become a lawyer. When he made concealment
he perpetrated perjury.
Rule 7.02, Canon 7, CPR – 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.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
45
UST Golden Notes 2011
Note: The rationale behind the rule goes beyond the
personal responsibility to be upright and honest. It
further extends to the lawyer’s responsibility to
uphold the integrity and dignity of the profession, by
not blindly issuing certifications in support of
applications for admission to the bar of persons
known to him or her to have questionable character,
inadequate education or other relevant attributes
not consistent with any or all of the requirements for
admission. (CPR Annotated, PhilJA)
Public policy requires that the practice of law be
limited to those individuals found duly qualified in
education and character. The permissive right
conferred on the lawyer is an INDIVIDUAL AND
LIMITED PRIVILEGE subject to withdrawal if he fails
to maintain proper standards of moral and
professional conduct.
Rule 7.03, Canon 7, CPR- A lawyer shall not
engage in a 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. (2004 Bar Question)
Q: What constitutes fitness to practice law?
A: It is not to be determined only by the specific
qualifications for admission into the bar but
encompasses practically all aspects of a lawyer’s
public or private life that could actually or
potentially tarnish the integrity and dignity of the
legal profession. (CPR Annotated, PhilJA)
Q: Atty. Perenia got married in 2005. Then he
met another woman, Helen; they fell in love and
started living together. Atty. Perenia would even
bring her along social functions and introduce
her as his second wife. Is such act unethical?
A: Yes, it violates Rule 7.03 of CPR.
The fact that he shamelessly flaunts his mistress
constitutes act which embarrass and discredit the
law profession since it is his duty and obligation
to uphold the dignity and integrity of the
profession. The actuation of Atty. Perenia is
contrary to good morals.
Note: While it has been held in disbarment cases
that the mere fact of sexual relations between two
unmarried adults is not sufficient to warrant
administrative sanction for such illicit behavior, it is
not so with respect to betrayals of the marital vow
of fidelity. Even if not all forms of extra-marital
relations are punishable under penal law, sexual
relations outside marriage is considered disgraceful
and immoral as it manifests deliberate disregard of
46
the sanctity of marriage and the marital vows
protected by the Constitution and affirmed by our
laws. (Vitug v. Roncal, A.C. No. 6313, Sept. 7, 2006)
It is not important that the acts complained of were
committed before a lawyer was admitted to the
practice of law. Parenthetically, Sec. 5(5), Art. VIII of
the 1987 Constitution recognizes the disciplinary
authority of the Court over the members of the Bar
to be merely incidental to the Court's exclusive
power to admit applicants to the practice of law.
Reinforcing the implementation of this constitutional
authority is Section 27, Rule 138 of the Rules of
Court which expressly states that a member of the
bar may be disbarred or suspended from his office as
attorney by the Supreme Court for, among others,
any deceit, grossly immoral conduct, or violation of
the oath that he is required to take before admission
to the practice of law. (Garrido v. Attys. Garrido and
Valencia, A.C. No. 6593, Feb. 4, 2010)
Q: Atty. Kuripot was one of Town Bank’s valued
clients. In recognition of his loyalty to the bank,
he was issued a gold credit card with a credit
limit of P250,000.00. After two months, Atty.
Kuripot exceeded his credit limit, and refused to
pay the monthly charges as they fell due. Aside
from a collection suit, Town Bank also filed a
disbarment case against Atty. Kuripot.
In his comment on the disbarment case, Atty.
Kuripot insisted that he did not violate the Code
of Professional Responsibility, since his
obligation to the bank was personal in nature
and had no relation to his being a lawyer. Is Atty.
Kuripot correct? Explain your answer.
A: Atty. Kuripot is not correct. Section 7.03 of the
Code of Professional Responsibility provides that
“a lawyer shall not engage in conduct that
adversely affects 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.”
Q: Explain whether Atty. Kuripot should be held
administratively liable for his refusal to settle his
credit card bill.
A: He may not be held administratively liable. The
Supreme Court has held that it does not take
original jurisdiction of complaints for collection of
debts. The creditor’s course of action is civil, not
administrative in nature and proper reliefs may
be obtained from the regular courts (Litigio v.
Dicon, A.M. No. MTJ-93-806, July 13, 1995).
Although lawyers have been held administratively
liable for obstinacy in evading payment of a debt
(Constantino v. Saludares, A.C. No. 2029, Dec. 7,
1993; Lao v. Medel, A.C. No. 5916, July 1, 2003),
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
there is no obstinacy shown in this case. (2005
Bar Question)
a. Privileges and Duties of a Lawyer
6.
Q: What are the privileges of a lawyer?
A: PSP-IS-12
1. To Practice law during good behavior
before any judicial, quasi-judicial, or
administrative agency;
2. First one to Sit in judgment on every case,
to set the judicial machinery in motion;
3. Enjoys the Presumption of regularity in
the discharge of his duty;
4. He is Immune, in the performance of his
obligations to his client, from liability to
third persons, insofar as he does not
materially depart from his character as a
quasi-judicial officer;
5. His Statements, if relevant, pertinent or
material to the subject of judicial inquiry
are absolutely privileged regardless of
their defamatory tenor and of the
presence of malice;
6. 1st grade civil service eligibility for any
position in the classified service in the
government the duties of which require
knowledge of law; and
7. 2nd grade civil service eligibility for any
other governmental position, which does
not prescribe proficiency in law as a
qualification.
Q: What are the duties of attorneys under the
Revised Rules of Court?
7.
8.
9.
honor, and never seek to mislead the
judge or any judicial officer by an artifice
or false statement of fact or law;
To maintain inviolate the Confidence and
at every peril to himself, to preserve the
secrets in connection with his client and to
accept no compensation in connection
with his client’s business except from him
or with his knowledge and approval;
To abstain from all Offensive personality
and to advance no fact prejudicial to the
honor and reputation of a party or witness
unless required by the justice of the cause
with which he is charged;
Never to Reject, for any consideration
personal to himself, the cause of the
defenseless or oppressed; and
In the Defense of a person accused of a
crime, by all fair and reasonable means,
regardless of his personal opinion as to
the guilt of the accused, to present every
defense that the law permits to the end
that no person may be deprived of life,
liberty, but by due process of law. (Sec. 20,
Rule 138, RRC) (2006 Bar Question)
3. COURTESY, FAIRNESS AND CANDOR
TOWARDS PROFESSIONAL COLLEAGUES
CANON 8, CPR
- A LAWYER SHALL CONDUCT HIMSELF WITH
COURTESY, FAIRNESS AND CANDOR
TOWARD HIS PROFESSIONAL COLLEAGUES,
AND SHALL AVOID HARASSING TACTICS
AGAINST OPPOSING COUNSEL.
A: ADA- RECORD
1.
2.
3.
4.
5.
To maintain Allegiance to the Republic of
the Philippines and to support the
Constitution and obey the laws of the
Philippines;
Not
to
encourage
either
the
commencement or the continuance of an
action or proceeding, or Delay any man’s
cause, from any corrupt motive or
interest;
To counsel and maintain such Actions or
proceedings only as appear to him to be
just, and such defenses only as he believes
to be honestly debatable under the law;
To observe and maintain the Respect due
to the courts of justice and judicial
officers;
To Employ, for the purpose of maintaining
the causes confided to him, such means
only as are consistent with truth and
Q: Gretel’s residence in Makati Village was
foreclosed by Joli Bank. Armed with a writ of
possession issued by the lower court, the sheriff
and Joli Bank’s lawyers evicted Gretel and
padlocked the house. A restraining order issued
by the Court of Appeals which Gretel showed
the sheriff was disregarded. Gretel requested
Hansel, an attorney who lives in the same
village, to assist her in explaining the restraining
order, since Gretel’s counsel of record was out of
town. The discussion on the restraining order
was conducted in the sidewalk along Gretel’s
house. The village security guards were attracted
by the commotion brought about by the
discussion, so they called the Makati Police and
the CAPCOM who responded immediately. The
CAPCOM colonel, who arrived at the scene with
his troop, took it upon himself to open the house
and declare Gretel as the rightful possessor. The
colonel invited Gretel and Hansel to enter the
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
47
UST Golden Notes 2011
house. Five days later, Hansel was made a corespondent (together with Gretel) in a complaint
for trespass to dwelling filed by the Joli Bank’s
lawyers before the Makati Fiscal’s Office.
Discuss the propriety of the act of Joli Bank’s
lawyers, considering that all lawyers are
mandated to conduct themselves with courtesy,
fairness and candor toward their professional
colleagues and to avoid harassing tactics against
opposing counsel.
A: Considering that there was a restraining order
issued by the Court of Appeals, it was proper for
Gretel to take steps to maintain possession of his
residence with the assistance of Hansel as a
lawyer.
It was not proper for Joli Bank’s lawyer to file an
action for trespass to dwelling against Gretel and
lawyer Hansel. Canon 8 of the CPR provides that a
lawyer shall conduct himself with fairness and
candor towards his professional colleagues and
shall avoid harassing tactics against opposing
counsel. (1989 Bar Question)
Rule 8.01, Canon 8,CPR – A lawyer shall not,
in his professional dealings, use language
which is abusive, offensive or otherwise
improper.
demeanor toward each other. While lawyers owe
entire devotion to the interests of their clients, their
office does not permit violation of the laws or any
manner of fraud or chicanery. (Reyes v. Chiong, Jr.,
A.C. No. 5148, July 2003)
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
record or may subject a lawyer to disciplinary action.
A lawyer who uses intemperate, abusive, abrasive or
threatening language portrays disrespect to the
court, disgraces the Bar and invites the exercise by
the court of its disciplinary poers. (In re: Gomez, 43
Phil. 376, 1922).
The lawyer’s arguments, whether written or oral,
should be gracious to both the court and opposing
counsel and be of such words as may be properly
addressed by one gentleman to another. (National
Security Co. v. Jarvis, 278 U.S. 610)
Q: In the pleadings and motions filed by Tiongco,
he described Atty. Deguma as a love crazed
Apache, a horned spinster, man-hungry virago
and female bull of an Amazon who would stop at
nothing to injure defendant if only to please and
attract her client. Tiongco claims that she, as a
lawyer in the Public Attorney’s Office, is using
the PAO as a marriage bureau for her benefit. Is
the language employed by Tiongco improper and
unethical?
Q: Cite some instances of disrespectful language.
A:
1.
2.
3.
4.
5.
6.
Categorizes the SC decision as false,
erroneous and illegal (Suo v. Cloribel, A.M.
No. 01-1-15-RTC, July 10, 2003)
Description of judges attitude as “unjust,
hostile, vindictive and dangerous”
(Cornejo v. Judge Tan, G.R. No. L-2217,
Mar. 23, 1950)
Stating that “justice is blind and also deaf
and dumb” (In Re: Almacen, G.R. No. L27654, Feb. 18, 1970)
Attributing to the SC acts of dismissing
judges “without rhyme and reason” and
disbarring lawyers “without due process”
(Zaldivar v. Gonzales, G.R. Nos. 79690-707,
Feb. 1, 1989)
Calling an adverse counsel as “bobo” or
using the word “ay que bobo” in reference
to the manner of offering evidence.
(Castillo v. Padilla Jr., A.M. No. 2339, Feb.
1984); and
Any other analogous cases.
Note: Any undue ill-feeling between clients should
not influence counsels in their conduct and
48
A: Yes. The Code of Professional Responsibility
provides in Canon 8 that a lawyer shall conduct
himself with courtesy, fairness, and candor
toward his professional colleagues, and shall
avoid harassing tactics against opposing counsel.
Rule 8.01 provides that a lawyer shall not in his
professional dealings, use language which is
abusive, offensive or otherwise improper while
Rule 11.03 provides that a lawyer shall abstain
from scandalous, offensive or menacing language
before the courts. Thus, Tiongco is warned
accordingly. (Tiongco Yared v. Ilarde, G.R. No.
114732, Aug. 1, 2000)
Note: Lack of want of intention is no excuse for the
disrespectful language employed. Counsel cannot
escape responsibility by claiming that his words did
not mean what any reader must have understood
them as meaning. (Rheem of the Philippines v.
Ferrer, G.R. No. L-22979, January 27, 1967)
A lawyer’s language should be forceful but
dignified, emphatic but respectfulas befitting an
advocate and in keeping with the dignity of the
legal profession. (In re: Climaco, A.C. No. 134-J,
January 21, 1974).
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
Note: Although the Canon that the Rule implements
pertains to a lawyer’s dealings with his fellow
lawyers, the Rule is generally worded to apply to
anyone in the wider context of a lawyer’s
professional dealings, including his or her clients and
witnesses. (CPR Annotated, PhilJA)
Rule 8.02, Canon 8, CPR – 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.
(1995, 1997, 2001, 2005, 2006 Bar
Questions)
Note: 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 of on the part of another lawyer to
take him as client constitutes an act of encroaching
upon the employment of another lawyer.
A lawyer should not in any way communicate upon
the subject of controversy with a party represented
by counsel much less should he undertake to
negotiate or compromise the matter with him, but
should deal with his counsel.
Exceptions:
1.
2.
A lawyer may properly interview any
witness or prospective witness or
prospective witness for the opposing side
in any civil or criminal action without the
consent of opposing counsel or party.
Any person who seeks relief against an
unfaithful or neglectful lawyer may
approach another lawyer for proper
advice and assistance. Any advice or
assistance
extended
after
proper
verification is not encroaching upon the
business of another lawyer for such act is
justified under the circumstances.
Q: Myrna, in a case for custody of children
against her husband, sought advice from Atty.
Mendoza whom she met at a party. She
informed Atty. Mendoza that her lawyer, Atty.
Khan, has been charging her exorbitant
appearance fees when all he does is move for
postponements which have unduly delayed the
proceedings; and that recently, she learned that
Atty. Khan approached her husband asking for a
huge amount in exchange for the withdrawal of
her Motion for Issuance of Hold Departure Order
so that he and his children can leave for abroad.
Is it ethical for Atty. Mendoza to advise Myrna to
terminate the services of Atty. Khan and hire
him instead for a reasonable attorney’s fees?
A: Such advice would be unethical. A lawyer shall
conduct himself with courtesy, fairness and
candor towards his professional colleagues
(Canon 8, CPR). Specifically, he should not
directly or indirectly encroach upon the
professional employment of another lawyer (Rule
8.02, CPR).
Q: What should Atty. Mendoza do about the
information relayed to him by Myrna that Atty.
Khan approached her husband with an indecent
proposal?
A: He can advice her to terminate the services of
Atty. Khan and/or file an administrative case
against Atty. Khan. 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 (Rule 8.02, CPR).
(2006 Bar Question)
Q: You are the counsel of K in his action for
specific performance against DEV, Inc., a
subdivision developer which is represented by
Atty. L. Your client believes that the president of
DEV Inc., would be willing to consider an
amicable settlement and your client urges you to
discuss the matter with DEV Inc., without the
presence of Atty. L whom he consider to be an
impediment to an early compromise. Would it
be alright for you to negotiate the terms of the
compromise as so suggested above by your
client?
A: No. Rule 8.02, Canon 8 of the Code of
Professional Responsibility provides that “a
lawyer shall not, directly or indirectly, encroach
upon the professional employment of another
lawyer.” Canon 9 of the Code of Professional
Ethics is more particular. “A lawyer should not in
any way communicate upon the subject of the
controversy with a party represented by counsel,
much less should he undertake to negotiate or
compromise the matter with him but should deal
only with his counsel.” In the case of Likong v.
Lim, A.C. No. 3149, August 17, 1994, a lawyer was
suspended for negotiating a compromise
agreement directly with the adverse party
without the presence and participation of her
counsels. (1997 Bar Question)
4. NO ASSISTANCE IN
UNAUTHORIZED PRACTICE OF LAW
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
49
UST Golden Notes 2011
CANON 9, CPR
-A LAWYER SHALL NOT, DIRECTLY OR
INDIRECTLY, ASSIST IN THE UNAUTHORIZED
PRACTICE OF LAW
(1992, 1995, 1997, 2000, Bar Questions)
Note: Public policy requires that practice of law be
limited only to those individuals found duly qualified
in education and character.
Purpose: To protect the public, the court, the client
and the bar from the incompetence or dishonesty of
those unlicensed to practice law and not subject to
the disciplinary control of the court.
Q: Sanchez alleged that the complaint against
him and the supporting affidavits were
subscribed and sworn to before Tupas, the Clerk
of Court, who is not a member of the IBP and
therefore engaged in unauthorized practice of
law. Is Tupas as Clerk of Court authorized to
administer oath?
A: The term "clerk of courts" in the Section 41 of
the Administrative Code as amended is used as a
general term. The intention of the law is to
authorize all clerks of court regardless of whether
they are clerks of the Metropolitan Trial Courts,
Municipal Trial Court and Municipal Circuit Trial
Courts, to administer oaths on matter involving
official business. As Clerk of Court of MCTC, Tupas
has the authority to administer oath of affidavits
of parties and witnesses which are to be filed in
court. (Sanchez v. Tupas, A.M. OCA IPI No. 031687-P, Mar. 1, 2004)
Note: A lawyer is prohibited from allowing an
intermediary to intervene in the performance of his
professional obligation.
Note: The act of pretending or assuming to be an
attorney or an officer of the court and acting as such
without authority is punishable with contempt of
court. (Rule 71, sec 3(e), RRC)
Rule 9.01, Canon 9, CPR – 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.
Q: What is the reason for the rule?
A: The qualifications to be a lawyer is personal
and the bar is an exclusive group of professionals
who possess the requisite classifications and for
50
whom defined functions are reserved. To
delegate the functions would violate the rationale
behind reserving defined functions exclusively for
those who are admitted to the bar.
The rationale of law in reserving defined
functions to those who are admitted to the bar is
to protect the public, the court, the client and the
bar from the incompetence or dishonesty of
those unlicensed to practice law and not subject
to the disciplinary control of the court.
Although the authority of a lawyer to represent a
client cannot be delegated to an unqualified
person, it does not follow however that the
retained lawyer is automatically authorized to
make such delegation to a qualified person
because a client-lawyer relationship is personal.
(CPR Annotated, PhilJA)
Q: Lorenzo is a lawyer but is suspended in the
practice of law due to some unethical acts. He
worked for a law firm owned by one of his
friends. Since he has so many cases to handle,
Atty. Berenguer assigned a case to Lorenzo,
believing he can handle such easy case. Did Atty.
Berenguer violate any rule?
A: Yes, because he delegates handling of a case
to a person suspended from the practice of law.
Under Rule 9.01 of CPR – 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.
Note: A lawyer is prohibited from taking as partner
or associates any person who is not authorized to
practice law – to appear in court or to sign pleadings.
A lawyer, who is under suspension from practice of
law is not a member of the Bar in good standing. A
lawyer whose authority to practice has been
withdrawn due to a change in citizenship or
allegiance to the country cannot appear before the
courts. (Guballa v. Caguioa, G.R. No. L-46537, July
29, 1977)
Rule 9.02, Canon 9, CPR – A lawyer shall not
divide or stipulate to divide a fee for legal
services with persons not licensed to practice
law.
Note: The interest promoted by the prohibition is
that the independence of the professional judgment
of a lawyer, which the client is paying for, could be at
risk if a non-lawyer has direct rights to share in the
legal fees resulting from the exercise of such
professional judgment. (CPR Annotated, PhilJA)
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
Q: What are the exceptions to Rule 9.02?
A:
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 to
persons specified in the agreement;(Rule
9.02,second par., Canon 9,CPR) or
Note: This exception is in the nature of a
bequest. It is still in substance, payment to
the deceased lawyer. His estate and/or
assignee could not claim entitlement to the
money in their own right but only by
representation. (CPR Annotated, PhilJA)
2.
Where a lawyer undertakes to complete
unfinished legal business of a deceased
lawyer; (Rule 9.02 ,third par., Canon
9,CPR) or
Note: The first and second exceptions
represent compensation for legal services of
the deceased lawyers.
the school. She explained that a lot of students
lose their identification cards and are required to
secure an affidavit of loss before they can be
issued a new one. She claimed that this would
be very lucrative for you, as more than 30
students lose their identification cards every
month. However, the secretary wants you to
give her one-half of your earning there from.
Will you agree to the arrangement? Explain.
A: No, I will not agree. Rule 9.02 of the Code of
Professional Responsibility provides that “a
lawyer shall not divide or stipulate to divide a fee
for legal service with persons not licensed to
practice law”. The secretary is not licensed to
practice law and is not entitled to a share of the
fees for notarizing affidavits, which is a legal
service. (2005 Bar Question)
C. THE LAWYER AND THE COURTS.
1. CANDOR, FAIRNESS AND GOOD FAITH
TOWARDS THE COURT
CANON 10, CPR
The estate or the heir cannot be made a
member of the partnership with the
surviving partners. The legal fees in this case,
no longer represent compensation for past
services.
3.
Where a lawyer or law firm includes a
non-lawyer employees in a retirement
plan, even if the plan is based in whole or
in
part,
on
a
profit
sharing
agreement.(Rule 9.02, fourth par., Canon
9,CPR)
Note: This is not a division of legal fees but a
pension representing deferred wages for the
employees’ past services.
This exception is an implicit recognition of
the incontestable fact that lawyers need to,
and in fact, depend on non-lawyers for the
administrative support functions necessary
to allow lawyers to discharge their legal
functions more efficiently. (CPR Annotated,
PhilJA)
Rationale: If attorney’s fees were allowed to nonlawyers, it would leave the public in hopeless
confusion as to whom to consult in case of necessity
and also to leave the bar in a chaotic condition, aside
from the fact that non-lawyers are not amenable to
disciplinary measures.
Q: You had just taken your oath as lawyer. The
secretary to the president of a big university
offered to get you as the official notary public of
- A LAWYER OWES CANDOR, FAIRNESS AND
GOOD FAITH TO THE COURT.
(1994 Bar Question)
Rationale: The burden cast on the judiciary would be
intolerable if it could not take at face value what is
asserted by counsel.
Q: Atty. Florido demanded that the custody of
their children be surrendered to him by showing
his spouse Hueysuwan-Florido a photocopy of an
alleged Resolution issued by the CA which
supposedly granted his motion for temporary
child custody. His spouse refused to surrender
the custody. Hence, Atty. Florido filed a verified
petition for the issuance of a writ of habeas
corpus asserting his right to custody of the
children on the basis of the alleged CA’s
resolution. Hueysuwan obtained a certification
from the CA stating that no such resolution had
been issued. Hence, complainant filed the
instant complaint. May Atty. Florido be held
administratively liable for his reliance on and
attempt to enforce a spurious Resolution of the
CA?
A: Yes. Atty. Florido’s actions erode the public
perception of the legal profession. Candor and
fairness are demanded of every lawyer. The
burden cast on the judiciary would be intolerable
if it could not take at face value what is asserted
by counsel. The time that will have to be devoted
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
51
UST Golden Notes 2011
just to the task of verification of allegations
submitted could easily be imagined. (HueysuwanFlorido v. Atty. Florido, A.C. No. 5624, Jan. 20,
2004)
Rule 10.01, Canon 10, CPR – 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.
Note: A lawyer must be a discipline of truth. He
should bear in mind that as an officer of the court his
high vocation is to correctly inform the court upon
the law and the facts of the case and to aid it in
doing justice and arriving at correct conclusion.
Q: Is the lawyer’s act in presenting false
evidence in order that his client would win the
case justifiable?
A: No, because it is a clear violation of Canon 10
and Rule 10.01 of the CPR.
Note: Aside from violations of the CPR, the lawyer is
also guilty of a crime under Art. 184, Revised Penal
Code, which states,” Any person who shall knowingly
offer in evidence a false witness or testimony in any
judicial or official proceeding, shall be punished as
guilty of false testimony and shall suffer the
respective penalties provided in this section.”
Q: What are the requirements of candor?
A:
The courts on the other hand are entitled to expect
only complete honesty from lawyers appearing and
pleading before them. While a lawyer has the
solemn duty to defend his client’s cause, his conduct
must never be at the expense of truth. (Young v.
Batuegas, A.C. No. 5379, May 9, 2003)
1.
Note: A lawyer owes fidelity to the cause of his client
but not at the expense of truth and the
administration of justice. (Garcia v. Francisco, Adm.
Case no. 3923, March 30,1993)
3.
Q: Dr. Maligaya, a doctor and retired colonel of
the Air Force filed an action for damages against
several military officers for whom Atty. Doronilla
stood as a counsel. During the hearing of the
case, Atty. Doronilla says that he and Dr.
Maligaya had an agreement that if the opposing
party withdraws the case against him, Dr.
Maligaya will also withdraw all the cases.
However, Dr. Maligaya swore that he never
entered into any agreement to withdraw his
lawsuits. Atty. Doronillo admitted that there
was, in fact, no such agreement. He pointed out
that his main concern was to settle the case
amicably. Dr. Maligaya filed a case against Atty.
Doronilla charging him of unethical conduct for
having uttered falsehood in court. Is Atty.
Doronilla guilty as charged?
A: Yes. Atty. Doronilla violated Canon 10 and Rule
10.01 of the CPR. Not only that, he also violated
the lawyer’s oath to “do no falsehood, nor
consent to the doing of any in court”, of which
Canon 10 and Rule 10.01 are but restatements.
His act infringed on every lawyer’s duty to “never
seek to mislead the judge or any officer by an
artifice or false statement of fact or law”.
(Maligaya v. Doronilla, A.C. No. 6198, Sept. 15,
2006)
52
2.
4.
A lawyer shall not suppress material and
vital facts which bear on the merit or lack
of merit of complaint or petition.
A lawyer shall volunteer to the court any
development of the case which has
rendered the issue raised moot and
academic.
Disclosure to the court of any decision
adverse to his position of which opposing
counsel is apparently ignorant and which
court should consider in deciding a case.
He shall not 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.
Q: What are the some cases of Falsehoods which
merited discipline?
A:
1. Lawyers falsely stating in a deed of sale
that property is free from all liens and
encumbrances when it is not so. (Sevilla v.
Zoleta, A.C. No. 31, March 28, 1955)
2. Lawyers making it appear that a person,
long dead, executed a deed of sale, in his
favor. (Monterey v. Arayata, Per. Rec. Nos
3527, 3408, August 23, 1935)
3. Lawyer, encashing a check payable to a
deceased cousin by signing the latte’s
name on the check. (In re: Samaniego,
A.C. No. 74, November 20, 1959)
4. Lawyer falsifying a power of attorney and
used it in collecting the money due to the
principal and appropriating the money for
his own benefit. (In re: Rusina, A.C. No.
270, May 29, 1959)
5. Lawyer alleging in one pleading that his
clients were merely lessees of the
property involved, and alleged in a later
pleading that the same clients were the
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
6.
7.
8.
9.
owners of the same property where there
are false allegations in the pleadings.
(Chavez v. Viola, GR No. 2152, 19 April
1991)
Lawyer uttering falsehood in a Motion to
Dismiss. (Martin v. Moreno, A.C. No. 1432,
May 21, 1984)
Lawyer denying having received the notice
to file brief which is belied by the return
card. (Ragasajo v. IAC, G.R. No. L-69129,
August 31, 1987)
Lawyer presenting falsified documents in
court wich he knows to be false.
(Berenguer v. Carranza, A.C. No. 716,
January 30, 1969)
Lawyer filing false charges or groundless
suits. (Retuya v. Gorduiz, A.C. No. 1388,
March 28, 1980)
Rule 10.02, Canon 10, CPR – A lawyer shall
not knowingly misquote or misrepresent the
contents of the 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.
Rule 10.03, Canon 10, CPR - A lawyer shall
observe the rules of procedure and shall not
misuse them to defeat the ends of justice.
Note: The rules of procedure are intended to
facilitate the delivery of justice to those to whom it
is due without it is due without unnecessary expense
and waste of time for truly justice delayed is justice
denied.
Note: Filing multiple actions constitutes an abuse of
the Court’s processes. Those who filed multiple or
repetitive actions subject themselves to disciplinary
action for incompetence or willful violation of their
duties as attorneys to act with all good fidelity to the
courts, and to maintain only such actions that
appear to be just and consistent with truth and
honor. (Pablo R. Olivares etc. v. Atty. Arsenio Villalon
Jr., A.C. No. 6323, April 13, 2007)
Q: A lawyer habitually asks for the re-setting of
the case of his client for no apparent reason, in
order for the complainant to get frustrated and
become uninterested in the prosecution of the
case. Is that act considered unethical?
A: Yes, under Rule 10.03 of the CPR.
Note: A mere TYPOGRAPHICAL ERROR in the citation
of an authority is not contemptuous.
Note: A lawyer should not abuse his right of
recourse to the courts for the purpose of arguing a
cause that had been repeatedly rebuffed. Neither
should he use his knowledge of law as an instrument
to harass a party nor to misuse judicial processes, as
the same constitutes serious transgression of the
Code of Professional Responsibility. For while he
owes fidelity to the cause of his client, it should not
be at the expense of truth and the administration of
justice. (Garcia v. Francisco, A.C. No. 3923, Mar. 30,
1993)
Note: Labor Arbiter Almirante and Atty. Durano
deliberately made the quote from the SCRA syllabus
appear as the words of the Supreme Court. We
admonish them for what is at least patent
carelessness, if not an outright attempt to mislead
the parties and the courts taking cognizance to
insubordination. (Allied Banking Corporation v. CA,
GR No. 144412, November 2003).
Rule 10.04, Canon 10, CPR - A lawyer shall,
when filing a pleading, furnish the opposing
party with a copy thereof, together with all
the documents annexed thereto. Unless a
motion is ex parte, he should set it for
hearing, with sufficient notice to the other
party.
Q. What is the rationale behind the rule?
A: 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.
Note: A lawyer must quote word for word,
punctuation mark for punctuation mark.
Q: A lawyer filed a pleading in court citing a law
which was already repealed, since the new law is
not favorable to his client’s cause. Is he guilty of
any unethical act?
Note: This is a new provision.
The purpose of this rule is to avoid surprise and
delays in cases.
A: Yes, because he knowingly used the old law to
mislead the court, such act is unethical based on
Rule 10.02 of the CPR.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
53
UST Golden Notes 2011
2. RESPECT FOR COURTS AND JUDICIAL OFFICERS
CANON 11, CPRA LAWYER SHALL OBSERVE AND MAINTAIN
THE RESPECT DUE TO THE COURTS AND TO
JUDICIAL OFFICERS AND SHOULD INSIST ON
SIMILAR CONDUCT BY OTHERS.
(1996 Bar Question)
Rationale: Disrespect toward the court would
necessarily undermine the confidence of the people
in the honesty and integrity of the members of the
court, and consequently to lower or degrade the
administration of justice by the court.
All lawyers are expected to recognize the authority
of the Supreme Court and obey its lawful processes
and orders. Despite errors which one may impute
on the orders of the Court, these must be respected,
especially by the bar or the lawyers who are
themselves officers of the courts. (Yap-paras v. Atty.
Paras, A.C. No. 4947, June 7, 2007)
Liberally imputing sinister and devious motives and
questioning the impartiality, integrity and authority
of the members of the Court result in the
obstruction and perversion of the dispensation of
justice. (Estrada v. Sandiganbayan, GR No. 15948688, November 2000)
Note: Being an officer of the court, a lawyer
occupies a quasi-judicial office and has
responsibilities to the courts, to the public and to his
clients. The greater burden imposed on the lawyer is
his superior duty to the courts. Where duties to the
courts conflict with his duties to his clients, his duties
to court must yield to the former. (CPR Annotated,
PhilJA)
Q: Attorney Paguia, asserts that the inhibition of
the members of the Supreme Court from hearing
the petition is called for under the Code of
Judicial Conduct prohibiting justices or judges
from participating in any partisan political
activity. According to him, the justices have
violated the said rule by attending the 'EDSA 2
Rally' and by authorizing the assumption of VicePresident Macapagal Arroyo to the Presidency.
The subsequent decision of the Court in Estrada
v. Arroyo (G.R. Nos. 146710-15, Mar. 2, 2001 and
G.R. Nos. 146710-15, April 3, 2001) is a patent
mockery of justice and due process. He went on
to state that — the act of the public officer, if
lawful, is the act of the public office. But the act
of the public officer, if unlawful, is not the act of
the public office. Consequently, the act of the
justices, if lawful, is the act of the Supreme
Court. But the act of the justices, if unlawful, is
not the act of the Supreme Court. It is submitted
54
that the decision in Estrada v. Arroyo being
patently unlawful in view of the Code of Judicial
Conduct, is not the act of the Supreme Court but
is merely the wrong of those individual Justices
who falsely spoke and acted in the name of the
Supreme Court (Urbano v. Chavez, G.R. No.
87977, March 19, 1990). Are Atty. Paguia’s
comments within the bounds of “fair and wellfounded criticisms” regarding decisions of the
SC?
A: No. Criticism or comment made in good faith
on the correctness or wrongness, soundness or
unsoundness, of a decision of the Court would be
welcome for, if well-founded, and such reaction
can enlighten the court and contribute to the
correction of an error if committed. (In Re Sotto,
82 Phil. 595.) The ruling in Estrada v. Arroyo,
being a final judgment, has long put to end any
question pertaining to the legality of the
ascension of Arroyo into the presidency. By
reviving the issue on the validity of the
assumption of Gloria Macapagal-Arroyo to the
presidency, Attorney Paguia is vainly seeking to
breathe life into the carcass of a long dead issue.
Attorney Paguia has not limited his discussions to
the merits of his client's case within the judicial
forum; indeed, he has repeated his assault on the
Court in both broadcast and print media.
The Supreme Court does not claim infallibility; it
will not denounce criticism made by anyone
against the Court for, if well-founded, can truly
have constructive effects in the task of the Court,
but it will not countenance any wrongdoing nor
allow the erosion of our people’s faith in the
judicial system, let alone, by those who have been
privileged by it to practice law in the Philippines.
Canon 11 of the Code of Professional
Responsibility mandates that the lawyer should
observe and maintain the respect due to the
courts and judicial officers and, indeed, should
insist on similar conduct by others. In liberally
imputing sinister and devious motives and
questioning the impartiality, integrity, and
authority of the members of the Court, Atty.
Paguia has only succeeded in seeking to impede,
obstruct and pervert the dispensation of justice.
(Estrada v. Sandiganbayan, G.R. Nos. 159486-88,
Nov. 25, 2003)
Q: The Court En Banc issued a Resolution
directing respondent Atty. De Vera to explain
why he should not be cited for indirect contempt
of court for uttering some allegedly
contemptuous statements in relation to the case
involving the constitutionality of the Plunder
Law which was then pending. Atty. De vera
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
admitted the report in the November 6, 2002
issue of the Philippine Daily Inquirer that he
“suggested that the Court must take steps to
dispel once and for all these ugly rumors and
reports” that “the Court would vote in favor of
or against the validity of the Plunder Law” to
protect the credibility of the Court. Is the
statement of Atty. De Vera disrespectful to the
courts?
A: Indeed, freedom of speech includes the right
to know and discuss judicial proceedings, but
such right does not cover statements aimed at
undermining the Court’s integrity and authority,
and interfering with the administration of justice.
Freedom of speech is not absolute, and must
occasionally be balanced with the requirements of
equally important public interests, such as the
maintenance of the integrity of the courts and
orderly functioning of the administration of
justice.
Thus, the making of contemptuous statements
directed against the Court is not an exercise of
free speech; rather, it is an abuse of such right.
Unwarranted attacks on the dignity of the courts
cannot be disguised as free speech, for the
exercise of said right cannot be used to impair the
independence and efficiency of courts or public
respect therefore and confidence therein. (In Re:
Published Alleged Threats by Atty. Leonard de
Vera, A.M. No. 01-12-03-SC, July 29, 2002)
Q: Can a lawyer criticize the courts?
A:
GR: 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.
XPN: The fact that a person is a lawyer does
not deprive him of the right, as enjoyed by
every citizen, to comment on and criticize the
actuations of a judge.
Note: What a lawyer can ordinarily say against a
concluded litigation and the manner the judge
handed down the decision therein may not generally
be said to a pending action. The court, in a pending
litigation, must be shielded from embarrassment
and influence in performing the important duty of
deciding it. On the other hand, once litigation is
concluded, the judge who decided on it is subject to
the same criticism as any other public official
because then his ruling becomes public property and
is thrown open to public consumption.
But it is the cardinal condition of all criticisms that it
shall be bona fide, and shall not spill over the walls of
decency and propriety. (Zaldivar v. Gonzales, G.R.
Nos. 79690-707, Feb. 1, 1989)
Q: Members of the faculty of the UP College of
Law published a statement on the allegations of
plagiarism and misrepresentation relative to the
Court’s decision in Vinuya v. Executive Secretary.
The authors directly accused the Court of
perpetrating
extraordinary
injustice
by
dismissing the petition of the comfort women
said case. The insult to the members of the
Court was aggravated by imputations of
deliberately delaying the resolution of the said
case, its dismissal on the basis of “polluted
sources,” the Court’s alleged indifference to the
cause of petitioners, as well as the supposed
alarming lack of concern of the members of the
Court for even the most basic values of decency
and respect.
A: While most agree that the right to criticize the
judiciary is critical to maintaining a free and
democratic society, there is also a general
consensus that healthy criticism only goes so far.
Many types of criticism leveled at the judiciary
cross the line to become harmful and
irresponsible
attacks.
These
potentially
devastating attacks and unjust criticism can
threaten the independence of the judiciary. The
court must “insist on being permitted to proceed
to the disposition of its business in an orderly
manner, free from outside interference
obstructive of its functions and tending to
embarrass the administration of justice.”
The Court could hardly perceive any reasonable
purpose for the faculty’s less than objective
comments except to discredit the April 28, 2010
Decision in the Vinuya case and undermine the
Court’s honesty, integrity and competence in
addressing the motion for its reconsideration. As
if the case on the comfort women’s claims is not
controversial enough, the UP Law faculty would
fan the flames and invite resentment against a
resolution that would not reverse the said
decision. This runs contrary to their obligation as
law professors and officers of the Court to be the
first to uphold the dignity and authority of this
Court, to which they owe fidelity according to the
oath they have taken as attorneys, and not to
promote distrust in the administration of justice.
Their actions likewise constitute violations of
Canons 10, 11, and 13 and Rules 1.02 and 11.05
of the Code of Professional Responsibility. (Re:
Letter of the UP Law Faculty entitled “Restoring
Integrity: A Statement by the Faculty of the
University of the Philippines College of Law on the
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
55
UST Golden Notes 2011
Allegations of Plagiarism and Misrepresentation
in the Supreme Court.”( A.M. No. 10-10-4-SC,
October 19, 2010)
Rule 11.01, Canon 11, CPR – A lawyer shall
appear in court properly attired.
Note: As an officer of the court and in order to
maintain the dignity and respectability of the legal
profession, a lawyer who appears in court must be
properly attired. Consequently, the court can hold a
lawyer in contempt of court if he does not appear in
proper attire. Any deviation from the commonly
accepted norm of dressing in court (barong or tie,
not both) is enough to warrant a citing for contempt.
Note: The traditional attires for male lawyers in the
Philippines are the long-sleeve Barong Tagalog or
coat and tie. Female lawyers appear in semi-formal
attires. Judges also appear in the same attire in
addition to black robes.
Rule 11.02, Canon 11, CPR – A lawyer shall
punctually appear at court hearings.
Note: Punctuality is demanded by the respect which
a lawyer owes to the court, the opposing counsel
and to all the parties to the case. (Funa, 2009)
Rule 11.03, Canon 11, CPR – A lawyer shall
abstain from scandalous, offensive, or
menacing language or behavior before the
courts.
Q: After the parties had filed their respective
briefs with the Court of Appeals and before the
latter's resolution submitting the case for
decision was released, respondent lawyers, Atty.
Depasucat, and others filed a pleading
"Manifestation of Usurpation of Authority of the
Hon. Court of Appeals from a Self-Confessed
Briber of Judges", which stated that plaintiffappellant Uy had, in fact, confessed to bribing
judges.
Consequently, Uy filed a verified
complaint against respondent lawyers for gross
misconduct. Should the respondents be
disciplined for having authored and filed the
“Manifestation of Usurpation of Authority of the
Hon. Court of Appeals from a Self-Confessed
Briber of Judges”?
A: Yes. Respondents went overboard by stating in
the Manifestation that complainant "had in fact
confessed to bribery and telling one of the judges,
after the judges allegedly refused to give in to
their demands, by using illegally taped
56
conversations-both actual and/or by telephone".
It belied their good intention and exceeded the
bounds of propriety, hence not arguably
protected; it is the surfacing of a feeling of
contempt towards a litigant; it offends the court
before which it is made. A lawyer shall abstain
from scandalous, offensive or menacing language
or behavior before the courts. It must be
remembered that the language vehicle does not
run short of expressions which are emphatic but
respectful, convincing but not derogatory,
illuminating but not offensive. It has been said
that a lawyer's language should be dignified in
keeping with the dignity of the legal profession. It
is the duty of Atty. Depasucat et.al. as members
of the Bar to abstain from all offensive personality
and to advance no fact prejudicial to the honor or
reputation of a party or witness, unless required
by the justice of the cause with which he is
charged. (Uy v. Depasucat, A.C. No. 5332, July 29,
2003)
Note: The language of a lawyer, both oral and
written, must be respectful and restrained in
keeping with the dignity of the legal profession and
with his behavioral attitude toward his brethren in
the profession. The use of abusive language by
counsel against the opposing counsel constitutes at
the same time disrespect to the dignity of the court
justice. Moreover, the use of impassioned language
in pleadings, more often than not, creates more heat
than light. (Buenaseda v. Flavier, G.R. No. 106719,
Sept. 21, 1993)
The duty to observe and maintain respect is not a
one-way duty from a lawyer to a judge. A judge
should also be courteous to counsel, especially those
who are young and inexperienced and to all those
appearing or concerned in the administration of
justice.
R.A. No. 9211 or the Tobacco Regulation Act of 2003,
in order to foster a healthful environment,
absolutely prohibits smoking in specified public
places and designates smoking and non-smoking
areas in places where the absolute ban on smoking
does not apply. Under this law, the Court is generally
considered a place where smoking is restricted,
rather than absolutely banned. Exceptions to this
characterization are the Court’s elevators and
stairwells; the Court’s medical and dental clinics; and
the Court’s cafeteria and other dining areas
(including the Justices’ Lounge), together with their
food preparation areas, where an absolute ban
applies. In the areas where smoking restriction
applies, the law requires that the Court designate
smoking and non-smoking areas.
Section 6, in connection with Section 1, of Office
Order No. 06-2009 entitled “Reiterating the Ban on
Smoking as Provided for in Administrative Circular
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
No. 09-99 and Reiterated and Clarified in
Memorandum Circular No. 01-2008A covers
absolute smoking prohibition areas greater than
those covered by R.A. 9211, which include all interior
areas of the buildings of the courts and the areas
immediately adjacent to these buildings. The Office
Order still allows smoking within court premises
(apparently referring to exterior areas), but such
smoking has to be done in designated places. (Re:
Smoking at the fire exit area at the back of the Public
Information Office, A.M. No. 2009-23-SC, February
26, 2010)
Q: An administrative case and disbarment
proceeding was filed against MDS, a Lady
Senator for uttering in her privilege speech
delivered in the Senate floor where she was
quoted as saying that she wanted “to spit on the
face of Chief Justice and his cohorts in the
Supreme Court,” and calling the Court a
“Supreme Court of idiots.” She alleged that it
was considered as part of her Parliamentary
immunity as such was done during the session. Is
she correct?
A: Yes, because her statements, being part of her
privilege speech as a member of Congress, were
covered by the constitutional provision on
parliamentary immunity. Indeed, her privilege
speech is not actionable criminally or in a
disciplinary proceeding under the Rules of Court.
However, as a member of the Bar, the Court
wishes to express its deep concern about the
language Senator Santiago used in her speech and
its effect on the administration of justice. To the
Court, the lady senator has undoubtedly crossed
the limits of decency and good professional
conduct. It is at once apparent that her
statements in question were intemperate and
highly improper in substance. MDS should have
taken to heart in the first place the ensuing
passage in In Re: Vicente Sotto that “x x x [I]f the
people lose their confidence in the honesty and
integrity of this Court and believe that they
cannot expect justice therefrom, they might be
driven to take the law into their own hands, and
disorder and perhaps chaos would be the result.”
No lawyer who has taken an oath to maintain the
respect due to the courts should be allowed to
erode the people’s faith in the judiciary. In this
case, the lady senator clearly violated Canon 8,
Rule 8.01 and Canon 11 of the Code of
Professional Responsibility. (Pobre v. Senator
Santiago, A.C. No. 7399, Aug. 25, 2009)
Note: The lawyer’s duty to render respectful
subordination to the courts is essential to the
orderly administration of justice. Hence, in the
assertion of the client’s rights, lawyers – even those
gifted with superior intellect, are enjoined to rein up
their tempers. (Zaldivar v. Gonzalez, G.R. Nos.
79690-707 October 7, 1988)
Rule 11.04, Canon 11, CPR – A lawyer shall
not attribute to a judge motives not
supported by the record or have no
materiality to the case.
However, every citizen has the right to comment
upon and criticize the actuations of public
officers. This right is not dismissed by the fact that
the criticism is aimed at a judicial authority, or
that it is articulated by a lawyer.
Such right is especially recognized where the
criticism concerns a concluded litigation, because
the court’s actuations are thrown open to public
consumption. Courts thus treat with forbearance
and restraint a lawyer who vigorously assails their
actuations for courageous and fearless advocates
are the strands that weave durability into the
tapestry of justice.
Note: As citizen and officer of the court, every
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.
But 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.
Post litigation utterances or publications made by
lawyers, critical of the courts and their judicial
actuations, whether amounting to a crime or not,
which transcend the permissible bounds of fair
comment and legitimate criticism and thereby tend
to bring them into dispute or to subvert public
confidence in their integrity and in the orderly
administration of justice, constitute grave
professional misconduct which may be visited with
disbarment or other lesser appropriate disciplinary
sanctions by the SC in the exercise of the
prerogatives inherent in it as the duly constituted
guardian of the morals and ethics of the legal
fraternity. (In Re: Almacen, G.R. No. L-27654, Feb.
18, 1970)
Q: Atty. Romeo Roxas was charged for contempt
when he, in a letter addressed to Associate
Justice Chico-Nazario, stated that Justice Nazario
decided the cases in favor of Zuzuarregui,
ordering Attys. Roxas and Pastor to pay the
former P17,073,224.84 on considerations other
than the pure merits of the case and called the
SC a “dispenser of injustice”. He ended his letter
by mocking her when he said “sleep well if you
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
57
UST Golden Notes 2011
still can” and that “her earthly life will be judged
by the Supreme Dispenser of Justice where only
the merits of your honor’s life will be relevant
and material and where technicalities can shield
no one from his or her wrongdoings”.
In the written explanation of Atty. Roxas, he
extended apologies to Justice Nazario. He said
he was merely exercising his rights to express a
legitimate grievance or articulate fair criticisms
of the court’s ruling. Moreover, according to
him, instead of resorting to public criticisms, he
chose to ventilate his criticisms in a very discreet
and private manner by writing a personal letter.
Should Atty. Roxas be punished for the contents
of his letter?
A: Yes. Atty. Roxas’ letter contains defamatory
statements that impaired public confidence in the
integrity of the Judiciary. The making of
contemptuous statements directed against the
court is not an exercise of free speech; rather, it is
an abuse of such right.
A letter furnished to all the members of the SC,
even if a copy was not disseminated to the media,
does not enjoy the mantle of right to privacy.
Letters addressed to the individual justices in
connection with the performance of their judicial
functions become part of the judicial record and
are matter of concern for the entire court.
Atty. Roxas is guilty of indirect contempt of court
for an improper conduct tending, directly and
indirectly, to impede, obstruct or degrade the
administration of justice; and with his
contemptuous and defamatory statements, Atty.
Roxas likewise violated Canon 11 of the CPR
particularly Rules 11.03 and 11.04. (Roxas v.
Zuzuarregui, et. al., G.R. No. 152072, July 12,
2007)
Q: When is public comment and criticism of a
court decision permissible and when would it be
improper?
A: A lawyer, like every citizen, enjoys the right to
comment on and criticize the decision of a court.
As an officer of the court, a lawyer is expected
not only to exercise that right but also to consider
it his duty to expose the shortcomings and
indiscretions of courts and judges. But such right
is subject to the limitations that it shall be bona
fide. It is proper to criticize the courts and judges,
but it is improper to subject them to abuse and
slander, degrade them or destroy public
confidence in them. Moreover, a lawyer shall not
attribute to a judge, motives not supported by
58
the record or have no materiality in the case.
(Rule 11.04, CPR) (1997 Bar Question)
Note: A lawyer should be reminded of his primary
duty to assist the court in the administration of
justice. The relations between counsel and judge
should be based on mutual respect and on a deep
appreciation by one of the duties of the other. It is
upon their cordial relationship and mutual
cooperation that the hope of our people for speedy
and efficient justice rests. (Abiera v. Maceda, A.C.
No. RTJ-91-660, June 30, 1994)
If the court official or employee or a lawyer is to be
disciplined, the evidence against him should be
substantial, competent and derived from derived
from direct knowledge, not on mere allegations,
conjectures, suppositions or on the basis of hearsay.
(Cervantes v. Atty. Sabio, A.C. No. 7828, August 11,
2008)
Rule 11.05, Canon 11, CPR - A lawyer shall
submit grievances against a Judge to the
proper authorities only.
Q: Who are
authorities?
considered
as
the
proper
A:
NATURE OF THE
CASE
If administrative in
nature
WHERE TO FILE
It shall be filed with the
Office of the Court
Administrator of the
Supreme Court
If criminal and not
purely
administrative
It shall be filed with the
Office
of
the
Ombudsman
If it involves a
Justice
of
the
Supreme
Court
based
on
impeachable
offenses
It must be coursed
through the House of
Representative and the
Senate in accordance
with the rules on
impeachment.
(CPR Annotated, PhilJA)
Note: An administrative complaint is not an
appropriate remedy where judicial recourse is still
available, such as a motion for reconsideration, an
appeal, or a petition for certiorari, unless the
assailed order or decision is tainted with fraud,
malice, or dishonesty. (Santiago III v. Justice
Enriquez, Jr. A.M. No. CA-09-47-J, February 13, 2009)
Q: What are the rights and duties of a lawyer to
criticize Courts?
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
A:
1.
The fact that a person is a lawyer does not
deprive him of the rights, enjoyed by
every citizen, to comment on and criticize
the actuations of a judge subject to ethical
standard.
2.
The court, in a pending litigation; must be
shielded from embarrassment or influence
in its all-important duty of deciding the
case. Once litigation is concluded, the
judge who decided it is subject to the
same criticisms as any other public official
because his ruling becomes public
property and is thrown open to public
consumption.
3.
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 (Zaldivar v. Gonzales, G.R.
Nos. 79690-707, April 7, 1993).
4.
The duty of the bar to support the judge
against unjust criticism and clamor does
not, however, preclude a lawyer from
filing administrative complaints against
erring judges or from acting as counsel for
clients who have legitimate grievances
against them. But the lawyer should file
charges against the judge before the
proper authorities only and only after the
proper circumspection and without the
use of disrespectful language and
offensive personalities so as not to unduly
burden the court in the discharge of its
function.
Note: Cardinal condition of criticism is that it shall be
bona fide and shall not spillover the walls of decency
and propriety.
3. ASSISTANCE IN THE SPEEDY AND EFFICIENT
ADMINISTRATION OF JUSTICE
CANON 12, CPR
- A LAWYER SHALL EXERT EFFORT AND
CONSIDER IT HIS DUTY TO ASSIST IN THE
SPEEDY AND EFFICIENT ADMINISTRATION
OF JUSTICE
(1991,1994,1996,2003 Bar Questions)
Note: The filing of another action concerning the
same subject matter, in violation of the doctrine of
res judicata, runs contrary to this Canon. (Lim v.
Montano, A.C. No. 5653, February 27, 2006).
Note: A lawyer must exert every effort and consider
it his duty to assist in the speedy and efficient
administration of justice.
Q: Jardin engaged the services of Atty. Villar Jr.
to represent him in a collection case. The case
went its course, but later despite several
extensions of time given by the trial court, Atty.
Villar Jr. failed to file his formal offer of exhibits.
The dismissal of the collection case prompted
Jardin to file a verified affidavit-complaint for
the disbarment of Atty. Villar Jr. with the Court,
wherein he alleged that after the dismissal of
the collection case, he terminated the services
of Atty. Villar Jr. as his counsel; that Atty. Villar
Jr. failed to return the originals of the
documentary exhibits entrusted to him; and that
Atty. Villar Jr. finally handed over the documents
only as an aftermath of a heated argument he
had with the Jardin's wife.
Was Atty. Villar Jr. remiss in his duties as counsel
when he failed to file his formal offer of exhibit?
A: Yes. The record clearly shows that Atty. Villar
Jr. has been languid in the performance of his
duties as counsel for the complainant. He was
given by the trial court several extensions of time.
Therefore, Atty. Villar Jr. had three (3) months and
nine (9) days within which to file the formal offer
of exhibits. Atty. Villar Jr. did not bother to give an
explanation even in mitigation or extenuation of
his inaction.
Manifestly, Atty. Villar Jr. has fallen short of the
competence and diligence required of every
member of the law. It is indeed dismaying to note
Atty. Villar Jr.’s patent violation of his duty as a
lawyer. He committed a serious transgression
when he failed to exert his utmost learning and
ability and to give entire devotion to his client's
cause. His client had relied on him to file the
formal offer of exhibits among other things. But
he failed him. Resulting as it did in the dismissal
of the case, his failure constitutes inexcusable
default. (Jardin v. Atty. Villar, Jr., A.C. No. 5474,
Aug. 28, 2003)
Q: Judgment was rendered against Eternal
Gardens ordering it to reconvey the cemetery to
the rightful owners. Despite the final decision of
the SC, Eternal Gardens was able to prevent the
execution for 17 years, rendering the judgment
ineffectual. They filed several petitions and
motions for reconsideration with the trial court
and the CA despite the fact that it would never
prosper as the trial court’s decision had long
become final before the said petitions were
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
59
UST Golden Notes 2011
filed. Did the lawyers violate Canon 12 of the
CPR?
A: While lawyers owe their entire devotion to the
interest of the client and zeal in the defense of
their client’s right, they are also officers of the
court, bound to exert every effort to assist in the
speedy and efficient administration of justice.
They should not misuse the rules of procedure to
defeat the ends of justice or unduly delay a case,
impede the execution of a judgment or misuse
court processes. The facts and the law should
advise them that a case such as this should not be
permitted to be filed to merely clutter the already
congested judicial dockets. They do not advance
the cause of law or their clients by commencing
litigations that for sheer lack of merit do not
deserve the attention of the courts. (Eternal
Gardens Memorial Park Corporation v. CA, G.R.
No. 123698, Aug. 5, 1998)
Note: All persons shall have the right to a speedy
disposition of their cases before all judicial, quasijudicial or administrative bodies. (Sec. 16, Art. III,
1987 Constitution)
Q: Is a lawyer guilty of an unethical act when he
employs means to delay the disposition of the
case?
A: Yes, because Canon 12 states that – A lawyer
shall exert every effort and consider it his duty to
assist in the speedy and efficient administration
of justice.
Note: The duty of a lawyer to assist in the speedy
and efficient administration of justice includes the
duty to refrain from talking to his witness during a
break or recess in the trial while the witness is still
under examination.
The dilatory tactics of the defense counsel and the
failure of both the judge and the fiscal to take
effective counter measures to obviate the delaying
acts constitute obstruction of justice. (People v.
Jardin, G.R. Nos. L-33037-42, Aug. 17, 1983)
Q: What are acts which amount to obstruction of
justice?
A: Instructing a complaining witness not to
appear at trial, asking a client to plead guilty to a
crime he did not commit, advising a client to
escape from prison, employing dilatory tactics,
prosecuting clearly frivolous cases or appeals,
filing multiple actions.
60
Rule 12.01, Canon 12, CPR – 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 with the original documents for
comparison with the copies.
Note: A newly hired counsel who appears in a case
in the midstream is presumed and obliged to
acquaint himself with all the antecedent processes
and proceedings that have transpired in the record
prior to his takeover. (Villasis v. CA, G.R. Nos. L36874-76, Sept. 30, 1974)
Rule 12.02, Canon 12, CPR – A lawyer shall
not file multiple actions arising from the
same cause. (1991, 1997, 1998, 2002 Bar
Questions)
Q: What is forum-shopping?
A: It is the improper practice of filing several
actions or petitions in the same or different
tribunals arising from the same cause and seeking
substantially identical reliefs in the hope of
winning in one of them. The omission to disclose
pendency of appeal or prior dismissal of his case
by a court of concurrent jurisdiction with intent of
seeking a favorable opinion.
The prohibition includes the filing of petitions for
writs of certiorari, mandamus and prohibition
when there are similar petitions already filed or
pending. (CPR Annotated, PhilJA)
Note: The mere filing of several cases based on the
same incident does not necessarily constitute forum
shopping. The question is whether the several
actions filed involve the same transactions, essential
facts and circumstances. If they involve essentially
different facts, circumstances and causes of action,
there is no forum shopping. (Paredes v.
Sandiganbayan, G.R. No. 108251, Jan. 31, 1996)
The essence of forum shopping is the filing of
multiple suits involving the same parties for the
same cause of action, either simultaneously or
successively, for the purpose of obtaining a
favorable judgment. (Foronda v. Atty. Guerrero, A.C.
No. 5469, Aug. 10, 2004)
Q: How is forum shopping committed?
A:
1.
Going from one court to another in the
hope of securing a favorable relief in one
court, which another court has denied.
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
2.
Filing repetitious suits and proceedings in
different courts concerning the same
subject matter after one court has decided
the suit with finality; or
3.
Filing a similar case in a judicial court after
receiving an unfavorable judgment from
an administrative tribunal.
A: Yes. Although Top Rate as principal party
executed the several certifications of non-forum
shopping, Atty. Gana and Atty. Manlangit cannot
deny responsibility therefore since Atty.
Manlangit notarized the certifications and both of
them definitely knew the relevant case status
after having invariably acted as counsel of Top
Rate before the trial court, the Court of Appeals
and the Supreme Court.
Q: Who signs the forum shopping certification?
A:
GR: The party himself as he has personal
knowledge of the facts therein stated.
XPN: Counsel, when clothed with a special
power of attorney to do so. (The lawyer shall
certify that he has personal knowledge of the
facts therein stated and shall give justifiable
reason or explanation why the party himself
cannot sign the same).
Note: In case of a juridical person, its lawyer
authorized through a board resolution must sign the
certification.
Should there be more than one plaintiff or
petitioner, all of them must execute the certification
and verification. Unless, it is a suit involving conjugal
property, in such a case, the husband alone may
execute the same.
Q: The trial court declared Paxton Development
Corporation (PDC) the lawful owner of the
subject lots. CA affirmed. Top Rate as the losing
party sought to have the said resolution set
aside and thereafter filed with the Supreme
Court a motion for extension of time to file a
petition for review from the adverse CA decision
and resolution. The motion contained a
"verification/certification" under oath as to nonforum shopping, without mentioning the
pending manifestation and motion with the CA,
which was notarized by Atty. Manlangit.
Both Atty. Manlangit and Atty. Gana knew
the relevant case status after having invariably
acted as counsel of Top Rate before the trial
court, the Court of Appeals and the Supreme
Court.
Top Rate then filed a series of motions with the
SC, all of which failed to state that Top Rate still
has a pending manifestation and motion with
the CA. It was only when it withdrew its Petition
for Review on Certiorari that Top Rate bared
before the SC the existence of the said
manifestation and motion pending with the CA.
Should Top Rate and its counsel be found guilty
of forum shopping?
Attys. Gana and Manlangit of the Gana and
Manlangit Law Office, counsel of record of Top
Rate, are administratively liable for grotesque
violations
of
the Code
of
Professional
Responsibility.
Forum shopping is committed by a party who
institutes two or more suits in different courts,
either simultaneously or successively, in order to
ask the courts to rule on the same or related
causes or to grant the same or substantially the
same relief, on the supposition that one or the
other court would make a favorable disposition or
increase a party's chances of obtaining a
favorable decision or action. It is an act of
malpractice for it trifles with the courts, abuses
their processes, degrades the administration of
justice and adds to the already congested court
dockets. What is critical is the vexation brought
upon the courts and the litigants by a party who
asks different courts to rule on the same or
related causes and grant the same or
substantially the same relief and in the process
creates the possibility of conflicting decisions
being rendered by different forums upon the
same issues, regardless of whether the court in
which one of the suits was brought has no
jurisdiction
over the
action. (Top
Rate
Construction and General Services v. Paxton Devt.
Corp., G.R. No. 151081, Sept. 11, 2003)
Note: The principle of non-forum shopping applies
not only with respect to suits filed in courts but also
in connection with litigations commenced in courts
while an administrative proceeding is pending, in
order to defeat administrative processes and in
anticipation of an unfavorable court ruling.
Q: What are the possible consequences of forum
shopping?
A:
1.
2.
3.
Summary dismissal of the multiple
petition or complaint
Penalty for direct contempt of court on
the party and his lawyer
Criminal action for a false certification of
non forum shopping and indirect
contempt
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
61
UST Golden Notes 2011
4.
Disciplinary proceedings for the lawyer
concerned. (Sec. 5, Rule 7, 1997 Rules of
Civil Procedure) (1998 Bar Question)
Q: J sustained serious physical injuries due to a
motor vehicle collision between the car she was
driving and a public utility bus, requiring her
confinement for 30 days at the Makati Medical
Center. After her release from the hospital, she
filed a criminal complaint against the bus driver
for serious physical injuries through reckless
imprudence before the Makati Prosecutor’s
Office. She also filed a civil complaint before the
Paranaque Regional Trial Court against the bus
operator and driver for compensatory, moral,
exemplary and other damages. Aside from the
two complaints, she additionally filed an
administrative complaint against the bus
operator with the Land Transportation
Franchising and Regulatory Board for
cancellation or suspension of the operator’s
franchise. Would you say that she and her
lawyer were guilty of forum-shopping?
A: No. There is no forum-shopping in the
simultaneous filing of a criminal case and a civil
case in this instance. Article 33 of the Civil Code
allows the filing by an injured party of a civil
action for damages entirely separate and distinct
from the criminal action in cases of defamation,
fraud, and physical injuries. There is no forumshopping involved in filing an administrative
complaint against the bus operator with the Land
Transportation Franchising and Regulatory Board.
The cancellation or suspension of the operator’s
franchise is for a different cause of action. (1997
Bar Question)
Q: Give five (5) instances of forum-shopping.
5.
Exploration, Inc. v. Macaraig, G.R. No.
78569, February 11, 1991)
When counsel omits to disclose the
pendency of an appeal, in filing a certiorari
case (Collado v. Hernando, G.R. No.L43866, May 30, 1988). (2002 Bar
Question)
Note: The committee suggests full credit for any 3 of
the above enumerated instances of forum-shopping.
Rule 12.03, Canon 12, CPR – 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. (2003 Bar Question)
Note: The court censures the practice of counsels
who secures repeated extensions of time to file their
pleadings and thereafter simply let the period lapse
without submitting the pleading or even an
explanation or manifestation of their failure to do so.
(Achacoso v. CA, G.R. No. L-35867, June 28, 1973).
Asking for extension of time must be in good faith.
Otherwise, it is an obstruction of justice and the
lawyer is subject to discipline. (CPR Annotated,
PhilJA)
The same rule applies more forcefully to motion for
continuance. Postponement is not a matter of right
but of sound judicial discretion. (Edrial v. QuilatQuilat, G.R. No. 133625, Sept. 6, 2000)
Rule 12.04, Canon 12, CPR – A lawyer shall
not unduly delay a case, impede the
execution of a judgment or misuse court
processes.
A:
1.
2.
3.
4.
62
When, as a result of an adverse opinion in
one forum, a party seeks a favorable
opinion (other than by appeal or
certiorari) in another
When he institutes two or more actions or
proceedings grounded on the same cause,
on the gamble that one or the other court
would
make
a
favorable
disposition(Benguet Electric Cooperative,
Inc. v. NEA, G.R. No. 93924, January 23,
1991)
Filing a second suit in a court without
jurisdiction (New Pangasinan Review, Inc.
v. NLRC,G.R. No. 85939, April 19, 1991)
Filing an action in court while the same
cause of action is still pending in an
administrative proceeding (Earth Minerals
Note: It is understandable for a party to make full
use of every conceivable legal defense the law
allows it. However, of such attempts to evade
liability to which a party should respond, it must ever
be kept in mind that procedural rules are intended as
an aid to justice, not as means for its frustration.
Once a judgment 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 in the
enforcement of a judgment sets at naught the role
of the courts in disposing justiciable controversies
with finality. (Aguilar v. Manila Banking Corporation,
GR No. 157911, September 19, 2006)
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
Lawyers should not resort to nor abet the resort of
their clients, to a series of actions and petitions for
the purpose of thwarting the execution of a
judgment that has long become final and executory.
(Cobb-Perez v. Lantin, No. L-22320, May 22, 1968)
Rule 12.05, Canon 12, CPR – A lawyer shall
refrain from talking to his witness during a
break or recess in the trial, while the witness
is still under examination.
Q: What is the reason for the rule?
A: To prevent the suspicion that he is coaching
the witness what to say during the resumption of
the examination.
Rationale: To uphold and maintain fair play with the
other party and to prevent the examining lawyer
from being tempted to coach his own witness to suit
his purpose.
Q: Who is a witness?
A: A human instrumentality through which the
law and its ministers, the judges and lawyers,
endeavor to ascertain the truth and to dispense
justice to the following parties.
Q: What are the guidelines in interviewing a
witness?
A:
1.
2.
3.
4.
A lawyer may interview a witness in
advance of the trial to guide him in the
management of the litigation;
A lawyer may also interview a
“prospective witness” for the opposing
side in any civil and criminal action
without the consent of opposing counsel
or party;
A lawyer must properly obtain statements
from witnesses whose names were
furnished by the opposing counsel or
interview the employees of the opposing
party even though they are under
subpoena to appear as witnesses for the
opposite side;
If after trial resulting in defendant’s
conviction, his counsel has been advised
that a prosecution witness has committed
perjury, it is not only proper but it is the
lawyer’s duty to endeavor honorable
means to obtain such witness’ reaction,
even without advising the public
prosecutor of his purpose and even
though the case is pending appeal; and
5.
An adverse party, though he may be used
as a witness, is not however a witness
within the meaning of the rule permitting
a lawyer to interview the witness of the
opposing counsel.
Note: A lawyer shall avoid testifying in behalf of his
client. The function of a witness is to tell the facts as
he recalls them in answer to questions while the
function of an advocate is that of a partisan. It is
difficult to distinguish between the zeal of an
advocate and the fairness and impartiality of a
disinterested witness.
Although the law does not forbid an attorney to be a
witness and at the same time an attorney in a cause,
the courts prefer that counsel should not testify as a
witness unless it is necessary and that they should
withdraw from the active management of the case.
(PNB v. Uy Teng Piao, G.R. No. L- 35252, Oct. 21,
1932) (2001, 2005 Bar Questions)
Rule 12.06, Canon 12, CPR – A lawyer shall
not knowingly assist a witness to
misrepresent himself or to impersonate
another.
Q: What are the sanctions on a lawyer who shall
knowingly assist a witness to misrepresent
himself or to impersonate another?
A: Art. 184, Revised Penal Code provides: The
lawyer who presented a witness knowing him to
be a false witness is criminally liable for “Offering
False Testimony in Evidence”.
Note: The lawyer who is guilty of the above is both
criminally and administratively liable.
Q: Is the witness who committed
misrepresentation criminally liable?
the
A: Yes. The witness who commits the
misrepresentation is criminally liable for “False
Testimony” either under Art. 181, 182 or 183,
Revised Penal Code, depending upon the nature
of the case.
Note: The lawyer who induces a witness to commit
false testimony is equally guilty as the witness.
Q: Who commits subordination of perjury?
A: It is committed by a person who knowingly and
willfully procures another to swear falsely and the
witness
subordinated
does
testify
under
circumstances rendering hm guilty of perjury. (U.S.
v. Ballena, G.R. No. L-6294, February 10, 1911).
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
63
UST Golden Notes 2011
Rule 12.07, Canon 12, CPR – A lawyer shall
not abuse, browbeat or harass a witness nor
needlessly inconvenience him.
Q: Nolito Boras was convicted of statutory rape.
The victim, a minor, testified and the manner of
examination was excessive.
The lawyer of Boras was asking questions like,
“Did you have any opportunity at the time you
were raped to hold the penis of Nolito Boras?”,
“At the time, when you were raped by Nolito
Boras, is his penis hard or soft?”, and “Did you
see your uncle Cerilo after the accused stop
pushing and pulling his penis to your vagina or
while he was still in the process of pushing and
pulling his penis to your vagina?”
Did the lawyer of Nolito Boras violate Rule
12.07?
A: Yes. It must be stressed that in dealing with
rape cases of children, especially those below 12
years of age, due care must be observed by the
trial court in handling the victim. In fact, more
often than not, the gruelling experience in the
trial court in the course of direct examination and
cross-examination is more traumatic than the fact
of the rape itself. On such occasions, mishandling
of victims lead to psychological imbalances which,
if not properly treated by medical experts will
lead to an abnormal behavioral response against
the idea of sex itself and disturbed interaction
with the opposite or same sex.
By subjecting her into explaining whether she was
forced or intimidated is excessive. It is because
proof of force and intimidation is unnecessary in
statutory rape. Considering that there is a medical
report substantiating the allegations made by the
victim, the manner of examination of the victim
must be tempered. Especially in this case since
the child is only six years old who remains
uncorrupted. (People v. Boras, G.R. No. 127495,
Dec. 22, 2000)
Q: What is the obligation of a witness?
A: A witness must answer questions although his
answer may tend to establish a claim against him.
Q: What are the rights of a witness?
A:
1.
64
To be protected from irrelevant,
improper, or insulting questions and from
harsh or insulting demeanor;
2.
3.
4.
5.
Not to be detained longer than the
interest of justice requires;
Not to be examined except only as to
matters pertinent to the issue;
Not to give any answer which will tend to
subject him to a penalty for an offense
unless otherwise provided by law; or
Not to give an answer which will tend to
degrade his reputation, unless it be 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 and final conviction for an
offense. (Sec. 3, Rule 132 of RRC)
Note: It was highly inconsiderate for the prosecutor
and the defense counsel to trade quips at the
precise time the victim of rape was reviving her
harrowing experience. Courts are looked up to by
the people with high respect and are regarded as
places were litigants are heard, rights and conflicts
are settled and justice solemnly dispensed. Levity
has no place in the courtroom during the
examination of the victim of rape, and particularly at
her expense. (People v. Nuguid, G.R. No. 148991,
Jan. 21, 2004)
Rule 12.08, Canon 12, CPR – A lawyer shall
avoid testifying in behalf of his client,
except:
a.
b.
On formal matters, such as the
mailing, authentication or custody of
an instrument, and the like; or
On substantial matters, in cases
where his testimony is essential to
the ends of justice, in which event he
must, during his testimony, entrust
the trial of the case to another
counsel.
Q: What is the reason for the rule?
A: The function of a witness is to tell the facts as
he recalls them in answer to questions. The
function of an advocate is that of a partisan. It is
difficult to distinguish between the zeal of an
advocate and the fairness and impartiality of a
disinterested witness.
Q: What are the instances when a lawyer may
not testify as a witness in a case which he is
handling for a client?
A: TARCC
1. When as an attorney, he is to Testify on
the theory of the case
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
2.
3.
4.
5.
When such would Adversely affect any
lawful interest of the client with respect to
which confidence has been reposed on
him
Having accepted a Retainer, he cannot be
a witness against his client;
He cannot serve Conflicting interests
When he is to violate the Confidence of
his client
Q: What are the instances when a lawyer may
testify as a witness in a case which he is handling
for a client?
A: FETAD
1. On Formal matters, such as the mailing,
authentication or custody of 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. Acting as an Arbitrator;
5. Deposition.
4. RELIANCE ON MERITS OF CASE, NOT FROM
IMPROPER INFLUENCE UPON THE COURTS
CANON 13, CPR
- 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.
(1994, 1997,2000,2001,2003 Bar Questions)
Note: 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.
Rule 13.01, Canon 13, CPR – A lawyer shall
not extend extraordinary attention or
hospitality to, nor seek opportunity for
cultivating familiarity with judges.
Rationale: To protect the good name and reputation
of the judge and the lawyer.
Lawyers should not seek for opportunity to cultivate
familiarity with judges. A lawyer who resorts to such
practices of seeking familiarity with judges dishonors
his profession and a judge who consents to them is
unworthy of his high office.
It is improper for a litigant or counsel to see a judge
in chambers and talk to him about a matter related
to the case pending in the court of said judge.
(Austria v. Masaquel, G.R. No. 22536, August 31,
1967)
Q: Atty. J requested Judge K to be a principal
sponsor at the wedding of his son. Atty. J met
Judge K a month before during the IBPsponsored reception to welcome Judge K into
the community, and having learned that Judge K
takes his breakfast at a coffee shop near his
(Judge K's) boarding house, Atty. J made it a
point to be at the coffee shop at about the time
that Judge K takes his breakfast. Comment on
Atty. J's acts. Do they violate the Code of
Professional Responsibility?
A: Yes, his actions violate the Code of Professional
Responsibility. Canon 13 of the said Code
provides that 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. Rule 13.01 of the same
Code provides that a lawyer shall not extend
extraordinary attention or hospitality to, nor seek
opportunity for, cultivating familiarity with
judges. Atty. J obviously sought opportunity for
cultivating familiarity with Judge K by being at the
coffee shop where the latter takes his breakfast,
and is extending extraordinary attention to the
judge by inviting him to be a principal sponsor at
the wedding of his son. (2000 Bar Question)
Rule 13.02, Canon 13, CPR – A lawyer shall
not make public statements in the media
regarding a pending case tending to arouse
public opinion for or against a party.
Q: When can there be prejudicial publicity?
A: There must be an allegation and proof that the
judges have been unduly influenced, not simply
that they might be, by barrage of publicity. (CPR
Annotated, PhilJA)
Note: The restriction does not prohibit issuances of
statements by public officials charged with the duty
of prosecuting or defending actions in court.
Note: Public statements to arouse public opinion for
or against a party are generally condemned.
Q: What is the test to determine whether public
statements are contemptuous?
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
65
UST Golden Notes 2011
A: The character of the act done and its direct
tendency to prevent and obstruct the discharge
of official duty.
In a concluded litigation, a lawyer enjoys a wider
latitude of comment on or criticize the decision of
a judge of his actuation. Thus, it has been held
that a newspaper publication tending to impede,
obstruct, embarrass or influence the courts in
administering justice in a pending case
constitutes criminal contempt, but the rule is
otherwise after the litigation is ended. (In re:
Loazano, 54 Phil. 801, July 24, 1930)
Q: Dumbledore, a noted professor of commercial
law, wrote an article on the subject of letters of
credit, which was published in the IBP Journal.
Assume he devoted a significant portion of the
article to a commentary on how the Supreme
Court should decide a pending case involving the
application of the law on letters of credit. May
he be sanctioned by the Supreme Court? Explain.
A: Professor Dumbledore may be sanctioned by
the Supreme Court. Rule 13.02 of the CPR
provides that “a lawyer shall not make public
statements in the media regarding a pending case
tending to arouse public opinion for or against a
party.” The Court in a pending litigation must be
shielded from embarrassment or influence in its
duty of deciding the case.
Q: Assume Dumbledore did not include any
commentary on the case. Assume further after
the Supreme Court decision on the case had
attained finality, he wrote another IBP Journal
article, dissecting the decision and explaining
why the Supreme Court erred in all its
conclusions. May he be sanctioned by the
Supreme Court? Explain.
Note: As it will be contrary to the principle of
separation of powers.
All lawyers must uphold, respect and support the
independence of the judiciary. This independence
from interference is made to apply against all
branches and agencies of the government. (Funa.
2009)
The Supreme Court accordingly administered a
reprimand to Bumanlag for gross ignorance of law
and of the Constitution in having asked the President
to set aside by decree the Court’s decision which
suspended him for two years from the practice of
law. (De Bumanlag v. Bumanlag, A.M. No. 188, Nov.
29, 1976)
D. THE LAWYER AND THE CLIENT
Attorney-Client Relationship
(1995,1997,1999,2001,2002 Bar Questions)
Q: What is the nature of attorney-client
relationship?
A:
1.
Strictly personal – Prohibits the delegation
of work without the client’s consent.
2.
Highly confidential
a.
b.
3.
Fiduciary
a.
b.
A: He may not be sanctioned by the Supreme
Court. Once a litigation is concluded, the judge
who decided it is subject to the same criticism as
any other public official because his decision
becomes public property and is thrown open to
public consumption. The lawyer enjoys a wide
latitude in commenting or criticizing the judge’s
decision, provided that such comment or criticism
shall be bona fide and not spill over the bounds of
decency and propriety. (2008 Bar Question)
Rule 13.03, Canon 13, CPR – A lawyer shall
not brook or invite interference by another
branch or agency of the government in the
normal course of judicial proceedings.
66
Communication made in the course
of lawyers professional employment;
and
Communication intended to be
confidential.
c.
Hold in trust all moneys and
properties of his client that may
come into his possession;
When a lawyer enforces a charging
lien against his client, the relationship
is terminated; and
An attorney cannot represent
adverse interest unless the parties
consent to the representation after
full disclosure of facts.
Q: Is a contract necessary in order to have a
professional relationship between a lawyer and
a client?
A: No, the absence of a written contract will not
preclude a finding that there is a professional
relationship. Documentary formalism is not an
essential element in the employment of an
attorney; the contract may be express or implied.
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
It is sufficient, to establish the professional
relation, that the advice and assistance of an
attorney is sought and received in any matter
pertinent to his profession. An acceptance of the
relation is implied on the part of the attorney
from his acting on behalf of his client in
pursuance of a request from the latter.
Note: If a person, in respect to his business affairs or
any troubles of any kind, consults with his attorney
in his professional capacity with the view to
obtaining professional advice or assistance and the
attorney voluntarily permits or acquiesce in such
consultation, as when he listens to his client’s
preliminary statement of his case or gives advice
thereon, then the professional employment is
regarded as established just as effective as when he
draws his client’s pleading or advocates his client’s
cause in court. (Dee v. CA, G.R. No. 77439, Aug. 24,
1989)
Q: How is a lawyer-client relationship formed?
A:
1.
2.
3.
Oral – When the counsel is employed
without a written agreement, but the
conditions and amount of attorney’s fees
are agreed upon.
Express – when the terms and conditions
including the amount of fees are explicitly
stated in a written document, which may
be a private or public document. Written
contract of attorney’s fees is the law
between the lawyer and the client.
Implied – When there is no agreement,
whether oral or written, but the client
allowed the lawyer to render legal services
not intended to be gratuitous without
objection and client is benefited by reason
thereof.
Note: While a written agreement for professional
services is the best evidence to show the relation,
formality is not an essential element of the
employment of an attorney. The absence of a
written contract will not preclude a finding that
there is a professional relationship.
Q: What are the advantages of a written
contract between the Lawyer and the Client?
A:
1.
2.
It is conclusive as to the amount of
compensation.
In case of unjustified dismissal of an
attorney, he shall be entitled to recover
from the client full compensation
stipulated in the contract (RA 636).
Q: What are the rules protecting attorney-client
relationship?
A:
1.
2.
3.
4.
5.
Best efforts must be exerted by the
attorney to protect his client’s interest;
The attorney must promptly account for
any fund or property entrusted by or
received for his client;
An attorney cannot purchase his client’s
property or interest in litigation;
The privacy of communications shall at all
times upheld;
An attorney cannot represent a party
whose interest is adverse to that of his
client even after the termination of the
relation.
Q: What are the three principal types of
professional activity that a licensed attorney at
law generally engages in, in the practice of his
profession?
A: LAP
1. Legal advice and instructions to clients to
inform them of their rights and
obligations;
2. Appearance for clients before public
tribunals which possess power and
authority to determine rights of life,
liberty, and property according to law, in
order to assist in proper interpretation
and enforcement of law; and
3. Preparation for clients of documents
requiring knowledge of legal principles not
possessed by ordinary layman. (CPR
Annotated, PhilJA)
Q: Uy engaged the services of Atty. Gonzales to
prepare and file a petition for the issuance of a
new certificate of title. Uy confided with him the
circumstances surrounding the lost title and
discussing the fees and costs. When the petition
was about to be filed, Atty. Gonzales went to
Uy’s office and demanded a certain amount
from him other than what they had previously
agreed upon. Uy found out later that instead of
filing the petition for the issuance of a new
certificate of title, Atty. Gonzales filed a lettercomplaint against him with the Office of the
Provincial Prosecutor for “falsification of public
documents.” The letter-complaint contained
facts and circumstances pertaining to the
transfer certificate of title that was the subject
matter of the petition which Atty. Gonzales was
supposed to have filed. Should Atty. Gonzales be
suspended for violating the lawyer-client
relationship when he filed a complaint for
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
67
UST Golden Notes 2011
“falsification of public documents” against his
client using facts connected with the latter’s
petition?
A: No. As a rule, an attorney-client relationship is
said to exist when a lawyer voluntarily permits or
acquiesces with the consultation of a person, who
in respect to a business or trouble of any kind,
consults a lawyer with a view of obtaining
professional advice or assistance. It is not
essential that the client should have employed
the attorney on any previous occasion or that any
retainer should have been paid, promised or
charged for, neither is it material that the
attorney consulted did not afterward undertake
the case about which the consultation was had,
for as long as the advice and assistance of the
attorney is sought and received, in matters
pertinent to his profession.
Evidently, the facts alleged in the complaint for
“estafa through falsification of public documents”
filed by Atty. Gonzales against Uy were obtained
by Atty. Gonzales due to his personal dealings
with Uy. Whatever facts alleged by Atty. Gonzales
against Uy were not obtained by Atty. Gonzales in
his professional capacity but as a redemptioner of
a property originally owned by his deceased son
and therefore, when Atty. Gonzales filed the
complaint for estafa against Uy, which necessarily
involved alleging facts that would constitute
estafa, Atty. Gonzales was not, in any way,
violating Canon 21. Clearly, there was no
attorney-client relationship between Atty.
Gonzales and Uy. The preparation and the
proposed filing of the petition was only incidental
to their personal transaction. (Uy v. Atty.
Gonzales, A.C. No. 5280, Mar. 30, 2004)
1. AVAILABILITY OF SERVICE WITHOUT
DISCRIMINATION
CANON 14, CPR
- A LAWYER SHALL NOT REFUSE HIS
SERVICES TO THE NEEDY.
(1990,1992,2006 Bar Questions)
become his client. He has the right to decline
employment.
XPN:
1. A lawyer shall not refuse his services to
the needy (Canon 14);
2. He shall not decline to represent a
person solely on account of the latter’s
race, sex, creed or status of life or
because of his own opinion regarding
the guilt of said person (Rule 14.01);
(1990, 1993, 2000, 2002, 2006 Bar
Questions)
3. He shall not decline, except for serious
and efficient cause like
a. If he is not in a position to carry
out effectively or competently;
b. If he labors under a conflict of
interest between him and the
prospective client (Rule 14.03).
Q: What is the rationale for the establishment
and operation of legal aid offices in all chapters
of the IBP?
A: Legal aid is not a matter of charity. It is a
means for the correction of social imbalances that
may and often do lead to injustice, for which
reason it is a public responsibility of the Bar. The
spirit of public service should, therefore, underlie
all legal aid offices. The same should be so
administered as to give maximum possible
assistance to indigent and deserving members of
the community in all cases, matters and situations
in which legal aid may be necessary to forestall an
injustice. (Public Service, Sec. 1, Art. 1, IBP
Guidelines on Legal Aid)
Q: Are there instances where a lawyer has the
duty to decline employment?
A: A lawyer should decline no matter how
attractive the fee offered may be if its acceptance
will involve: RACCAA
1.
2.
Rationale: The poor and indigent should not be
further disadvantaged by lack of access to the
Philippine legal system.
Q: Does a lawyer have a right to decline
employment?
4.
5.
A:
GR: A lawyer is not obliged to act as legal
counsel for any person who may wish to
68
3.
A violation of any of the Rules of the legal
profession;
Advocacy in any manner in which he had
intervened while in the government
service;
Nullification of a Contract which he
prepared;
Employment with a Collection agency
which solicits business to collect claims;
Employment, the nature of which might
easily be used as a means of Advertising
his professional services of his skill; or
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
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. (1993 Bar Question)
Q: What are the ethical considerations in taking
a bad case?
A:
1.
Criminal case – A lawyer may accept a
losing criminal case because every
accused is presumed innocent until
proven guilty and is entitled to counsel.
2.
Civil case - The rules and ethics of the
profession enjoin a lawyer from taking a
bad case.
Q: What are the reasons why a lawyer may not
accept a “losing” civil case?
A:
1.
The attorney’s signature in every pleading
constitutes a certificate by him that there
is good cause to support it and that it is
not interposed for delay, and willful
violation of such rule shall subject him to
disciplinary action;
2.
It is the attorney’s duty to “counsel or
maintain such actions or proceedings only
as appears to him to be just and only such
defenses as he believes to be honestly
debatable under the law”;
3.
4.
A lawyer is not to encourage either the
commencement or the continuance of an
action or proceeding, or delay any man’s
cause, for any corrupt motive or interest;
and
A lawyer must decline to conduct a civil
cause or to make a defense when
convinced that it is intended merely to
harass or injure the opposite party or to
work oppression or wrong.
Q: Is there an instance when a lawyer may
accept a losing civil case?
A: Yes, provided that, in so doing, he must not
engage in dilatory tactics and must advise his
client about the prospects and advantage of
settling the case through a compromise. (1996,
2001, 2002, 2005 Bar Question)
a. Services Regardless of Person’s Status
Rule 14.01, Canon 14, CPR - A lawyer shall
not decline to represent a person solely on
account of the latter’s race, sex, creed or
status of life, or because of his own opinion
regarding the guilt of said person.
Rule 14.01 is applicable only in criminal cases. In
criminal cases, a lawyer cannot decline to represent
an accused or respondent because of his opinion
that the said person is guilty of the charge or charges
filed against him. In representing the accused or
respondent, the lawyer must only use means which
are fair and honorable. (Sec. 20[I], Rule 138, RRC)
Rule 14.01 is not applicable in civil cases because it is
the duty of an attorney to counsel or maintain such
actions or proceedings only as appear to him to be
just, and such defenses only as he believes to be
honestly debatable under the law.” (Sec. 20[c], Rule
138, RRC)
Q: Atty. DD’s services were engaged by Mr. BB
as defense counsel in a lawsuit. In the course of
the proceedings, Atty. DD discovered that Mr.
BB was an agnostic and a homosexual. By
reason thereof, Atty. DD filed a motion to
withdraw as counsel without Mr. BB’s express
consent. Is Atty. DD’s motion legally tenable?
Reason briefly.
A: No. Atty. DD’s motion is not legally tenable. He
has no valid cause to terminate his services. His
client, Mr. BB, being an agnostic and homosexual,
should not be deprived of his counsel’s
representation solely for that reason.
A lawyer shall not decline to represent a person
solely on account of the latter’s race, sex, creed
or status of life or because of his own opinion
regarding the guilt of said person. (Canon 14, Rule
14.01, CPR) (2004 Bar Question)
b. Services as Counsel de Officio
Rule 14.02, Canon 14, CPR – A lawyer shall
not decline, except for serious and sufficient
cause, an appointment as counsel de oficio
or as amicus curiae, or a request from the
Integrated Bar of the Philippines or any of its
chapters for rendition of free legal aid.
(1991, 1993, 1994, 1996, 1998, 2001, 2002,
2004, 2006 Bar Question)
Q: What is the protection given by law to poor
litigants who cannot afford the services of a
lawyer?
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
69
UST Golden Notes 2011
A: A court may assign an attorney to render
professional aid free of charge to any party in
case, if upon investigation it appears that the
party is destitute and unable to employ an
attorney, and that the services of counsel are
necessary to secure the ends of justice and to
protect the rights of the party. It shall be the duty
of the attorney so assigned to render the required
service, unless he is excused therefrom by the
court for sufficient cause shown. (Sec. 31, Rule
138, RRC)
Q: Who may be appointed as counsel de oficio?
A:
1.
2.
Members of the bar in good standing;
Any person, resident of the province and
of good repute for probity and ability, in
localities without lawyers.
Q: What are considered in appointing a counsel
de oficio?
A:
1.
2.
3.
Gravity of offense;
Difficulty of questions that may arise; and
Experience and ability of appointee.
Q: A criminal complaint was filed against Bermas
for the crime of rape. The Second Assistant
Prosecutor issued a certification that the
accused has waived his right to preliminary
investigation. On the day of the scheduled
arraignment, the accused was brought before
the trial court without counsel. The court
assigned a PAO attorney to be the counsel de
officio who, during trial also made a request that
she be relieved from the case. Another counsel
was thereafter assigned as the new counsel de
officio. When said new counsel for the accused
failed to appear before the court for their
presentation of evidence, the Court appointed
another counsel de officio but, again, said
counsel asked to be relieved from the case. The
newly appointed counsel also failed to appear
before the court.
Despite the said events, the lower court
convicted the accused of death penalty for the
violation of the crime of rape. The defense
counsel claimed that the accused was deprived
of due process, was denied his Constitutional
right to effective and vigilant counsel and his
Constitutional right to be tried by an impartial
judge. Is there a violation of due process and
was denied of his Constitutional right to
effective and vigilant counsel?
70
A: Yes. The right to counsel must be more than
just the presence of a lawyer in the courtroom or
the mere propounding of standard questions and
objections. The right to counsel means that the
accused is amply accorded legal assistance
extended by a counsel who commits himself to
the cause for the defense and acts accordingly.
The right assumes an active involvement by the
lawyer in the proceedings, particularly at the trial
of the case, his bearing constantly in mind of the
basic rights of the accused, his being well-versed
on the case, and his knowing the fundamental
procedures, essential laws and existing
jurisprudence. The right of an accused to counsel
finds substance in the performance by the lawyer
of his sworn duty of fidelity to his client. Tersely
put, it means an efficient and truly decisive legal
assistance and not a simple perfunctory
representation.
It is never enough that accused be simply
informed of his right to counsel; he should also be
asked whether he wants to avail himself of one
and should be told that he can hire a counsel of
his own choice if he so desires or that one can be
provided to him at his request.
A counsel de oficio is expected to do his utmost. A
mere pro-forma appointment of de oficio counsel
who fails to genuinely protect the interests of the
accused merits disapprobation. The exacting
demands expected of a lawyer should be no less
than stringent when one is a counsel de officio.
He must take the case not as a burden but as an
opportunity to assist in the proper dispensation
of justice. No lawyer is to be excused from this
responsibility except only for the most compelling
and cogent reasons.
Canon 18 of the Code of Professional
Responsibility requires every lawyer to serve his
client with utmost dedication, competence and
diligence. He must not neglect a legal matter
entrusted to him, and his negligence in this
regard renders him administratively liable.
Obviously, in the instant case, the aforenamed
defense lawyers did not protect, much less
uphold, the fundamental rights of the accused.
Instead, they haphazardly performed their
function as counsel de oficio to the detriment and
prejudice of the accused Sevilleno, however guilty
he might have been found to be after trial.
(People v. Bermas, G.R. No. 120420. April 21,
1999)
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
c. Valid Grounds for Refusal
Rule 14.03, Canon 14, CPR – A lawyer may
not refuse to accept representation of an
indigent client unless:
a.
b.
He is in no position to carry out the
work effectively or competently;
He labors under a conflict of interest
between him and the prospective
client or between a present client and
a prospective client.
Q: When may refusal of a counsel to act as
counsel de oficio be justified on grounds aside
from the reasons of health, extensive travel
abroad, or similar reasons of urgency?
A: Other justified grounds for refusal to act as a
counsel de oficio are:
1.
2.
3.
4.
5.
Too many de oficio cases assigned to the
lawyer; (People v. Daeng, G.R. No. L34091, Jan. 30, 1973)
Conflict of interest; (Rule 14.03, CPR)
Lawyer is not in a position to carry out the
work effectively or competently; (supra)
Lawyer is prohibited from practicing law
by reason of his public office which
prohibits appearances in court; and
Lawyer is preoccupied with too many
cases which will spell prejudice to the new
clients.
Q: Atty. J. Bonanza, a semi-retired Metro Manila
practitioner has a cattle ranch in the remote
municipality of Nueva Ecija. He attends to his
law office in Manila on Mondays, Tuesdays and
Wednesdays, and the rest of the week he spends
in his cattle ranch raising horses.
In a criminal case pending before the Municipal
Trial Court of Carranglan, the only other licensed
member of the bar in the place is representing
the complainant. The accused is a detention
prisoner. The judge wants to expedite
proceedings.
What must
proceedings?
the
judge
do
to
expedite
A: The judge may appoint attorney Bonanza as
counsel de oficio considering that the accused is a
detention prisoner and therefore it is assumed
that he has no financial means of engaging a paid
counsel. (1988 Bar Question)
Q: If Atty. Bonanza is requested to act as counsel
for the accused, could he or should he refuse by
saying that in the province, he wants to do
nothing except ride horses and castrate bulls?
Explain.
A: The attorney cannot refuse to be appointed as
counsel de oficio merely on the reason that he is a
semi-retired practicing lawyer. Precisely one of
the reasons for the integration of the bar in the
Philippines is to compel all persons who have
been admitted to the practice of law in the
Philippines to perform their duties to assist the
courts in the administration of public. (Ibid)
Q: Assailed in a certiorari proceeding is an order
of respondent Judge Climaco denying a motion
filed by petitioner Ledesma to be allowed to
withdraw as counsel de oficio. One of the
grounds for such a motion was his allegation
that with his appointment as Election Registrar
by the COMELEC, he was not in a position to
devote full time to the defense of the two
accused. The denial by respondent Judge of such
a plea, notwithstanding the conformity of the
defendants, was due to “its principal effect of
delaying the case”. Is the denial of Judge Climaco
correct?
A: Yes. The reluctance of Ledesma to comply with
his responsibilities as counsel de oficio is not an
adequate ground for the motion of withdrawal.
Membership in the bar is a privilege burdened
with a condition. For some lawyers especially the
neophytes in the profession being appointed as a
lawyer is an irksome chore. Law is a profession
dedicated to the ideal of service and not a mere
trade. Thus is made manifest the indispensable
role of a member of the Bar in the defense of an
accused. Such a consideration could have sufficed
for Ledesma not being allowed to withdraw as
counsel de oficio. For he did betray by his moves
his lack of enthusiasm for the task entrusted to
him, to put matters mildly. He did point though to
his responsibility as an election registrar.
Assuming his good faith, no such excuse could be
availed now. There is not likely at present, and in
the immediate future, an exorbitant demand on
his time. (Ledesma v. Climaco, G.R. No. L-23815,
June 28, 1974)
Q: Ferrer was accused of having raped his 11year-old stepdaughter. Ferrer’s counsel of record
was PAO's Atty. Macabanding. During the pretrial, both of them failed to appear. Ferrer was
considered by the court as having jumped bail.
Trial in absentia followed where Ferrer was
assisted by another PAO lawyer, Atty. Alonto.
Atty. Macabanding did not appear in all the
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
71
UST Golden Notes 2011
subsequent hearings of the case. He did not
inform the court of his whereabouts. Ferrer was
found guilty beyond reasonable doubt of the
crime charged and imposed upon him the death
penalty. Did Atty. Macabanding live up to the
demands expected from a counsel de oficio?
amicus curiae or a request from the IBP or any of
its chapter for rendition of free legal aid.” He
may, therefore, decline such appointment for
“serious and sufficient cause”. For example, he
may decline such appointment if it will involve a
conflict of interest with another client.
A: No. Ferrer was not properly and effectively
accorded the right to counsel. Canon 18 of the
CPR requires every lawyer to serve his client with
utmost dedication, competence and diligence. He
must not neglect a legal matter entrusted to him.
For all intents, purposes and appearances, Atty.
Macabanding abandoned his client, an accused
who stands to face the death penalty.
Q: Will your answer be different if the legal aid is
requested in a civil case?
While he faced the daunting task of defending an
accused that had jumped bail, this unfortunate
development is not a justification to excuse him
from giving his heart and soul to the latter's
defense. The exercise of their duties as counsel de
oficio meant rendering full meaning and reality to
the constitutional precepts protecting the rights
of the accused. (People v. Ferrer, G.R. No. 148821,
July 18, 2003)
Q: What is the rule on the appointment of
counsel de oficio for an accused who was
convicted by the Regional Trial Court and is
desirous of appealing from the judgment of
conviction?
A: If an accused is found guilty by the trial court
and makes his intention to appeal the decision,
the appellate court may appoint a counsel de
oficio if it is shown by a certificate of the clerk of
the court that:
1.
2.
3.
The defendant is confined in prison and
not able to file a bail bond;
He is without means to employ an
attorney de parte; and
He desires to be represented by an
attorney de oficio.
Note: An appellant who is not confined in prison is
not entitled to an attorney de oficio unless a request
is made within ten days from notice to file the
appellant’s brief and the right thereto is established
by affidavit of poverty. (Sec. 13, Rule 122, RRC) (1993
Bar Question)
Q: May a lawyer decline a request for free legal
aid to an indigent accused made by a chapter of
the IBP? Explain.
A: Rule 14.02 of the CPR provides that “a lawyer
shall not decline, except for serious and sufficient
cause, an appointment as counsel de oficio or as
72
A: My answer will not be exactly the same,
because in a civil case, the lawyer can also decline
if he believes the action or defense to be
unmeritorious. He is ethically bound to maintain
only actions and proceedings which appear to
him to be just and only such defenses which he
believes to be honestly debatable under the law.
(2002 Bar Question)
Note: A lawyer may refuse to handle cases due to
these valid reasons. However, Rule 2.02 requires him
to give advice on preliminary steps if he is asked
until the client secures the services of counsel. He
shall refrain from giving this preliminary advice if
there is conflict of interest between a present client
and a prospective one for extending such legal
advice will create and establish an attorney-client
relationship between them and may involve a
violation of the rule prohibiting a lawyer from
representing conflicting interest.
Rule 14.04, Canon 14, CPR – 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. (2008 Bar Question)
Q: Atty. Mariano Dajoyag, Jr. is Ernesto Ramos’
counsel. He failed to perfect their appeal before
the SC. He filed the petition for certiorari within
the 20-day period of extension that he sought in
his 2nd motion for extension. He learned that
the period of extension granted in his 1st motion
for extension was inextendible only after the
expiration of the 2 periods of extension that he
prayed for. A complaint for negligence and
malpractice was filed against him, to which he
pleaded good faith and excusable neglect of
duty. Is Atty. Dajoyag Jr. guilty of neglect of
duty?
A: Yes. Motions for extension are not granted as a
matter of right but in the sound discretion of the
court, and lawyers should never presume that
their motions for extension or postponement will
be granted or that they will be granted the length
of time they prayed for.
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
Further, regardless of the agreement Atty.
Dajoyag, Jr. had with Ramos with respect to the
payment of his fees, Atty. Dajoyag, Jr. owed it to
Ramos to do his utmost to ensure that every
remedy allowed by law is availed of. Rule 14.04 of
the Code of Professional Responsibility enjoins
every lawyer to devote his full attention,
diligence, skills, and competence to every case
that he accepts. Pressure and large volume of
legal work do not excuse Atty. Dajoyag, Jr. for
filing the petition for certiorari out of time.
fidelity and absolute integrity in all his dealings and
transactions with his clients and an utter
renunciation of every personal advantage conflicting
in any way, directly or indirectly, with the interest of
his client. (Oparel Sr. v. Abaria, A.C. No. 959, July 30,
1971)
Nevertheless, Atty. Dajoyag Jr. exerted efforts to
protect the rights and interests of Ernesto Ramos,
including trying to secure a reconsideration of the
denial of the petition. Thus, he is guilty of simple
neglect of duty. (Ramos v. Dajoyag, Jr., A.C. No.
5174, Feb. 28, 2002)
a. Confidentiality rule
Note: The fact that his services are rendered without
remuneration should not occasion a diminution in
his zeal. (Ledesma v. Climaco, G.R. No. L-23815, June
28, 1974)
Lawyers who devote their professional practice to
representing litigants who could ill afford legal
services deserve commendation. However, it is not
enough to say that all pauper litigants should be
assured of legal representation. They deserve
quality representation as well. (Canoy v. Ortiz, A.C.
No. 5485, Mar. 16, 2005)
2. CANDOR, FAIRNESS AND LOYALTY TO CLIENTS
CANON 15, CPR
- A LAWYER SHALL OBSERVE CANDOR,
FAIRNESS AND LOYALTY IN ALL HIS
DEALINGS AND TRANSACTIONS WITH HIS
CLIENT.
(1991 Bar Question)
Q: What does the Code of Professional
Responsibility provide pertinent to the lawyer’s
duty as regards his dealings and transactions
with clients?
A: Canon 15 of the Code of Professional
Responsibility provides that “A lawyer shall
observe candor, fairness and loyalty in all his
dealings and transactions with his client.”
If they find that their client’s cause is defenseless,
then it is their bounden duty to advise the latter to
acquiesce and submit rather than to traverse the
incontrovertible. (Rollon v. Atty. Naraval, A.C. No.
6424, March 4, 2005)
Note: Confidentiality means the relation between
lawyer and client or guardian and ward, or between
spouses, with regard to the trust that is placed in the
one by the other. (Black’s Law Dictionary 7th Edition
1990, 2004)
b. Privilege Communication
Rule 15.02, Canon 15, CPR- A lawyer shall
be bound by the rule on privilege
communication in respect of matters
disclosed to him by a prospective client.
(2008 Bar Question)
Q. How is Rule 15.02 different from Canon 17?
A: Rule 15.02 speaks of the duty of confidentiality
to a prospective client while Canon 17 provides
for the duty of confidentiality to an actual client.
(Funa, 2009)
Q: Are matters disclosed by a prospective client
to a lawyer protected by the rule on privileged
communication?
A: Yes. The foregoing disqualification rule applies
to prospective clients of a lawyer. Matters
disclosed by a prospective client to a lawyer are
protected by the rule on privileged
communication even if the prospective client
does not thereafter retain the lawyer or the latter
declines the employment.
A lawyer owes absolute fidelity to the cause of his
client. He owes his client full devotion to his
interest, warm zeal in the maintenance and
defense of his rights.
The reason for this is to make the prospective
client free to discuss whatever he wishes with the
lawyer without fear that what he tells the lawyer
will be divulged or used against him, and for the
lawyer to be equally free to obtain information
from the prospective client. (CPR Annotated,
PhilJA)
Note: It demands of an attorney an undivided
allegiance, a conspicuous and high degree of good
faith, disinterestedness, candor, fairness, loyalty,
Note: A privileged communication is one that refers
to information transmitted by voluntary act of
disclosure between attorney and client in confidence
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
73
UST Golden Notes 2011
and by means which, so far as the client is aware
discloses the information to no third person other
than one reasonably necessary for the transmission
of the information or the accomplishment of the
purpose for which it was given.
Mere relation of attorney-client does not raise a
presumption of confidentiality. (Pineda, 2009) For an
information to be considered as privileged, it must
be intended by the client as such. (CPR Annotated,
PhilJA)
Q: What are the essential factors to establish the
existence of the attorney-client privilege
communication?
A:
1.
2.
3.
4.
5.
6.
7.
8.
Where the legal advice of any kind is
sought
From a professional legal adviser in his
capacity as such
The communications relating to that
purpose
Made in confidence
By the client
Are at his instance permanently protected
From disclosure by himself or by the legal
advisor
Except if the protection be waived.
(Hadjula v. Madianda, A.C. No. 6711, July
3, 2007)
Q: what are the
communication?
requisites
of
privilege
A:
1.
2.
3.
There is attorney-client relationship or a
kind of consultancy requirement with a
prospective client;
The communication was made by the
client to the lawyer in the course of the
lawyer’s professional employment;
The communication must be intended to
be confidential.
Note: The privilege continues to exist even after the
termination of the attorney-client relationship. It
outlasts the lawyer’s engagement. The privileged
character of the communication ceases only when
waived by the client himself or after his death, by
the heir or legal representative. (Baldwin v. CIR, 94
F. 2d 355, 20 AFTR 940)
Q: Rosa Mercado’s husband filed an annulment
against her. Atty. Julito Vitriolo represented her.
Thereafter, a criminal action against her was
filed by the latter for falsification of public
document. According to Atty. Vitriolo, she
indicated in the Certificates of Live Birth of her
children that she is married to a certain
Ferdinand Fernandez, and that their marriage
was solemnized on April 11, 1979, when in truth,
she is legally married to Ruben Mercado and
their marriage took place on April 11, 1978.
Mercado claims that the criminal complaint
disclosed confidential facts and information
relating to the civil case for annulment handled
by Vitriolo as her counsel.
Did Atty. Julito Vitriolo violate the rule on
privileged communication between attorney and
client?
A: Evidence on record fails to substantiate
Mercado’s allegations. She did not even specify
the alleged communication in confidence
disclosed by Atty. Vitriolo. All of Mercado’s claims
were couched in general terms and lacked
specificity. Without any testimony from Mercado
as to the specific confidential information
allegedly divulged by Atty. Vitriolo without her
consent, it is difficult, if not impossible to
determine if there was any violation of the rule
on privileged communication.
It is not enough to merely assert the attorneyclient privilege. The burden of proving that the
privilege applies is placed upon the party
asserting the privilege. (Mercado v. Vitrilio, A.C.
No. 5108, May 26, 2005)
Q: What is the test in determining whether a
communication to an attorney is covered by the
rule on privilege communication?
A: Whether the communications are made to an
attorney with view of obtaining from him
personal assistance or advice regardless of
whether there is a pending or merely impending
litigation or any litigation.
Q: What are the purposes of making the
communication privileged?
A:
Note: The party who avers that the communication
is privileged has the burden of proof to establish the
existence of the privilege unless from the face of the
document itself, it clearly appears that it is
privileged. The mere allegation that the matter is
privileged is not sufficient. (People v. Sleeper, No.
22783, December 3, 1924; Lapena Jr., 2009)
74
1.
2.
To encourage a client to make a full
disclosure of the facts of the case to his
counsel without fear
To allow the lawyer freedom to obtain full
information from his client.
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
Q: What are the characteristics of privileged
communication?
would extend to Takao in securing a permanent
visa in the Philippines. Atty. Acejas did nothing.
A:
Did Atty. Acejas violate the legal ethics of the
profession?
1.
2.
3.
4.
5.
6.
Attorney- client privilege where legal
advice is professionally sought from an
attorney
The client must intend the above
communication to be confidential
Attorney-client privilege embraces all
forms of communication and action
As general rule, attorney-client privilege
also extends to the attorney’s secretary,
stenographer, clerk or agent with
reference to any fact acquired in such
capacity
The above duty is perpetual and
communication is absolutely privilege
from disclosure
Persons entitled to claim privileges
Q: Who are the persons entitled to claim the
privilege?
A: The attorney-client privilege covers:
1. Lawyer;
2. Client; and
3. Third persons who by reason of their work
have acquired information about the case
being handled such as:
a. Attorney’s secretary, stenographer
and clerk;
b. Interpreter, messengers and agents
transmitting communication; and
c. An accountant, scientist, physician,
engineer who has been hired for
effective consultation. (Sec. 24(b),
Rule 130, RRC)
Q: Bureau of Immigration and Deportation (BID)
Intelligence Agent Hernandez, together with a
reporter, went to the house of Aoyagi, a
Japanese national. He was told that there were
complaints against him in Japan and that he was
suspected to be a Yakuza big boss, a drug
dependent and an overstaying alien. To prove
that he had done nothing wrong, Aoyagi showed
his passport to Hernandez who confiscated the
same.
A Contract for Legal Services was entered into by
Aoyagi and Atty. Acejas III. Aoyagi paid Atty.
Acejas P40,000.00, P25,000 of which is 50% of
the acceptance fee, and the P15,000.00 is for
filing/docket fee. Hernandez, in the presence of
Atty. Acejas, proposed that Aoyagi pay the
amount of P1 million in exchange for the help he
A: Yes. The Court reminds lawyers to follow legal
ethics when confronted by public officers who
extort money. If the extortion is directed at the
client, they must advise the client not to perform
any illegal act. Moreover, they must report it to
the authorities, without having to violate the
attorney-client privilege. Naturally, they must not
participate in the illegal act. Atty. Acejas did not
follow these guidelines. Worse, he conspired with
the extortionists. (Acejas III v. People, G.R. No.
156643, June 27, 2006)
Q: May a lawyer invoke privileged
communication to refuse revealing his clients
secrets in the course of professional
employment?
A: Yes. Rule 15.02 of the Code provides that “A
lawyer shall be bound by the rule on privilege
communication in respect of matters disclosed to
him by a prospective client”.
Q: What is the
communication?
duration
of
privilege
A: The privilege continues to exist even after the
termination of the attorney- client relationship.
Note: The privilege character of the communication
ceases only when waived by the client himself or
after his death, by his heir or legal representative.
(Lapena, Jr. 2009)
Q: When is communication not privileged?
A: A communication made by a client to a lawyer
is not privileged:
1.
After pleading has been filed.
Note: Pleading ceases to be privileged
communication – becomes part of public
records.
2.
When communication was intended by
the client to be sent to a third person
through his counsel.
Note: It loses its confidential character as
soon as it reaches the hands of a third
person.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
75
UST Golden Notes 2011
3.
When the communication sought by client
is intended to aid future crime or
perpetration of fraud.
Q: What are the three tests to determine the
existence of conflicting interests?
A:
Note: Past crime is covered by the privilege.
4.
1.
Conflicting Duties - When, on behalf of
one client, it is the attorney’s duty to
contest for that which his duty to another
client requires him to oppose or when
possibility of such situation will develop.
2.
Invitation of Suspicion - Whether the
acceptance of the new relation will
prevent a lawyer from the full discharge of
his duty of undivided fidelity and loyalty to
his client or will invite suspicion of
unfaithfulness or double-dealing in the
performance thereof.
3.
Use of Prior Knowledge Obtained Whether a lawyer will be called upon in
his new relation to use against the first
client any knowledge acquired in the
previous employment.
When communication between attorney
and client is heard by a third party.
Note: Third party testimony is admissible as
evidence.
5.
When there is consent or waiver of the
client.
6.
When the law requires disclosure.
7.
When disclosure is made to protect the
lawyer’s rights
Note: to collect his fees or defend himself,
his employees or associates or by judicial
action (Rule 21.01, CPR)
Note: Even if the communication is unprivileged,
the rule of ethics prohibits lawyers from voluntarily
revealing or using to his benefit or to that of a third
person, to the disadvantage of the client, the said
communication unless the client consents thereto.
.(Sec. 3, Rule 138-A, RRC)
c. Conflict of Interest
(1991, 1992, 1993, 1994, 1997, 1999, 2000, 2001,
2002, 2003, 2004, 2005, 2006, 2008 Bar
Questions)
Rule 15.01, Canon 15, CPR - 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.
Q: What are the types of conflict of interest?
A:
1.
Concurrent or multiple representations –
Generally occurs when a lawyer represents
clients whose objectives are adverse to each
other, no matter how slight or remote such
adverse interest may be.
The tests for concurrent
representations are:
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;
b.
Whether the acceptance of a new
relation would prevent the full
discharge of the lawyer’s duty of
undivided fidelity or loyalty to the
client;
Whether the acceptance of new
relation would invite suspicion of
unfaithfulness or double-dealing in the
performance of the lawyer’s duty of
undivided fidelity and loyalty; and
c.
Q: What is the purpose of “conflict search”?
A: By conducting a conflict search, the lawyer will
be able to determine, in the first instance, if he is
barred from accepting the representation
through conflicts with his present clients or the
lawyer’s own interest. (CPR Annotated, PhilJA)
76
multiple
a.
Q: What is “conflict search”?
A: It is examining the causes of action between
the prospective client and the lawyer’s current
clients.
or
d.
Whether, in the acceptance of a new
relation, the lawyer would be called
upon to use against a client confidential
information acquired through their
connection.
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
2.
Sequential or successive representation –
Involves representation by a law firm of a
present client who may have an interest
adverse to a prior or former client of the
firm. (CPR Annotated, PhilJA)
Note: What is material in determining whether there
is a conflict of interest in the representation is
probability, not certainty of conflict.
Illustration: Existence of conflict of Interest
1.
A v. B
A and B are present clients
2.
C v. D; E v. D
C is the present client and D is not a
present client in the same case but is a
present client in another case
3.
F v. G; H v. G
F is the present client and G was a former
client and the cases are related
4.
I v. J; K v. J
I is the present client and J was a former
client in a case that is unrelated.
5.
L, M, N v. O, P, Q
L, M, N are present clients but L and M
joins O, P, Q (People v. Davis)
Q: What are the other instances of conflict of
interests?
were reportedly contracted for P100,000. 00.
Several long distance telephone calls and two
trips to Las Vegas by him elicited the information
that indeed petitioner’s brother has an
outstanding account to Caesar’s but further
investigations, however, revealed that said
account had actually been incurred by Ramon
Sy, with petitioner’s brother merely signing for
the chits. Private respondent personally talked
with the president of Caesar's Palace and
convinced the latter’s president to go after Sy
instead to which the latter agreed with the
condition that private respondent should first
convince Sy to pay the indebtedness to which
respondent succeeded. He was able to free
petitioner’s brother from his indebtedness.
Having thus settled the account of petitioner's
brother, private respondent sent several
demand letters to petitioner demanding the
balance of P50,000.00 as attorney's fees.
Petitioner, however, ignored these, thus, private
respondent filed a complaint against petitioner
for the collection of attorney's fees and refund
of transport fare and other expenses.
Petitioners claimed, that at the time private
respondent was rendering services to petitioner,
he was actually working "in the interest" and "to
the advantage" of Caesar's Palace of which he
was an agent and a consultant. This being the
case, private respondent is not justified in
claiming that he rendered legal services to
petitioner in view of the conflicting interests
involved. Did the respondent violate the conflict
of interest rule?
A:
1.
2.
3.
4.
5.
A corporate lawyer cannot join a labor
union of employees in that corporation;
A lawyer of an insurance corporation who
investigated an accident cannot represent
the complainant/injured person;
As a receiver of a corporation, he cannot
represent the creditor;
As a representative of the obligor, he
cannot represent the obligee; and
As a lawyer representing a party in a
compromise agreement, he cannot,
subsequently, be a lawyer representing
another client who seeks to nullify the
agreement.
Q: Petitioner and his father went to the
residence of private respondent to seek his
advice regarding the problem of the alleged
indebtedness of petitioner's brother to Caesar's
Palace, a well-known gambling casino at Las
Vegas, Nevada, U.S.A.
Private respondent
assured petitioner and his father that he would
inquire into the matter, after which his services
A: No. Generally, an attorney is prohibited from
representing parties with contending positions.
However, at a certain stage of the controversy
before it reaches the court, a lawyer may
represent conflicting interests with the consent of
the parties. A common representation may work
to the advantage of said parties since a mutual
lawyer, with honest motivations and impartially
cognizant of the parties' disparate positions, may
well be better situated to work out an acceptable
settlement of their differences, being free of
partisan inclinations and acting with the
cooperation and confidence of said parties.
A lawyer is entitled to have and receive the just
and reasonable compensation for services
rendered at the special instance and request of
his client and as long as he is honestly and in good
faith trying to serve and represent the interests of
his client, the latter is bound to pay his just fees.
(Dee v. Court of Appeals, G.R. No. 77439, August
24, 1989)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
77
UST Golden Notes 2011
Q: Can a lawyer engaged by a corporation
defend members of the board of the same
corporation in a derivative suit?
A: No. The interest of the corporate client is
paramount and should not be influenced by any
interest of the individual corporate officials.
A lawyer engaged as counsel for a corporation
cannot represent members of the same
corporation's board of directors in a derivative
suit brought against them. To do so would be
tantamount to representing conflicting interests,
which is prohibited by the Code of Professional
Responsibility. (Hornilla v. Atty. Salunat, A.C. No.
5804, July 1, 2003)
Q: Six months ago, Atty. Z was consulted by A,
about a four-door apartment in Manila left by
her deceased parents. A complained that her
two siblings, B and C, who were occupying two
units of the apartment, were collecting the
rentals from the other two units and refusing to
give her any part thereof. Atty. Z advised A to
first seek the intervention of her relatives and
told her that if this failed, he would take legal
action as A asked him to do. B asks Atty. Z to
defend him in a suit brought by A against him (B)
and C through another counsel. Should Atty. Z
accept the case?
A: No. When A consulted him about her
complaint against B and C, a lawyer-client
relationship was created between A and Atty. Z.
Atty. Z cannot subsequently represent B against A
in a matter he was consulted about. This
constitutes conflict of interest. It does not matter
if Atty. Z is not handling the case for A.
Q: Should Atty. Z tell B that A consulted him
earlier about the same case? Why?
A: Yes. Rule 21.07 of the CPR provides that “a
lawyer shall not reveal that he has been consulted
about a particular case except to avoid possible
conflict of interest.” In this case, he has to reveal
to B that he had been consulted by A on the case
that B if offering to retain his services, in order to
avoid a possible conflict of interest. (2002 Bar
Question)
Rule 15.03, Canon 15, CPR – A lawyer shall
not represent conflicting interests except by
written consent of all concerned given after
a full disclosure of the facts.
78
GR: An attorney cannot represent diverse
interests. It is highly improper to represent
both sides of an issue. The proscription against
representation of conflicting interest finds
application where the conflicting interest arise
with respect to the same general matter and is
applicable however slight such adverse interest
may be. It applies although the attorney’s
intention and motives were honest and he
acted in good faith.
XPN: Representation of conflicting interest may
be allowed where the parties consent to the
representation after full disclosure of facts.
(Nakpil v. Valdez, A.C. No. 2040, Mar. 4, 1998)
Note: A lawyer may at a certain stage of the
controversy and before it reaches the court
represent conflicting interests with the express
written consent of all parties concerned given after
disclosure of the facts. The disclosure should include
an explanation of the effects of the dual
representation, such as the possible revelation or
use of confidential information.
An attorney owes loyalty to his client not only in the
case in which he has represented him but also after
relation of attorney and client has terminated.
Q: What are the instances when a lawyer may
not represent conflicting interests despite
consent of both parties concerned?
A: Where the conflict is:
1.
2.
Between the attorney’s interest and that
of a client; or
Between a private client’s interests and
that of the government or any of its
instrumentalities.
Q: What are the effects of representing adverse
interests?
A: DJ-FAC
1. Disqualification as counsel of new client
on petition of former client;
2. Where such is unknown to, and becomes
prejudicial to the interests of the new
client, a Judgment against such may, on
that ground, be set aside;
3. The attorney’s right to Fees may be
defeated if found to be related to such
conflict and such was objected to by the
former client, or if there was a
concealment and prejudice by reason of
the attorney’s previous professional
relationship with the opposite party;
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
4.
A lawyer can be held Administratively
liable through disciplinary action and may
be held Criminally liable for betrayal of
trust.
Q: Huey Company and Dewey Corporation are
both retainer clients of Atty. Anama. He is the
corporate secretary of Huey Company. He
represents Dewey Corporation in three pending
litigation cases. Dewey Corporation wants to file
a civil case against Huey Company and has
requested Atty. Anama to handle the case. What
are the options available to Atty. Anama?
Explain your answer.
A:
1.
2.
To decline to accept the case because to
do so will constitute representing
conflicting interests. It is unethical for a
lawyer to represent a client in a case
against another client in the same case.
To accept to file the case against Huey
Company, after full disclosure to both
retained clients and upon their express
and written consent. The written consent
may free him from the charge of
representing conflicting interests, because
written consent amounts to a release by
the clients of the lawyer’s obligation not
to represent conflicting interests.
Q: If you were Atty. Anama, which option would
you take? Explain.
A: If I were Atty. Anama, I will choose the first
option and inhibit myself in the case as both
entities are my clients. The conflict of interests
between the contending clients may reach such a
point that, notwithstanding their consent to the
common representation, the lawyer may be
suspected of disloyalty by one client. His
continuing to act in a double capacity strikes
deeply in the foundation of the attorney-client
relationship.
Q: Atty. Sagucio was the former Personnel
Manager and Retained Counsel of Taggat
Industries Inc. until his appointment as Assistant
Provincial Prosecutor of Tuguegarao. Taggat
Industries was sequestered by the PCGG and
thus ceased its operations.
As Assistant
Provincial Prosecutor, he assigned to conduct
the preliminary investigation over a criminal
case filed against Taggat Industries. He
recommended the filing of 651 informations for
violation of the Labor Code. He was charged for
violating Rule 15.03 of the Code of Professional
Responsibility and for defying the prohibition
against private practice of law while working as
government prosecutor. Is Atty. Sagucio guilty of
engaging in private practice of law while working
as an Assistant Provincial Prosecutor?
A. Yes. “Private practice of law” contemplates a
succession of acts of the same nature habitually
or customarily holding one’s self to the public as a
lawyer.
Atty. Sagucio admitted that he rendered his legal
services to complainant while working as a
government prosecutor. Even the receipts he
signed stated that the payments by Taggat were
for “Retainer’s fee.” Thus, as correctly pointed
out by complainant, Atty. Sagucio clearly violated
the prohibition in RA 6713.
Atty. Sagucio’s violation of RA 6713 also
constitutes a violation of Rule 1.01 of Canon 1,
which mandates that “*a+ lawyer shall not engage
in unlawful, dishonest, immoral or deceitful
conduct.” His admission that he received from
Taggat fees for legal services while serving as a
government prosecutor is an unlawful conduct,
which constitutes a violation of Rule 1.01. (LimSantiago v. Saguico, A.C. No. 6705, March
31,2006)
Note: Violations of RA 6713 are not subject to
disciplinary action under the Code of Professional
Responsibility unless the violations also constitute
infractions of specific provisions of the Code of
Professional Responsibility. Certainly, the IBP has
no jurisdiction to investigate violations of RA 6713 –
the Code of Conduct and Ethical Standards for Public
Officials and Employees – unless the acts involved
also transgress provisions of the Code of
Professional Responsibility.
Rule 15.04, Canon 15, CPR – A lawyer may,
with the written consent of all concerned, act
as mediator, conciliator or arbitrator in
settling disputes.
Note: Where the lawyer performs the function of
mediator, conciliator, or arbitrator in disputes where
the lawyer labors under a conflict of interest, he
remains subject to the requirement of a prior
written informed consent from all parties concerned.
The requirement subsists even if the adverse
interest is very slight, and notwithstanding the
lawyer’s honest intention and motive. (CPR
Annotated, PhilJA)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
79
UST Golden Notes 2011
d. Candid and Honest Advice to Clients
Rule 15.05, Canon 15,CPR - 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.
Note: The lawyer must temper his client’s propensity
to litigate. (Cobb-Perez v. Lantin, No. L-22320, July
29, 1968)
As officers of the court, counsels are under
obligation to advice their clients against making
untenable and inconsistent claims. The counsel
should inform his client and dissuade him from filing
the case if it is totally devoid of merit. If he finds that
his client’s cause is fairly meritorious and ripe for
judicial adjudication, he should refrain from making
bold and confident assurance of success.
Q: Consorcia Rollon went to the office of Atty.
Camilo Naraval to seek his assistance in a case
filed against her by Rosita Julaton for Collection
of Sum of Money with Prayer for Attachment.
After going over the documents she brought
with her, Atty. Naraval agreed to be her lawyer
and she was required to pay P8,000.00 for the
filing and partial service fee.
Atty. Naraval did not inform her that the said
civil suit has been decided against her and which
judgment has long become final and executory.
Atty. Naraval was not able to act on the case.
Because of this, Rollon wanted to withdraw the
amount she has paid and to retrieve the
documents
pertaining
to
said
case.
Unfortunately, despite several follow-ups, Atty.
Naraval always said that he cannot return the
documents because they were in their house,
and that he could not give her back the
P8,000.00 because he has no money. Did Atty.
Naraval fail to fulfill his undertakings?
A: Yes. Despite his full knowledge of the finality
based on the documents furnished to him, Atty.
Naraval withheld such vital information and did
not properly appraise Rollon.
He should have given her a candid and honest
opinion on the merits and the status of the case.
But he withheld such vital information. He did not
inform her about the finality of the adverse
judgment. Instead, he demanded P8,000 as “filing
and service fee” and thereby gave her hope that
her case would be acted upon.
80
Rule 15.05 of the Code of Professional
Responsibility requires that lawyers give their
candid and best opinion to their clients on the
merit or lack of merit of the case, neither
overstating nor understating their evaluation
thereof.
Knowing whether a case would have some
prospect of success is not only a function, but also
an obligation on the part of lawyers. If they find
that their client's cause is defenseless, then it is
their bounden duty to advise the latter to
acquiesce and submit, rather than to traverse the
incontrovertible. (Rollon v. Naraval, A.C. No.
6424, Mar. 4, 2005)
Note: As officers of the court, counsels are under the
obligation to advise their client against making
untenable and inconsistent claims. Lawyers are not
merely hired employees who must unquestionably
do the bidding of the client, however unreasonably
this may be when tested by their own expert
appreciation of the facts and applicable law and
jurisprudence. COUNSEL MUST COUNSEL. (G.R. No.
91298, June 22, 1990).
Q: A Criminal Case was for Perjury and initiated
by the complainant's wife, Leni. This complaint
arose from the alleged untruthful statements or
falsehoods in the complainant's Petition for
Naturalization. In due course, an information
was filed in MCTC charging the complainant
herein with perjury allegedly committed. it was
alleged that the accused knew that his wife and
children were not residing at the said address
stated in his petition, having left 5 years earlier.
The accused was also alleged to be carrying out
an immoral and illicit relationship.
After trial, the Judge Tiongson rendered
judgment and found the complainant herein
guilty beyond reasonable doubt of the crime of
perjury. Thus, Judge Chiongson was charged
with grave misconduct, gross bias and partiality
and having knowingly rendered an unjust
judgment in said criminal case. Complainant
alleged that the said judge failed to divulge the
next-door-neighbor relationship between him
and the family of Leni and to disqualify himself
from sitting in the said case. Is respondent judge
guilty for not disqualifying himself from the said
case?
A: No. As to the respondent Judge's being a nextdoor neighbor of the complainant's wife the
complainant in the perjury case it must be
stressed that that alone is not a ground for either
a mandatory disqualification under the first
paragraph or for a voluntary disqualification
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
under the second paragraph of Section 1, Rule
137 of the Rules of Court. In any event, the
complainant has failed to disclose in his complaint
that he had raised this matter at any time before
the rendition of the judgment. In fact, the
summary of the grounds of his motion for
reconsideration in the respondent's order
denying the said motion does not include this
matter. (Choa v. Chiongson, A.M. No. MTJ-951063, February 9, 1996)
Rule 15.06, Canon 15, CPR - A lawyer shall
not state or imply that he is able to
influence any public official, tribunal or
legislative body. (influence peddling)
Note: this rule is known as INFLUENCE-PEDDLING. It
is improper for a lawyer to show in any way that he
has connections and can influence any tribunal or
public official, judges, prosecutors, congressmen and
others, especially so if the purpose is to enhance his
legal standing and to entrench the confidence of the
client that his case or cases are assured of victory.
Q: In a case for inhibition filed against Judge
Paas, it was found that her husband, Atty.
Renerio Paas, was using his wife's office as his
office address in his law practice. Judge Paas
admitted that Atty. Paas did use her office as his
return address for notices and orders in 2
criminal cases, lodged at the Pasay City RTC, but
only to ensure and facilitate delivery of those
notices, but after the cases were terminated, all
notices were sent to his office address in Escolta.
Was Atty. Paas’ act of using his wife’s office as
his office address unprofessional and
dishonorable?
A: Yes. By allowing Atty. Paas to use the address
of her court in pleadings before other courts,
Judge Paas had indeed allowed her husband to
ride on her prestige for the purpose of advancing
his private interest.
Atty. Paas is guilty of simple misconduct because
of using a fraudulent, misleading, and deceptive
address that had no purpose other than to try to
impress either the court in which his cases are
lodged, or his client, that he has close ties to a
member of the judiciary, in violation of the Code
of Professional Responsibility.
The need for relying on the merits of a lawyer's
case, instead of banking on his relationship with a
member of the bench which tends to influence or
gives the appearance of influencing the court,
cannot be overemphasized. It is unprofessional
and dishonorable, to say the least, to misuse a
public office to enhance a lawyer's prestige.
Public confidence in law and lawyers may be
eroded by such reprehensible and improper
conduct. (Paas v. Almarvez, A.M. No. P-03-1690,
Apr. 4, 2003)
Rule 15.07, Canon 15, CPR. - A lawyer shall
impress upon his client compliance with the
laws and the principles of fairness.
Q: Nicanor Gonzales and Salud Pantanosas were
informed by the Register of Deeds that their
owner's duplicate of title covering their lands
were entrusted to the office secretary of Atty.
Miguel Sabacajan, who in turn entrusted the
same to said attorney. The latter admitted that
the titles are in his custody and has even shown
the same to the two. When demanded to make
delivery of said titles, he refused saying that he
was holding the certificates of title in behalf of
his client, Samto Uy, one of his clients who
apparently has monetary claims against Nicanor
and Salud. He even challenged the complainants
to file any case in any court even in
the Honorable Supreme Court. Did Atty.
Sabacajan
defy
legal
and moral
obligations emanating from his professional
capacity as a lawyer?
A: Yes. As a lawyer, he should know that there are
lawful remedies provided by law to protect the
interests of his client.
Atty. Sabacajan has not exercised the good faith
and diligence required of lawyers in handling the
legal affairs of their clients. If Nicanor and Salud
did have the alleged monetary obligations to his
client, that does not warrant his summarily
confiscating their certificates of title since there is
no showing in the records that the same were
given as collaterals to secure the payment of a
debt. Neither is there any intimation that there is
a court order authorizing him to take and retain
custody of said certificates of title.
Apparently, Atty. Sabacajan has disregarded
Canon 15, Rule 15.07 of the Code of Professional
Responsibility which provides that a lawyer shall
impress upon his client the need for compliance
with the laws and principles of fairness. Instead,
he unjustly refused to give to Gonzales and
Pantanosas their certificates of titles supposedly
to enforce payment of their alleged financial
obligations to his client and presumably to
impress the latter of his power to do
so. (Gonzales v. Sabacajan, A.C. No. 4380, Oct. 13,
1995)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
81
UST Golden Notes 2011
Q: Maria Cielo Suzuki entered into contracts of
sale and real estate mortgage with several
persons. The sale and mortgage transactions
were facilitated by Atty. Erwin Tiamson, counsel
of the sellers. Suzuki paid P80,000 as her share in
the expenses for registration. He retained in his
possession the subject deeds of absolute sale
and mortgage as well as the owner's copy of the
title. However, he never registered the said
documents and did not cause the transfer of the
title over the subject property in the name of
Suzuki. Atty. Tiamson said that he did not
register the deed of sale to protect the interest
of his client and even if the same has been
registered, he cannot give him the owner's
duplicate copy until purchase price for the
subject property has been fully paid and the real
estate mortgage cancelled. Is Atty. Tiamson
justified in not registering the transaction?
A: No. Rule 15.07 obliges lawyers to impress upon
their clients compliance with the laws and the
principle of fairness. To permit lawyers to resort
to unscrupulous practices for the protection of
the supposed rights of their clients is to defeat
one of the purposes of the State, the
administration of justice. While lawyers owe their
entire devotion to the interest of their clients and
zeal in the defense of their client's right, they
should not forget that they are, first and
foremost, officers of the court, bound to exert
every effort to assist in the speedy and efficient
administration of justice. The client's interest is
amply protected by the real estate mortgage
executed by complainant. Thus, Atty. Tiamson
failed to live up to this expectation. (Suzuki v.
Tiamson, A.C. No. 6542, Sept. 30, 2005)
Rule 15.08, Canon 15, CPR. - 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.
Rationale: Intended to avoid confusion; it is for the
benefit of both the client and the lawyer (Funa,
2009).
Note: The lawyer should inform the client when he is
acting as a lawyer and when he is not, because
certain ethical considerations governing the clientlawyer relationship may be operative in one case
and not in the other. (Report of the IBP Committee,
p.84)
A party’s engagement of his counsel in another
capacity concurrent with the practice of law is not
prohibited, so long as the roles being assumed by
82
such counsel is made clear to the client. (New
Sampaguita Builder Construction, Inc. v. Philippine
National Bank, G.R. No. 148753, July 30, 2004)
3. CLIENT’S MONEYS AND PROPERTIES
CANON 16, CPR
- A LAWYER SHALL HOLD IN TRUST ALL
MONEYS AND PROPERTIES OF HIS CLIENT
THAT MAY COME INTO HIS POSSESSION.
(2008 Bar Question)
Note: Money collected by the lawyer on a judgment
favorable to his client constitute trust funds and
should be immediately paid over to the client. While
Section 37, Rule 138 of the Rules of Court grants the
lawyer a lien upon the funds, documents and papers
of his client, which have lawfully come into his
possession, such that he may retain the same until
his lawful fees and disbursements have been paid,
and apply such funds to the satisfaction thereof, the
lawyer still has the responsibility to promptly
account to his client for such moneys received.
Failure to do so constitutes professional misconduct.
The lawyer’s failure to turn over such funds, moneys,
or properties to the client despite the latter’s
demands give rise to the presumption that the
lawyer had converted the money for his personal
use and benefit. This failure also renders the lawyer
vulnerable to judicial contempt under Section 25,
Rule 138 of the Rules of Court. (CPR Annotated,
PhilJA)
Q: Luis de Guzman as defendant in a civil case,
obtained an adverse judgment. His counsel was
Atty. Emmanuel Basa.
He wants to challenge the decision through a
petition for certiorari. It was agreed that Luis will
pay P15,000 for said legal service. Atty. Basa
collected a down payment of P5,000. However,
no such petition was filed.
He did not seasonably file with the CA the
required appellant’s brief resulting in the
dismissal of the appeal.
Despite several
extensions to file the appellant’s brief, Atty.
Basa failed to do so. Instead, he filed two more
motions for extension. When he filed the
appellant’s brief, it was late, being beyond the
last extension granted by the appellate court.
Was Atty. Emmanuel Basa negligent in the
performance of his professional duty to Luis de
Guzman?
A: Yes, he is guilty of gross misconduct. Where a
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
client gives money to his lawyer for a specific
purpose, such as to file an action or appeal an
adverse judgment, the lawyer should, upon
failure to take such step and spend the money for
it, immediately return the money to his client.
His unjustified withholding of Luis’ money is a
gross violation of the general morality and
professional ethics. (De Guzman v. Atty.
Emmanuel Basa, A.C. No. 5554, June 29, 2004)
3.
Where the attorney at the time of the
purchase was not the counsel in the case;
Where the purchaser of the property in
litigation was a corporation even though
the attorney was an officer thereof;
Where the sale took place after the
termination of the litigation;
A lawyer may accept an assignment from
his client of a money judgment rendered
in the latter’s favor in a case in which he
was not counsel, in payment of his
professional services performed in
another case;
In a contract for attorney’s fees
contingent upon the outcome of the
litigation (contingent fee arrangement);
and
When any of the four elements of Art.
1491 is missing.
4.
5.
6.
Q: Is a lawyer prohibited from acquiring
properties of his client?
A: Yes, pursuant to Canon 16 of the Code of
Professional Responsibility.
7.
Furthermore, Article 1491 of the Civil Code states
that:
“The following persons cannot acquire or
purchase, even at public or judicial auction, either
in person or through the mediation of another:
xxx
8.
Q: what are the effects of violation of such
provision?
A:
(5) lawyers, with respect to the property and
rights which may be the object of any litigation in
which they take part by virtue of their
profession.”
1.
2.
Malpractice on the part of the lawyer
and may be disciplined for misconduct;
Transaction is null and void.
a. Fiduciary Relationship
Note: This prohibition is entirely independent of
fraud and such need not be alleged or proven.
Art. 1491 (5) of the NCC applies only if the sale or
assignment of the property takes place during the
pendency of the litigation involving the client’s
property. (Ramos v. Ngaseo, A.C. No. 6210, Dec. 9,
2004)
Q: What are the elements of prohibition against
the purchase of property in litigation under Art.
1491 of the NCC?
A:
1.
2.
3.
4.
There is an attorney-client relationship
The property is in litigation
The attorney is the counsel of record in
the case; and
The attorney, by himself or through an
agent, purchases such property during the
pendency of said case.
Q: What are the instances where the rule under
Article 1491 of NCC is inapplicable?
A:
1.
2.
Where the property purchased by the
lawyer was not involved in the litigation;
Where the sale took place before it
became involved in the suit;
Rule 16.01, Canon 16,CPR - A lawyer shall
account for all money or property collected
or received for or from the client.
Note: A lawyer must be scrupulously careful in
handling money entrusted to him in his professional
capacity, because of the high degree of fidelity and
good faitn expected on his part. (Medina v. Bautista,
A.C. No. 190, September 1964)
Q: What is the nature of attorney-client
relationship?
A: An attorney-client privilege is highly fiduciary
as it is founded on trust and confidence where
the lawyer acts as the trustee and the client
acting as trustor in regard to the matter subject of
the professional engagement.( Antiquiera, 2007)
Q: X sought assistance to the president of the
IBP to enable him to talk to Atty. U who had
allegedly been avoiding him for more than a
year. Atty. U failed to turn–over to his client the
amount given to him by X as settlement for a
civil case. Is Atty. U guilty for violating Canon 16
of the Code of Professional Responsibility?
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
83
UST Golden Notes 2011
A: Yes. The Code of Professional Responsibility
mandates every lawyer to hold in trust all money
and properties of his client that may come into
his possession. A lawyer’s failure to return upon
demand the funds or property held by him on
behalf of his client gives rise to the presumption
that he has appropriated the same for his own
use to the prejudice of, and in violation of the
trust reposed in him by, his client. The relation
between attorney and client is highly fiduciary in
nature. Being such, it requires utmost good faith,
loyalty, fidelity and disinterestedness on the part
of the attorney. Its fiduciary nature is intended
for the protection of the client.
4.
5.
Q: What are the effects of lawyer’s failure to
return client’s money or property after demand?
A:
1.
2.
For misappropriating and failing to promptly
report and deliver the money report and deliver
the money received on behalf of their children of
their clients, some lawyers have been disbarred
while others have been suspended for six months.
Since it appears to be the first case of respondent
lawyer, the lighter penalty is imposed on him.
(Espiritu vs. Ulep, A.C. No. 5808, May 4,2005)
Q: What is fiduciary duty?
A: The principle that an attorney derives no
undue advantage that may operate to the
prejudice or cause an occasion for loss of a client.
The relationship between the lawyer and client is
one of mutual trust and confidence of the highest
degree.
Q: When will the liability of a lawyer for “breach
of fiduciary obligation” arise?
A: A lawyer may be held liable if he fails in his
obligation to make an accounting of funds or
property that may come to his possession for a
lawyer holds his client’s funds or property in trust
for his client.
Q: What are the requisites for the liability of a
lawyer for damages?
A: AWI
1. Attorney-client relationship;
2. Want of reasonable care and diligence by
lawyer; and
3. Injury sustained by client as a proximate
result of the lawyer’s negligence.
Q: When will civil liability arise?
A:
1.
2.
3.
84
Client is prejudiced by lawyer's negligence
or misconduct;
Breach of fiduciary obligation;
Civil liability to third persons;
Libelous words in pleadings; violation of
communication privilege;
Liability for costs of suit (treble costs) –
when lawyer is made liable for insisting on
client's patently unmeritorious case or
interposing appeal merely to delay
litigation.
3.
4.
There will be a presumption that the
lawyer misappropriated the same;
It will give rise to civil liability of the
lawyer;
Criminal liability; and
Administrative liability.
Q: When is a lawyer not liable for libelous words
in the pleadings?
A: A lawyer is exempted from liability for slander,
libel or for words otherwise defamatory,
published in the course of judicial proceedings,
provided the statements are connected with,
relevant, pertinent and material to the cause in
hand or subject of inquiry.
Note: Test of relevancy – The matter to which the
privilege does not extend must be palpably wanting
in relation to the subject of controversy, that no
reasonable man can doubt its relevancy or propriety.
Pleadings should contain plain and concise
statements of material facts and if pleader goes
beyond requisites of law and alleges irrelevant
matter, which is libelous, he loses his privilege and
may be liable in a separate suit.
Q: When will criminal liability exist?
A: A lawyer may be held criminally liable if he
commits any of the following:
1.
2.
3.
Causing prejudice to the client thru
malicious breach of professional duty or
thru inexcusable negligence or ignorance;
Revealing client’s secrets learned in
lawyer’s professional capacity thru
malicious breach of professional duty or
inexcusable negligence or ignorance;
A lawyer who has undertaken the defense
of a client or has received confidential
information from said client in a case may
be criminally liable for undertaking
defense of opposing party in same cause
without consent of first client; (Art. 209,
RPC)
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
4.
5.
A lawyer who shall knowingly introduce in
evidence in any judicial proceeding or to
the damage of another or who, with
intent to cause such damage, shall use any
false document may be held criminally
liable therefor; (Art. 172, RPC) and
A lawyer who misappropriates his client’s
funds may be held liable for estafa.
Note: When a lawyer collects or receives money
from his client for a particular purpose, he should
promptly account to the client how the money was
spent. His failure either to render an accounting or
to return the money (if the intended purpose of the
money does not materialize) constitutes a blatant
disregard of Rule 16.01 of the CPR.(Belleza v.
Malaca, A.C. No. 7815, July 23, 2009)
Note: If a lawyer does not use the money for the
intended purpose, the lawyer must immediately
return the money to the client. (Villanueva v.
Gonzales, A.C. No. 7657, February 12, 2008)
b. Co-Mingling of Funds
Rule 16.02, Canon 16, CPR - A lawyer shall
keep the funds of each client separate and
apart from his own and those of others kept
by him.
Note: Failure of the lawyer to account all the funds
and property of his client which may come into his
possession would amount to misappropriation which
may subject him to disbarment on the ground of
grave misconduct or a criminal prosecurion for
estafa under Art. 315, par. 1(b) of the RPC.
Q: BPI filed two complaints for replevin and
damages against Esphar Medical Center Inc. and
its president Cesar Espiritu. Espiritu engaged the
services of Atty. Juan Cabredo IV. While these
cases were pending in court, the latter advised
Esphar to remit money and update payments to
the bank through the trial court. Accordingly,
Esphar's representative delivered a total of
P51,161 to Atty. Cabredo's office. However, the
management of Esphar found out that he did not
deliver said money to the court or to the bank.
Did Atty. Cabredo commit a breach of trust?
A: Yes. His act amounted to deceit in violation of
his oath. The relationship between a lawyer and a
client is highly fiduciary; it requires a high degree
of fidelity and good faith. Hence, in dealing with
trust property, a lawyer should be very
scrupulous. Money or other trust property of the
client coming into the possession of the lawyer
should be reported by the latter and account any
circumstances, and should not be commingled
with his own or be used by him. (Espiritu v.
Cabredo, A.C. No. 5831, Jan. 13, 2003)
Q. Atty. Magulta received 25,000 pesos from
complainant for filing fees of a civil case to be
filed. However, Atty. Magulta never filed the
complaint. When complainant discovered this,
he filed a a complaint for disbarment against the
counsel. Should Atty. Magulta be held liable for
the appropriation of funds in his own purposes?
A: Yes. In failing to apply to the filing fee the
amount given by complainant -- as evidenced by
the receipt issued by the law office of Atty.
Magulta -- the latter also violated the rule that
lawyers must be scrupulously careful in handling
money entrusted to them in their professional
capacity. Rule 16.01 of the Code of Professional
Responsibility states that lawyers shall hold in
trust all moneys of their clients and properties
that may come into their possession.
Lawyers who convert the funds entrusted to them
are in gross violation of professional ethics and
are guilty of betrayal of public confidence in the
legal profession. It may be true that they have a
lien upon the client’s funds, documents and other
papers that have lawfully come into their
possession; that they may retain them until their
lawful fees and disbursements have been paid;
and that they may apply such funds to the
satisfaction of such fees and disbursements.
However, these considerations do not relieve
them of their duty to promptly account for the
moneys they received. Their failure to do so
constitutes professional misconduct. In any event,
they must still exert all effort to protect their
client’s interest within the bounds of law. (Burbe
vs. Magulta, A.C. No. 5713, June 10,2002)
c. Delivery of Funds
Rule 16.03, Canon 16, CPR - 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.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
85
UST Golden Notes 2011
Q. May a counsel unilaterally retain or
appropriate funds of his client as his attorney’s
lien?
A: No. A counsel has no right to retain or
appropriate unilaterally as lawyer’s lien any
amount belonging to his client which may come
into his possession. (Cabigao v. Rodrigo, August
9,1932)
Note: While this rule provides that the lawyer has
the right to retain the funds of his client as may be
necessary to satisfy his lawful fees and
disbursements known as attorney’s lien and his lien
to the same extent on all judgments and executions
he has secured for his client called charging lien, he
is still dutybound to render an accounting of his
client’s funds and property which may come into his
possession in the course of his professional
employment In the application of attorney’s lien, a
lawyer shall give notice to his client otherwise, the
same might be construed as misappropriation which
may subject him to disciplinary action. (Antiquiera,
2007)
Q. Marquez retained the professional service of
Meneses to prosecute a claim against Ruth
Igdanes and Delfin Igdanes. The oral agreement
was that Marquez would pay a fee of P100.00 to
Meneses, whether the case was won or lost.
Thereafter, Marquez advanced from time to
time to Meneses various sums as fees, which
totalled P75.00. When decision was rendered by
the court in favor of the Marquez, Igdanes was
ordered to pay Marquez the claimed amount
with legal interest from the filing of the
complaint until fully paid, and P75.00 as
attorneys fees.
Marquez’s brother informed her that the sheriff
informed him that Meneses respondent had
gotten all of the P75.00 as his fees. Marquez
wrote to Meneses twice asking him to send her
P50.00 and to keep P25.00 for himself, but
Meneses refused to give her the P50.00 she was
asking and contended that that was their
agreement. Marquez’s contention, in brief, is
that she had been overcharged by Meneses for
as the agreed fee was P100.00, win or lose, and
she had already paid P75.00 to Meneses, the
latter simply had the right, at most, to keep
P25.00 out of the P75.00 he had gotten from the
sheriff. Should Atty. Meneses be held liable for
not giving the money to his client?
A: Yes. It is well-settled that money collected by a
lawyer in pursuance of a judgment in favor of his
client is money held in trust and must be
immediately turned over to the latter.Canon 11 of
86
the Canons of Professional Ethics, in force at the
time material to this case, provides that the
lawyer should refrain from any action whereby
for his personal benefit or gain he abuses or takes
advantage of the confidence reposed in him by
his client. Money of the client or collected for the
client or other trust property coming into the
possession of the lawyer should be reported and
accounted for promptly and should not under any
circumstances be commingled with his own or be
used by him.
In this case, Meneses should have made an
accounting with his client of the amount he
received, deducted the balance of the attorneys
fees due him, and turned over the rest of the
amount to his client. As the Solicitor General
observed, if Meneses was mindful of his ethics, he
should at least have waited until the judgment
debtor in Civil Case No. 82 had made further
payments on the amount adjudged against
them... By placing his personal interest above his
clients cause, respondent clearly breached the
trust reposed upon him. (Marquez v. Meneses,
Adm. Case No. 675, December 17, 1999)
Q: Fernandez engaged the services of Atty.
Cabrera II to handle the cases of her associates
in Baguio City. After taking hold of the records of
the cases that Fernandez entrusted to him and
after getting initially paid for the services he
would render, Atty. Cabrera II suddenly
disappeared and could no longer be located in
his given address or in the addresses that
Fernandez gathered.
Did Atty. Cabrera II violate the Code of
Professional Responsibility when he accepted
the records and money of the complainant and
thereafter failed to render his services?
A: Yes. Acceptance of money from a client
establishes an attorney-client relationship and
gives rise to the duty of fidelity to the client's
cause. The canons of professional responsibility
require that once an attorney agrees to handle a
case, he should undertake the task with zeal,
care, and utmost devotion.
Atty. Cabrera's action projects his appalling
indifference to his client's cause and a brazen
disregard of his duties as a lawyer. Not only did
he fail to render service of any kind, he also
absconded with the records of the cases with
which he was entrusted. Then to top it all, he kept
the money complainant paid to him. Such
conduct is unbecoming of a member of the bar,
for a lawyer's professional and personal conduct
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
must at all times be kept beyond reproach and
above suspicion. The duty of a lawyer is to uphold
the integrity and dignity of the legal profession at
all times. This can only be done by faithfully
performing the lawyer's duties to society, to the
bar, to the courts and to his clients. (Fernandez v.
Atty. Cabrera II, A.C. No. 5623, Dec. 11, 2003)
and 1 million in check and out of the 2 million,
Atty. Lozada took 1 million as her commission
without Frias’ consent. When Dra. San Diego
backed out from the sale, Frias tried to recover
from Atty. Lozada the title to the property and
other documents but Atty. Lozada started
avoiding her.
d. Borrowing or Lending
Dra. San Diego filed a case against Frias to return
the 3 million she paid plus interest. Frias claimed
that her failure to return the money was
because of Atty. Lozada’s refusal to give back the
1 million she took as commission. A case was
filed by Frias against Atty. Lozada but despite
the favourable decision, respondent refused to
return the money.
Rule 16.04, Canon 16, CPR - 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.
Q: Is a lawyer allowed to borrow money from his
client?
A: GR: No.
XPN: Unless the client’s interests are fully
protected by the nature of the case or by
independent advice.
Note: While the lawyer may borrow money from his
client, where the client’s interests are fully protected
by the nature of the case he is handling for the
client, or by independent advice from another
lawyer, he should not abuse the client’s confidence
by delaying payment. (Alindogan v. Geron, G.R.
Admin. Case No. 221, May 21, 1958).
Q: Is a lawyer allowed to lend money from his
client?
A: GR: No.
XPN: when in the interest of justice, he has to
advance necessary expenses in a legal matter
he is handling for the client.
Note: Prohibition from lending is intended to assure
the lawyer’s independent professional judgment, for
if the lawyer acquires a financial interest in the
outcome of the case the free exercise of his
judgment may be adversely affected. (Agpalo, 2004;
Comment of IBP Committee that drafted the Code,
p.90)
Q: Atty Lozada was the retained counsel and
legal adviser of Frias to which all documents and
titles of properties of the latter were entrusted
to. Atty Lozada persuaded Frias to sell her
house, the former acting as broker since she was
in need of money. Dra. San Diego, the
prospective buyer then handed 2 million in cash
Atty. Lozada claimed that since she did not have
enough money, Frias requested her to sell or
mortgage the property and offered her a loan,
commission and attorney’s fees on the basis of
the selling price. He denied that Frias previously
demanded the return of 1million until the civil
case against her was instituted in which she
expressed her willingness to pay the 900,000
plus agreed interest.
Did Atty. Lozada committed a violation of the
Code of Professional Responsibility in asking for
a loan from her client?
A: Yes. Her act of borrowing money from a client
was a violation of Canon 16.04 of the Code of
Professional Responsibility.
A lawyer’s act of asking a client for a loan, as what
respondent did, is very unethical. It comes within
those acts considered as abuse of client’s
confidence. The canon presumes that the client is
disadvantaged by the lawyer’s ability to use all
the legal manoeuverings to renege on her
obligation. (Frias v. Lozada, A.C. NO. 6656,
December 13,2005)
Note: The principle behind Rule 16.04 is to prevent
the lawyer from taking advantage of his influence
over the client or to avoid acquiring a financial
interest in the outcome of the case.
Not prohibited: advances for necessary expenses.
4. FIDELITY TO CLIENT’S CAUSE
CANON 17, CPR
- A LAWYER OWES FIDELITY TO THE CAUSE
OF HIS CLIENT AND HE SHALL BE MINDFUL
OF THE TRUST AND CONFIDENCE REPOSED
IN HIM.
(2007, 2008 Bar Questions)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
87
UST Golden Notes 2011
Note: Loyalty to a client does not require a lawyer to
adopt a client’s political, social and economic views,
or refrain from a political activity that maybe in
opposition to a client’s position.
Q: When does the lawyer’s duty of fidelity to his
client’s cause commence?
A: Lawyer’s duty of fidelity commences from
receipt of his retainer until his effective release
from the case or the final disposition of the whole
subject matter of the litigation. During that
period, he is expected to take such reasonable
steps and such ordinary care as his client’s
interest may require. (CPR Annotated, PhilJA)
Note: Acceptance of money from a client establishes
an attorney-client relationship and gives rise to the
duty of fidelity to the client’s cause. Every case
accepted by a lawyer deserves full attention,
diligence, skill and competence, regardless of
importance. (Rollon v. Atty. Naraval, A.C. No. 6424,
Mar. 4, 2005)
Q: What are the exceptions to the general rule
that the obligation to keep secrets covers only
lawful purposes?
A:
1.
2.
3.
4.
Announcements of a client’s intention to
commit a crime;
When the client jumped bail and the
lawyer knows his whereabouts;
When the client is living somewhere under
an assumed name; and
The
communication
involves
the
commission of future fraud or crime.
Q: Genato filed a disbarment case against Atty.
Silapan for allegedly breaking their confidential
lawyer-client
relationship
by
disclosing
confidential information against him. In his
answer, Atty. Silapan contended that he used
the confidential statements in the course of
judicial proceedings in order to defend his case
and to discredit Genato’s credibility by
establishing his criminal propensity to commit
fraud, tell lies and violate the laws. Is Atty.
Silapan guilty of breach of trust and confidence
by imputing to Genato illegal practices and
disclosing Genato’s alleged intention to bribe
government officials in connection with a
pending case?
A: No. It must be stressed that the privilege
against disclosure of confidential communications
or information is limited only to communications
which are legitimately and properly within the
scope of a lawful employment of a lawyer. It does
88
not extend to those made in contemplation of a
crime or perpetration of a fraud. If the unlawful
purpose is avowed, as in this case, the
complainant's alleged intention to bribe
government officials in relation to his case, the
communication is not covered by the privilege as
the client does not consult the lawyer
professionally. It is not within the profession of a
lawyer to advise a client as to how he may
commit a crime as a lawyer is not a gun for hire.
Thus, the attorney-client privilege does not
attach, there being no professional employment
in the strict sense. (Genato v. Atty. Silapan, A.C.
No. 4078, July 14, 2003)
Q: Schulz, a German national filed a complaint
for disbarment against Atty. Flores. He alleged
that he engaged the services of Atty. Flores for
the purpose of filing a complaint against Ong for
revocation of contract and damages. Atty. Flores
advised him that there was no need to refer the
complaint to barangay conciliation. Three
months later, Atty. Flores instructed him to file
his complaint with the Lupon Tagapamayapa.
Ong refused to appear at the conciliation
hearings, arguing that the Lupon had no
jurisdiction over his person because he was a
resident of another barangay. Thus, Schulz
brought the complaint before the barangay in
which Ong is a resident. By that time, however,
Schulz learned that Ong had already filed a case
for specific performance against him. Schulz
argued that Atty. Flores’ inordinate delay in
acting on his case resulted in his being defendant
rather than a complainant against Ong. Is the
actuation of Atty. Flores in causing the delay of
bringing the dispute under the system of
barangay conciliation reprehensible as to
warrant the suspension of Atty. Flores?
A: Yes. Atty. Flores committed a serious
transgression when he failed to exert his utmost
learning and ability to give entire devotion to his
client's cause. His client had relied upon him to
file the complaint with dispatch so that he would
not be pre-empted by the adverse party. But he
failed him. As a consequence of Att. Flores'
indolence, his client was haled to court as a partydefendant. It therefore behoves this Court to
wield its corrective hand on this inexcusable
infraction which caused undeserved and needless
prejudice to his client's interest, adversely
affected the confidence of the community in
the legal profession and eroded the public's trust
in the judicial system. As an attorney, Atty. Flores
is sworn to do his level best and to observe full
fidelity to the court and his clients. (Schulz v. Atty.
Flores, A.C. No. 4219, Dec. 8, 2003)
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
Q: Matias Lagramada residing with his uncle,
Apolonio Lagramada, was invited by the latter to
accompany him to the police station, supposedly
to pick up a refrigerator they were to repair.
Upon their arrival there, Matias was
immediately taken in and locked behind bars.
Two informations were filed against him only 10
months after the first day of his incarceration.
With the assistance of counsel, Matias pleaded
not guilty when arraigned, without raising the
invalidity of the arrest. Was the case properly
handled?
A: No. Lawyers owe fidelity to the cause of their
clients and must be mindful of the trust and
confidence reposed in them. Matias’ counsel, in
the spirit of safeguarding his client’s rights, should
have taken the necessary steps to correct the
situation. However, he allowed his client to enter
a plea during the latter’s arraignment without
raising the invalidity of arrest. Thus, the former
effectively waived his client’s right to question its
validity. Defense counsels are expected to spare
no effort to save the accused from unrighteous
incarcerations.
Matias’ counsel should have not only
perfunctorily represented his client during the
pendency of the case, but should have kept in
mind his duty to render effective legal assistance
and true service by protecting the latter’s rights
at all times. (People v. Lagramada, G.R. Nos.
146357 & 148170, Aug. 29, 2002)
5. COMPETENCE AND DILIGENCE
CANON 18, CPR
– A LAWYER SHALL SERVE HIS CLIENT WITH
COMPETENCE AND DILIGENCE
(1998, 2001, 2002, 2005, 2008 Bar
Questions).
Note: Diligence is the attention and care required of
a person in a given situation and is the opposite of
negligence. It is axiomatic in the practice of law that
the price of success is eternal diligence to the cause
of the client. (Edquibal v. Ferrer, A.C. No. 5687, Feb.
3, 2005)
Note: The Court again reminded lawyers to handle
only as many cases as they can efficiently handle. For
it is not enough that a practitioner is qualified to
handle a legal matter, he is also required to prepare
adequately and give the appropriate attention to his
legal work. A lawyer owes entire devotion to the
cause of his client, warmth and zeal in the defense
and maintenance of his rights, and the exertion of
his learning and utmost ability that nothing can be
taken or withheld from his client except in
accordance with law. (Miwa v. Atty. Medina, A.C. No.
5854, Sept. 30, 2003)
Q: In a criminal case for rape with homicide, the
accused pleaded guilty. However, the three PAO
lawyers assigned as counsel de oficio did not
advise their client of the consequences of
pleading guilty; one PAO lawyer left the
courtroom during trial and thus was not able to
cross-examine the prosecution witnesses. The
other postponed the presentation of evidence
for the defense, and when he appeared, he said
he would rely solely on the plea of guilty, in the
belief that it would lower the penalty to
reclusion perpetua. Should the three PAO
lawyers be disciplined?
A: Yes. All three (3) of them displayed manifest
disinterest on the plight of their client. They
lacked vigor and dedication to their work.
Canon 18 of the Code of Professional
Responsibility requires every lawyer to serve his
client with utmost dedication, competence and
diligence. He must not neglect a legal matter
entrusted to him, and his negligence in this
regard renders him administratively liable.
Obviously, in the instant case, the defense
lawyers did not protect, much less uphold, the
fundamental rights of the accused. Instead, they
haphazardly performed their function as counsel
de oficio to the detriment and prejudice of the
accused Sevilleno, however guilty he might have
been found to be after trial. (People v. Sevilleno,
G.R. No. 129058, Mar. 29, 1999)
a. Collaborating Counsel
Rule 18.01, Canon 18, CPR – 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.
Note: The lawyer’s acceptance is an implied
representation that he possesses the academic
learning, skill and ability to handle the case.
Q: Who is a Collaborating Counsel?
A: Is one who is subsequently engaged to assist a
lawyer already handling a particular case for a
client. (Pineda, 2009)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
89
UST Golden Notes 2011
Note: The handling lawyer cannot just take another
counsel without the consent of the client. The new
lawyer on the other hand cannot just enter his
appearance as collaborating counsel without the
conformity of the first counsel.(Ibid.)
The same diligence required of the first counsel is
required of the collaborating counsel. The
negligence of the latter is also binding on the client.
(Sublay v. NLRC, G.R. No. 130104. January 31, 2000;
Pineda 2009)
b. Negligence
Rule 18.03, Canon 18, CPR - A lawyer shall
not neglect a legal matter entrusted to him
and his negligence in connection therewith
shall render him liable. (1998, 2002 Bar
Questions)
Q: What degree of diligence or vigilance is
expected from a lawyer?
A: The legal profession demands of a lawyer that
degree of vigilance and attention of a good father
of a family (Lapena, 2009) or ordinary pater
familias (Pineda, 2009). He is not required to
exercise extraordinary diligence. (Edquibal v.
Ferrer, Jr., A.C. No. 5687, February 03, 2005)
Note: The attorney’s duty to safeguard the client’s
interests commences from his retainer until his
effective release from the case or the final
disposition of the whole subject matter of the
litigation. During the period, he is expected to take
such reasonable steps and such ordinary care as his
client’s interests may require.
A lawyer who received money to handle a client’s
case but rendered no service at all shall be subject to
disciplinary measure. (Dalisay v. Atty. Mauricio, A.C.
No. 5655, April 2005)
Q: When can it be said that a lawyer has been
negligent?
A: What amounts to carelessness or negligence in
a lawyer’s discharge of his duty to client is
incapable of exact formulation. It will depend
upon the circumstances of the case.
Note: Failure to appeal to CA despite instructions by
the client to do so constitutes inexcusable
negligence on the part of the counsel. (Abiero v.
Juanino, A.C. No. 5302, Feb.18, 2005)
Note: Even if a lawyer was "honestly and sincerely"
protecting the interests of his client, the former still
had no right to waive the appeal without the latter's
90
knowledge and consent. (Abay v. Atty. Montesino,
A.C. No. 5718, Dec. 4, 2003)
A lawyer has no authority to waive client’s right to
appeal. His failure to perfect an appeal within the
prescribed period constitutes negligence and
malpractice. (Reontoy v. Ibadlit, A.C. CBD No. 190,
January 28, 1998)
Q: As an incident in the main case, Velasquez
appointed his counsel as attorney-in-fact to
represent him at the pre-trial. Counsel failed to
appear, hence Velasquez was declared in
default. The order of default was received by
counsel but no steps were taken to have it lifted
or set aside. Decide.
A: It is binding on Velasquez who is himself guilty
of negligence when, after executing the special
power of attorney in favor of his lawyer, he left
for abroad and apparently paid no further
attention to his case until he received the
decision. There is therefore no fraud, accident,
mistake or excusable negligence which will
warrant a lifting of the order of default. As a
general rule, a client is bound by the mistakes of
his counsel; more so by the result of his own
negligence. (Velasquez v. CA, G.R. No. 124049,
June 30, 1999)
Rule 18.02, Canon 18, CPR - A lawyer shall
not handle any legal matter without
adequate preparation.
Note: A lawyer should prepare his pleadings with
great care and circumspection. He should refrain
from using abrasive and offensive language, for it
merely weakens rather than strengthens the force of
legal reasoning and detracts from its persuasiveness.
In preparing a complaint for damages, counsel for
plaintiff should allege and state the specific amounts
claimed not only in the body of the complaint but
also in the prayer, so that the proper docket fees can
be assessed and paid. (Fernandez v. Atty. Novero,
A.C. No. 5394, Dec. 2, 2002)
Note: The counsel must constantly keep in mind that
his action or omissions, even malfeasance and
nonfeasance would be binding to his client. Verily, a
lawyer owes to the client the exercise of utmost
prudence and responsibility in representation
(Fernandez v. Atty. Novero, A.C. No. 5394, December
2002).
c. Duty to Appraise the Client
Rule 18.04, Canon 18, CPR - A lawyer shall
keep the client informed of the status of his
case and shall respond within a reasonable
time to the client’s request for information.
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
A lawyer should notify his client of the adverse
decision while within the period to appeal to enable
the client to decide whether to seek an appellate
review. He should communicate with him
concerning the withdrawal of appeal with all its
adverse consequences. The client is entitled to the
fullest disclosure of the mode or manner by which
his interest is defended or why certain steps are
taken or omitted.
Q: Spouses Garcia engaged the services of Atty.
Rolando Bala to appeal to the CA the adverse
Decision of the Department of Agrarian
Relations Adjudication Board (DARAB). Instead,
he erroneously filed a Notice of Appeal. During
one instance when the spouses had called on
him to ask for a copy of the supposed appeal,
Atty. Bala uttered unsavory words against them.
Because of his error, the prescribed period for
filing the petition lapsed, to the prejudice of his
clients. Did Atty. Bala violate any ethical rules?
the same to his principal in the course of
professional dealings.
Note: The doctrine applies regardless of whether or
not the lawyer actually communicated to the client
what he learned in his professional capacity, the
attorney and his client being one judicial person.
Q: Are the mistakes or negligence of a lawyer
binding upon the client?
A:
GR: Client is bound by attorney’s conduct,
negligence and mistake in handling a case or in
management of litigation and in procedural
technique, and he cannot complain that the
result might have been different had his lawyer
proceeded differently.
XPN: LIPIG
1. Lack of acquaintance with technical
aspect of procedure;
2. When adherence thereto results in
outright deprivation of client’s liberty or
property or where Interest of justice so
requires;
3. Where error by counsel is Purely
technical which does not substantially
affect client’s cause;
4. Ignorance,
incompetence,
or
inexperience of lawyer is so great and
error so serious that client, who has a
good cause, is prejudiced and denied a
day in court;
5. Gross negligence of lawyer. (1998,
2000, 2002 Bar Questions)
A: Yes. Rule 18.04 states that a "lawyer shall keep
the client informed of the status of his case and
shall respond within a reasonable time to the
client's request for information." Accordingly,
spouses had the right to be updated on the
developments and status of the case for which
they had engaged the services of Atty. Bala. But
he apparently denied them that right.
Having become aware of the wrong remedy he
had erroneously taken, he purposely evaded his
clients, refused to update them on the appeal,
and misled them as to his whereabouts.
Moreover, he uttered invectives at them when
they visited him for an update on the case.
(Spouses Garcia v. Bala, A.C. No. 5039, Nov. 25,
2005)
Note: The lawyer is obliged to respond within a
reasonable time to a client's request for information.
A client is entitled to the fullest disclosure of the
mode or manner by which that client's interest is
defended or why certain steps are taken or omitted.
A lawyer who repeatedly fails to answer the inquiries
or communications of a client violates the rules of
professional courtesy and neglects the client's
interests. (Villariasa-Reisenbeck v. Abarrientos, A.C.
No. 6238, Nov. 4, 2004)
Q: Explain the doctrine of imputed knowledge.
A: The knowledge acquired by an attorney during
the time that he’s acting within the scope of his
authority is imputed to the client. It is based on
the assumption that an attorney, who has notice
of matter affecting his client, has communicated
Note: If by reason of the lawyer’s negligence, actual
loss has been caused to his client, the latter has a
cause of action against him for damages. However,
for the lawyer to be held liable, his failure to exercise
reasonable care, skill and diligence must be
proximate cause of the loss.
Q: What are the exceptions to the rule that
“notice to counsel is notice to client”?
A:
1.
2.
3.
4.
Strict application might foster dangerous
collusion to the detriment of justice;
Service of notice upon party instead of
upon his attorney is ordered by the court;
Notice of pre-trial is required to be served
upon parties and their respective lawyers;
In appeal from the lower court to the RTC,
upon docketing of appeal.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
91
UST Golden Notes 2011
Q: What is a plea of guilty?
2.
A: It is an admission by the accused of his guilt of
a crime as charged in the information and of the
truth of the facts alleged, including the qualifying
and aggravating circumstances.
3.
4.
Q: What is the duty of the defense counsel when
his client desires to enter a plea of guilty?
A: F-CEPA
1. Fully acquaint himself with the records
and surrounding circumstances of the
case;
2. Confer with the accused and obtain from
him his account of what had happened;
3. Thoroughly Explain to him the import of a
guilty plea and the inevitable conviction
that will follow;
4. See to it that the prescribed Procedure
which experience has shown to be
necessary to the administration of justice
is strictly followed and disclosed in the
court records; and
5. Advise him of his constitutional rights.
Note: A lawyer should endeavor to seek instruction
from his client on any substantial matter concerning
the litigation, which may require decision on the part
of the client, such as whether to compromise the
case or to appeal an unfavorable judgment. He
should give his client sound advice on any such and
similar matters and comply with the client’s lawful
instructions relative thereto. He should resist and
should never follow any unlawful instruction of his
client.
6. REPRESENTATION WITH SEAL WITHIN LEGAL
BOUNDS
CANON 19, CPR
- A LAWYER SHALL REPRESENT HIS CLIENT
WITH ZEAL WITHIN THE BOUNDS OF THE
LAW.
(1994, 1997, 2001, 2003 Bar Questions)
Q: Is a lawyer required to show his authority to
appear for or represent a client?
A: No. An attorney is presumed to be properly
authorized to represent any cause in which he
appears in all stages of the litigation and no
written authority is required to authorize him to
appear. A mere denial by a party that he has
authorized an attorney to appear for him, in the
absence of a compelling reason, is insufficient to
overcome the presumption especially when the
denial comes after the rendition of an adverse
judgment.
Q: May a practicing lawyer be required to
produce or prove his authority to appear in
court?
A: Yes. The presiding judge may, on motion of
either party and on reasonable grounds therefore
being shown, require an attorney who assumes
the right to appear in a case to produce or prove
the authority under which he appears, and to
disclose, whenever pertinent to any issue, the
name of the person who employed him, and may
thereupon make such order as justice requires.
(Sec. 21, Rule 138, RRC)
Q: What are the effects of an unauthorized
appearance?
A:
1.
2.
Q: What does a lawyer represent to a client
when he accepts a professional employment of
his services?
A: When a lawyer accepts a case, whether for a
fee or not, his acceptance is an implied
representation that he: CASE
1.
92
Will exercise reasonable and ordinary Care
and diligence in the pursuit or defense of
the case;
Will possess the requisite degree of
Academic learning, skill and ability in the
practice of his profession;
Will take steps as will adequately
Safeguard his client’s interests; and
Will Exert his best judgment in the
prosecution or defense of the litigation
entrusted to him. (Islas v. Platon, G.R. No.
L-23183, Dec. 29, 1924)
3.
4.
The party represented is not bound by
attorney’s appearance in the case neither
by the judgment rendered therein;
Court does not acquire jurisdiction over
the person of the party represented;
The adverse party who has been forced to
litigate as a defendant by the
unauthorized action on the part of the
attorney for the plaintiff may, on that
ground, move for the dismissal of the
complaint; and
If unauthorized appearance is willful,
attorney may be cited for contempt as an
officer of the court who has misbehaved
in his official transactions, and he may be
disciplined for professional misconduct.
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
Q: May an attorney voluntarily appear for a
person without being employed?
A:
1.
A: No. An attorney may not appear for a person
until he is in fact employed by, or retained for
such person. An attorney willfully appearing in
court for a person without being employed,
unless by leave of court, may be punished for
contempt as an officer of the court, who has
misbehaved in his official transactions. (Sec. 26,
Rule 138)
Rationale: The basis of this rule is that the
lawyer is better trained and skilled in law.
Note: Cause of action, claim or demand, and
subject of litigation are within client’s
control. Proceedings to enforce the remedy
are within the exclusive control of the
attorney.
Q: How can an unauthorized appearance be
ratified?
2.
A:
1.
2.
Express – Categorized assertion by client
that he has authorized a lawyer or that he
confirms his authorization to represent
him in the case.
Implied – Where party with knowledge of
fact that a lawyer has been representing
him in a case, accepts benefits of
representation or fails to promptly
repudiate the assumed authority.
Q: What are the requisites of implied ratification
by silence?
A:
1.
The party represented by the attorney is
of age or competent or if he suffers from
any disability, he has a duly appointed
guardian or legal representative;
2.
The party or his guardian, as the case may
be, is aware of the attorney’s
representation; and
3.
He fails to promptly repudiate assumed
authority.
Q: What is the extent of a lawyer’s authority in
the conduct of litigation?
A: A lawyer has authority to bind the client in all
matters of ordinary judicial procedure. The cause
of action, the claim or demand sued upon and the
subject matter of the litigation are within the
exclusive control of the client. A client may waive,
surrender, dismiss, or compromise any of his
rights involved in litigation in favor of the other
party even without or against the consent of his
attorney.
Q: Who has control over the proceedings?
As to matters of procedure- it is the client
who yields to the lawyer and not the
lawyer yielding to the client. (Lapena,
2009)
As to subject matter- the client is in
control.
Q: What is a compromise?
A: It is a contract whereby the parties, by making
reciprocal concessions, avoid litigation or put an
end to one already commenced. (Art. 2028, NCC)
Q: State the rule with respect to the authority of
an attorney to compromise his client’s case.
A:
GR: The attorney has no authority to
compromise his client’s case. This is so because
the client, even if represented by counsel,
retains exclusive control over the subject
matter of the litigation. The client can, of
course, authorize his lawyer to compromise his
case, and the settlement made by the lawyer
will bind his client.
XPN: When the lawyer is confronted with an
emergency where prompt and urgent action is
necessary to protect the interest of his client
and there is no opportunity for consultation
with the latter.
a. Duty to Restrain Client from Impropriety
Rule 19.01, Canon 9, CPR – 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, participate in
presenting or threaten to present unfounded
criminal charges to obtain an improper
advantage in any case or proceeding. (1997
Bar Question)
Note: Under this rule, a lawyer should not file or
threaten to file any unfounded or baseless criminal
case or cases against the adversaries of his client
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
93
UST Golden Notes 2011
designed to secure a leverage to compel the
adversaries to yield or withdraw their own cases
against the lawyer’s client. (Pena v. Atty. Aparicio,
A.C. No. 7298, June 25, 2007)
Note: Rule 19.01 of the CPR obligates a lawyer, in
defending his client, to employ only such means as
are consistent with truth and honor. He should not
prosecute patently frivolous and meritless appeals or
institute clearly groundless actions. The act of a
lawyer in preventing the execution of the judgment
against his clients shows that he actually committed
what the above rule expressly prohibits. (Que v.
Revilla, A.C. No. 7054, Dec. 4, 2009)
Q: Alex Ong received a demand-letter from Atty.
Elpidio Unto, in the latter's capacity as legal
counsel of one Nemesia Gargania. The letter is in
connection with the claim of support of Nemesia
Garganian against him for her son. It was further
stated therein that failure to comply with the
demand will result to the filing of proper action
in court.
The real father of Ms. Garganian's son was Alex'
brother and he merely assumed his brother's
obligation to appease Ms. Garganian who was
threatening to sue them. Alex then did not
comply with the demands against him.
Consequently, Atty. Unto filed a complaint for
alleged violation of the Retail Trade
Nationalization Law and the Anti-Dummy Law.
In addition, he commenced administrative cases
against Alex before the Bureau of Domestic
Trade, the Commission on Immigration and
Deportation, and the Office of the Solicitor
General. These cases were subsequently denied
due course and dismissed. This prompted Alex to
file a case for disbarment. Did Atty. Unto fall
short of professional standards?
A: Yes. He tried to coerce his client to comply
with his letter-demand by threatening to file
various charges against the latter. When Alex did
not heed Atty. Unto’s warning, he made good his
threat and filed a string of criminal and
administrative cases against him. His action is
malicious as the cases he instituted against the
complainant did not have any bearing or
connection to the cause of his client, Ms.
Garganian. Clearly, Atty. Unto violated the
proscription in Rule 19.01. His behavior is
inexcusable. (Ong v. Unto, A.C. No. 2417, Feb. 6,
2002)
b. Duty of Lawyer in Case of Knowledge of
Client’s Fraud
94
Rule 19.02, Canon 19, CPR – A lawyer who
has received information that his client has,
in the course of the representation,
perpetrated a fraud upon a person or
tribunal, shall promptly call upon the client
to rectify the same, and failing which he
shall terminate the relationship with such
client in accordance with the Rules of Court.
(2001 Bar Question)
The lawyer’s duty to his client does not mean
freedom to set up false or fraudulent claims
especially with respect to provisions of law or
administrative rules and that while lawyers are
bound to exert utmost legal skill in prosecuting
their client’s cause or defending it, their duty, first
and foremost, is to the administration of justice.
(CPR Annotated, PhilJA)
Note: It is an unethical tactic for a lawyer to offer
monetary rewards to anyone who could give him
information against a party so that he could have
leverage against all actions involving such party. (CPR
Annotated, PhilJA)
Note: A lawyer should use his best efforts to restrain
and to prevent his client from doing those things
which he himself ought not to do, particularly with
reference to the conduct toward the court, judicial
officer, witness and suitor and if the client persists in
such wrong doing, the lawyer should terminate their
relation. (Surigao Mineral Reservation Board v.
Cloribel, G.R. No. L-27072, Jan. 9, 1970)
c. Authority of a Lawyer
Rule 19.03, Canon 19, CPR – A lawyer shall
not allow his client to dictate the procedure
in handling the case.
The Code enjoins a lawyer to employ only fair and
honest means to attain the lawful objectives of
his client and warns him not to allow his client to
dictate the procedure in handling the case. In
short, a lawyer is not a gun for hire. (Millare v.
Atty. Montero, A.C. No. 3283, July 13, 1995)
Note: The lawyer, and not the client, is assumed to
have knowledge of laws and rules of procedure. The
procedure in handling a case should therefore fall
within the lawyer’s control and supervision.
Q: Is the lawyer confined entirely on the
information his client gave?
A: No. The lawyer cannot entirely depend on the
information his client gave or the time his client
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
wished to give. The lawyer should take more
control over handling the case. Where the client
is based overseas, the lawyer should with more
reason, have moved to secure all the legal means
available to him either to continue representing
his client effectively or to make the necessary
manifestation in court, with the client’s
conformity, that he was withdrawing as counsel
of record. (CPR Annotated, PhilJA)
Note: Counsel's failure to file formal offer of exhibits
constitutes inexcusable negligence as it led to the
dismissal of the case. To compound his inefficiency,
counsel filed a motion for reconsideration outside
the reglementary period. His attempts to evade
responsibility by shifting the blame on his client are
apparent. He refers to the alleged obnoxious
attitude of his client in trying to manipulate the
manner in which he was handling the case as the
main reason for his failure to formally offer his
exhibits. But he should bear in mind that while a
lawyer owes utmost zeal and devotion to the
interest of his client, he also has the responsibility of
employing only fair and honest means to attain the
lawful objectives of his client and he should not
allow the latter to dictate the procedure in handling
the case. (Fernandez v. Novero, A.C. No. 5394, Dec.2,
2002)
Q: What is appearance?
A: It is the coming into court as a party either as a
plaintiff or as a defendant and asking relief
therefrom.
Note: If the defendant seeks other reliefs, the
appearance, even if qualified by the word special, is
equivalent to a general appearance.
Generally, appointment of counsel confers a general
authority. Thus, acts which are necessary or
incidental to the management of the suit or for the
accomplishment of a specific purpose are entrusted
to him. And the client has a right to expect that
his/her counsel will protect his/her interest.
7. ATTORNEY’S FEES
(1990, 1991, 1992, 1994, 1995, 1997, 1998, 2005,
2006, 2007 Bar Question)
CANON 20,CPR
- A LAWYER SHALL CHARGE ONLY FAIR AND
REASONABLE FEES
(1997,1998,2003 Bar Question).
Q: Who are entitled to attorney’s fees?
A:
GR: Only lawyers are entitled to attorney’s
fees. The same cannot be shared with a nonlawyer. It is unethical.
XPN: A lawyer may divide a fee for legal
services with persons not licensed to practice
law: CPR
1.
A lawyer undertakes to Complete the
unfinished legal business of a deceased
lawyer;
2.
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;
3.
A lawyer or law firm includes nonlawyer employees in Retirement plan,
even if the plan is based, in whole or in
part, on a profit-sharing agreement.
(Rule 9.02, CPR)
Q: What are the kinds of appearance?
A:
1.
General appearance – When a party
comes to court either as plaintiff or
defendant and seeks general reliefs from
the court for satisfaction of his claims or
counterclaims respectively.
2.
Special appearance – When a defendant
appears in court solely for the purpose of
objecting to the jurisdiction of the court
over his person.
Note: By virtue of Sec. 20, Rule 14 of the 1997 Rules
of Civil Procedure, there is no more distinction
between general appearance and special
appearance, in the sense that a defendant may file a
motion to dismiss not only on the ground of lack of
jurisdiction over his person but also on some other
grounds without waiving the jurisdiction of the court
over his person.
Note: Entitlement to lawyer’s fees is presumed.
(Funa, 2009) Unless otherwise expressly stipulated,
rendition of professional services by a lawyer is for a
fee or compensation and is not gratuitous. (Research
and Services Realty, Inc. v. CA, G.R. No. 124074,
January 27,1997)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
95
UST Golden Notes 2011
Rule 20.01, Canon 20, CPR - A lawyer shall
be guided by the following factors in
determining his fees:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
The time spent and the extent of the
service rendered or required;
the novelty and difficulty of the
questions involved;
The importance of the subject
matter;
The skill demanded;
The probability of losing other
employment as a result of
acceptance of the proffered case;
The customary charges for similar
services and the schedule of fees of
the IBP chapter to which he belongs;
The amount involved in the
controversy and the benefits
resulting to the client from the
service;
The contingency or certainty of
compensation;
The character of the employment,
whether occasional or established;
and
The professional standing of the
lawyer.
Note: Generally, the amount of attorney’s fees due
is that stipulated in the retainer agreement which is
conclusive as to the amount of lawyer’s
compensation (Funa, 2009) unless the stipulated
amount in the written contract is found by the court
to be unconscionable or unreasonable (Sec. 24, Rule
138, RRC). In the absence thereof, the amount of
attorney’s fees is fixed on the basis of quantum
meruit. (Sesbreno v. Court of Appeals, G.R. No.
117438, June 8,1995; Funa, 2009)
Q: What are the kinds of payment which may be
stipulated upon?
A:
1.
2.
96
Fixed or absolute fee that which is payable
regardless of the result of the case.
a. A fixed fee payable per appearance
b. A fixed fee computed upon the
number of hours spent
c. A fixed fee based on piece work
d. Combination of any of the above
Contingent fee – a fee that is conditioned
on the securing of a favorable judgment
and recovery of money or property and
the amount of which may be on a
percentage basis. (1990, 2000, 2001,
2002, 2006, 2008 Bar Questions)
Q: What are the requisites for the right to
attorney’s fees to accrue?
A:
1.
2.
Existence of attorney-client relationship;
and
Rendition by the lawyer of services to the
client.
Note: A pauper, while exempted from payment of
legal fees is not exempted from payment of
attorney’s
fees.(Cristobal
v.
Employees
Compensation Commission, G.R. No. L-49280,
February26, 1981)
Q: What are the factors in determining the
attorney’s fees?
A: In determining what is fair and reasonable, a
lawyer shall be guided by the following factors:
STIP-SNACCC
1. Skill demanded;
2. Time spent and the extent of the services
rendered or required;
3. Importance of the subject matter;
4. Probability of losing other employment as
a result of acceptance of the proffered
case;
5. Professional Standing of the lawyer;
6. Novelty and difficulty of the questions
involved;
7. Amount involved in the controversy and
the benefits resulting to the client from
the services;
8. Customary Charges for similar services
and the schedule of fees of the IBP
chapter to which he belongs;
9. Contingency or certainty of compensation;
and
10. Character of the employment, whether
occasional or established. (Rule 20.01)
(1994 Bar Question)
Note: Imposition of interest in the payment of
attorney’s fees is not justified.(Funa, 2009)
Contracts for attorney’s services in this jurisdiction
stands upon an entirely different footing from other
contract for the payment of compensation for any
other services. (Mambulao Lumber Co. v. Philippine
National Bank, 130 Phil. 366)
Note: A lawyer is entitled to recover litigation
expenses incurred in collecting attorney’s fees.(Funa,
2009)
Q: Are the courts bound by the opinions of
attorneys as expert witnesses as to the proper
compensation of the lawyer?
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
A: No. “No court shall be bound by the opinion of
attorneys as expert witnesses as to the proper
compensation, and may disregard such testimony
and base its conclusion on its professional
knowledge. A written contract for services shall
control the amount to be paid therefor, unless
found by the court to be unconscionable or
unreasonable. (Sec. 24, Rule 138, RRC)
3.
4.
5.
6.
The contract for attorney’s fees is void
due to purely formal matters or defects of
execution;
The counsel, for justifiable cause, was not
able to finish the case to its conclusion;
Lawyer and client disregard the contract
for attorney’s fees; and
The client dismissed his counsel before
the termination of the case.
Q: In the absence of a fee arrangement, how
would the services of an attorney be
compensated?
Note: Length of practice is not a safe criterion of
professional ability.
A: In the absence of a fee arrangement, the
lawyer is paid on a quantum meruit basis. The
factors to be taken into consideration in
determining the amount are: TINS
Q: A client refuses to pay Atty. A his contracted
attorney's fees on the ground that counsel did
not wish to intervene in the process of effecting
a fair settlement of the case. Decide.
1.
2.
3.
4.
Time spent and the services rendered or
required – A lawyer is justified in fixing
higher fees when the case is so
complicated and requires more time and
effort in fixing it.
Importance of subject matter – The more
important the subject matter or the bigger
the value of the interest of the property in
litigation, the higher is the attorney’s fees.
Novelty and difficulty of questions involved
– When the questions in a case are novel
and difficult, greater effort, deeper study
and research are bound to burn the
lawyer’s time and stamina considering
that there are no local precedents to rely
upon.
Skill demanded of a lawyer – The totality
of the lawyer’s experience provides him
skill and competence admired in lawyers.
A: Rule 1.04 of the Code of Professional
Responsibility provides that "a lawyer shall
encourage his clients to avoid, end or settle a
controversy if it will admit of a fair settlement". If
a lawyer should refuse to intervene in a
settlement proceeding, his entitlement to his
attorney's fees may be affected. However, if he
has already rendered some valuable services to
the client, he must be paid his attorney's fees on
the basis of quantum meruit, even if it is assumed
that he is dismissed. (2001 Bar Question)
Q: What are the instances when counsel cannot
recover full amount despite written contract for
attorneys’ fees?
A:
1.
Q: What does quantum meruit mean?
2.
A: Quantum meruit means "as much as he
deserves", and is used as the basis for
determining the lawyer's professional fees in the
absence of a contract, but recoverable by him
from his client.
3.
Q: When is the measure of quantum meruit
resorted to? (2007 Bar Question)
A: Quantum meruit is resorted to when:
1.
2.
There is no express contract for payment
of attorney’s fees agreed upon between
the lawyer and the client;
Although there is a formal contract for
attorney’s fees, the stipulated fees are
found unconscionable or unreasonable by
the court;
4.
5.
6.
When the services called for were not
performed as when the lawyer withdrew
before the case was finished, he will be
allowed only reasonable fees;
When there is a justified dismissal of the
attorney, the contract will be nullified and
payment will be on the basis of quantum
meruit only. A contrary stipulation will be
invalid;
When the stipulated attorney’s fees are
unconscionable,
when
it
is
disproportionate as compared to the
value of services rendered and is revolting
to human conscience;
When the stipulated attorney’s fees are in
excess of what is expressly provided by
law;
When the lawyer is guilty of fraud or bad
faith toward his client in the matter of his
employment;
When the counsel’s services are worthless
because of his negligence;
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
97
UST Golden Notes 2011
7.
8.
When contract is contrary to law, morals
or public policy; and
Serving adverse interest unless the lawyer
proves that it was with the consent of
both parties. (2006 Bar Question)
Q: Courts may interfere and reduce contractually
agreed upon attorney’s fees when the same is
unconscionable or excessive. What is the
rationale behind this authority?
A:
1.
2.
3.
Indubitably intertwined with the lawyer’s
duty to charge only reasonable fees is the
power of the court to reduce the amount
of attorney’s fees if the same is excessive
and unconscionable. (Roxas v. De
Zuzuarregui, Jr., G. R. No. 152072, Jan. 31,
2006);
A lawyer is primarily an officer of the court
hence fees should be subject to judicial
control;
Sound public policy demands that courts
disregard stipulations for attorney’s fees
when they appear to be a source of
speculative profit at the expense of the
debtor or mortgagor. (Borcena v. IAC, et.
al., G.R. No. 70099, Jan. 7, 1987)
Note: A trial judge may not order the reduction of
the attorney’s fees on the ground that the attorney
is “below average standard of a lawyer.” The opinion
of the judge as to the capacity of a lawyer is not a
basis of the right to a lawyer’s fees. (Fernandez v.
Hon. Bello, No. L-14277, April 30, 1960)
Q: When are attorney’s fees considered as
unconscionable?
A:
1.
2.
An amount compared to the value of the
services is so disproportionate as to shock
human conscience.
One in which no man in his right senses,
not under delusion, would make on one
hand, and which no fair and honest man
would accept on the other.
a. Concepts of Attorney’s Fees
Q: What are the two concepts of attorney’s
fees?
A:
1.
98
Ordinary attorney's fee – The reasonable
compensation paid to a lawyer by his
client for the legal services he has
rendered to the latter.(Pineda, 2009)
Note: The basis for this compensation is the
fact of his employment by and his agreement
with the client.(Ibid.)
2.
Extraordinary attorney's fee – An
indemnity for damages ordered by the
court to be paid by the losing party in
litigation.
Such award belongs to the client but
parties may stipulate that whatever may
be awarded by the court as attorney’s fees
will go directly to the lawyer.
Note: The basis for this is any of the cases
provided for by law where such award can
be made, such as those authorized in Article
2208 of the Civil Code, and is payable not to
the lawyer but to the client, unless they have
agreed that the award shall pertain to the
lawyer as additional compensation or as part
thereof.
Ordinary Concept of Attorney’s Fees
Q: Aurora Pineda filed an action for declaration
of nullity of marriage against Vinson Pineda,
who was represented by Attys. Clodualdo de
Jesus, Carlos Ambrosio and Emmanuel Mariano.
The parties' proposal for settlement regarding
Vinson's visitation rights over their minor child
and the separation of their properties was
approved by the court. The marriage was
subsequently declared null and void.
Throughout the proceedings counsels and their
relatives and friends, availed of free products
and treatments from Vinson’s dermatology
clinic. This notwithstanding, they billed him
additional legal fees amounting to P16.5 million
which he, however, refused to pay. Instead, he
issued them several checks totaling P1.12 million
as full payment for settlement. Still not satisfied,
the three lawyers filed in the same court a
motion for payment of lawyers' fees for P50
million, which is equivalent to 10% of the value
of the properties awarded to Pineda in the case.
Are their claim justified?
A: No. Clearly, what they were demanding was
additional payment for legal services rendered in
the same case. Demanding P50 million on top of
the generous sums and perks already given to
them was an act of unconscionable greed. They
could not charge Pineda a fee based on
percentage, absent an express agreement to that
effect. The payments to them in cash, checks, free
products and services from Pineda’s business
more than sufficed for the work they did. The full
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
payment for settlement should have discharged
Vinson's obligation to them.
As lawyers, they should be reminded that they
are members of an honorable profession, the
primary vision of which is justice. It is the lawyer’s
despicable behavior in the case at bar which gives
lawyering a bad name in the minds of some
people. The vernacular has a word for it:
nagsasamantala. The practice of law is a decent
profession and not a money-making trade.
Compensation should be but a mere incident.
(Pineda v. de Jesus, G.R. No. 155224, Aug. 23,
2006)
Q: DOY Mercantile Inc. refused to satisfy Atty.
Gabriel, Jr.’s attorney’s fees, prompting the
latter to file with the RTC a Motion to Allow
Commensurate Fees and to Annotate Attorney’s
Lien on certain TCTs. The RTC fixed Atty. Gabriel,
Jr.’s fees and ordered that a lien be annotated
on the TCTs. A Writ of Execution was later issued
by the trial court in Atty. Gabriel, Jr.’s favor.
Upon Atty. Gabriel Jr.’s motion for
reconsideration, the RTC increased his fees. It
then issued another Writ of Execution to enforce
the new award but denied the Motion to
Annotate the Award at the back of the TCTs.
DOY, for its part, filed several petitions to set
aside the RTC Orders involving the award of
attorney’s fees. Eventually, CA rendered a
decision, fixing Atty. Gabriel, Jr.’s fees at
P200,000.00 and affirming the subsequent order
of the RTC not to annotate such award on the
TCTs. Should the court rely on the importance of
the subject matter in controversy and the
professional standing of counsel in awarding
attorney’s fee?
A: No. DOY’s contention that the appellate court
should also have taken into account the
importance of the subject matter in controversy
and the professional standing of counsel in
determining the latter’s fees is untenable.
Although Rule 138 of the Rules of Court and Rule
20.01, Canon 20 of the Code of Professional
Responsibility list several other factors in setting
such fees, these are mere guides in ascertaining
the real value of the lawyer’s service. Courts are
not bound to consider all these factors in fixing
attorney’s fees. While a lawyer should charge
only fair and reasonable fees, no hard and fast
rule maybe set in the determination of what a
reasonable fee is, or what is not. That must be
established from the facts in each case. (DOY
Mercantile, Inc. v. AMA Computer College, G.R.
No. 155311, Mar. 31, 2004)
Extraordinary Concept of Attorney’s Fees
Q: State the rule on attorney’s fees being
awarded as damages and its exceptions.
A:
GR: Attorney’s fees as damages are not
recoverable. An adverse decision does not ipso
facto justify their award in favor of the winning
party.
XPN:
Attorney’s fees in the concept of
damages may be awarded in any of the
following circumstances:
1.
2.
3.
4.
When there is an agreement;
When
exemplary
damages
are
awarded;
When defendant’s action or omission
compelled plaintiff to litigate;
In criminal cases of malicious
prosecution
a.
b.
5.
6.
7.
8.
9.
10.
11.
12.
13.
Plaintiff was acquitted; and
The person who charged him
knowingly
made
the
false
statement of facts or that the filing
was prompted by sinister design to
vex him;
When the action is clearly unfounded;
When defendant acted in gross and
evident bad faith;
In actions for support;
In cases of recovery of wages;
In actions for indemnity under
workmen’s
compensation
and
employee’s liability laws;
In a separate civil action arising from a
crime;
When at least double costs are awarded
(costs of suit does not include
attorney’s fees);
When the court deems it just and
equitable; and
When a special law so authorizes. (Art.
2208, NCC)
b. Acceptance Fees
Q: What is an acceptance fee?
A: It is an absolute fee arrangement which
entitles a lawyer to get paid for his efforts
regardless of the outcome of the litigation (Funa,
2009).
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
99
UST Golden Notes 2011
Q: Rose engaged the services of Atty. Jack as
counsel for five cases. In the Retainer
Agreement, Rose agreed to pay Atty. Jack the
amount of 200,000 as Acceptance Fee for the
five cases plus an additional 1,500 Appearance
Fee per hearing and in the event that damages
are recovered, she would pay Atty. Jack 10% as
success fee.
2.
3.
4.
Rose issued two checks amounting to 51,716.54
in favour of Atty. Jack however despite receipt
of said amounts he failed to file a case in one of
the five cases referred to him; one case was
dismissed due to untimely appeal; and another
case was dismissed but he failed to inform Rose
about it before she left for abroad. Dissatisfied
with the outcome of her cases she demanded
from Atty. Jack the return of all the records she
had entrusted to him however he returned only
two of the five cases. She filed a complaint
charging him with violation of Canon 16 and
16.03 of the Code of Professional Responsibility.
Was there a violation of the said Canon by the
respondent?
5.
6.
The lawyer agrees to be paid per court
appearance.
Contingent fee where the lawyer is paid
for his services depending on the success
of the case. This applies usually in civil
suits for money or property where the
lawyer’s fee is taken from the award
granted by the court.
Attorney de oficio. The attorney is
appointed by the court to defend the
indigent litigant in a criminal case. The
client is not bound to pay the attorney for
his services although he may be paid a
nominal fee taken from a public fund
appropriated for the purpose.
Legal aid. The attorney renders legal
services for those who could not afford to
engage the services of paid counsel.
Quantum meruit basis. If there is no
specific contract between the lawyer and
the client, the lawyer is paid on quantum
meruit basis, that is, what the lawyer
deserves for his services.
Q: What is a retainer?
A: None. From the records of the case, it was
found that four of the cases referred by Rose
were filed but were dismissed or terminated for
causes not attributable to Atty. Jack; and that
there was no probable cause to maintain the suit.
No fault or negligence can be attributed to the
Atty. Jack. Rose still owes payment of acceptance
fee because she only paid 51, 716.54
An acceptance fee is not a contingent fee, but is
an absolute fee arrangement which entitles a
lawyer to get paid for his efforts regardless of the
outcome of the litigation.
Dissatisfaction from the outcome of the cases
would not render void the retainer agreement for
Atty. Jack appears to have represented the
interest of Rose. (Yu v Bondal, A.C. No. 5534,
January 17, 2005)
Note: The expiration of the retainer contract
between the parties during the pendency of the
labor case does not extinguish the respondent’s right
to attorney’s fees. (Uy v. Gonzales, A.C. No. 5280,
Mar. 30, 2004)
Q: What are the different types of fee
arrangements an attorney may enter into with
his client?
A:
1.
100
Retainer’s fee where the lawyer is paid for
services for an agreed amount for the
case.
A: It may refer to two concepts:
1.
2.
Act of a client by which he engages the
services of an attorney to render legal
advice or to defend or prosecute his cause
in court; or
Fee which a client pays to the attorney.
Q: Concept Placement retained the services of
Atty. Funk. Under their retainer contract, Atty.
Funk is to render various legal services except
litigation, quasi-judicial and administrative
proceedings and similar actions for which there
will be separate billings.
Thereafter, Atty. Funk represented Concept
Placement in the case filed against it for illegal
dismissal. While the labor case was still pending,
Concept Placement terminated the services of
Atty. Funk. Nevertheless, Atty. Funk continued
handling the case. Atty. Funk then advised
Concept Placement of the POEA’s favorable
decision and requested the payment of his
attorney’s fees. Concept Placement refused.
Is Atty. Funk entitled to attorney’s fees for
assisting Concept Placement as counsel in the
labor case even if the services of Atty. Funk were
already terminated?
A: Yes. The expiration of the retainer contract
between the parties during the pendency of the
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
labor case does not extinguish the respondent’s
right for attorney’s fees. The Court found that
while the petitioner and the respondent did not
execute a written agreement on the fees in the
labor case aside from the Retainer Agreement,
the petitioner did categorically and unequivocally
admit in its Compulsory Counterclaim that it has
engaged the services of the respondent as its
counsel for a fee of P60, 000, etc. (Concept
Placement Resources Inc. v. Atty. Funk, G.R. No.
137680, February 6, 2004)
Q: What are the kinds of retainer agreements on
attorney’s fees?
A:
1.
2.
General retainer or retaining fee – It is the
fee paid to a lawyer to secure his future
services as general counsel for any
ordinary legal problem that may arise in
the ordinary business of the client and
referred to him for legal action. The client
pays fixed retainer fees, which could be
monthly or otherwise. The fees are paid
whether or not there are cases referred to
the lawyer;
Special retainer – It is a fee for a specific or
particular case or service rendered by the
lawyer for a client.
c. Contingency Fee Arrangements
Q: What is a contingency fee arrangement?
A: Contingent fee where the lawyer is paid for his
services depending on the success of the case.
This applies usually in civil suits for money or
property where the lawyer’s fee is taken from the
award granted by the court.
Note: Contingent fee contracts are subject to the
supervision and close scrutiny of the court in order
that clients may be protected from unjust charges.
The amount of contingent fees agreed upon by the
parties is subject to the stipulation that counsel will
be paid for his legal services only if the suit or
litigation prospers. A much higher compensation is
allowed as contingent fees because of the risk that
the lawyer may get nothing if the suit fails.
(Evangelina Masmud v. NLRC, et. al., G.R. No.
183385, Feb. 13, 2009)
Note: The acceptance of an initial fee before or
during the progress of the litigation does no detract
from the contingent nature of the fees, so long as
the bulk thereof is made dependent upon the
successful outcome of the action. (Lapena, 2009)
Note: If a lawyer employed on contingent basis dies
or becomes disabled before the final adjudication or
settlement of the case has been obtained, he or his
estate will be allowed to recover the reasonable
value of the services rendered. The recovery will be
allowed only after the successful termination of the
litigation in the client’s favor. (Morton v. Forsee, Ann.
Cas. 1914 D. 197; Lapena, 2009, Pineda, 2009)
Q: Chester asked Laarni to handle his claim to a
sizeable parcel of land in Quezon City against a
well-known property developer on a contingent
fee basis. Laarni asked for 15% of the land that
may be recovered or 15% of whatever monetary
settlement that may be received from the
property developer as her only fee contingent
upon securing a favorable final judgment or
compromise settlement. Chester signed the
contingent fee agreement.
Assume the property developer settled the case
after the case was decided by the Regional Trial
Court in favor of Chester for P1 Billion. Chester
refused to pay Laarni P150 Million on the ground
that it is excessive. Is the refusal justified?
Explain.
A: The refusal of Chester to pay is unjustified. A
contingent fee is impliedly sanctioned by Rule
20.01(f) of the CPR. A much higher compensation
is allowed as contingent fees is consideration of
the risk that the lawyer will get nothing if the suit
fails. In several cases, the Court has indicated
that a contingent fee of 30% of the money or
property that may be recovered is reasonable.
Moreover, although the developer settled the
case, it was after the case was decided by the RTC
in favor of Chester, which shows that Atty. Laarni
has already rendered service to the client.
Q: Assume there was no settlement and the case
eventually reached the Supreme Court which
promulgated a decision in favor of Chester. This
time Chester refused to convey to Laarni 15% of
the litigated land as stipulated on the ground
that the agreement violates Article 1491 of the
Civil Code, which prohibits lawyers from
acquiring by purchase properties and rights,
which are the object of litigation in which they
take part by reason of their profession. Is the
refusal justified? Explain.
A: Chester’s refusal is not justified. A contingent
fee arrangement is not covered by Art.1491 of
the Civil Code, because the transfer or assignment
of the property in litigation takes effect only upon
finality of a favorable judgment. (Director of
Lands v. Ababa, No. L-26096, February 27, 1979);
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
101
UST Golden Notes 2011
Macariola v. Asuncion, A.C. No. 133-J, May 31,
1982) (2008 Bar Question)
Q: Evangelina Masmud’s husband, the late
Alexander, filed a complaint against his
employer for non-payment of permanent
disability benefits, medical expenses, sickness
allowance, moral and exemplary damages, and
attorney’s fees. He engaged the services of Atty.
Go, as his counsel and agreed to pay attorney’s
fees on a contingent basis, as follows: 20% of
total monetary claims as settled or paid and an
additional 10% in case of appeal.
Labor Arbiter rendered granted the monetary
claims of Alexander. Eventually, after several
appeals, the decision being favorable to
Evangelina (substituted her deceased husband),
the decision became final and executory. Upon
motion of Atty. Go, the surety company
delivered to the NLRC Cashier, the check
amounting to P3,454,079.20. Thereafter, Atty.
Go moved for the release of the said amount to
Evangelina. Out of the said amount, Evangelina
paid Atty. Go the sum of P680,000.00.
Dissatisfied, Atty. Go filed a motion to record
and enforce the attorney’s lien alleging that
Evangelina reneged on their contingent fee
agreement.
Evangelina manifested that Atty. Go’s claim for
attorney’s fees of 40% of the total monetary
award was null and void based on Article 111 of
the Labor Code. Is her contention correct?
A: No. Art. 111. Attorney's fees. (a) In cases of
unlawful withholding of wages, the culpable party
may be assessed attorney's fees equivalent to ten
percent of the amount of the wages recovered.
Contrary to Evangelina’s proposition, Article 111
of the Labor Code deals with the extraordinary
concept of attorney’s fees. It regulates the
amount recoverable as attorney's fees in the
nature of damages sustained by and awarded to
the prevailing party. It may not be used as the
standard in fixing the amount payable to the
lawyer by his client for the legal services he
rendered.
In this regard, Section 24, Rule 138 of the Rules of
Court should be observed in determining Atty.
Go’s compensation. The said Rule provides:
Sec. 24. Compensation of attorneys; agreement
as to fees. An attorney shall be entitled to have
and recover from his client no more than a
reasonable compensation for his services, with a
view to the importance of the subject matter of
102
the controversy, the extent of the services
rendered, and the professional standing of the
attorney. No court shall be bound by the opinion
of attorneys as expert witnesses as to the proper
compensation, but may disregard such testimony
and base its conclusion on its own professional
knowledge. A written contract for services shall
control the amount to be paid therefor unless
found by the court to be unconscionable or
unreasonable.
The retainer contract between Atty. Go and
Evangelina provides for a contingent fee. The
contract shall control in the determination of the
amount to be paid, unless found by the court to
be unconscionable or unreasonable. The criteria
found in the Code of Professional Responsibility
are also to be considered in assessing the proper
amount of compensation that a lawyer should
receive. (Canon 20, Rule 20.01, CPR)(Evangelina
Masmud v. NLRC, et. al., G.R. No. 183385, Feb. 13,
2009)
Q: What is a champertous contract?
A: It is one where the lawyer stipulates with his
client in the prosecution of the case that he will
bear all the expenses for the recovery of things or
property being claimed by the client, and the
latter agrees to pay the former a portion of the
thing or property recovered as compensation. It is
void for being against public policy. (Like
gambling) (1999, 2000, 2006 Bar Questions)
Note: A champertous contract which is considered
void due to public policy, because it would make him
acquire a stake in the outcome of the litigation
which might lead him to place his own interest
above that of the client (Bautista v. Gonzales, A.M.
No. 1625, Feb. 12, 1990).
Q: What is the difference between a contingent
contract and champertous contract?
A:
CONTINGENT
CONTRACT
CHAMPERTOUS
CONTRACT
Payable in cash
Lawyers do not
undertake to pay all
expenses of
litigation
Valid
Payable in kind only
Lawyers undertake to
pay all expenses of
litigation
Void
Q: The contract of attorney's fees entered into
by Atty. Quintos and his client, Susan, stipulates
that if a judgment is rendered in favor of the
latter, Atty. Quintos gets 60% of the property
recovered as contingent fee. In turn, he will
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
assume payment of all expenses of the litigation.
May Atty. Quintos and Susan increase the
amount of the contingent fee to 80%?
has full knowledge and approval thereof. (Sec.
20 (e), Rule 138)
d. Attorney’s Lien
A: No. Atty. Quintos and Susan cannot agree to
increase the amount of the contingent fee to 80%
because the agreement is champertous. Even if
there is no champertous provision present, the
contingent fee of 80% of the property recovered
could still be considered as unconscionable,
because it is so disproportionate as to indicate
that an unjust advantage had been taken of the
client, and is revolting to human conscience.
Contracts for attorney's fees are always subject to
control by the courts. (2006 Bar Question)
Rule 20.02, Canon 20, CPR - 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
responsibility assumed.
Note: This is not in the nature of a broker’s
commission.
Q: How does Lawyer- Referral System work?
A: Under this system, if another counsel is
referred to the client, and the latter agrees to
take him as collaborating counsel, and there is no
express agreement on the payment of attorney’s
fees, the said counsel will receive attorney’s fees
in proportion to the work performed and
responsibility assumed. The lawyers and the
client may agree upon the proportion but in case
of disagreement, the court may fix the
proportional division of fees. (Lapena, 2009)
Rule 20.03 - A lawyer shall not, without the
full knowledge and consent of the client,
accept any fee, reward, costs, commission,
interest, rebate or forwarding allowance or
other compensation whatsoever related to
his professional employment from anyone
other than the client. (1997, 2003 Bar
Questions)
Rationale: Intended To secure the fidelity of the
lawyer to his client’s cause and to prevent a situation
in which the receipt of him of a rebate or
commission from another with the client’s business
may interfere with the full discharge of his duty to
his client. (Report of the IBP Committee)
XPN: A lawyer may receive compensation from
a person other than his client when the latter
Note: A lawyer is not entitled to unilaterally
appropriate his client’s money for himself by the
mere fact alone that the client owes him attorney’s
fees. (Rayos v. Hernandez, GR No. 169079, February
12, 2007)
Q: Define an attorney’s retaining lien.
A: A retaining lien is the right of an attorney to
retain the funds, documents and papers of his
client which have lawfully come into his
possession and may retain the same until his
lawful fees and disbursements have been paid,
and may apply such funds to the satisfaction
thereof. (1994, 1995, 1996, 1998, 2000 Bar
Questions)
Q: What are the requisites in order for an
attorney to be able to exercise his retaining lien?
A: ALU
1. Attorney-client relationship;
2. Lawful possession by the lawyer of the
client’s funds, documents and papers in
his professional capacity; and
3. Unsatisfied claim for attorney’s fees or
disbursements.
Q: Harold secured the services of Atty. Jarencio
to collect from various debtors. Accordingly,
Atty. Jarencio filed collection cases against the
debtors of Harold and in fact obtained favorable
judgments in some. Atty. Jarencio demanded
from Harold his attorney’s fees pursuant to their
agreement but Harold refused. When one of the
defendants paid his indebtedness of P20,000
through Atty. Jarencio, the latter refused to turn
over the money to Harold; instead, Atty.
Jarencio applied the amount to his attorney’s
fees having in mind the provisions of the Civil
Code on legal compensation or set-off to justify
his act. Was Atty. Jarencio correct in refusing to
turn over to his client the amount he collected?
Discuss fully.
A: No. A lawyer has a retaining lien which entitled
him to retain possession of a client’s document,
money or other property which come into the
hands of the attorney professionally, until the
general balance due to him for professional
services is paid. Under Section 37, Rule 138 of the
Rules of Court, the attorney cannot be compelled
to surrender the document in his possession
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
103
UST Golden Notes 2011
without prior proof that his fees have been duly
satisfied.
disbursements. (Sec. 37, Rule 138, Revised Rules
of Court) (1994, 2008 Bar Questions)
However, Atty. Jarencio here cannot appropriate
the sum of P20,000. If there is a dispute between
him and Harold as to the amount of the fees he is
entitled, he must file an action for recovery of his
fee or record a charging lien so that the court can
fix the amount to which he is entitled. (1995 Bar
Question)
Q: What are the requisites in order for an
attorney to be able to exercise his charging lien?
Q: Upon being replaced by Justice C, Atty. B, the
former counsel of the parents of the victims of
the OZONE Disco tragedy, was directed to
forward all the documents in his possession to
Justice C. Atty. B refused, demanding full
compensation pursuant to their written
contract. Sensing that a favorable judgment was
forthcoming, Atty. B filed a motion in court
relative to his attorney’s fees, furnishing his
former clients with copies thereof.
Is Atty. B legally and ethically correct in refusing
to turn over the documents and in filing the
motion? Explain.
A: Yes. He is entitled to a retaining lien which
gives him the right to retain the funds, documents
and papers of his client which have lawfully come
to his possession until his lawful fees and
disbursement have been paid (Sec. 37, Rule 138,
Rules of Court; Rule 16.03, Code of Professional
Responsibility). Likewise, he is legally and ethically
correct in filing a motion in court relative to his
fees. He is entitled to a charging lien upon all
judgments for the paying of money, and
executions issued in pursuance of such
judgments, which he has secured in a litigation of
his client, from and after the time when the
records of the court rendering such judgment or
issuing such execution. (1996 Bar Question)
Q: Define an attorney’s charging lien.
A: A charging lien is the right of a lawyer to the
same extent upon all judgments for the payment
of money, and executions issued in pursuance of
such judgments which he has secured in a
litigation of his client, from and after the time
when he shall have caused a statement of his
claim of such lien to be entered upon the records
of the court rendering such judgment, or issuing
such execution, and shall have caused written
notice thereof to be delivered to his client and to
the adverse party; and he shall have the same
right and power over such judgments and
executions as his client would have to enforce his
lien and secure the payment of his fees and
104
A:
1.
2.
3.
4.
5.
Existence of attorney-client relationship;
The attorney has rendered services;
Favorable money judgment secured by the
counsel for his client;
The attorney has a claim for attorney’s
fees or advances; and
A statement of the claim has been duly
recorded in the case with notice thereof
served upon the client and the adverse
party.
Note: A charging lien, to be enforceable as a security
for the payment of attorney’s fees, requires as a
condition sine qua non a judgment for money and
execution in pursuance of such judgment secured in
the main action by the attorney in favor of his client.
Q: The client with whom you have a retainer
agreement had not been paying you contrary to
your stipulations on legal fees, even as you
continue to appear at hearings in his case. A
judgment was finally rendered in your client’s
favor awarding him the real property in litigation
as well as a substantial amount in damages. As
the counsel who had not been paid, what steps
can you take to protect your interests?
A: I will cause a charging lien for my fees to be
recorded and attached to the judgment insofar as
it is for the payment of money in damages. Then,
I will have the right to collect my fees out of such
judgments and executions issued in pursuance
thereof. (1994 Bar Question)
Q: What is the difference between a retaining
lien and a charging lien?
A:
RETAINING LIEN
CHARGING LIEN
As to Nature
Passive lien. It cannot Active lien. It can be
be actively enforced. enforced
by
It is a general lien.
execution. It is a
special lien.
As to Basis
Lawful possession of Securing
of
a
papers, documents, favorable
money
property belonging judgment for client.
to the client.
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
As to Coverage
Covers
papers, Covers all judgments
documents,
and for the payment of
properties in the money and execution
lawful possession of issued in pursuance of
the attorney by such judgments.
reason
of
his
professional
employment.
As to Effect
As soon as the As soon as the claim
attorney
gets for attorney’s fees had
possession of papers, been entered into the
documents,
or records of the case.
property.
As to Applicability
May be exercised Generally, exercised
before judgment or only
when
the
execution
or attorney had already
regardless thereof.
secured a favorable
judgment
for
his
client.
As to Extinguishment
When
possession When client loses
lawfully ends as action as lien may only
when
lawyer be enforced against
voluntarily parts with judgment awarded in
funds, documents, favor
of
client,
and papers of client proceeds
or offers them as thereof/executed
evidence.
thereon.
XPN:
1. To prevent imposition
2. To prevent injustice
3. To prevent fraud
Note: A client may enter into a compromise
agreement without the intervention of the lawyer,
but the terms of the agreement should not deprive
the counsel of his compensation for the professional
services he had rendered. If so, the compromise
shall be subjected to said fees. If the client and the
adverse party who assented to the compromise are
found to have intentionally deprived the lawyer of
his fees, the terms of the compromise, insofar as
they prejudice the lawyer, will be set aside, making
both parties accountable to pay the lawyer’s fees.
But in all cases, it is the client who is bound to pay
his lawyer for his legal representation. (Atty. Gubat
v. NPC, G.R. No. 167415, Feb. 26, 2010)
Q: Where and how may attorney's fees be
claimed by the lawyer?
A:
1.
In the same case – It may be asserted
either in the very action in which the
services of a lawyer had been rendered or
in a separate action.
2.
In a separate civil action – A petition for
attorney's fees may be filed before the
judgment in favor of the client is satisfied
or the proceeds thereof delivered to the
client.
e. Fees and Controversies with Clients
The determination as to the propriety of
the fees or as to the amount thereof will
have to be held in abeyance until the main
case from which the lawyer's claim for
attorney's fees may arise has become
final. Otherwise, the determination of the
courts will be premature.
Rule 20.04, Canon 20, CPR - A lawyer shall
avoid controversies with clients concerning
his compensation and shall resort to judicial
action only to prevent imposition, injustice
or fraud. (1998 Bar Question)
Q: Can a lawyer file a case against his client for
the enforcement of attorney’s fees?
Note: Contracts for employment may either be oral
or express.
A:
GR: A lawyer should avoid the filing of any case
against a client for the enforcement of
attorney’s fees.
Q: What are the instances when an independent
civil action to recover attorney’s fees is
necessary?
Note: The legal profession is not a money-making
trade but a form of public service. Lawyers should
avoid giving the impression that they are
mercenary (Perez v. Scottish Union and National
Insurance Co., C.A. No. 8977, March 22, 1946). It
might even turn out to be unproductive for him
for potential clients are likely to avoid a lawyer
with a reputation of suing his clients.
A:
1.
Main action is dismissed or nothing is
awarded;
2.
Court has decided that it has no
jurisdiction over the action or has already
lost it;
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
105
UST Golden Notes 2011
3.
Person liable for attorney’s fees is not a
party to the main action;
4.
Court reserved to the lawyer the right to
file a separate civil suit for recovery of
attorney’s fees;
5.
6.
Services for which the lawyer seeks
payment are not connected with the
subject litigation; and
Judgment debtor has fully paid all of the
judgment proceeds to the judgment
creditor and the lawyer has not taken any
legal step to have his fees paid directly to
him from the judgment proceeds.
Q: What are the effects of the nullity of contract
on the right to attorney’s fees?
A: If the nullification is due to:
1.
The illegality of its object - the lawyer is
precluded from recovering; and
2.
Formal defect or because the court has
found the amount to be unconscionable the lawyer may recover for any services
rendered based on quantum meruit.
Q: Is attorney’s fee deemed incorporated in the
general prayer for ‘such other relief and remedy
as this court may deem just and equitable’?
A: No. Attorney’s fees must be specifically prayed
for and proven and justified in the decision itself.
(Trans-Asia Shipping Lines, Inc. vs. CA, G.R. No.
118126, March 4, 1996)
Q: Can the Court of Appeals review the decision
of lower courts fixing attorney’s fees?
A: Yes. The CA, in the exercise of its jurisdiction to
review the decisions of lower courts can
determine whether the attorney’s fees fixed by
said courts are reasonable under the
circumstances. After taking into consideration the
various factors to guide the courts in the fixing of
such fees, an appellate court can reduce the
attorney’s fees stipulated by the parties in a
contract for professional services or awarded by
the lower court to levels which it deems
reasonable.
8. PRESERVATION OF CLIENT’S CONFIDENCES
Q: To what compensation is a lawyer entitled to?
A:
1.
2.
3.
Counsel de parte – He is entitled to the
reasonable attorney’s fees agreed upon,
or in the absence thereof, on quantum
meruit basis.
Counsel de oficio – The counsel may not
demand from the accused attorney’s fees
even if he wins the case. He may,
however, collect from the government
funds, if available based on the amount
fixed by the court.
Amicus Curae – not entitled to attorney’s
fees.
Q: Why is there a need to state the reason for
the award of attorney’s fees in the text of the
court’s decision?
A: The award of attorney’s fees being an
exception rather than the general rule, it is
necessary for the court to make findings of facts
and law that would bring the case within the
exception and justify the grant of such award.
(Agustin vs. CA, G.R. No. 84751, June 6, 1990)
106
CANON 21, CPR
- A LAWYER SHALL PRESERVE THE
CONFIDENCES AND SECRETS OF HIS CLIENTS
EVEN AFTER THE ATTORNEY-CLIENT
RELATION IS TERMINATED.
(1998, 2006 Bar Questions)
Note: The protection given to the client is perpetual
and does not cease with the termination of the
litigation nor is affected by the party ceasing to
employ the attorney and employ another or any
other change of relation between them. It even
survives the death of the client.
Q: What is confidence?
A: It refers to the information protected by the
attorney-client privilege. (Report of IBP
Committee)
Q: What is secret?
A: It refers to other information gained in the
professional relationship that the client has
requested to be held inviolate or the disclosure of
which would be embarrassing or detrimental to
the client. (Ibid)
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
Rule 21.01, Canon 21, CPR - A lawyer shall
not reveal the confidences or secrets of his
client except;
a.
b.
c.
When authorized by the client after
acquainting him of the consequences
of the disclosure;
When required by law;
When necessary to collect his fees or
to defend himself, his employees or
associates or by judicial action.
Q: May a lawyer reveal the confidences or
secrets of his client?
Q: What are the instances when a lawyer may
testify as a witness in a case which he is handling
for a client?
A:
1.
2.
3.
4.
5.
On formal matters, such as the mailing,
authentication or custody of an
instrument and the like;
Acting as an expert on his free;
Acting as an arbitrator;
Depositions; and
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.
A:
GR: A lawyer shall not reveal the confidences
and secrets of his client.
Note: An attorney cannot, without the consent of
his client, be examined as to any communication
made by the client to him, or his advice given
thereon in the course of, or with a view to,
professional employment, nor can an attorney’s
secretary, stenographer, or clerk be examined,
without the consent of the client and his
employer, concerning any fact the knowledge of
which has been acquired in such capacity. (Sec.
24(b), Rule 130, RRC)
XPN:
a. When authorized by his client after
acquainting him of the consequences of
the disclosure;
Note: There is a waiver of the privilege by
the client.
The only instance where the waiver of the
client alone is insufficient is when the
person to be examined with reference to
any privileged communication is the
attorney’s secretary, stenographer or
clerk, in respect to which the consent, too,
of the attorney is necessary.
b.
When required by law;
c.
When necessary to collect his fees or to
defend himself, his employees or
associates by judicial action.
Note: Payment of retainer fee is not essential before
an attorney can be required to safeguard a
prospective client’s secret acquired by the attorney
during the course of the consultation with the
prospective client, even if the attorney did not
accept the employment.
Rule 21.02, Canon 21, CPR - A lawyer shall
not, to the disadvantage of his client, use
information acquired in the course of
employment, nor shall he use the same to his
own advantage or that of a third person,
unless the client with full knowledge of the
circumstances consents thereto.
Q: Bun Siong Yao is a majority stockholder of
Solar Farms & Livelihood Corporation and Solar
Textile Finishing Corporation. Atty. Leonardo
Aurelio is also a stockholder and the retained
counsel of both the corporation and Bun Siong
Yao. The latter purchased several parcels of land
using his personal funds but were registered in
the name of the corporations upon the advice of
Atty. Aurelio.
After a disagreement between Atty. Aurelio and
Bun Siong Yao’s wife, the former demanded the
return of his investment in the corporations but
when Yao refused to pay, he filed 8 charges for
estafa and falsification of commercial
documents against Yao and his wife and the
other officers of the corporation.
Yao alleged that the series of suits is a form of
harassment and constitutes an abuse of the
confidential information which Atty. Aurelio
obtained by virtue of his employment as
counsel. Atty. Aurelio however said that he only
handled isolated labor cases for the said
corporations.
Did Atty. Aurelio abuse the confidential
information he obtained by virtue of his
employment as counsel?
A: Yes. The long-established rule is that an
attorney is not permitted to disclose
communications made to him in his professional
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
107
UST Golden Notes 2011
character by a client, unless the latter consents.
Atty. Aurelio took advantage of his being a lawyer
in order to get back at Yao. In doing so, he has
inevitably utilized information he has obtained
from his dealings with Yao and Yao's companies
for his own end.
Lawyers cannot be allowed to exploit their
profession for the purpose of exacting vengeance
or as a tool for instigating hostility against any
person most especially against a client or former
client. (Bun Siong Yao v. Aurelio, A.C. No. 7023,
Mar. 30, 2006)
Rule 21.03, Canon 21, CPR - A lawyer shall
not, without the written consent of his client,
give information from his files to an outside
agency seeking such information for
auditing,
statistical,
bookkeeping,
accounting, data processing, or any other
similar purposes.
Q: Certain government officers, armed with
search warrant duly issued, seized among other
things, a filing cabinet belonging to Atty. X. In
seeking the return of the cabinet, Atty. X claimed
that the cabinet contained documents and
articles belonging to his clients but the
government refused to return the cabinet. Atty.
X petitioned the court which issued the warrant,
praying that the agents be prohibited from
opening the cabinet. Should Atty. X’s petition be
given due course?
A: Yes. The lower court cannot order the opening
of said cabinet.. To do so is in violation of his
rights as an attorney. It would be tantamount to
compelling him to disclose his client’s secrets.
(Lapena, 2009)
Note: Confidential information obtains even against
government agencies and instrumentalities. Funa,
2009)
Rule 21.04, Canon 21, CPR - A lawyer may
disclose the affairs of a client of the firm to
partners or associates thereof unless
prohibited by the client.
Note: Professional employment of a law firm is
equivalent to retainer of members thereof. In a law
firm, partners or associates usually consult one
another involving their cases and some work as a
team. Consequently, it cannot be avoided that some
information about the case received from the client
may be disclosed to the partners or associates.
Q: In need of legal services, Niko secured an
appointment to meet with Atty. Henry of Henry
108
& Meyer Law Offices. During the meeting, Niko
divulged highly private information to Atty.
Henry, believing that the lawyer would keep the
confidentiality of the information. Subsequently,
Niko was shocked when he learned that Atty.
Henry had shared the confidential information
with his law partner, Atty. Meyer, and their
common friend, private practitioner Atty.
Canonigo. When confronted, Atty. Henry replied
that Niko never signed any confidentiality
agreement, and that he shared the information
with the two lawyers to secure affirmance of his
legal opinion on Niko’s problem.
Did Atty. Henry violate any rule of ethics?
Explain fully.
A: Atty. Henry violated Canon No. 21 of the CPR
by sharing information obtained from his client
Niko with Atty. Canonigo. Canon No. 20 provides
that “a lawyer shall preserve the confidences or
secrets of his client even after the attorney-client
relationship is terminated.” The fact that Atty.
Canonigo is a friend from whom he intended to
secure legal opinion on Niko’s problem, does not
justify such disclosure. He cannot obtain a
collaborating counsel without the consent of the
client (Rule 18.01, CPR).
On the other hand, Atty. Henry did not violate
Canon 21 in sharing information with his partner
Atty. Meyer. Rule 21.04 of the CPR specifically
provides that “a lawyer may disclose the affairs of
a client of the firm to partners or associates
thereof unless prohibited by the client.” Atty.
Henry was not prohibited from disclosing the
affairs of Niko with the members of his law firm.
The employment of a member of a firm is
generally considered as employment of the firm
itself. (Hilado v. David, G.R. No. L-961, Sept. 21,
1949) (2008 Bar Question)
Rule 21.05, Canon 21, CPR – A lawyer shall
adopt such measures as may be required to
prevent those whose services are utilized by
him, from disclosing or using confidences or
secrets of the client.
Rule 21.06, Canon 21, CPR – A lawyer shall
avoid indiscreet conversation about a client’s
affairs even with members of his family.
Rule 21.07, Canon 21, CPR – A lawyer shall
not reveal that he has been consulted about
a particular case except to avoid possible
conflict of interest.
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
Q: Can the lawyer refuse from disclosing his
client’s identity?
A:
GR: A lawyer may not invoke privileged
communication to refuse revealing a client’s
identity.
XPN:
1. When there is a strong possibility that
revealing the client’s name would
implicate the client in the very activity
for which he sought the lawyer’s advice;
2. When disclosure would open the client
to civil liability;
3. When government’s lawyers have no
case against an attorney’s client and
revealing the client’s name would
furnish the only link that would come
from the chain of testimony necessary
to convict him.
Q: What is the reason why a lawyer may not
invoke privileged communication to refuse
revealing a client’s identity?
A:
1.
2.
3.
4.
Due process considerations require that
the opposing party should know the
adversary;
The privilege pertain to the subject matter
of the relationship;
The privilege begins to exist only after
attorney-client relationship has been
established hence it does not attach until
there is a client; and
The court has a right to know that the
client whose privileged information is
sought to be protected is flesh and blood.
9. WITHDRAWAL OF SERVICES
CANON 22, CPR
- A LAWYER SHALL WITHDRAW HIS SERVICES
ONLY FOR GOOD CAUSE AND UPON NOTICE
APPROPRIATE IN THE CIRCUMSTANCES
(1994,1995,1997,2000,2001,2004,2005, 2008
Bar Question)
Q: When is a lawyer allowed to withdraw his
services?
A: A lawyer shall withdraw his services only for
good cause and upon notice appropriate in the
circumstances.
GR: A lawyer lacks the unqualified right to
withdraw once he has taken a case. By his
acceptance, he has impliedly stipulated that he
will prosecute the case to conclusion. This is
especially true when such withdrawal will work
injustice to a client or frustrate the ends of
justice.
XPN: The right of a lawyer to retire from the
case before its final adjudication, which arises
only from:
1.
2.
The client’s written consent; or
By permission of the court after due
notice and hearing.
Q: Does the written consent of the client require
approval of the court to be effective?
A: The withdrawal in writing of a lawyer as
counsel for a party, with the client’s written
conformity, does not require the approval of the
court to be effective, especially if the withdrawal
is accompanied by a formal appearance of a new
counsel.
Q: What are the instances when a lawyer may
withdraw his services without the consent of his
client?
A: FIC MOVIE
1. When the client deliberately Fails to pay
the fees for the services or fails to comply
with the retainer agreement;
2. When the client pursues an Illegal or
immoral course of conduct in connection
with the matter he is handling;
3. When the lawyer finds out that he might
be appearing for a Conflicting interest;
4. When the Mental or physical condition of
the lawyer renders it difficult for him to
carry out the employment effectively;
5. Other similar cases;
6. When the client insists that the lawyer
pursue conduct in Violation of these
canons and rules;
7. When his Inability to work with co-counsel
will not promote the best interest of the
client; and
8. When the lawyer is Elected or appointed
to a public office. (Rule 22.01, CPR)
Q: What is the procedure when withdrawal is
without client’s consent?
A:
1. File a petition for withdrawal in court.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
109
UST Golden Notes 2011
2.
Serve a copy of this petition upon his
client and the adverse party at least 3 days
before the date set for hearing.
Note: He should present his petition well in advance
of the trial of the action to enable the client to
secure the services of another lawyer.
If the application is filed under circumstances that do
not afford a substitute counsel sufficient time to
prepare for trial or that work prejudice to the client’s
cause, the court may deny his application and
require him to conduct the trial.
Note: While clients have the right to terminate their
relations with their counsel and make substitution or
change at any stage of the proceedings, the exercise
of such right is subject to compliance with the
prescribed requirements. This rule is intended to
ensure the orderly disposition of cases, without it
there will be confusion in the service of processes,
pleadings and other papers.
Q: What are the limitations on client’s right to
discharge the services of his lawyer?
A:
1.
A lawyer should not presume that the court will
grant his petition for withdrawal. Until his
withdrawal shall have been proved, the lawyer
remains counsel of record who is expected by his
client as well as by the court to do what the interests
of his client require.
a. Discharge of the Attorney by the Client
(1994,1997,1998 Bar Question)
Q: Can a client discharge the services of his
lawyer without a cause?
A: Yes. A client has the right to discharge his
attorney at any time with or without a cause or
even against his consent.
1.
With just cause – lawyer is not necessarily
deprived of his right to be paid for his
services. He may only be deprived of such
right if the cause for his dismissal
constitutes in itself a sufficient legal
obstacle to recovery.
2.
Without just cause
a. No express written agreement as to
fees- reasonable value of his services
up to the date of his dismissal
(quantum meruit).
b. There is written agreement and the
fee stipulated is absolute and
reasonable – full payment of
compensation.
c. The fee stipulated is contingent.
d. If dismissed before the conclusion of
the action- reasonable value of his
services (quantum meruit)
e. If contingency occurs or client
prevents its occurrence – full amount.
Note: Lawyer should question his discharge
otherwise he will only be allowed to recover on
quantum meruit basis.
Note: The existence or non-existence of a just cause
is important only in determining the right of an
attorney to compensation for services rendered.
110
When made with justifiable cause, it shall
negate the attorney’s right to full payment
of compensation.
2. The attorney may, in the discretion of the
court, intervene in the case to protect his
right to fees.
3. A client may not be permitted to abuse his
right to discharge his counsel as an excuse
to secure repeated extensions of time to
file a pleading or to indefinitely avoid a
trial.
Q: Is notice of discharge necessary?
A: It is not necessary between client and
attorney. But insofar as the court and the adverse
party is concerned, the severance of the relation
of attorney and client is not effective until:
1. A notice of discharge by the client or a
manifestation clearly indicating that
purpose is filed with the court; and
2. A copy thereof served upon the adverse
party.
Q: What should a lawyer do if no notice of
discharge was filed by the client with the court?
A: If the client has not filed a notice of discharge,
the duty of the attorney, upon being informed by
his client that his services have been dispensed
with, is to file:
1.
2.
A notice of withdrawal with the client’s
conformity; or
An application to retire from the case, he
being
released
from
professional
responsibility only after his dismissal or
withdrawal is made of record.
Q: What are the conditions for substitution of
counsel?
A:
1.
2.
3.
Written application
Written consent of the client
Written consent of the attorney to be
substituted, or in the absence thereof,
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
proof of service of notice of said motion to
the attorney to be substituted in the
manner prescribed by the rules.
b. Withdrawal by the Attorney
Rule 22.01, Canon 22, CPR - A lawyer may
withdraw his services in any of the
following case:
a.
b.
c.
d.
e.
f.
g.
When the client pursues an illegal or
immoral course of conduct in
connection with the matter he is
handling;
When the client insists that the
lawyer pursue conduct violative of
these canons and rules;
When the inability to work with cocounsel will not promote the best
interest of the client;
When the mental or physical
condition of the lawyer renders it
difficult for him to carry out the
employment effectively;
When the client deliberately fails to
pay the fees for the services or fails
to comply with the retainer
agreement
When the lawyer is elected or
appointed to public office; and
Other similar cases.
Note: In all the a-e cases above, the lawyer must file
a written motion with an express consent of his
client and the court shall determine whether he
ought to be allowed to retire.
Note: 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. (Sec. 26, Rule 138, RRC)
Q: What is Hot Potato Doctrine?
A: It refers to the prohibition from dropping
smaller clients (like hot potatoes) in order to pick
up more lucrative clients.
Q: On the eve of the initial hearing for the
reception of evidence for the defense, the
defendant and his counsel had a conference
where the client directed the lawyer to present
as principal defense witnesses 2 persons whose
testimonies were personally known to the
lawyer to have been perjured. The lawyer
informed his client that he refused to go along
with the unwarranted course of action proposed
by the defendant. But the client insisted on the
directive, or else he would not pay the agreed
attorney’s fees.
When the case was called for hearing the next
morning the lawyer forthwith moved in open
court that he be relieved as counsel for the
defendant.
Both the defendant and the
plaintiff’s counsel objected to the motion.
Under the given facts, is the defense lawyer
legally justified in seeking withdrawal from the
case? Why or why not? Reason briefly.
A: Yes, he is justified. Under rule 22.01 of the
CPR, a lawyer may withdraw his services “if the
client insists that the lawyer pursue conduct
violative of these canon and rules”. The insistence
of the client that the lawyer present witnesses
whom he personally knows to have been
perjured, will expose him to criminal and civil
liability and violate his duty of candor, fairness
and good faith to the court.
Q: Was the motion for relief as counsel made by
the defense lawyer in full accord with the
procedural requirements for a lawyer’s
withdrawal from a court case? Explain briefly.
A: No his actuation is not in accord with the
procedural requirements for the lawyer’s
withdrawal from a court case. Whether or not a
lawyer has a valid cause to withdraw from a case,
he cannot just do so and leave the client in the
cold unprotected. He must serve a copy of his
petition upon the client and the adverse party.
He should, moreover, present his petition well in
advance of the trial of the action to enable the
client to secure the services of another lawyer.
(2004 Bar Question)
Q: Atty. X filed a notice of withdrawal of
appearance as counsel for the accused Y after
the prosecution rested its case. The reason for
the withdrawal of Atty. X was the failure of
accused Y to affix his conformity to the demand
of Atty. X for increase in attorney's fees. Is the
ground for withdrawal justified? Explain.
A: The ground for the withdrawal is not justified.
Rule 22.01 (e) of the Code of Professional
Responsibility provides that a lawyer may
withdraw his services when the client deliberately
fails to pay the fees for his services or fails to
comply with the retainer agreement. In this case,
the client has not failed to pay the lawyer's fees
or to comply with the retainer agreement. He has
only refused to agree with the lawyer's demand
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
111
UST Golden Notes 2011
for an increase in his fees. It is his right to refuse
that is part of his freedom of contract. (2000 Bar
Question)
Rule 22.02, Canon 22,CPR - A lawyer who
withdraws or is discharged shall, subject to a
retaining lien, immediately turn over all
papers and property to which the client is
entitled, and shall cooperate with his
successor in the orderly transfer of the
matter, including all information necessary
for the proper handling of the matter.
Q: What are the duties of a discharged lawyer or
one who withdraws?
Violation of communication privilege;
Liability for costs of suit (treble costs) –
when lawyer is made liable for insisting on
client's patently unmeritorious case or
interposing appeal merely to delay
litigation.
Q: When will the liability of a lawyer for “breach
of fiduciary obligation” arise?
A: A lawyer may be held liable if he fails in his
obligation to make an accounting of funds or
property that may come to his possession for a
lawyer holds his client’s funds or property in trust
for his client.
Q: What are the effects of lawyer’s failure to
return client’s money or property after demand?
A:
1.
2.
Immediately turn-over all papers and
property to which the client is entitled;
and
To cooperate with his successor in the
orderly transfer of the case.
c. Liabilities of a Lawyer
Q: What are the requisites for the liability of a
lawyer for damages?
A: AWI
1. Attorney-client relationship;
2. Want of reasonable care and diligence by
lawyer
3. Injury sustained by client as a proximate
result of the lawyer’s negligence.
Q: What are the kinds of damages?
A:
1.
2.
3.
4.
Nominal – where client lost the litigation
as a consequence of lawyer’s gross
omission of negligence
Actual/ Compensatory
Moral
Attorney’s fees
Note: For nos. 2-4 there should be a showing that:
1. The lawyer had exercised due diligence
2. His client would have succeeded in
recovering from adverse party.
Q: When will civil liability arise?
A:
1.
2.
3.
4.
112
5.
6.
Client is prejudiced by lawyer's negligence
or misconduct;
Breach of fiduciary obligation;
Civil liability to third persons;
Libelous words in pleadings;
A:
1.
2.
3.
4.
There will be a presumption that the
lawyer misappropriated the same;
It will give rise to civil liability of the
lawyer;
Criminal liability
Administrative liability.
Q: What is the remedy of the client?
A: Recover property from lawyer, together with
its fruits, subject to client’s returning to his lawyer
the purchase price thereof and the legal interests
thereon.
Q: When is a lawyer not liable for libelous words
in the pleadings?
A: A lawyer is exempted from liability for slander,
libel or for words otherwise defamatory,
published in the course of judicial proceedings,
provided the statements are connected with,
relevant, pertinent and material to the cause in
hand or subject of inquiry.
Note: Test of relevancy – The matter to which the
privilege does not extend must be palpably wanting
in relation to the subject of controversy, that no
reasonable man can doubt its relevancy or propriety.
Pleadings should contain plain and concise
statements of material facts and if pleader goes
beyond requisites of law and alleges irrelevant
matter, which is libelous, he loses his privilege and
may be liable in a separate suit.
Q: Who is liable for the payment of costs of
suits?
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Duties and Responsibilities of Lawyers
A:
GR: Losing client and not the lawyer is liable for
costs of suit in favor of prevailing party, the
lawyer not being a party-litigant.
XPN: Where the lawyer insisted on client’s
patently unmeritorious case or interposed an
appeal to delay litigation or thwart prompt
satisfaction of prevailing party’s just and valid
claim, the court may adjudge lawyer to pay
treble costs of suit.
Q: When will criminal liability exist?
A: A lawyer may be held criminally liable if he
commits any of the following:
1.
Causing prejudice to the client thru
malicious breach of professional duty or
thru inexcusable negligence or ignorance;
2. Revealing client’s secrets learned in
lawyer’s professional capacity thru
malicious breach of professional duty or
inexcusable negligence or ignorance;
3.
A lawyer who has undertaken the defense
of a client or has received confidential
information from said client in a case may
be criminally liable for undertaking
defense of opposing party in same cause
without consent of first client; (Art. 209,
RPC)
4.
A lawyer who shall knowingly introduce in
evidence in any judicial proceeding or to
the damage of another or who, with
intent to cause such damage, shall use any
false document may be held criminally
liable therefor; (Art. 172, RPC) and
5.
A lawyer who misappropriates his client’s
funds may be held liable for estafa.
NOTE: Estafa is also committed in unauthorized
practice of law.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
113
UST Golden Notes 2011
III. DISCIPLINE OF LAWYERS
5.
A. NATURE AND CHARACTERISTICS OF
DISCIPLINARY ACTIONS AGAINST LAWYERS
until further action of the Supreme Court
in the case; (Sec. 16, Rule 139-B) and
Probation. (IBP Guidelines)
Note: The CA and RTC cannot disbar a lawyer.
Q: What are the other sanctions and remedies?
Q: What is the rationale of disciplining errant
lawyers?
A: Practice of law is not a natural or constitutional
right, but it is in the nature of a privilege
franchise. Hence, the same may be suspended or
removed from the lawyer for reasons provided in
the rules, law and jurisprudence.
A: RALARRO
1.
2.
3.
4.
5.
Q: What is the purpose of disciplining lawyers?
6.
A: To ascertain that a lawyer still possesses those
qualifications which are conditions precedent for
the continuous practice of law and; to deter
others from similar misconduct, to protect the
court and the public from the misbehavior of its
officers.
Q: What are the forms of disciplinary measures?
Q: What is the nature of the power to discipline?
A: WARCS-DIP
A: The power to discipline a lawyer is JUDICIAL in
nature and can be exercised only by the courts. It
cannot be defeated by the legislative or executive
departments.
7.
1.
Warning – an act of putting one on his
guard against an impending danger, evil,
consequence or penalty;
2.
Admonition – a gentle or friendly reproof,
mild rebuke, warning, reminder, or
counseling on a fault, error or oversight;
an expression of authoritative advice;
3.
Reprimand – a public and formal censure
or severe reproof, administered to a
person at fault by his superior officer or
the body to which he belongs;
4.
Censure – official reprimand;
5.
Suspension – temporary withholding of a
lawyer’s right to practice his profession as
a lawyer for a certain period or for an
indefinite period of time:
a. Definite;
b. Indefinite – qualified disbarment;
lawyer determines for himself how
long or how short his suspension
shall last by proving to court that he
is once again fit to resume practice of
law.
6.
Disbarment – it is the act of the Supreme
Court of withdrawing from an attorney the
right to practice law. The name of the
Note: The power to disbar and to reinstate is an
inherently judicial function (Andres v. Cabrera, SBC585, February 29, 1984)
Q: What are the powers of the Supreme Court
with regard to the discipline of errant lawyers?
A: WARDSIP
1. Warn;
2. Admonish;
3. Reprimand;
4. Disbar;
5. Suspend a lawyer; [Sec. 27, Rule 138,
Revised Rules of Court (RRC)]
6. Interim suspension; and
7. Probation. (IBP Guidelines)
Q: What about the Court of Appeals and the
Regional Trial Court?
A: They are also empowered to: WARSP
1. Warn;
2. Admonish;
3. Reprimand;
4. Suspend an attorney from practice for any
of the causes named in Sec 27, Rule 138
114
Restitution;
Assessment of costs;
Limitation upon practice;
Appointment of a receiver;
Requirement that a lawyer take the bar
examination or professional responsibility
examination;
Requirement that a lawyer attend
continuing education courses; and
Other requirements that the highest court
or disciplinary board deems consistent
with the purposes of the sanctions.
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – discipline of lawyers
lawyer is stricken out from the Roll of
Attorneys;
7.
Interim Suspension – it is the temporary
suspension of a lawyer from the practice
of law pending imposition of final
discipline;
Includes:
a. Suspension upon conviction of a
“serious crime”;
b. Suspension when the lawyer’s
continuing conduct is or is likely to
cause immediate and serious injury
to a client or public
8.
Probation – it is a sanction that allows a
lawyer to practice law under specified
conditions. (2002, 2004 Bar Question)
Q: What is the nature of the disciplinary actions
against lawyers?
A: Administrative cases against lawyers belong to
a class of their own (sui generis). They are distinct
from and may proceed independently of civil and
criminal cases (In re Almacen, G.R. No. L-27654
February 18, 1970; Funa, 2009).
Q: What are the main objectives of disbarment
and suspension?
A: To:
1. Compel the attorney to deal fairly and
honestly with his clients;
2. Remove from the profession a person
whose misconduct has proved him unfit to
be entrusted with the duties and
responsibilities belonging to the office of
an attorney;
3. Punish the lawyer;
4. Set an example or a warning for the other
members of the bar;
5. Safeguard the administration of justice
from incompetent and dishonest lawyers;
6. Protect the public.
Note: The purpose and the nature of disbarment
proceedings make the number of defenses available
in civil and criminal actions inapplicable in
disciplinary proceedings.
Q: Is there a prescriptive period for filing
administrative complaints against lawyers?
A: None. Rule VII, Section 1 of the Rules of
Procedure of the CBD-IBP, which provides for a
prescriptive period for the filing of administrative
complaints against lawyers, should be struck
down as void and of no legal effect for being ultra
vires. (Heirs of Falame v. Atty. Baguio, A.C. No.
6876, Mar. 7, 2008)
Q: May a lawyer be suspended or disciplined for
his misconduct in his private capacity?
A:
GR: No.
XPN: if the misconduct is so GROSS as to show
him to be wanting in moral character,
honesty, probity and demeanor (Ducat, Jr.
v. Villalon, A.C. No. 3910, June 28, 2001).
Q: Atty. Gutierrez phoned Yuhico and asked for a
cash loan claiming that he needed money to pay
for the medical expenses of his mother who was
seriously ill, and promised to pay the loan very
soon. Consequently, he asked Yuhico again for a
loan to pay for his wife’s hospitalization and
again promised to pay “within a short time” but
failed to do so. Later, he again attempted to
borrow money for his daughter’s licensure
examination in the US Medical Board and
assured Yuhico that he will pay his debts on or
before a certain date but Yuhico refused to lend
him the money, instead, he demanded payment
of his debts. Atty. Gutierrez failed to pay which
led to the filing of a complaint before the IBPCBD for non-payment of just debts. It turned out
that Atty. Gutierrez was previously disbarred in
the case of Huyssen v Atty. Gutierrez for gross
misconduct in view of his failure to pay his debts
and his issuance of worthless checks. May Atty.
Gutierrez be disbarred for the second time?
A:
NO. The SC held that while the IBP
recommended to disbar Atty. Gutierrez for the
second time, we do not have double or multiple
disbarment in our laws or jurisprudence and
neither do we have a law mandating a minimum
5-year requirement for readmission, as cited by
the IBP. Thus, while Gutierrez’s infraction calls for
the penalty of disbarment, they cannot disbar
him anew. (Yuhico v Atty. Gutierrez, A.C. No.
8391, November 23, 2010)
B. GROUNDS
Q: What are the grounds for suspension and
disbarment of members of the bar under the
Rules of Court?
A: The following are specific grounds for
suspension or disbarment of a lawyer:
a. Deceit;
b. Malpractice;
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
115
UST Golden Notes 2011
c.
d.
e.
f.
g.
Grossly immoral conduct
Conviction of a crime involving moral
turpitude;
Violation of oath of office;
Willful disobedience of any lawful order of
a superior court
Corrupt or willful appearance as an
attorney for a party to a case without
authority to do so. (Sec. 27, Rule 138, RRC)
Note: Kinds of grounds for the suspension and
disbarment of a lawyer consist of those acts of
misconduct committed:
Q: What is deceit?
A: Deceit is a fraudulent and deceptive
misrepresentation, artifice or device used by one
or more persons to deceive and trick another who
is ignorant of the true facts, to the prejudice and
damage of the party upon which it was imposed.
There must be false representation as a matter of
fact. (e.g. Misappropriation of client’s fund)
Note: There is deceit when the act is performed with
deliberate intent (Art. 3, RPC)
Malpractice
1.
2.
Prior to admission to the bar- acts of
misconduct prior to admission include
those that indicate that at the time the
lawyer took his oath, he did not possess
the
required
qualifications
for
membership in the bar. Consequently, the
cancellation of his license is justified.
Q: What is malpractice?
After admission to the bar - those which
cause loss of moral character on his part or
involve violation of his duties to the court,
his client, to the legal profession and to the
public.
Note: Legal malpractice consists of failure of an
attorney to use such skill, prudence and diligence as
a lawyer of ordinary skill and capacity commonly
possess and exercise in the performance of tasks
which they undertake, and when such failure
proximately causes damage, it gives rise to an action
in tort. (Tan Tek Beng v. David, A.C. No. 1261, Dec.
29, 1983)
Note: Disbarment and suspension of a lawyer, being
the most severe forms of disciplinary sanction,
should be imposed with great caution and only in
those cases where the misconduct of the lawyer as
an officer of the court and a member of the bar is
established by clear, convincing and satisfactory
proof. (Vitug v. Rongcal, A.C. No. 6313, Sept. 7, 2006)
Disbarment is merited when the action is not the
lawyer’s first ethical infraction of the same nature.
(Que v. Revilla, A.C. No. 7054, Dec. 4, 2009)
Q: Are the grounds for disbarment exclusive?
A: No. A lawyer may be removed from office or
suspended from the practice of law on grounds
other than those specifically provided in the law.
The statutory enumeration is not to be taken as a
limitation on the general power of SC to suspend
or disbar a lawyer. (In Re: Puno, A.C. No. 389, Feb.
28, 1967)
Note: The Court has disbarred or suspended lawyers
for reasons not found in the statute as when their
acts are contrary to honesty or good morals or do
not approximate the highest degree of morality and
integrity expected of the members of the bar. (Sta.
Maria v. Tuazon, A.C. No. 396, July 31, 1964)
Deceit
116
A: Malpractice refers to any malfeasance or
dereliction of duty committed by a lawyer (Tan
Tek Beng v. David, Adm. Case No. 1261, December
29 1983; Lapena,Jr., 2009)
Grossly Immoral Conduct
Q: What is Gross Misconduct?
A: Gross Misconduct is any inexcusable, shameful
or flagrant unlawful conduct on the part of the
person concerned in the administration of justice
which is prejudicial to the rights of the parties or
to the right determination of a cause, a conduct
that is generally motivated by a predetermined,
obstinate or intentional purpose. (Yumol Jr. v.
Ferrer, Sr., A.C. No. 6585, April 21, 2005)
Q: What is Grossly Immoral Conduct?
A: Grossly immoral conduct is one that is so
corrupt and false as to constitute a criminal act or
so unprincipled or disgraceful as to be
reprehensible to a high degree. (Vitug v. Rongcal,
A.C. No. 6313, Sept. 7, 2006);
Note: Mere intimacy between a lawyer and a
woman with no impediment to marry each other,
and who voluntarily cohabited and had two children,
is neither so corrupt to constitute a criminal act nor
so unprincipled as to warrant disbarment or
disciplinary action against the man as a member of
the bar. (Arciga v. Maniwang, A.C. No. 1608, Aug.
14, 1981)
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – discipline of lawyers
Conviction of a Crime
Involving Moral Turpitude
Q: What is Moral Turpitude?
3.
Representing conflicting interests. (Art.
209, RPC)
Q: What are the other grounds for disciplining a
lawyer?
A: Moral turpitude has been defined as “everything
that is done contrary to justice, honesty, modesty, or
good morals, an act of baseness, vileness, or
depravity in the private duties which a man owes his
fellowmen, or to society in general, contrary to the
accepted and customary rule of right and duty
between man and woman, or conduct contrary to
justice, honesty modesty, or good morals. (Soriano v.
Dizon, A. C. No. 6792, Jan. 25, 2006)
A:
1.
GR: A lawyer may not be suspended or
disbarred for misconduct in his nonprofessional or private capacity.
XPN: Where such is so gross as to show
him to be morally unfit for office or
unworthy of privilege, the court may be
justified in suspending or removing him
from the Roll of Attorneys. (2005 Bar
Question)
Violation of oath of office
Note: The Lawyer’s Oath is a solemn affirmation of
the lawyer’s lifetime commitment to be a loyal
citizen, law-abiding person, a defender of truth and
justice, an advocate of the rule of law, an exemplar
of loyalty a fidelity to the courts and to clients and a
model to emulate both in his professional and
private life. (In re: Arthur Cuevas, Jr., Bar Matter No.
810, January 27, 1998)
Q: what are the specific grounds that may
constitute violation of the lawyer’s oath?
Note: The issuance of worthless checks
constitutes gross misconduct as its effect
transcends the private interests of the
parties directly involved in the transaction
and touches the interests of the community
at large.
2.
A: The specific grounds that would constitute
violation of the lawyer’s oath are:
1.
2.
3.
4.
Commission of falsehood
Instituting baseless or unfounded
complaints
Engaging in dilatory actions for an ulterior
motive
Malpractice or reprehensible conduct in
dealing with the court of his client.
(Lapena, Jr., 2009)
A: Other statutory grounds include:
1. Acquisition of interest in the subject
matter of the litigation, either through
purchase or assignment; (Art. 1491, New
Civil Code)
2. Breach of professional duty, inexcusable
negligence, or ignorance, or for the
revelation of the client’s secrets; (Art. 208,
Revised Penal Code)
Gross immorality – An act of personal
immorality on the part of a lawyer in his
private relation with opposite sex may put
his character in doubt. But to justify
suspension or disbarment, the act must
not only be immoral, it must be grossly
immoral. (Abaigar v. Paz, A.M. No. 997,
Sept. 10, 1979)
Note: Cohabitation per se is not grossly
immoral. It depends on circumstances and is
not necessary that there be prior conviction
for an offense before lawyer may be
disciplined for gross immorality. If the
evidence is not sufficient to hold a lawyer
liable for gross immorality, he may still be
reprimanded where evidence shows failure
on his part to comply with rigorous
standards of conduct required from lawyers.
Corrupt or Willful Appearance as Attorney for a
Party to a Case Without Authority to do so
(Refer to Sanctions for Practice of Law Without
Authority)
Q: What are the other statutory grounds for
suspension and disbarment of members of the
bar?
Non-professional misconduct
3.
Conviction of a crime involving moral
turpitude – All crimes of which fraud or
deceit is an element or those inherently
contrary to rules of right conduct, honesty
or morality in civilized community.
4.
Promoting to violate or violating penal
laws
5.
Misconduct in discharge of official duties –
A lawyer who holds a government office
may not be disciplined as a member of the
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
117
UST Golden Notes 2011
bar for misconduct in the discharge of his
duties as government official.
However, if the misconduct is in violation
of the CPR or of his oath as a lawyer or is
of such a character as to affect his
qualifications as a lawyer, he may be
subject to disciplinary action such as
disbarment. (Collantes v. Renomeron, A.C.
No. 3056, Aug. 16, 1991)
Note: This rule does not apply to
impeachable officials like SC justices,
members of constitutional commissions and
Ombudsman because they can be removed
only by impeachment.
6.
Commission of fraud or falsehood; and
7.
Misconduct as notary public
6.
7.
8.
9.
Failing to account or misappropriating
client’s property;
Collecting unreasonable fees;
Acting without authority;
Willfully
appearing
without
being
retained.
Note: Sanction: Disciplinary action
Q: What are the acts constituting breach of
duties to the bar?
A:
1.
2.
3.
4.
5.
6.
Defaming fellow lawyers;
Communicating with adverse party;
Soliciting business;
Advertising;
Cooperating in illegal practice of law;
Non-payment of IBP dues.
Note: Sanction: Disciplinary action
Note: By applying for having himself
commissioned as notary public, a lawyer
assumes duties in a dual capacity, the nonperformance of which may be a ground for
discipline as a member of the bar.
Q: What are the acts constituting breach of
duties to court?
A:
1.
2.
3.
4.
5.
6.
7.
8.
Obstructing justice and abuse of legal
process;
Misleading the court;
Forum shopping;
Preferring false charges;
Introducing false evidence;
Willfully disobeying court orders and
disrespecting the court;
Using vicious or disrespectful language;
Continuing practice after suspension.
Note: Sanction: Admonition, censure, suspension or
disbarment.
Q: What are the acts constituting breach of
duties to client?
A:
1.
2.
3.
4.
5.
118
Negligence in the performance of his
duties;
Employment of unlawful means;
Deceit or misrepresentation to the
prejudice of or as a means to defraud his
client;
Representing adverse interests and
revealing client’s secrets;
Purchasing client’s property in litigation;
C. DISBARMENT PROCEEDINGS
Q: What are the characteristics of disbarment
proceedings?
A:
1.
Sui Generis –
a. Neither purely civil nor purely
criminal, they do not involve a trial of
an action or a suit, but are rather
investigations by the Court into the
conduct of one of its officers.
b. Not a civil action because there is
neither plaintiff nor respondent, and
involves no private interest. The
complainant is not a party and has no
interest in the outcome except as all
citizens have in the proper
administration of justice. There is no
redress for private grievance.
c. Not a criminal prosecution because it
is not meant as a punishment
depriving him of source of livelihood
but rather to ensure that those who
exercise the function should be
competent, honorable and reliable so
that the public may repose
confidence in them.
Note: A disbarment proceeding may proceed
regardless of interest or lack of interest of the
complainant (Rayos-Ombac v. Rayos, A.C. No.
2884, January 28, 1998). However, if the
complainant refuses to testify and the charges
cannot then be substantiated, the court will have
no alternative but to dismiss the case. (2000 Bar
Question)
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – discipline of lawyers
2.
The defense of “double jeopardy” cannot
be availed of in a disbarment proceeding;
3. It can be initiated motu proprio by the SC
or IBP. It can be initiated without a
complaint;
4. It is imprescriptible;
5. Conducted confidentially;
6. It can proceed regardless of the interest or
the lack thereof on the part of the
complainant; and
7. It in itself constitutes due process of law.
8. Whatever has been decided in a
disbarment case cannot be a source of
right that may be enforced in another
action;
9. In pari delicto rule not applicable;
10. No prejudicial question in disbarment
proceedings;
11. Penalty in a disbarment case cannot be in
the alternative; and
12. Monetary claims cannot be granted
except restitution and return of monies
and properties of the client given in the
course of the lawyer-client relationship.
Q: What is the three-fold purpose
confidentiality of disbarment proceedings?
of
A:
1.
To enable the court to make its
investigation free from extraneous
influence or interference;
2.
To protect the personal and professional
reputation of attorneys from baseless
charges of disgruntled, vindictive and
irresponsible persons or clients by
prohibiting publication of such charges
pending their final resolution (Albano v.
Coloma, A.C. No. 528, Oct. 11, 1967);
3.
To deter the press from publishing charges
or proceedings based thereon for even a
verbatim reproduction of the complaint
against an attorney in the newspaper may
be actionable. (1991 Bar Question)
Note: The confidentiality of the proceedings is a
privilege which may be waived by the lawyer in
whom and for the protection of whose personal and
professional reputation it is vested, as by presenting
the testimony in a disbarment case or using it as
impeaching evidence in a civil suit. (Villalon v. IAC,
G.R. No. L-73751, Sept. 24, 1986)
Q: What are the offices authorized to investigate
disbarment cases?
A:
1.
2.
3.
Supreme Court;
IBP through its Commission on Bar
Discipline or authorized investigator; and
Office of the Solicitor General.
Q: What are the purposes of disbarment as a
means of disciplining erring lawyers?
A: The purposes of disbarment are:
1. To protect the public
2. To protect and preserve
profession; and
the
legal
Note: The reason is because it is the court
which admits an attorney to the bar and the
court requires for such admission the
possession of a good moral character.
Disbarment
is
necessary
so
that
respectability of the bar will be maintained.
(1991 Bar Question)
3.
To compel the lawyer to comply with his
duties and obligations under the CPR.
Q: Who has the burden of proof?
A: The burden of proof is upon the complainant
and the SC will exercise its disciplinary power only
if the complainant establishes his case by the
required quantum of proof which is clear,
convincing and satisfactory evidence. (Aquino v.
Mangaoang, A.C. No. 4934, Mar. 17, 2004)
Note: In the absence of contrary proof, the
presumption is that the lawyer is innocent of the
charges, and has performed his duty as an officer of
the court in accordance with his oath, and the
disbarment case should be dismissed. However, the
court can still impose conditions despite dismissal of
disciplinary action against an erring lawyer, if the
facts so warrant. In the event the lawyer fails to
comply with such condition, the court may suspend
or disbar him for disobedience of its order.
A lawyer who has been suspended or disbarred
cannot practice law without being held liable for
contempt of court. The suspended lawyer may be
disbarred for violation of the suspension order. Such
judgment however does not prohibit pro se practice.
(Geeslin v. Navarro, A.C. No. 2033, May 1990).
a. Procedure for Disbarment
BAR MATTER NO. 1960
(May 1, 2000)
AMENDMENT OF SECTION 1, RULE 139-B OF THE
REVISED RULES OF COURT
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
119
UST Golden Notes 2011
Q: How is a disbarment proceeding instituted?
requiring him to answer within 15 days from
service.
A: Proceedings for disbarment, suspension or
discipline of attorneys may be taken by the:
3.
Supreme Court motu proprio; or
Integrated Bar of the Philippines (IBP)
upon the verified complaint of any person.
The complaint shall state clearly and
concisely the facts complained of and shall
be supported by affidavits of persons
having personal knowledge of the facts
therein alleged and/or by such documents
as may substantiate said facts.
The respondent shall file a verified answer
containing 6 copies; after receipt of the
answer or lapse of the period to do so, the
Supreme Court, may, motu proprio or at the
instance of the IBP Board of Governors, upon
recommendation by the investigator,
suspend an attorney from practice, for any
of the causes under Rule 138, Sec. 27, during
the pendency of the investigation
4.
After joinder of the issues or failure to
answer, the respondent shall be given full
opportunity to defend himself. But if the
respondent fails to appear to defend himself
in spite of notice, the investigator may
proceed ex parte. The investigation shall be
terminated within 3 months from
commencement which period may be
extended.
5.
The investigator shall make a report to the
Board of Governors within 30 days from
termination of the investigation which report
shall
contain
his
findings
and
recommendations together with the
evidence.
6.
The Board of Governors shall have the power
to review the decision of the investigator. Its
decision shall be promulgated within a
period not exceeding 30 days from the next
meeting of the Board following the
submission of the report of the investigator.
7.
If the decision is a finding of guilt of the
charges, the IBP Board of Governors shall
issue a resolution setting forth its findings
and recommendations which shall be
transmitted to the Supreme Court for final
action together with the record.
1.
2.
Disbarment Proceedings Before the IBP
The IBP Board of Governors may:
1.
2.
3.
4.
Motu proprio; or
Upon referral by the Supreme Court; or
By a Chapter Board of Officers; or
At the instance of any person, initiate
and prosecute proper charges against
erring attorneys including those in the
government service; Provided, however,
that all charges against Justices of the
Court of Tax Appeals and the
Sandiganbayan, and Judges of the Court
of Tax Appeals and lower courts, even if
lawyers are jointly charged with them,
shall be filed with the Supreme Court;
Provided, further, that charges filed
against Justices and Judges before the
IBP, including those filed prior to their
appointment in the Judiciary, shall
immediately be forwarded to the
Supreme Court for disposition and
adjudication.
"Six (6) copies of the verified complaint shall be
filed with the Secretary of the IBP or the
Secretary of any of its chapters who shall
forthwith transmit the same to the IBP Board
of Governors for assignment to an
investigator.” (Sec. 1, third par., Rule 139-B,
RRC)
Procedural Steps for Disbarment in the IBP:
1.
2.
120
The Board of Governors shall appoint from
among the IBP members an investigator or
when special circumstances so warrant, a
panel of 3 investigators to investigate the
complaint;
If the complaint is meritorious, the
respondent shall be served with a copy
If the decision is for exoneration, or if the
sanction is less than suspension or dismissal,
the Board shall issue a decision exonerating
the respondent of imposing a lesser
sanction. The resolution exonerating the
respondent shall be considered as
terminating the case unless upon petition of
the complainant or other interested party
filed with the Supreme Court within 15 days
from notice of the Board’s decision.
Resolution of the Court En Banc dated
June 17, 2008 B.M. No. 1755
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – discipline of lawyers
records of the IBP National Office shall
constitute sufficient notice to a lawyer for
purposes of administrative proceedings
against him. (Keld Stemmerik v. Atty. Leonuel
Mas, A.C. No. 8010, June 16, 2009)
(Re: Rules of Procedure of the Commission on
Bar Discipline)
Q: Is a motion for reconsideration allowed?
A: It depends.
1. A party can no longer file a motion for
reconsideration of any order or resolution
of the Investigating Commissioner, such
motion being a prohibited pleading.
2.
Regarding the issue of whether a motion
for reconsideration of a decision or
resolution of the Board of Governors
(BOG) can be entertained, an aggrieved
party can file said motion with the BOG
within fifteen (15) days from notice of
receipt thereof by said party.
3.
In case a decision is rendered by the BOG
that exonerates the respondent or
imposes a sanction less than suspension
or disbarment, the aggrieved party can file
a motion for reconsideration within the
15-day period from notice. If the motion is
denied, said party can file a petition for a
review under Rule 45 of the Rules of Court
with the Supreme Court within fifteen (15)
days from notice of the resolution
resolving the motion. If no motion for
reconsideration is filed, the decision shall
become final and executory and a copy of
said decision shall be furnished the
Supreme Court.
4.
If the imposable penalty is suspension
from the practice of law or disbarment,
the BOG shall issue a resolution setting
forth its findings and recommendations.
The aggrieved party can file a motion for
reconsideration of said resolution with the
BOG within fifteen (15) days from notice.
The BOG shall first resolve the incident
and shall thereafter elevate the assailed
resolution with the entire case records to
the Supreme Court for final action. If the
15-day period lapses without any motion
for reconsideration having been filed, then
the BOG shall likewise transmit to this
Court the resolution with the entire case
records for appropriate action.
Note: Lawyers must update their records
with the IBP by informing the IBP National
Office or their respective chapters of any
change in office or residential address and
other contact details. In case such change is
not duly updated, service of notice on the
office or residential address appearing in the
Disbarment Proceedings Before the Supreme
Court
1.
In proceedings initiated motu proprio by the
Supreme Court or in other proceeding when
the interest of justice so requires, the
Supreme Court may refer the case for
investigation to the Solicitor General or to
any officer of the Supreme Court or judge of
a lower court, in which case the investigation
shall proceed in the same manner provided
in Sections 6 to 11 of Rule 139-B, RRC, save
that the review of the report of investigation
shall be conducted directly by the Supreme
Court (Sec. 13, Rule 139-B, RRC)
Note: Reference of the Court to the IBP of
complaints against lawyers is not mandatory
(Zaldivar v. Sandiganbayan, G.R. Nos. 79590707; Zaldivar v. Gonzales, G.R. No. 80578,
October 7,1988).
Note: Reference of complaints to the IBP is not
an exclusive procedure under Rule 139-B, RRC.
The Court may conduct disciplinary proceedings
without the intervention of the IBP by referring
cases for investigation to the Solicitor General
or to any officer of the Supreme Court or judge
of a lower court. In such case, the report or
recommendation of the investigating official
shall be reviewed directly by the Supreme
Court. (Bautista v. Gonzales, A.M. No. 1626,
February 12,1990; Funa, 2009)
2.
Based upon the evidence adduced at the
investigation, the Solicitor General or other
Investigator designated by the Supreme
Court a report containing his findings of fact
and recommendations together with the
record and all the evidence presented in the
investigation for the final action of the
Supreme Court. (Sec. 14, Rule 139-B, RRC)
Q: Atty. Narag’s spouse filed a petition for
disbarment because her husband courted one of
his students, maintained the said student as a
mistress and had children with her. On the other
hand, Atty. Narag claimed that his wife was a
possessive, jealous woman who abused him and
filed the complaint against him out of spite.
Atty. Narag, however, failed to refute the
testimony given against him. His actions were of
public knowledge. Is Atty. Narag’s disbarment
appropriate?
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
121
UST Golden Notes 2011
A: Yes, Atty. Narag failed to prove his innocence
because he failed to refute the testimony given
against him and it was proved that his actions
were of public knowledge and brought disrepute
and suffering to his wife and children. Good
moral character is a continuing qualification
required of every member of the bar. Thus, when
a lawyer fails to meet the exacting standard of
moral integrity, the Supreme Court may withdraw
his or her privilege to practice law. When a lawyer
is found guilty of gross immoral conduct, he may
be suspended or disbarred. As a lawyer, one
must not only refrain from adulterous
relationships but must not behave in a way that
scandalizes the public by creating a belief that he
is flouting those moral standards. (Narag v. Atty.
Narag, A.C. No. 3405, June 29, 1998)
Q: What is the effect of a lawyer’s death during
pendency of disciplinary action against him?
A:
1.
2.
122
Renders the action moot and academic,
but
The Court may still resolve the case on
its merit in order to clear publicly the
name of the lawyer.
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – discipline of lawyers
PROCEDURE FOR DISBARMENT OR DISCIPLINE
OF ATTONEYS BY THE SUPREME COURT MOTU PROPRIO
(Rule 139-B, RRC)
Supreme Court shall refer the case to an
investigator, who may either be:
1.
2.
3.
Solicitor General,
Any officer of the SC, or
Any judge of a lower court
Notify Respondent
RESPONDENT’S VERIFIED ANSWER (Must be filed
within 15 days from service)
INVESTIGATION
(Terminate within 3 months)
REPORT TO SUPREME COURT (to be submitted not later
than 30 days from investigation’s termination)
REPORT MUST CONTAIN THE INVESTIGATOR’S:
1.
2.
Findings of fact
Recommendations
SUPREME COURT
FOR REVIEW or
JUDGMENT
Note: An investigating judge cannot dismiss a case. The investigating judge’s authority is only to investigate, make a report and
recommendation on the case to be submitted to the SC for final determination. (Garciano v. Sebastian, A.M. MTJ-88-160, Mar. 30,
1994)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
123
UST Golden Notes 2011
PROCEDURE FOR DISBARMENT OR DISCIPLINE OF ATTORNEYS BY THE IBP
(Rule 139-B, RRC)
IBP Motu Proprio (Committee on Bar
Discipline through National Grievance
Investigator)
1.
2.
3.
VERIFIED COMPLAINT TO THE IBP BY
ANY PERSON
Complaint must be:
In writing;
State facts complained of; and
Supported by affidavits / documents
Shall appoint an investigator / panel of 3
investigators and notify respondent
RECOMMEND DISMISSALIF NOT
MERITORIOUS
IF MERITORIOUS, RESPONDENT’S VERIFIED
ANSWER
(Must be filed within 15 days from service)
DISMISSAL BY BOARD OF GOVERNORS –
(should be promulgated within a period
not exceeding 30 days from the next
meeting of the board following the
submittal of the investigator’s report)
INVESTIGATION (terminate within 3 months)
1.
2.
3.
BOARD OF GOVERNORS FOR REVIEW (issues a
Resolution – Should be promulgated within a
period not exceeding 30 days from the next
meeting of the board following the submittal of
the Investigator’s Report.)
ISSUE DECISION IF:

Exonerated
 Sanction is less
than suspension /
disbarment
(admonition,
reprimand, or fine)
124
Investigator may issue subpoenas and
administer oaths,
Provide respondent with opportunity
to be heard,
May proceed with investigation ex
parte should respondent fail to appear.
REPORT TO BOARD OF GOVERNORS (Submitted
not later than 30 days from termination of
investigation) containing:

Findings of facts

Recommendations
SUPREME COURT FOR
JUDGMENT
The case shall be deemed terminated unless upon
petition of the complainant or other interested party
filed with the Supreme Court within fifteen (15) days
from notice of the Board's resolution, the Supreme
Court orders otherwise.
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – discipline of lawyers
Q: What is the effect of the desistance,
withdrawal of complaint or non-appearance of
complainant in disbarment proceedings?
5.
6.
7.
8.
9.
A: The desistance or the withdrawal of the
complainant of the charges against a
judge/lawyer does not deprive the court of the
authority to proceed to determine the matter.
Nor does it necessarily result in the dismissal of
the complaint except when, as a consequence of
the withdrawal or desistance no evidence is
adduced to prove the charges.
10.
11.
12.
Q: Is the doctrine of res ipsa loquitur (the thing
speaks for itself) applicable in cases of dismissal
of judges or disbarment of lawyers?
A: Yes. This principle or doctrine applies to both
judges and lawyers. Judges had been dismissed
from the service without need of a formal
investigation because based on the records, the
gross misconduct or inefficiency of judges clearly
appears. (Uy v. Mercado, A.M. No. R-368-MTJ,
Sept. 30, 1987)
The same principle applies to lawyers. Thus,
where on the basis of the lawyer’s comment or
answer to show a show-cause order of SC, it
appears that the lawyer has so conducted himself
in a manner which exhibits his blatant disrespect
to the court, or his want of good moral character
or his violation of the attorney’s oath, the lawyer
may be suspended or disbarred without need of
trial-type proceeding. What counts is that the
lawyer has been given the opportunity to air his
side. (Prudential Bank v. Castro, A.M. No. 2756,
June 5, 1986) (1996, 2003 Bar Question)
13.
14.
15.
16.
17.
Note: Disbarment should not be decreed where any
punishment less severe such as reprimand,
suspension or fine would accomplish the end
desired. (Amaya v. Tecson, A.C. No. 5996, Feb. 7,
2005)
Q: What are the aggravating circumstances in
disbarment?
A:
1. Prior disciplinary offenses;
2. Dishonest or selfish motives;
3. A pattern of misconduct;
4. Multiple offenses;
5. Bad faith obstruction of the disciplinary
proceeding by intentionally failing to
comply with rules or orders of the
disciplinary agency;
6. Submission of false evidence, false
statements, or other deceptive practices
during the disciplinary process;
7. Refusal to acknowledge wrongful nature
of conduct;
8. Vulnerability of victim;
9. Substantial experience in the practice of
law; and
10. Indifference to making restitution. (IBP
Guidelines 9.22)
b. Defenses
Note: The extent of disciplinary action depends on
the attendance of mitigating or aggravating
circumstances.
Q: What are the mitigating circumstances in
disbarment?
A:
1.
2.
3.
4.
Good faith in the acquisition of a property
of the client subject of litigation (In Re:
Ruste, A.M. No. 632, June 27, 1940);
Inexperience of the lawyer (Munoz v.
People, G.R. No. L-33672, Sept. 28, 1973);
Age (Santos v. Tan, A.C. No. 2697, Apr. 19,
1991);
Apology (Munoz v. People, G.R. No. L33672, Sept. 28, 1973);
Lack of Intention to slight or offend the
Court (Rheem of the Philippines, Inc. v.
Ferrer, G.R. No. L-22979, Jan. 27, 1967);
Absence of prior disciplinary record;
Absence of dishonest or selfish motive;
Personal or emotional problems;
Timely good faith effort to make
restitution or to rectify consequences of
misconduct;
Full and free disclosure to disciplinary
board or cooperative attitude toward the
proceedings;
Character or reputation;
Physical or mental disability or
impairment;
Delay in disciplinary proceedings;
Interim rehabilitation;
Imposition of other penalties or sanctions;
Remorse; and
Remoteness of prior offenses. (IBP
Guidelines 9.32)
Q: What are the instances that are neither
aggravating nor mitigating?
A:
1.
2.
Forced or compelled restitution;
Agreeing to the client’s demand for
certain improper behavior or result;
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
125
UST Golden Notes 2011
3.
4.
5.
6.
Withdrawal of complaint against the
lawyer;
Resignation prior to completion of
disciplinary proceedings;
Complainants recommendation as to
sanctions; or
Failure of injured client to complain. (IBP
Guideline 9.4)
Q: What are the guidelines to be observed in the
matter of the lifting of an order suspending a
lawyer from the practice of law?
Q: Is a lawyer suspended from the practice of
law in another country automatically results in
his suspension or disbarment in the Philippines?
A: No. The acts which led to his suspension in
another country, are mere grounds for
disbarment or suspension in this jurisdiction, and
only if the basis of the foreign court’s action
includes any of the grounds for disbarment or
suspension in this jurisdiction. (In re: Suspension
from the practice of law in the territory of Guam
of Atty. Maquera, A.M. No. 793, July 30, 2004)
(2002, 2006 Bar Question)
A:
1.
2.
3.
Upon the expiration of the period of
suspension, respondent shall file a Sworn
Statement with the Court, through the
Office of the Bar Confidant, stating therein
that he or she has desisted from the
practice of law and has not appeared in
any court during the period of his or her
suspension;
Copies of the Sworn Statement shall be
furnished to the Local Chapter of the IBP
and to the Executive Judge of the courts
where respondent has pending cases
handled by him or her, and/or where he
or she has appeared as counsel; and
The Sworn Statement shall be considered
as proof of respondent’s compliance with
the order of suspension;
Q: Atty. LA is a member of the Philippine Bar and
the California Bar in the United States. For willful
disobedience of a lawful order of a Superior
Court in Los Angeles, Atty. LA was suspended
from the practice of law in California for one (1)
year.
May his suspension abroad be considered a
ground for disciplinary action against Atty. LA in
the Philippines? Why?
A: The suspension of Atty. LA from the practice of
law abroad may be considered as a ground for
disciplinary action here if such suspension was
based on one of the grounds for disbarment in
the Philippines or shows a loss of his good moral
character, a qualification he has to maintain in
order to remain a member of the Philippine Bar.
(2002 Bar Question)
D. DISCIPLINE OF FILIPINO LAWYERS PRACTICE IN
FOREIGN JURISDICTIONS
Q: What is the effect in the Philippines of the
disbarment or suspension of a Filipino lawyer in
a foreign country?
A: If the Filipino lawyer is disbarred or suspended
from the practice of law by a competent court or
disciplinary agency in a foreign jurisdiction where
he has been admitted as an attorney, and a
ground therefor includes any of the acts
enumerated in Section 27, Rule 138 of the RRC,
such disbarment or suspension is a ground for his
disbarment
or
suspension
in
the
Philippines.(Lapena, 2009)
Note: The judgment, resolution or order of the
foreign court or disciplinary agency shall be prima
facie evidence of the ground for disbarment or
suspension. (SC Resolution date 21 February 1992
amending Sec. 27,Rule 138, RRC)
126
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics - Readmission to the Bar
IV. READMISSION TO THE BAR
Q: What is reinstatement?
A: It is the restoration in disbarment proceedings
to a disbarred lawyer the privilege to practice law.
Note: The power of the Supreme Court to reinstate
is based on its constitutional prerogative to
promulgate rules on the admission of applicants to
the practice of law. (Sec. 5[5], Art. VIII, 1987
Constitution)
Q: What are the conditions in reinstatement?
A: The applicant must, like a candidate for
admission to the Bar, satisfy the Court that he is a
person of good moral character – a fit and proper
person to practice law.
A. READMISSION TO THE BAR OF LAWYERS WHO
HAVE BEEN SUSPENDED
Q: Raul Gonzales was found guilty of both
contempt of court in facie curiae and gross
misconduct as an officer of court and member of
the bar. For this, he was suspended indefinitely.
After more than 4 years from his suspension,
Gonzales filed an ex-parte motion to lift his
suspension from the practice of law, alleging
that he gave free legal aid services by paying
lawyers to do the same as he could not
personally represent said clients; pursued civic
work for the poor; brought honor to the country
by delivering a paper in Switzerland; that he has
a long record in the service of human rights and
the rule of law; his suspension of 51 months has
been the longest so far; states his profound
regrets for the inconvenience which he has
caused to the Court; sincerely reiterates his
respect to the institution as he reiterates his
oath to conduct himself as a lawyer. May his
suspension be lifted?
A: Yes. The Gonzales’ contrition, so noticeably
absent in his earlier pleadings, has washed clean
the offense of his disrespect. His remorse has
soften his arrogance and made up for his
misconduct. Gonzales’ suspension has given him
ample time and opportunity to amend his erring
ways, rehabilitate himself, and thus, prove
himself worthy once again to enjoy the privileges
of membership of the Bar. His motion was
granted. (Zaldivar v. Gonzales, G.R. Nos. 79690707, April 7, 1993)
Q: Is the lifting of the suspension order
automatic?
A: No. The lifting of a lawyer’s suspension is not
automatic upon the end of the period stated in
the Court’s decision, and an order from the Court
lifting the suspension at the end of the period is
necessary in order to enable [him] to resume the
practice of his profession. (J.K. Mercado and Sons
Agricultural Enterprises, Inc. et al. v. Atty. de
Vera, et al. and Atty. de Vera v. Atty. Encanto, et
al.)
Thus, according to the OBC, a suspended lawyer
must first present proof(s) of his compliance by
submitting certifications from the Integrated Bar
of the Philippines and from the Executive Judge
that he has indeed desisted from the practice of
law during the period of suspension. Thereafter,
the Court, after evaluation, and upon a favorable
recommendation from the OBC, will issue a
resolution lifting the order of suspension and thus
allow him to resume the practice of
law. (Maniago v. Atty. De Dios, A.C. No. 7472,
March 30, 2010)
Q: What are the guidelines to be observed in
case of lifting an order suspending a lawyer from
the practice of law?
A: The following guidelines were issued by the
Supreme Court, the same to be observed in the
matter of the lifting of an order suspending a
lawyer from the practice of law:
1.
After a finding that respondent lawyer
must be suspended from the practice of
law, the Court shall render a decision
imposing the penalty;
2.
Unless the Court explicitly states that the
decision is immediately executory upon
receipt thereof, respondent has 15 days
within which to file a motion for
reconsideration thereof. The denial of
said motion shall render the decision final
and executory;
3.
Upon the expiration of the period of
suspension, respondent shall file a Sworn
Statement with the Court, through the
Office of the Bar Confidant, stating therein
that he or she has desisted from the
practice of law and has not appeared in
any court during the period of his or her
suspension;
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
127
UST Golden Notes 2011
4.
Copies of the Sworn Statement shall be
furnished to the Local Chapter of the IBP
and to the Executive Judge of the courts
where respondent has pending cases
handled by him or her, and/or where he
or she has appeared as counsel;
5.
The Sworn Statement shall be considered
as proof of respondent’s compliance with
the order of suspension;
6.
Any finding or report contrary to the
statements made by the lawyer under
oath shall be a ground for the imposition
of a more severe punishment, or
disbarment, as may be warranted.
B. READMISSION TO THE BAR OF LAWYERS WHO
HAVE BEEN DISBARRED
Q: What must the Supreme Court take into
consideration in reinstatement?
A:
3.
4.
Q: Is a disbarred lawyer by reason of conviction
of a crime automatically reinstated to the
practice of law upon being pardoned by the
President?
A: No. To be reinstated, there is still a need for
the filing of an appropriate petition with the
Supreme Court. (In re: Rovero, A.M. No. 126, Dec.
29, 1980)
Q: What is the effect if during the pendency of a
disbarment proceeding, the erring lawyer was
granted executive pardon?
The applicant’s character and standing
prior to the disbarment;
The nature and character of the charge for
which he was disbarred;
His conduct subsequent to the
disbarment, and the time that has elapsed
between the disbarment and the
application for reinstatement; (Prudential
Bank v. Benjamin Grecia, A.C. No. 2756,
Dec. 18, 1990)
His efficient government service; (In re:
Adriatico, G.R. No. L-2532, Nov. 17, 1910)
Applicant’s
appreciation
of
the
significance of his dereliction and his
assurance that he now possesses the
requisite probity and integrity; and
Favorable endorsement of the IBP and
pleas of his loved ones. (Yap Tan v.
Sabandal, B.M. No. 144, Feb. 24, 1989)
A: If during the pendency of a disbarment
proceeding the respondent was granted
executive pardon, the dismissal of the case on
that sole basis will depend on whether the
executive pardon is absolute or conditional.
Note: Whether or not the applicant shall be
reinstated rests on the discretion of the court.
(Prudential Bank v. Benjamin Grecia, A.C. No. 2756,
Dec. 18, 1990)
A: An absolute pardon by the President is one
that operates to wipe out the conviction as well
as the offense itself. The grant thereof to a lawyer
is a bar to a proceeding for disbarment against
him, if such proceeding is based solely on the fact
of such conviction. (In re: Parcasio, A.C. No. 100,
Feb. 18, 1976)
1.
2.
3.
4.
5.
6.
The court may require applicant for reinstatement to
enroll in and pass the required fourth year review
classes in a recognized law school. (Cui v. Cui, In Re:
Resian A.C. No. 270, Mar. 1974)
Q: What is the effect of reinstatement?
A:
1.
128
2.
resulting from a previous disbarment (Cui
v. Cui, G.R. No. L-18727, Aug. 31, 1964);
Recognition of moral rehabilitation and
mental fitness to practice law;
Lawyer shall be subject to same law, rules
and regulations as those applicable to any
other lawyer; and
Lawyer must comply with the conditions
imposed on his readmission.
Reinstatement to the roll of attorneys
wipes out the restrictions and disabilities
1.
2.
Absolute or unconditional pardon - the
disbarment case will be dismissed.
Conditional pardon - the disbarment case
will not be dismissed on the basis thereof.
Q: X filed proceedings for disbarment against his
lawyer, Atty. C, following the latter’s conviction
for estafa for misappropriating funds belonging
to his client (X). While the proceedings for
disbarment was pending, the President granted
absolute pardon in favor of Atty. C. Atty. C, then,
moved for the dismissal of the disbarment case.
Should the motion be granted?
But where the proceeding to disbar is founded on
the professional misconduct involved in the
transaction which culminated in his conviction,
the effect of the pardon is only to relieve him of
the penal consequences of his act and does not
operate as a bar to the disbarment proceeding,
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics - Readmission to the Bar
inasmuch as the criminal acts may nevertheless
constitute proof that the attorney does not
possess good moral character. (In re: Lontok, 43
Phil. 293, Apr. 7, 1922)
Note: In the light of recent court pronouncements
that a lawyer may be disciplined even for nonprofessional misconduct, one may argue that a
lawyer convicted of a crime involving moral
turpitude, and subsequently receives absolute
pardon, may still be proceeded against under the
Code of Professional Responsibility even if the acts
of which he was found guilty did not involve
professional misconduct (A modification of In Re
Lontok, supra). The ground for the petition for
disciplinary action under the Code must, however,
not be founded alone on the conviction but must be
based on the acts committed by the lawyer which
rendered him morally unfit to be a member of the
bar. (Aguirre, Legal and Judicial Ethics. A Pre-week
Reviewer, 2006 Edition)
Q: X, a member of the Bar, was charged with and
found guilty of estafa, for which he was
sentenced to suffer imprisonment and to
indemnify the offended party for the amount
Involved. Not having taken an appeal from the
judgment of conviction, upon finality thereof he
was taken into custody to serve sentence. A
month after he was incarcerated, he was
granted pardon by the Chief Executive on
condition that he would not commit another
offense during the unserved portion of his prison
sentence. Soon after X’s release from custody
after being pardoned, the offended party in the
criminal case filed a Complaint for Disbarment
against X in the Supreme Court. X set up the
defense that having been pardoned by the Chief
Executive for which reason he was released from
imprisonment, he may not be disbarred from the
practice of law anymore. Is X’s contention
tenable?
A: X’s contention is not tenable. He was granted
only a conditional pardon. Such conditional
pardon merely relieved him of the penal
consequences of his act but did not operate as a
bar to his disbarment. Such pardon does not
reach the offense itself. Hence, it does not
constitute a bar to his disbarment. (In re
Gutierrez, A.C. No. L-363, July 31, 1962; In re
Avancena, A.C. No. 407, August 15, 1967).
Furthermore, the acts of X leading to his
conviction may be used to show that he does not
possess the necessary requirement of good moral
character for continued membership in the Bar
(In re Valloces, A.C. No. 439, September 30, 1982).
(1999 Bar Question)
C. READMISSION TO THE BAR OF LAWYERS WHO
HAVE BEEN REPATRIATED
Q: What are the effects of loss and reacquisition
of Philippine citizenship?
A: The loss of Philippine citizenship ipso jure
terminates the privilege to practice law in the
Philippines.
However, pursuant to R.A. No. 9225 of the
Citizenship Retention and Reacquisition Act of
2003, “Filipino lawyer who becomes a citizen of
another country is deemed never to have lost his
Philippine citizenship IF HE REACQUIRES IT IN
ACCORDANCE WITH R.A. NO. 9225. Nevertheless,
his right to practice law DOES NOT
AUTOMATICALLY ACCRUE. He must first secure
authority from the Supreme Court upon
compliance with the following conditions:
1.
2.
3.
4.
The updating and payment in full of
annual membership dues in the IBP;
Payment of professional tax;
Completion of at least 36 credit hours of
mandatory continuing legal educations;
and
Retaking of the lawyer’s oath
Q: Dacanay practiced law until he migrated to
Canada to seek medical attention to his
ailments. He subsequently applied for Canadian
citizenship to avail of Canada’s free medical aid
program. His application was approved and he
became a Canadian citizen. Dacanay later on
reacquired his Philippine citizenship by virtue of
R.A. 9225.
Did Dacanay lose his membership in the
Philippine bar when he gave up his Philippine
citizenship? Can he automatically practice law
upon reacquiring Filipino citizenship?
A: The Constitution provides that the practice of
all professions in the Philippines shall be limited
to Filipino citizens save in cases prescribed by law.
Since Filipino citizenship is a requirement for
admission to the bar, loss thereof terminates
membership in the Philippine bar and,
consequently, the privilege to engage in the
practice of law. In other words, the loss of Filipino
citizenship ipso jure terminates the privilege to
practice law in the Philippines. The practice of law
is a privilege denied to foreigners.
The exception is when Filipino citizenship is lost
by reason of naturalization as a citizen of another
country but subsequently reacquired pursuant to
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
129
UST Golden Notes 2011
R.A. 9225. This is because “all Philippine citizens
who become citizens of another country shall be
deemed not to have lost their Philippine
citizenship under the conditions of R.A. 9225.”
Therefore, a Filipino lawyer who becomes a
citizen of another country is deemed never to
have lost his Philippine citizenship if he reacquires
it in accordance with R.A. 9225. Although he is
also deemed never to have terminated his
membership in the Philippine bar, no automatic
right to resume law practice accrues.
Before a lawyer who reacquires Filipino
citizenship pursuant to R.A. 9225 can resume his
law practice, he must first secure from the SC the
authority to do so, conditioned on:
1.
2.
3.
The updating and payment in full of the
annual membership dues in the IBP;
The payment of professional tax;
The completion of at least 36 credit hours
of mandatory continuing legal education,
this is specially significant to refresh the
applicant/petitioner’s
knowledge
of
Philippine laws and update him of legal
developments; and
The retaking of the lawyer’s oath which will not
only remind him of his duties and responsibilities
as a lawyer and as an officer of the Court, but also
renew his pledge to maintain allegiance to the
Republic of the Philippines. (Petition for Leave to
Resume Practice of Law of Benjamin Dacanay,
B.M. No. 1678, Dec. 17, 2007)
130
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Notarial Practice
Q: What are the classes of credits?
V. MANDATORY CONTINUING LEGAL
EDUCATION (MCLE)
A:
1.
Participatory credit – Attending approved
education activities like seminars,
conventions, symposia, and the like;
speaking or lecturing, or assigned as
panelist, reactor, or commentator, etc. in
approved education activities; teaching in
law school or lecturing in bar review
classes.
2.
Non-participatory – Preparing, as author
or co-author, written materials (article,
book or book review) which contribute to
the legal education of the author member,
which were not prepared in the ordinary
course of his practice or employment;
editing a law book, law journal or legal
newsletter.
A. PURPOSE
Q: What is the purpose of Bar Matter 850 MCLE?
A: MCLE is required of members of the IBP 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. (2003, 2006 Bar
Questions)
Q: What is the Composition of the Committee on
Mandatory Continuing Legal Education?
A:
1.
2.
3.
4.
Composition:
a. Retired Justice of the SC – Chairman,
nominated by the SC
b. IBP National President – Vice-Chair
c. 3 other members – nominated by the
Philippine Judicial Academy, UP Law
Center and Association of Law
Professors, respectively.
Members are of proven probity and
integrity
Compensation as may be determined by
the SC.
The initial terms of each of the 3 members
shall be 5, 4, and 3 years respectively.
C. COMPLIANCE
Q: What constitutes non-compliance of MCLE?
A:
1.
2.
3.
4.
B. REQUIREMENTS
Q: What are the requirements of completion of
MCLE?
A: Requirements of 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. The 36
hours shall be divided as follows:
1.
2.
3.
4.
5.
6.
7.
6 hours – legal ethics
4 hours – trial and pretrial skills
5 hours – alternative dispute resolution
9 hours – updates on substantive and
procedural laws and jurisprudence
4 hours – legal writing and oral advocacy
2 hours – international law and
international conventions
Remaining 6 hours – such other subjects
as may be prescribed by the Committee
on MCLE.
5.
6.
Failure
to
complete
education
requirement within the compliance
period;
Failure to provide attestation of
compliance or exemption;
Failure to provide satisfactory evidence of
compliance (including evidence of exempt
status) within the prescribed period;
Failure to satisfy the education
requirement and furnish evidence of such
compliance within 60 days from receipt of
non-compliance notice;
Failure to pay non-compliance fee within
the prescribed period; or
Any other act or omission analogous to
any of the foregoing or intended to
circumvent or evade compliance with the
MCLE requirements.
Note: Members failing to comply will receive a NonCompliance Notice stating the specific deficiency and
will be given 60 days from date of notification to file
a response.
D. EXEMPTIONS
Q: Who are the persons exempted from the
MCLE?
A:
1.
The President, Vice-President and the
Secretaries and Undersecretaries of
Executive Departments;
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
131
UST Golden Notes 2011
2.
Senators and Members of the House of
Representatives;
3. The Chief Justice and Associate Justices of
the Supreme Court, incumbent and retired
members of the judiciary, incumbent
members of Judicial Bar Council,
incumbent members of the MCLE
Committee, incumbent court lawyers who
have availed of the Philippine Judicial
Academy programs of continuing judicial
education (Amendment to Bar Matter 850,
Resolution of the Court En Banc, July 13,
2004);
4. The Chief State Counsel, Chief State
Prosecutor and Assistant Secretaries of
the Dept. of Justice;
5. The Solicitor General and the Assistant
Solicitor General;
6. The Government Corporate Counsel,
Deputy and Assistant Government
Corporate Counsel;
7. The Chairman and Members of the
Constitutional Commissions;
8. The Ombudsman, the Overall Deputy
Ombudsman, the Deputy Ombudsmen
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 in
accredited law schools;
11. The Chancellor, Vice-Chancellor and
members of the Corps of Professional and
Professorial Lecturers of the Philippine
Judicial Academy; and
12. Governors and Mayors. (2006 Bar
Question)
accordance with procedure to be established by
the Committee on MCLE.
Note: Applications for exemption from or
modification of the MCLE requirement shall be
under oath and supported by documents.
E. SANCTIONS
Q: What are the consequences of noncompliance?
A: A member who fails to comply with the
requirements after the 60-day period shall be
listed as delinquent member by the IBP Board of
Governors upon recommendation of the
Committee on MCLE.
Note: The listing as a delinquent member is
administrative in nature but shall be made with
notice and hearing by the Committee on MCLE.
B.M. No. 1922, which took effect on January 1, 2009,
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 the required information would cause the
dismissal of the case and the expunction of the
pleadings from the records.
Other parties exempted:
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.
Q: May a member of the bar not included in the
enumeration ask for exemption?
A: Yes, if there is a good cause for exemption
from or modification of requirement. A member
may file a verified request setting forth good
cause for exemption (such as physical disability,
illness, post-graduate study abroad, proven
expertise in law, etc.) from compliance with or
modification of any of the requirements,
including an extension of time for compliance, in
132
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Notarial Practice
Q: Is a lawyer always a notary public?
VI. NOTARIAL PRACTICE
(1996, 2005, 2007 Bar Question)
Q: What is the purpose of notarial law (A.M. No.
02-8-13-SC)?
A:
1.
2.
3.
To promote, serve, and protect public
interest;
To simplify, clarify, and modernize the
rules governing notaries public; and
To foster ethical conduct among notaries
public. (Sec. 2, Rule I, A.M. No. 02-8-13-SC)
A. QUALIFICATIONS OF NOTARY PUBLIC
Q: Who is a notary public?
A: A person appointed by the court whose duty is
to attest to the genuineness of any deed or
writing in order to render them available as
evidence of facts stated therein and who is
authorized by the statute to administer various
oaths.
Note: “Notary Public" and "Notary" refer to any
person commissioned to perform official acts under
the rules on Notarial Practice. (Sec. 9, Rule II, A.M.
No. 02-8-13-SC)
A: No. Not every member of the Bar is a notary
public because a lawyer requires a commission of
appointment to be designated as a notary public.
Note: Notarization is not an empty, meaningless,
routinary act. It is invested with substantive public
interest, such that only those who are qualified or
authorized may act as notaries public. For this
reason notaries public must observe with utmost
care the basic requirements in the performance of
their duties. Otherwise, the confidence of the public
in the integrity of this form of conveyance would be
undermined. (Vda. De Rosales v. Ramos, A.C. No.
5645, July 2, 2002)
Q: What are the 2 kinds of duties imposed by
law to a notary public?
A:
1.
2.
Execution of formalities required by law;
and
Verification of the capacity and identity of
the parties as well as the legality of the act
executed.
Q: What are the duties of a notary public?
A:
1.
2.
Q. What must one possess to qualify as a notary
public?
3.
A: To be eligible for commissioning as notary
public, the petitioner must be:
4.
1.
A citizen of the Philippines;
2.
Over 21 years of age;
5.
3.
A resident in the Philippines for at least 1
year and maintains a regular place of work
or business in the city or province where
the commission is to be issued;
6.
4.
A member of the Philippine Bar in good
standing with clearances from the Office
of the Bar Confidant of the Supreme Court
and the Integrated Bar of the Philippines;
and
7.
To keep a notarial register;
To make the proper entry or entries in his
notarial register touching his notarial acts
in the manner required by the law;
To send the copy of the entries to the
proper clerk of court within the first 10
days of the month next following;
To affix to acknowledgments the date of
expiration of his commission, as required
by law;
To forward his notarial register, when
filled, to the proper clerk of court;
To make report, within reasonable time to
the proper judge concerning the
performance of his duties, as may be
required by such judge;
To make the proper notation regarding
residence certificates. (Sec. 240, Rev. Adm.
Code) (1995 Bar Question)
Q. Must a notary public always be a lawyer?
A.
5.
Has not been convicted in the first
instance of any crime involving moral
turpitude. (second par., Sec. 1, Rule III,
2004 Rules on Notarial Practice, A.M. No.
02-8-13-SC)
GR: Yes. Only those admitted to the practice of
law are qualified to be notaries public.
XPN: When there are no persons with the
necessary qualifications or where there are
qualified persons but they refuse appointment.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
133
UST Golden Notes 2011
In which case, the following persons may be
appointed as notaries:
1. Those who passed the studies of law in
a reputable university; or
2. A clerk or deputy clerk of court for a
period of not less than two years.
Q: Can an RTC judge notarize a document?
A: No. Section 35, Rule 138, of the Revised Rules
of Court as well as Canon 5, Rule 5.07 of the Code
of Judicial Conduct provides that no judge or
other official or employee of the superior courts
shall engage in private practice as a member of
the bar or give professional advice to clients.
Notarization of documents is considered a
practice of law.
It is based on sound reasons of public policy, for
there is no question that the rights, duties,
privileges and functions of the office of an
attorney-at-law are so inherently incompatible
with the high official functions, duties, powers,
discretions and privileges of a judge of the
Regional Trial Court. This rule makes it obligatory
upon the judicial officers concerned to give their
full time and attention to their judicial duties,
prevent them from extending special favors for
their own private interests and assure the public
of impartiality in the performance of their
functions.
Q: Are MTC judges prohibited from acting as
notary public?
A: No. MTC and MCTC judges may act as notaries
public ex-officio in the notarization of documents
connected only with the exercise of their official
functions and duties. They may not, as notaries
public ex-officio, undertake the preparation and
acknowledgment of private documents, contracts
and other acts of conveyances which bear no
direct relation to the performance of their
functions as judges.
However, MTC and MCTC judges assigned to
municipalities or circuits with no lawyers or
notaries public may, in the capacity as notaries
public ex-officio, perform any act within the
competence of a regular notary public, provided
that:
1. All notarial fees charged be for the
account of the Government and turned
over to the municipal treasurer; and
2. Certification be made in the notarized
documents attesting to the lack of any
lawyer or notary public in such
municipality or circuit.
134
Q: Vicente Batic charged Judge Victorio Galapon
Jr. with engaging in unauthorized notarial
practice for having notarized a Deed of Absolute
Sale between Antonio Caamic and Lualhati
Ellert. Under the deed of sale, Lualhati Ellert,
was described as single. At the time of Galapon’s
notarization of the Deed of Sale, there was a
notary public in Dulag, Leyte.
Judge Galapon claims that he did not prepare
the document and that his participation was
limited to its acknowledgment, for which the
corresponding fee was collected by and paid to
the clerk of court. Are MTC judges like Judge
Galapon absolutely prohibited from acting as
notaries public?
A: No. While Judge Galapon explains that he
sincerely believed that when no notary public is
available, the MTC may act as ex-officio notary
public, provided the fees shall be for the
government, such is not enough to exonerate him
from liability. His acts do not fall under the
exception because at the time of his notarization
of the Deed of Sale, there was a notary public in
Dulag, Leyte. (Vicente Batic v. Judge Victorio
Galapon Jr., A.M. No. MTJ-99-1239, July 29, 2005)
Q: Is the authority of MTC judges to notarize
limited to their sala?
A: Yes. Their authority to notarize is limited to
their sala.
Q: Can a judge of another town notarize the
complaint to be filed in another town?
A: No. It is considered as a practice of law.
Q: Can a clerk of court notarize a document?
A: Yes. A clerk of court can notarize a document
provided he is commissioned and has been
permitted by his superior. Such consent is
necessary because the act of notarizing a
document is a practice of law.
Q: What are the rules with regard to fees that a
notary public may charge?
A:
1. For performing a notarial act, a notary
public may charge the maximum fee as
prescribed by the Supreme Court unless
he waives the fee in whole or in part (Sec.
1, Rule V, A. M. 02-8-13-SC);
2. A notary public may charge travel fees and
expenses separate and apart from the
notarial fees when traveling to perform a
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Notarial Practice
3.
4.
5.
notarial act if the notary public and the
person requesting the notarial act agree
prior to the travel (Sec. 2, Rule V, A. M. 02813-SC);
No fee or compensation of any kind,
except those expressly prescribed and
allowed herein, shall be collected or
received for any notarial service (Sec. 3,
Rule V, A. M. 02-813-SC);
A notary public shall not require payment
of any fees specified herein prior to the
performance of a notarial act unless
otherwise agreed upon( first par., Sec. 4,
Rule V, A. M. 02-813-SC);
Any travel fees and expenses paid to a
notary public prior to the performance of
a notarial act are not subject to refund if
the notary public had already traveled but
failed to complete in whole or in part the
notarial act for reasons beyond his control
and without negligence on his part
(second par., Sec. 4, Rule V, A. M. 02-813SC).
Note: A notary public who charges fee for notarial
services shall issue a receipt registered with the
Bureau of Internal revenue and keep a journal of
notarial fees. He shall enter in the journal all fees
charges for services rendered.
of the commission as notary public must not be
treated as a mere casual formality. In fact, Juan’s
act also constitutes falsification of public
document.
Q: What is a commission?
A: It refers to the grant of authority to perform
notarial acts and to the written evidence of the
authority (Sec. 3, Rule II, A.M. 02-8-13-SC).
Q: Who issues a notarial commission?
A: A notarial commission may be issued by an
Executive Judge to any qualified person who
submits a petition in accordance with the Rules
on Notarial Practice. (first par., Sec. 1, Rule III,
A.M. No. 02-8-13-SC)
Q: What is the form of the petition and
supporting
documents
for
a
notarial
commission?
A: Every petition for a notarial commission shall
be in writing, verified, and shall include the
following:
1.
A notary public shall post in a conspicuous place in
his office a complete schedule of chargeable notarial
fees. (Sec. 5, Rule V, A. M. 02-813-SC)
B. TERM OF OFFICE OF A NOTARY PUBLIC
2.
Q: What is the term of office of a notary public?
A: A notary public may perform notarial acts for a
period of 2 years commencing the 1st day of
January of the year in which the commissioning is
made, unless earlier revoked or the notary public
has resigned under the Rules on Notarial Practice
and the Rules of Court.(Section 11, Rule III,A.M.
No. 02-8-13-SC) (1995 Bar Question)
Q: Juan dela Cruz was commissioned as a notary
public in 2001. His friend asked him to notarize a
deed of absolute sale sometime in 2004, to
which he agreed free of charge. A complaint for
malpractice was filed against him. Is Juan dela
Cruz guilty of malpractice?
A: Yes. Absent any showing that his notarial
commission has been renewed, his act constitutes
malpractice because at the time he notarized the
document, his notarial commission has already
expired. It is not a defense that no payment has
been received. The requirement for the issuance
3.
4.
A statement containing the petitioner's
personal qualifications, including the
petitioner's date of birth, residence,
telephone number, professional tax
receipt, roll of attorney's number and IBP
membership number;
Certification of good moral character of
the petitioner by at least 2 executive
officers of the local chapter of the
Integrated Bar of the Philippines where he
is applying for commission;
Proof of payment for the filing of the
petition as required by the Rules on
Notarial Practice; and
Three passport-size color photographs
with light background taken within 30
days of the application. The photograph
should not be retouched. The petitioner
shall sign his name at the bottom part of
the photographs. (Sec. 2,Rule III, A.M. No.
02-8-13-SC)
Note: Every petitioner for a notarial commission
shall pay the application fee as prescribed in the
Rules of Court. (Sec. 3, Rule III, A.M. No. 02-8-13-SC)
Q: Before the Executive Judge shall conduct a
summary hearing on the petition, what
requirements must be met?
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
135
UST Golden Notes 2011
A:
1.
2.
3.
The petition is sufficient in form and
substance;
The petitioner proves the allegations
contained in the petition; and
The petitioner establishes to the
satisfaction of the Executive Judge that he
has read and fully understood the Rules
on Notarial Practice.
Note:: The Executive Judge shall forthwith issue
a commission and a Certificate of Authorization
to Purchase a Notarial Seal in favor of the
petitioner. (Sec. 4, Rule III, A.M. No. 02-8-13-SC)
Note: Any person who has any cause or reason to
object to the grant of the petition may file a verified
written opposition thereto. The opposition must be
received by the Executive Judge before the date of
the summary hearing.(Sec. 6, Rule III, A.M. No. 02-813-SC)
Note: The commissioning of a notary public shall be
in a formal order signed by the Executive Judge. (Sec.
7, Rule III, A.M. No. 02-8-13-SC)
Note: The Executive Judge shall, upon payment of
the application fee, act on an application for renewal
of a commission within thirty (30) days from receipt
thereof. If the application is denied, the Executive
Judge shall state the reasons therefor. (Sec. 14, Rule
III, A.M. No. 02-8-13-SC)
C. POWERS AND LIMITATIONS OF A NOTARY
PUBLIC
Note: “Notarial Act” and “Notarization” refer to any
act that a notary public is empowered to perform
under these Rules. (Sec. 7, Rule II, A.M. 02-8-13-SC)
Q: What are the powers of a notary public?
A: A notary public is empowered to perform the
following notarial acts: JAO-CAS
1. Acknowledgements;
2. Oaths and affirmations;
3. Jurats;
4. Signature witnessings;
5. Copy certifications; and
6. Any other act authorized by these rules
(Section 1(a), Rule IV, A.M. No. 02-8-13-SC)
Note: Every person commissioned as notary
public shall have only one official seal of office.
Acknowledgements
(Sec. 10, Rule III, A.M. No. 02-8-13-SC)
Q: What is an acknowledgement?
Q: What must a notary public do when his
commission expires?
A: Acknowledgment refers to an act in which an
individual on a single occasion:
A: A notary public may file a written application
with the Executive Judge for the renewal of his
commission within 45 days before the expiration
thereof. A mark, image or impression of the seal
of the notary public shall be attached in the
application. (first par., Sec. 13, Rule III, A.M. No.
1.
Note: A notary public cannot perform a
notarial act over a document that has
missing pages, or that contains blanks that
should be filled-in prior to the notarial act.
02-8-13-SC)
Note: If a person is applying for a commission for the
first time, what he files is a petition and not an
application.
2.
Is attested to be personally known to the
notary public or identified by the notary
public through competent evidence of
identity as defined by the Rules on
Notarial Practice; and
3.
Represents to the notary public that the
signature on the instrument or document
was voluntarily affixed by him for the
purposes stated in the instrument or
document, declares that he has executed
the instrument or document as his free
and voluntary act and deed, and, if he acts
in a particular representative capacity,
that he has the authority to sign in that
capacity. (Sec. 1, Rule II, A.M. 02-8-13-SC)
Q: what is the effect of failure of the notary
public to file an application for the renewal of
his commission?
A: Failure to file said application will result in the
deletion of the name of the notary public in the
register of notaries public. (second par., Sec. 13,
Rule III, A.M. No. 02-8-13-SC)
Note: The notary public thus removed from the
Register of Notaries Public may only be
reinstated therein after he is issued a new
commission. (third par., Sec. 13, Rule III, A.M.
No. 02-8-13-SC)
136
Appears in person before the notary
public and presents an integrally complete
instrument or document;
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Notarial Practice
Q: Cabanilla filed a complaint against Atty.
Cristal-Tenorio with the IBP, alleging that he
never appeared before her when she notarized
the deed of sale of his house, and that the
signatures appearing opposite their respective
names were forgeries. Did Atty. Cristal-Tenorio
fail to comply with the mandates of the law
when she notarized the deed of sale without the
complainant and his children? Does such failure
warrant the revocation of her notarial
commission?
A: Yes. Under Section 1(a) of Act 2103, a notary
public taking the acknowledgment in a document
or instrument is mandated to certify that the
person acknowledging the instrument or
document is known to him and that he is the
same person who executed it and acknowledged
that the same is his free act and deed. To
"acknowledge before" means to avow; to own as
genuine, to assert, to admit; and "before" means
in front or preceding in space or ahead of. A party
acknowledging must appear before the notary
public. A notary public should not notarize a
document unless the persons who signed the
same are the very same persons who executed
and personally appeared before the said notary
public to attest to the contents and truth of what
are stated therein. The presence of the parties to
the deed making the acknowledgment will enable
the notary public to verify the genuineness of the
signature of the affiant. A notary public is
enjoined from notarizing a fictitious or spurious
document. The function of a notary public is,
among others, to guard against any illegal deed.
(Cabanilla v. Cristal-Tenorio, A.C. No. 6139, Nov.
11, 2003)
Oaths and Affirmations
Q: What is affirmation or oath?
A: It refers to an act in which an individual on a
single occasion:
1. Appears in person before the notary
public;
2. Is personally known to the notary public
or identified by the notary public through
competent evidence of identity as defined
by the Rules on Notarial Practice; and
3. Avows under penalty of law to the whole
truth of the contents of the instrument or
document. (Sec. 2,Rule II,A.M. No. 02-813-SC)
Republic Act No. 9406.
March 23, 2007.
AN ACT REORGANIZING AND
STRENGTHENING THE PUBLIC ATTORNEY'S
OFFICE (PAO), AMENDING FOR THE PURPOSE
PERTINENT PROVISIONS OF EXECUTIVE ORDER
NO. 292, OTHERWISE KNOWN AS THE
"ADMINISTRATIVE CODE OF 1987", AS
AMENDED, GRANTING SPECIAL ALLOWANCE TO
PAO OFFICIALS AND LAWYERS, AND PROVIDING
FUNDS THEREFOR
Section 8. Sections 41 and 42, Chapter 10, Book I
of the same Code, as amended, is hereby further
amended to read as follows:
Q: Who are the officers authorized to administer
oaths?
A: The following officers have general authority to
administer oaths:
1. President;
2. Vice-President;
3. Members and Secretaries of both Houses
of the Congress;
4. Members of the Judiciary;
5. Secretaries of Departments;
6. provincial governors and lieutenantgovernors;
7. City mayors;
8. Municipal mayors;
9. Bureau directors;
10. Regional directors;
11. Clerk of courts;
12. Registrars of deeds;
13. Other civilian officers in the public service
of the government of the Philippines
whose appointments are vested in the
President and are subject to confirmation
by the Commission on Appointments;
14. All other constitutional officers;
15. PAO lawyers in connection with the
performance of duty; and
16. notaries public.” (Sec. 41)
Q: What is the rule regarding the duty to
administer oaths?
A: Officers authorized to administer oaths, with
the exception of notaries public, municipal judges
and clerks of court, are not obliged to administer
oaths or execute certificates save in matters of
official business or in relation to their functions as
such; and with the exception of notaries public,
the officer performing the service in those
matters shall charge no fee, unless specifically
authorized by law. (Section 42)
Note: P.A.O. Lawyers now have the authority to
administer oaths, provided it is in connection with
the performance of their duties.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
137
UST Golden Notes 2011
The fiscal or the state prosecutor has the authority
to administer oaths. (R.A. No. 5180, as amended by
P.D. 911)
Jurats
Q: What is a jurat?
A: It refers to an act in which an individual on a
single occasion:
1. Appears in person before the notary
public and presents an instrument or
document;
2. Is personally known to the notary public
or identified by the notary public through
competent evidence of identity as defined
by the Rules on Notarial Practice;
3. Signs the instrument or document in the
presence of the notary; and
4. Takes an oath or affirmation before the
notary public as to such instrument or
document. (Sec. 6, Rule II, A.M. 02-8-13SC)
Note: A jurat is not a part of a pleading but merely
evidences the fact that the affidavit was properly
made. The claim or be.lief of Atty. Dela Rea that the
presence of petitioner Gamido was not necessary for
the jurat because it is not an acknowledgment is
patently baseless. If this had been his belief since he
was first commissioned as a notary public, then he
has been making a mockery of the legal solemnity of
an oath in a jurat. Notaries public and others
authorized by law to administer oaths or to take
acknowledgments should not take for granted the
solemn duties appertaining to their offices. Such
duties are dictated by public policy and are
impressed with public interest. (Gamido v. Bilibid
Prisons Officials, G.R. No. 114829, Mar. 1, 1995)
Q: Distinguish acknowledgement from jurat.
A:
ACKNOWLEDGMENT
Act of one who has
executed a deed, in
going to some
competent officer or
court and declaring it
to be his act or deed.
The notary public or
officer taking the
acknowledgement
shall certify that the
person
acknowledging the
instrument or
document is known
to him and he is the
138
same person who
executed it and
acknowledged that
the same is his free
act and deed.
Two-fold purpose: to
authorize the deed to
be given in evidence
without further proof
of its execution, and,
to entitle it to be
recorded.
Where used:
1. To authenticate an
agreement between
two or more persons;
or
2. Where the
document contains a
disposition of
property.
E.g. The
acknowledgement in
a deed of lease of
land.
Signature Witnessing
Q: What is signature witnessing?
A: It refers to a notarial act in which an individual
on a single occasion:
JURAT
2.
It is not part of a
pleading but merely
evidences the fact
that the affidavit was
properly made.
Where used:
1. Affidavits;
2. certifications;
3. Whenever the
person
executing
makes a statement of
facts or attests to the
truth of an event,
under oath.
E.g. An affidavit
subscribed before a
notary public or public
official authorized for
the purpose.
Note: If a document is certified by way of jurat,
instead of acknowledgement, the document is a
private one. Hence, to be admissible as evidence,
the same must be offered and proven in accordance
with the Rules on Evidence.
1.
That part of an
affidavit in which the
notary public or
officer certifies that
the instrument was
sworn to before him.
Purpose:
Gives the document a
legal character.
3.
Appears in person before the notary
public and presents an instrument or
document;
Is personally known to the notary public
or identified by the notary public through
competent evidence of identity as defined
by the Rules on Notarial Practice; and
Signs the instrument or document in the
presence of the notary public. (Sec. 14,
Rule II, A. M. No. 02-8-13-SC)
Q: Is a notary public authorized to certify the
affixing of a signature by thumb or other mark
on an instrument or document presented for
notarization?
A: Yes. It is also within the powers of a notary
public, provided:
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Notarial Practice
1.
2.
3.
4.
The thumb or other mark is affixed in the
presence of the notary public and of two
(2) disinterested and unaffected witnesses
to the instrument or document;
Both witnesses sign their own names in
addition to the thumb or other mark;
The notary public writes below the thumb
or other mark: “thumb or other mark
affixed by (name of signatory by mark) in
the presence of (names and addresses of
witnesses) and undersigned notary
public”, and
The notary public notarizes the signature
by thumb or other mark through an
acknowledgment, jurat or signature
witnessing. (Sec. 1(b), Rule IV, A.M. No.
02-8-13-SC) (1995 Bar Question)
Note: The document copied must be an original
document. It cannot be a copy itself.
Q: How should a notary public notarize a paper
instrument or document?
A: In notarizing a paper instrument or document,
a notary public shall:
1. Sign by hand on the notarial certificate
only the name indicated and as appearing
on the notary's commission;
2. Not sign using a facsimile stamp or
printing device; and
3. Affix his official signature only at the time
the notarial act is performed.(Sec. 1, Rule
VII, A.M. 02-8-13-SC)
Q: What are the effects of notarization?
Q: Is a notary public authorized to sign on behalf
of a person who is physically unable to sign or
make a mark on an instrument or document?
A:
1.
A: Yes. It likewise falls within the powers of a
notary public, provided:
1.
2.
3.
4.
5.
The notary public is directed by the person
unable to sign or make a mark to sign on
his behalf;
The signature of the notary public is
affixed in the presence of 2 disinterested
and unaffected witnesses to the
instrument or document;
Both witnesses sign their own names;
The notary public writes below his
signature: “Signature affixed by notary in
the presence of (names and addresses of
person and 2 witnesses)”, and
The notary public notarizes his signature
by acknowledgment or jurat. (Sec. 1(c),
Rule IV, A.M. 02-8-13-SC) (1995 Bar
Question)
Copy Certifications
The notary, in effect, proclaims to the
world that:
a.
b.
c.
d.
e.
All the parties therein personally
appeared before him;
They are personally known to him;
They are the same persons who
executed the instrument;
He inquired into the voluntariness of
the execution of the instrument;
They acknowledge personally before
him that they voluntarily and freely
executed the same.
2.
Converts a private document into a public
one and renders it admissible in court
without further proof of its authenticity.
3.
Documents enjoy a presumption of
regularity. It constitutes prima facie
evidence of the facts which give rise to
their execution and of the date of said
execution, but not of the truthfulness of
the statement.
Q: What is copy certification?
A: It refers to a notarial act in which a notary
public:
1. Is presented with an instrument or
document that is neither a vital record, a
public record, nor publicly recordable;
2. Copies or supervises the copying of the
instrument or document;
3. Compares the instrument or document
with the copy; and
4. Determines that the copy is accurate and
complete. (Sec. 4, Rule II, A.M. 02-8-13-SC)
Note: The reason for the presumption is that the law
assumes that the act which the officer witnessed
and certified to or the date written by him are not
shown to be false since notaries are public officers.
Note: A notarial document is by law entitled to full
faith and credit upon its face and, for this reason,
notaries public must observe with utmost care the
basic requirements in the performance of their
duties, lest, the confidence of the public in the
integrity of the document will be undermined.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
139
UST Golden Notes 2011
Q: What is a notarial certificate?
A: It refers to the part of, or attachment to a
notarized instrument or document that is
completed by the notary public which bears the
notary's signature and seal, and states the facts
attested to by the notary public in a particular
notarization as provided for by the Rules on
Notarial Practice. (Sec. 8, Rule II, A. M. No. 02-813)
Note: “Loose notarial certificate” refers to a notarial
certificate that is attached to a notarized instrument
or document.
Note: "Official seal" or "seal" refers to a device for
affixing a mark, image or impression on all papers
officially signed by the notary public conforming the
requisites prescribed by the Rules on Notarial
Practice. (Sec. 13,Rule II, A.M. No. 02-8-13-SC)
Q: What must the notarial certificate contain?
A:
1.
2.
3.
4.
The name of the notary public as exactly
indicated in the commission;
The serial number of the commission of
the notary public;
The words "Notary Public" and the
province or city where the notary public is
commissioned, the expiration date of the
commission, the office address of the
notary public; and
The roll of attorney's number, the
professional tax receipt number and the
place and date of issuance thereof, and
the IBP membership number. (Sec. 2, Rule
VIII,
A.M.
02-8-13-SC)
Note: A notary public shall not:
a. execute a certificate containing information
known or believed by the notary to be false.
b.
affix an official signature or seal on a
notarial certificate that is incomplete.
Q: What are the limitations to the performance
of a notarial act of a notary public?
A: A person shall not perform a notarial act if:
1.
The person involved as signatory to the
instrument or document is:
a.
b.
140
Not in the notary's presence
personally at the time of the
notarization; and (Sec. 2(b)(1), Rule
IV, A.M. No. 02-8-13-SC)
Not personally known to the notary
public or otherwise identified by the
c.
d.
notary public through competent
evidence of identity as defined by the
Rules on Notarial Practice. (Sec.
2(b)(2), Rule IV, A.M. No. 02-8-13-SC)
The document is blank or incomplete;
(Sec.6(a) Rule IV, A.M. 02-8-13-SC)
An instrument or document is
without
appropriate
notarial
certification. (Sec. 6, Rule IV, A.M. 028-13-SC)
Q: Engineer Cynthia de la Cruz Catalya filed an
application for building permit in connection
with the renovation of a building situated on a
lot owned by her brother Rolando de la Cruz.
One of the documents required in the processing
of the application was an affidavit to be
executed by the lot owner. Since Rolando de la
Cruz was a resident abroad, an affidavit was
prepared wherein it was made to appear that he
was a resident of Leyte; that he was the owner
of the lot whereon the building subject of the
application for the issuance of a building permit
was situated.
Atty. Francisco Villamor notarized the purported
affidavit. According to him, a Chinese mestizo
appeared in his law office one time, requesting
that his affidavit be notarized. Said person
declared that he was Rolando de la Cruz.
Atty. Villamor then asked for the production of
his residence certificate, but he said, he did not
bother to bring the same along with him
anymore as, he has already indicated his serial
number, in the jurat portion together with the
date of issue and place of issue. Did Atty.
Francisco Villamor commit a violation of notarial
law?
A: Yes. It is the duty of the notarial officer to
demand that the document presented to him for
notarization should be signed in his presence. By
his admission, the affidavit was already signed by
the purported affiant at the time it was presented
to him for notarization. Atty. Villamor thus failed
to heed his duty as a notary public to demand
that the document for notarization be signed in
his presence. (Traya Jr. v. Villamor, A.C. No. 4595,
Feb. 6, 2004)
Q: During their lifetime, the Spouses Villanueva
acquired several parcels of land. They were
survived by their 5 children: Simeona, Susana,
Maria, Alfonso, and Florencia.
Alfonso executed an Affidavit of Adjudication
stating that as “the only surviving son and sole
heir” of the spouses, he was adjudicating to
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Notarial Practice
himself a parcel of land. Thereafter, he executed
a Deed of Absolute Sale, conveying the property
to
Adriano
Villanueva.
Atty.
Salud
Beradio appeared as notary public on both the
affidavit of adjudication and the deed of sale.
Atty. Beradio knew of the falsity of Alfonso’s
statement.
Florencia and descendants of the other children
of the spouses were still alive at the time of
execution of both documents. Was there a
failure to discharge properly the duties of a
notary public?
A: Yes. Atty. Beradio’s conduct breached the Code
of Professional Responsibility, which requires
lawyers to obey the laws of the land and promote
respect for the law and legal processes as well as
Rule 1.01 of the Code which proscribes lawyers
from engaging in unlawful, dishonest, immoral, or
deceitful conduct.
She herself admitted that she knew of the falsity
of Alfonso’s statement that he was the “sole heir”
of the spouses. She therefore notarized a
document while fully aware that it contained a
material falsehood. The affidavit of adjudication is
premised on this very assertion. By this
instrument, Alfonso claimed a portion of his
parents’ estate all to himself, to the exclusion of
his co-heirs. Shortly afterwards, Atty. Beradio
notarized the deed of sale, knowing that the deed
took basis from the unlawful affidavit of
adjudication. (Heirs of the Late Spouses Lucas v.
Atty. Beradio, A.C. No. 6270, Jan. 22, 2007)
Note: Where admittedly the notary public has
personal knowledge of a false statement or
information contained in the instrument to be
notarized, yet proceeds to affix his or her notarial
seal on it, the court must not hesitate to discipline
the notary public accordingly as the circumstances of
the case may dictate. Otherwise, the integrity and
sanctity of the notarization process may be
undermined and public confidence on notarial
documents diminished. (Ibid)
3.
Is a spouse, common-law partner,
ancestor, descendant, or relative by
affinity or consanguinity of the principal
within the fourth civil degree. (Sec. 3, Rule
IV, A.M. No. 02-8-13-SC) (1995 Bar
Question)
Note: The function of a notary public is, among
others, to guard against any illegal or immoral
arrangements. That function would be defeated if
the notary public is one of the signatories to the
instrument. For then, he would be interested in
sustaining the validity thereof as it directly involves
himself and the validity of his own act. It would place
him in an inconsistent position, and the very purpose
of the acknowledgment, which is to minimize fraud,
would be thwarted. (Villarin v. Sabate, A.C. No. 3224,
Feb. 9, 2000)
Q: When may a notary public refuse to notarize
even if the appropriate fee is tendered?
A:
1.
2.
3.
4.
The notary knows or has good reason to
believe that the notarial act or transaction
is unlawful or immoral;
The signatory shows a demeanor which
engenders in the mind of the notary public
reasonable doubt as to the former's
knowledge of the consequences of the
transaction requiring a notarial act;
In the notary's judgment, the signatory is
not acting of his or her own free will; (Sec.
4, Rule V, A.M. No. 02-8-13-SC) or
If the document or instrument to be
notarized is considered as an improper
document by the Rules on Notarial
Practice.
Note: Improper instrument/document is a blank or
incomplete instrument or an instrument or
document without appropriate notarial certification.
(Sec. 6, Rule V, A.M. No. 02-8-13-SC)
D. NOTARIAL REGISTER
Q: What is a Notarial Register?
Q: When is a notary public disqualified from
performing a notarial act?
A: When the notary public:
1. Is a party to the instrument or document
that is to be notarized;
2. Will receive, as a direct or indirect result,
any commission, fee, advantage, right,
title, interest, cash, property, or other
consideration, except as provided by the
Rules on Notarial Practice and by law; or
A: It refers to a permanently bound book with
numbered pages containing a chronological
record of notarial acts performed by a notary
public.(Sec. 5, Rule II, A.M. No. 02-8-13-SC)
Q: What is the form of notarial register?
A: A notary public shall keep, maintain, protect
and provide for lawful inspection as provided in
these Rules, a chronological official notarial
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
141
UST Golden Notes 2011
register of notarial acts consisting of a
permanently bound book with numbered pages.
The register shall be kept in books to be furnished
by the Solicitor General to any notary public upon
request and upon payment of the cost thereof.
The register shall be duly paged, and on the first
page, the Solicitor General shall certify the
number of pages of which the book consists.
reasons and circumstances for not
completing a notarial act (Sec. 2(b), Rule
VI, A.M. No. 02-8-13-SC)
c.
For purposes of this provision, a Memorandum of
Agreement or Understanding may be entered into
by the Office of the Solicitor General and the
Office of the Court Administrator. (Sec. 1(a), Rule
VI, A.M. No. 02-8-13-SC)
Q: How many notarial register may a notary
public keep?
Note: The reasons for refusal to allow
inspection or copying of a journal entry
shall also be recorded. (Ibid.)
d.
A: A notary public shall keep only one active
notarial register at any given time. (Sec. 1(b), Rule
VI, A.M. No. 02-8-13-SC)
Q: What information should be entered in the
notarial register?
For every notarial act, the notary shall
record in the notarial register at the time
of notarization the following:
the entry number and page number;
the date and time of day of the
notarial act;
3. the type of notarial act;
4. the title or description of the
instrument, document or proceeding;
5. the name and address of each
principal;
6. the competent evidence of identity
as defined by these Rules if the
signatory is not personally known to
the notary;
7. the name and address of each
credible witness swearing to or
affirming the person's identity;
8. the fee charged for the notarial act;
9. the address where the notarization
was performed if not in the notary's
regular place of work or business;
and
10. any other circumstance the notary
public may deem of significance or
relevance.(Sec. 2(a), Rule VI, A.M. No.
02-8-13-SC)
(Ibid.)
e.
In case of a protest of any draft, bill of
exchange or promissory note, make a full
and true record of all proceedings in
relation thereto and shall note therein
whether the demand for the sum of
money was made, by whom, when, and
where; whether he presented such draft,
bill or note; whether notices were given,
to whom and in what manner; where the
same was made, when and to whom and
where directed; and of every other fact
touching the same. (Sec. 2(f), Rule VI, A.M.
No. 02-8-13-SC)
f.
At the end of each week, the notary public
shall certify in his notarial register the
number of instruments or documents
executed, sworn to, acknowledged, or
protested before him; or if none, this
certificate shall show this fact. (Sec. 2(g),
Rule VI, A.M. No. 02-8-13-SC)
1.
2.
b.
142
In case of failure to complete a notarial
act, record in the notarial register the
When the instrument or document is a
contract, keep an original copy thereof as
part of his records and enter in said
records a brief description of the
substance thereof and shall give to each
entry a consecutive number, beginning
with number one in each calendar year.
(Sec.2(d),Rule VI, A.M. No. 02-8-13-SC)
Note: He shall also retain a duplicate
original copy for the Clerk of Court.
A:
a.
the circumstances of any request to
inspect or copy an entry in the notarial
register, including the requester's name,
address, signature, thumbmark or other
recognized identifier, and evidence of
identity. (Sec.2(c),Rule VI, A.M. No. 02-813-SC)
Note: A certified copy of each month's entries and a
duplicate original copy of any instrument
acknowledged before the notary public shall, within
the first ten (10) days of the month following, be
forwarded to the Clerk of Court and shall be under
the responsibility of such officer. If there is no entry
to certify for the month, the notary shall forward a
statement to this effect in lieu of certified copies
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Notarial Practice
herein required. (Sec. 2(h), Rule VI, A.M. No. 02-8-13SC)
any person applying for such copy upon payment of
the legal fees. (Sec. 6, Rule VI, A. M. No. 02-8-13-
SC)
Note: The notary public shall give to each instrument
or document executed, sworn to, or acknowledged
before him a number corresponding to the one in his
register, and shall also state on the instrument or
document the page/s of his register on which the
same is recorded. No blank line shall be left between
entries. (Sec. 2(e), Rule VI, A.M. No. 02-8-13-SC)
Q: Who shall sign or affix a thumbmark in the
notarial register?
A: At the time of notarization, the notary's
notarial register shall be signed or a thumb or
other mark affixed by each:
a. principal;
b. credible witness swearing or affirming
to the identity of a principal; and
c. witness to a signature by thumb or
other mark, or to a signing by the
notary public on behalf of a person
physically unable to sign. Sec. 3,Rule VI,
A.M. No. 02-8-13-SC)
Q: May a notary public refuse the request of
inspection for register of deeds?
A: Yes. if the notary public has a reasonable
ground to believe that a person has a criminal
intent or wrongful motive in requesting
information from the notarial register, the notary
shall deny access to any entry or entries therein.
(Sec. 4(c), Rule VI, A. M. No. 02-8-13-SC)
Q: State the rule in case of loss, destruction or
damage of notarial register.
A:
1.
In case the notarial register is stolen, lost,
destroyed, damaged, or otherwise
rendered unusable or illegible as a record
of notarial acts, the notary public shall,
within ten (10) days after informing the
appropriate law enforcement agency in
the case of theft or vandalism, notify the
Executive Judge by any means providing a
proper receipt or acknowledgment,
including registered mail and also provide
a copy or number of any pertinent police
report.
2.
Upon revocation or expiration of a notarial
commission, or death of the notary public,
the notarial register and notarial records
shall immediately be delivered to the
office of the Executive Judge. (Sec. 5, Rule
VI, A. M. No. 02-8-13-SC)
Q: Can any person inspect an entry in the
notarial register?
A: Yes, provided:
1. The inspection is made in the notary’s
presence;
2. During regular business hours
3. The person's identity is personally known
to the notary public or proven through
competent evidence of identity as defined
in these Rules;
4. The person affixes a signature and thumb
or other mark or other recognized
identifier, in the notarial .register in a
separate, dated entry;
5. The person specifies the month, year, type
of instrument or document, and name of
the principal in the notarial act or acts
sought; and
6. The person is shown only the entry or
entries specified by him. (Sec.4(a), Rule VI,
A.M. No. 02-8-13-SC)
Q: May a law enforcement officers examine the
notarial register?
A: Yes, the notarial register may be examined by a
law enforcement officer in the course of an
official investigation or by virtue of a court order.
(Sec. 4(b), Rule VI, A. M. No. 02-8-13-SC)
Note: The notary public shall supply a certified true
copy of the notarial record, or any part thereof, to
E. JURISDICTION OF NOTARY PUBLIC AND PLACE
OF NOTARIZATION
Q: What is the jurisdiction of a notary public?
A: A notary public may perform notarial acts in
any place within the territorial jurisdiction of the
commissioning court.
Q: What is the phrase “regular place of work or
business” of a notary public mean?
A: The regular place of work or business refers to
a stationary office in the city or province wherein
the notary public renders legal and notarial
services. (Sec. 11, Rule II, 2004 Rules on Notarial
Practice)
Note: Under the Notarial Law, the jurisdiction of a
notary public is co-extensive with the province for
which he was commissioned; and for the notary
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
143
UST Golden Notes 2011
public in the city of Manila, the jurisdiction is coextensive with said city. Circular 8 of 1985, however,
clarified further that the notary public may be
commissioned for the same term only by one court
within the Metro Manila region.
Q: Can a notary public perform a notarial act
outside his jurisdiction and his regular place of
work or business?
A:
Notary Public. (Amora, Jr. v. Comelec, G.R. No.
192280, January 25, 2011)
Q: What is competent evidence of identity?
A: It refers to the identification of an individual
based on:
1. At least one current identification
document issued by an official agency
bearing the photograph and signature of
the individual such as but not limited to:
GR: A notary public shall not perform a notarial
act outside his jurisdiction and his regular place
of work or business.
a.
b.
c.
Passport,
Driver’s license,
Professional Regulation Commission
ID,
d. National Bureau of Investigation
clearance,
e. Police clearance,
f. Postal ID,
g. Voter’s ID,
h. Barangay Certification,
i.
Government
Service
Insurance
System e-card,
j.
Social Security System card,
k. Philhealth card,
l.
Senior Citized card,
m. Overseas
Workers
Welfare
Administration (OWWA) ID,
n. OFW ID,
o. sea man’s book,
p. alien certificate of registration,
q. government office ID,
r. certification from the National
Council for the Welfare of Disabled
Persons (NCWDP),
s. Department of Social Welfare
Development (DSWD) certification; or
XPN: A notarial act may be performed at the
request of the parties in the following sites,
other than his regular place of work or
business, located within his territorial
jurisdiction:
1.
2.
3.
4.
5.
6.
Public offices, convention halls, and
other appropriate public places for the
purpose of administering oaths of
office; (Sec. 2, Rule IV, A. M. No. 02-813-SC)
At the request of the parties, public
function areas in hotels and other
appropriate places for the signing of the
contracts, deeds, and other documents
requiring notarization; (Ibid.)
Residence of any party of a contract,
deed, or other document requiring
notarization; (Ibid.)
Hospitals and other medical institutions
where a party to a contract is confined
for treatment; (Ibid.)
Any place where for legal reason a party
to a contract, deed, or other document
requiring notarization may be confined,
(Ibid.) and;
Such other places as may be dictated
because of emergency.(1996 Bar
Question)
Note: It is improper for a notary public to notarize
documents in sidewalk since it is now required that a
notary public should maintain a regular place of
work or business within the city or province where
he is commissioned. The SC evidently wants to
eradicate the practice of “fly by night” notaries
public who notarized documents in “improvised”
offices.
F. COMPETENT EVIDENCE OF IDENTITY
Note: Competent evidence of identity is not required
in cases where the affiant is personally known to the
144
2.
The oath or affirmation of one credible
witness not privy to the instrument,
document or transaction who is personally
known to the notary public and who
personally knows the individual, or of two
credible witnesses neither of whom is
privy to the instrument, document or
transaction who each personally knows
the individual and shows to the notary
public
documentary
identification.
(Amendment to Sec. 12 (a), Rule II of the
2004 Rules on Notarial Practice, Feb. 19,
2008).
Note: These are in addition to the presentation of
the signatories’ Community Tax Certificate (CTC) as
required by Notarial Law (Act 2711).
Notaries public are required by the Notarial Law to
certify that the party to the instrument has
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Ethics – Notarial Practice
acknowledged and presented before the notaries
public the proper residence certificate (or exemption
from the residence certificate) and to enter its
number, place, and date of issue as part of
certification. Sec. 12, Rule II of the 2004 Rules on
Notarial Practice now requires a party to the
instrument to present competent evidence of
identity. (Legaspi v. Atty. Dimaano, Jr., A.C. No. 7781,
Sept. 12, 2008)
Q: Is a community tax certificate still a
competent evidence of identity?
A: No. A notary public can no longer accept a
cedula or a community tax certificate (CTC), the
successor document to the residence certificate
originally required by the Notarial Law as proof of
identity. Such does not even contain a
photograph of the person to whom it is issued.
Further, CTC may be easily obtained by anyone,
without any supporting papers, thereby debasing
its value as an identity document.
Note: In the list of grounds for disqualification of
persons running for any local elective position under
Section 40 of the LGC, nowhere therein does it
specify that a defective notarization is a ground for
the disqualification of a candidate. Thus,
presentation of CTC before the notary public, in
compliance with the requirement of presentation of
competent evidence of identity, though improper,
does not in itself warrant the disqualification of a
candidate to run for any elective position. (Amora,
Jr. v. Comelec, G.R. No. 192280, January 25, 2011)
Q: Is the presentation of Community Tax
Certificate no longer necessary in view of the
amendment?
A: No. Its presentation is still mandatory pursuant
to Local Government Code of the Philippines in
order to show payment of taxes. Said law
provides:
“When an individual subject to the community
tax acknowledges any document before a notary
public, takes the oath of office upon election or
appointment to any position in the government
service; receives any license, certificate, or permit
from any public authority; pays any tax or fee;
receives any money from any public fund;
transacts other official business; or receives any
salary or wage from any person or corporation, it
shall be the duty of any person, officer, or
corporation with whom such transaction is made
or business done or from whom any salary or
wage is received to require such individual to
exhibit the community tax certificate.” (Sec. 163,
LGC)
Q: Atty. Regino Tamabago notarized a last will
and testament under which, the decedent
supposedly bequeathed his entire estate to his
wife, save for a parcel of land which he devised
to Vicente Lee, Jr. and Elena Lee, half siblings of
Manuel Lee, the complainant.
The will was purportedly executed and
acknowledged before respondent on June 30,
1965. However, the residence certificate of the
testator noted in the acknowledgment of the
will was dated January 5, 1962. There is also
absence of notation of the residence certificates
of the purported witnesses. Did Atty. Regino
Tamabago violate any of the duties of a notary
public?
A: Atty. Tamabago, as notary public, evidently
failed in the performance of the elementary
duties of his office. There is absence of a notation
of the residence certificates of the notarial
witnesses in the will in the acknowledgment.
Further, the notation of the testator’s old
residence
certificate
in
the
same
acknowledgment was a clear breach of the law.
The Notarial Law then in force required the
exhibition of the residence certificate upon
notarization of a document or instrument. By
having allowed decedent to exhibit an expired
residence certificate, Atty. Tamabago failed to
comply with the requirements of the old Notarial
Law. As much could be said of his failure to
demand the exhibition of the residence
certificates of notarial witnesses.
Defects in the observance of the solemnities
prescribed by law render the entire will invalid.
(Manuel Lee v. Atty. Regino Tamabago, A.C. No.
5281, Feb. 12, 2008)
G. REVOCATION OF COMMISSION AND
DISCIPLINARY SANCTIONS
Q: Who can revoke a notarial commission?
A: The notarial commission may be revoked by
1.
The Executive Judge of the RTC who issued
the commission on any ground on which
an application for commission may be
denied (Sec. 1, Rule XI, A.M. No. 02-8-13SC,) or;
2.
By the Supreme Court itself in the exercise
of its general supervisory powers over
lawyer.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
145
UST Golden Notes 2011
Q: What are the grounds for revocation of
notarial commission?
A: The executive Judge shall revoke a notarial
commission for any ground on which an
application for a commission may be denied.
In addition, the Executive Judge may revoke the
commission of, or impose appropriate
administrative sanctions upon, any notary public
who:
1.
2.
3.
4.
5.
6.
7.
2.
Obtains, conceals, defaces, or destroys the
seal, notarial register, or official records of
a notary public; and
3.
Solicits, coerces, or in any way influences a
notary public to commit official
misconduct. (Sec. 1, Rule XII, Rule on
Notarial Practice)
Fails to keep a notarial register;
Fails to make the proper entry or entries
in his notarial register concerning his
notarial acts;
Fails to send the copy of the entries to the
Executive Judge within the first ten (10)
days of the month following;
Fails to affix to acknowledgments the date
of expiration of his commission;
Fails to submit his notarial register, when
filled, to the Executive Judge;
Fails to make his report, within a
reasonable time, to the Executive Judge
concerning the performance of his duties,
as may be required by the judge;
Fails to require the presence of a principal
at the time of the notarial act;
Note: "Principal" refers to a person
appearing before the notary public whose
act is the subject of notarization.
8.
Fails to identify a principal on the basis of
personal knowledge or competent
evidence;
9. Executes a false or incomplete certificate
under Section 5, Rule IV;
10. Knowingly performs or fails to perform
any other act prohibited or mandated by
these Rules; and
11. Commits any other dereliction or act
which in the judgment of the Executive
Judge constitutes good cause for
revocation of commission or imposition of
administrative sanction.(Sec. 1, Rule XI,
Rule on Notarial Practice)
Q: What are punishable acts under the 2004
Rules on Notarial Practice?
A: The Executive Judge shall cause
prosecution of any person who knowingly:
1.
146
the
Acts or otherwise impersonates a notary
public;
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Judicial Ethics - Preliminary
JUDICIAL ETHICS
I. PRELIMINARY
A. CONCEPT
duties of the office. Moreover, one cannot be
actually acting under any color of right when he has
ceased to be a judge and has actually vacated the
office by the acceptance of another office and by
actually entering upon the duties of the other office.
(Lino Luna v. Rodriguez and De Los Angeles, G.R. No.
L-13744, Nov. 29, 1918)
B. QUALIFICATIONS OF JUSTICES AND JUDGES.
Q: What is judicial ethics?
Q: What are the qualifications of justices of the
Supreme Court or Court of Appeals?
A: It is the branch of moral science which treats of
the right and proper conduct to be observed by
all judges in trying and deciding controversies
brought before them for adjudication which
conduct must be demonstrative of impartiality,
integrity, competence, independence and
freedom from improprieties. This freedom from
improprieties must be observed in both the public
and private life of a judge – being the visible
representation of the law.
A: One must be:
1. A natural-born citizen of the Philippines;
2. At least 40 years of age;
3. A person who has been, for 15 years or
more, a judge of a lower court or engaged
in the practice of law; and
4. A person of proven competence, integrity,
probity and independence. (Sec. 7(2), Art.
VIII, 1987 Constitution)
Q: Who is a judge?
Q: What are the qualifications to be a RTC judge?
A judge is a public officer who, by virtue of his
office, is clothed with judicial authority; A public
officer lawfully appointed to decide litigated
questions in accordance with law. (People v.
Manantan, G.R. No. L-14129, Aug. 30, 1962)
A: One must be:
1. A natural-born citizen of the Philippines;
2. At least 35 years of age; and
3. For at least 10 years engaged in the
practice of law in the Philippines or held a
public office in the Philippines requiring
admission to the practice of law as an
indispensable requisite. (1997 Bar
Question)
Note: This refers to persons only. There may be a
judge without a court.
Q: What are the qualifications to be an MTC
judge?
Q: Who is a de jure judge?
A: One must be:
1. A natural-born citizen of the Philippines;
2. At least 30 years of age; and
3. For at least 5 years, engaged in the
practice of law in the Philippines or held a
public office in the Philippines requiring
admission to the practice of law as an
indispensable requisite.
A: Any person exercising judicial power however
designated. (New Code of Judicial Conduct)
A: One who exercises the office of a judge as a
matter of right, fully vested with all the powers
and functions conceded to him under the law.
(Luna v. Rodriguez, G.R. No. L-13744, Nov. 29,
1918)
Q: Who is a de facto judge?
Q: What is the proper judicial deportment?
A: An officer who is not fully vested with all the
powers and duties conceded to judges but, one
who exercises the office of judge under some
color of right. He has the reputation of the officer
he assumes to be, yet he has some defect in his
right to exercise judicial functions at the
particular time. (Luna v. Rodriguez, G.R. No. L13744, Nov. 29, 1918)
A:
1.
Attitude toward counsel – He must be
courteous especially to the young and
inexperienced, should not interrupt in
their arguments except to clarify his minds
as to their positions, must not be tempted
to an unnecessary display of learning or
premature judgment, may criticize and
Note: There cannot be a de facto judge when there
is a de jure judge in the actual performance of the
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
147
UST Golden Notes 2011
2.
3.
correct unprofessional conduct of a lawyer
but not in an insulting manner.
Attitude toward litigants and witnesses –
He must be considerate, courteous and
civil, must not utter intemperate language
during the hearing of a case.
Q: What is the proper judicial conduct?
A: Judges and justices must conduct themselves
as to be beyond reproach and suspicion and be
free from appearance of impropriety in their
personal behavior not only in the discharge of
official duties but also in their everyday lives.
Q: What are the two sources of judicial ethics?
A:
1.
2.
New Code of Judicial Conduct for the
Philippine Judiciary (Bangalore Draft);
Code of Judicial Conduct
II. THE NEW CODE OF JUDICIAL CONDUCT.
FOR THE PHILIPPINE JUDICIARY.
(A.M. NO. 03-05-01).
Note: The New Code of Judicial Conduct (NCJC) for
the Philippine Judiciary which took effect on June 1,
2004 supersedes the Canons of Judicial Ethics and
the Code of Judicial Conduct. Provided, however,
that in case of deficiency or absence of specific
provisions in this New Code, the Canons of Judicial
Ethics and Code of Judicial Conduct shall be
applicable in a suppletory character. (2007 Bar
Question)
This was adopted from the universal declaration of
standards for ethical conduct embodied in the
Bangalore Draft as revised at the Round Table
Conference of Chief Justices at the Hague.
Note: The New code contains 6 Canons and 44
Rules.
Q: What are the six (6) canons under the New
Code of Judicial Conduct for the Philippine
Judiciary?
A:
1.
2.
3.
4.
5.
6.
Independence
Integrity
Impartiality
Propriety
Equality
Competence and Diligence.
Note: The purpose of the New Code of Judicial
Conduct for the Philippine Judiciary is to update and
correlate the code of judicial conduct and canons of
judicial ethics adopted for the Philippines, and also
to stress the Philippines’ solidarity with the universal
clamor for a universal code of judicial ethics.
CANON 1, NCJC-INDEPENDENCE
JUDICIAL INDEPENDENCE IS A PRE-REQUISITE
- INDEPENDENCE
TO THE CANON
RULE OF 1
LAW
AND A FUNDAMENTAL
GUARANTEE OF A FAIR TRIAL. A JUDGE SHALL,
THEREFORE, UPHOLD AND EXEMPLIFY JUDICIAL
INDEPENDENCE IN BOTH ITS INDIVIDUAL AND
INSTITUTIONAL ASPECTS.
Q: What is an independent Judiciary?
A: It is one free from inappropriate outside
influence.
148
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Judicial Ethics – New Code of Judicial Conduct
Q: What is the
independence?
importance
of
Judicial
A: Judicial independence is a pre-requisite to the
rule of law and a fundamental guarantee of a fair
trial. A judge shall, therefore, uphold and
exemplify judicial independence in both its
individual and institutional aspects. (Canon 1,
NCJC)
Note: Individual Judicial Independence focuses on
each particular case and seeks to insure his or her
ability to decide cases with autonomy within the
constraints of the law. It is a “pre-requisite to the
rule of law” and a “fundamental guarantee of fair
trial”
While Institutional Judicial Independence focuses on
the independence of the judiciary as a branch of
government and protects judges as a class. (In the
Matter of the Allegations Contained in the Columns
of Mr. Amado P. Macasaet Published in Malaya
dated September 18, 19, 20 and 21, 2007)
Note: The treatment of independence as a single
Canon is the primary difference between the new
Canon 1 and the Canon 1 of the 1989 Code.
Note: Judges should inspire public confidence in the
judiciary which can be attained only if judges are
perceived by the public to be fair, honest,
competent, principled, dignified and honorable.
Accordingly, the first duty of judges is to conduct
themselves at all times in a manner that is beyond
reproach.
Judges must reject pressure by maintaining
independence from, but not limited to the
following:
1.
Independence from public officials – the
public laid their confidence on the fact
that the official is mentally and morally fit
to pass upon the merits of their varied
intentions.
2.
Independence from government as a
whole – avoid inappropriate connections,
as well as any situation that would give
rise to the impression of the existence of
such inappropriate connections.
3.
Independence from family, social, or other
relationships – Do not sit in litigation
where a near relative is a part of or
counsel; be independent from judicial
colleagues (Sec. 2) and avoid such actions
as may reasonably tend to wake the
suspicion that his social or business
relations constitute an element in
determining his judicial course.
4.
Independence from public opinion – only
guide is the mandate of law.
Q. What is the difference between the New Code
of Judicial Conduct for the Philippine Judiciary
and Code of Judicial Conduct?
A. They differ in three ways:
New Code of Judicial
Conduct for the
Code of Judicial
Philippine Judiciary
Conduct
Focuses
on
the Concerned primarily
institutional
and with the institutional
personal
independence of the
independence
of judiciary.
judicial officers
Contains eight norms Contained
three
of
conduct
that guidelines explaining
judges “ shall follow”
what judges “should
do”
* Canon 1 of the 1989
Code
created
a
weaker mandate.
The treatment of independence as a single
canon
Section 1, Canon 1, NCJC: Judges shall
exercise the judicial function independently
on the basis of their assessment of the facts
and in accordance with a conscientious
understanding of the law, free of any
extraneous influence, inducement, pressure,
threat or interference, direct or indirect, from
any quarter or for any reason.
Q: In a civil case submitted for a decision, Judge
Corpuz-Macandog acted on it based on a
telephone call from a government official telling
her to decide the case in favor of the defendant,
otherwise she will be removed. The judge
explained that she did so under pressure
considering that the country was under a
revolutionary government at that time. Did the
judge commit an act of misconduct?
A: Yes. A judge must decide a case based on its
merits. For this reason, a judge is expected to be
fearless in the pursuit to render justice, to be
unafraid to displease any person, interest or
power, and to be equipped with a moral fiber
strong enough to resist temptation lurking in her
office.Here, it is improper for a judge to have
decided a case based only on a directive from a
government official and not on the judge’s own
ascertainment of facts and applicable law.
(Ramirez v. Corpuz-Macandog, A.M. No. R-351RTJ, Sept. 26, 1986)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
149
UST Golden Notes 2011
Q: Mayor C was shot by B, the bodyguard of
Mayor D, inside the court room of Judge
Dabalos. Consequently, an information with no
bail recommendation was filed against B and D.
The murder case was then scheduled for raffle
but before the scheduled date, the son of Mayor
C together with their counsel, Atty. Libarios, and
other sympathizers staged a rally demanding
immediate arrest of the accused. Judge Dabalos
then issued an order without prior hearing
directing the issuance of a warrant of arrest
against the accused. Did the judge commit an act
of misconduct?
A: Yes. The judge should not issue warrant of
arrest without personally evaluating the
resolution of the prosecutor and its supporting
evidence to establish judicial probable cause
(Sec.6, Rule 112, Rules of Crim.Pro). A judge in
every case should endeavor diligently to ascertain
the facts and the applicable law unswayed by
partisan or personal interests, public opinion or
fear of criticism. Here, the judge should not have
allowed himself to be swayed into issuing a
warrant of arrest. (Libarios v. Dabalos A.M. No.
RTJ-89-286, July 11, 1991)
Note: In the performance of their judicial duties,
judges must not bow down to public opinion, and
disregard editorials, columns or TV or radio
commentaries on cases pending before them.
The highest degree of independence is required of
judges. Once a judge gives in to pressures from
whatever source, that judge is deemed to have lost
his independence and is considered unworthy of the
position. More than just a breach of the rudiments
laid down in the Code of Judicial Conduct, judges
who succumb to pressure and, as a result, knowingly
ignore proven facts or misapply the law in rendering
a decision commit corruption and face both
administrative and criminal prosecution under R.A.
3019 (Anti-Graft and Corrupt Practices Act) and Art.
204, RPC.
Sec. 2, Canon 1, NCJC: In performing judicial
duties, Judges shall be independent from
judicial colleagues in respect of decisions
which the judge is obliged to make
independently.
Q: May a judge consult with staff and court
officials?
A: No. The highest degree of independence is
required of judges. He must be independent in
purely academic or hypothetical questions but not to
the extent of asking them to decide a case.
Note: It is every judge’s duty to respect the
individual independence of fellow judges.
Sec. 3, Canon 1, NCJC: Judges shall refrain
from influencing in any manner the outcome
of litigation or dispute pending before
another court or administrative agency.
(Principle of Sub-judice)
Note: A judge is prohibited from making public
statements in the media regarding a pending case so
as not to arouse public opinion for or against a party.
(2007 Bar Question)
This section affirms that a judge’s restraint from
exerting influence over other judicial or quasijudicial bodies is required for more than just
propriety.
Q: Is the influence exerted by a judge required to
be successful in order to constitute misconduct?
A: No. Any attempt, whether successful or not, to
influence the decision-making process of another
judge, especially one who is of lower rank and
over whom a judge exercises supervisory
authority constitutes serious misconduct.
Q: Judge Villamor, in his capacity as the
executive judge, designated Judge Pitao as the
acting MCTC judge of a municipality. Thereafter,
Judge Villamor sent a letter through the wife of a
certain accused in a criminal case, which had
long been pending before the MCTC. The note is
to the effect that Judge Pitao should acquit the
accused but when Judge Pitao decided
otherwise, Judge Villamor directed the former to
forward the record to the latter’s sala. Judge
Villamor then acquitted the accused. Did Judge
Villamor commit an act of misconduct?
A: Yes. A judge should avoid impropriety and the
appearance of impropriety in all activities. A judge
shall not influence in any manner the outcome of
litigation or dispute pending before another
court. This is so because such interference does
not only subvert the independence of judiciary
but also undermines the people’s faith in its
integrity and impartiality. Here,Judge Villamor’s
act of sending a note to Judge Pitao for the latter
to decide a case in favor of the accused
constitutes undue interference (Sabitsana, Jr. v.
Villamor, RTJ No. 90- 474, Oct. 4, 1991)
decision-making. However, he can ask colleagues
150
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Judicial Ethics – New Code of Judicial Conduct
Note: If the consultation is purely on an academic or
hypothetical basis, and the judge does not surrender
his or her independent decision making, there can
be no breach of Sections 2 and 3 of Canon 1 of the
New Code.
Sec. 5, Canon 1, NCJC: Judges shall not only
be free from inappropriate connections with,
and influence by, the executive and
legislative branches of government, but must
also appear to be free therefrom to a
reasonable observer.
Sec. 4, Canon 1, NCJC: Judges shall not allow
family, social, or other relationships to
influence judicial conduct or judgment. The
prestige of judicial office shall not be used or
lent to advance the private interests of
others, nor convey or permit others to
convey the impression that they are in a
special position to influence the judge.
Note: Affirms the independence of the judiciary
from the two other branches of government.
Q: What is the purpose of Sec. 4 Canon 1 of
NCJC?
A: No. Judges must also appear to be free from
such to a reasonable observer.
A: It is intended to ensure that judges are spared
from potential influence of family members by
disqualifying them even before any opportunity
for impropriety presents itself.
Note: Mere congeniality between a judge and a
government official may not necessarily be
unethical, but it may still create the appearance of
impropriety.
Q: What does the term “judge’s family” include?
Q: Several employees of the city government of
Quezon City were appointed and assigned at the
office of the Clerk of Court-MeTC QC to assist the
organic staff of the Judiciary. However, the
executive judge of MeTC QC, in view of a
reorganization plan, returned those employees
to different offices of QC government saying that
the court is already overstaffed. The judge also
requested the QC Mayor to re-employ the laid
off employees. Did the judge commit any
improper conduct?
A:
1.
2.
3.
4.
5.
6.
7.
Judge’s spouse
Son
Daughter
Son-in-law
Daughter-in-law
Other relative by consanguinity or affinity
within the sixth civil degree, or
Person who is a companion or employee
of the judge and who lives in the
judge’shousehold (NCJC of the Philippine
Judiciary-Annotated, February 2007)
Q: When is a judge’s disqualification to sit in a
case mandatory?
A: When the judge is related to one of the parties
within the sixth degree of consanguinity or
affinity.
Note: Judges should ensure that their family
members, friends and associates refrain from
creating the impression that they are in a position to
influence the judge. Judges should, therefore, at all
times remind themselves that they are not in the
judiciary to give out favors but to dispense justice.
They should also make it clear to the members of
their family, friends and associates that they will
neither be influenced by anyone, nor would they
allow anyone to interfere in their work.
Q: Is it enough that a judge is free from
inappropriate connections with executive and
legislative branches of the government?
A: Yes. An executive judge has no authority to
cause the transfer of court employees as the
jurisdiction to do so is lodge solely upon the SC
through the Office of the Court Administrator.
This is so because of the need to maintain judicial
independence. Moreover, a judge shall be free
from inappropriate connections with and
influence from the executive and legislative
branch. Here, the judge did not act independently
of the LGU when she asked the Mayor of QC to
re- employ the displaced employees instead of
informing the SC through the OCA of the need to
streamline her court of its personal needs
(Alfonso v. Alonzo-Legasto, A.M. No. MTJ 94-995,
Sept. 5, 2002)
Note: Judicial independence is the reason for leaving
exclusively to the Court the authority to deal with
internal personnel issues, even if the court
employees in question are funded by the local
government(Bagatsing v. Herrera, G.R. No. L-34952,
July 25, 1975)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
151
UST Golden Notes 2011
Sec. 6, Canon 1, NCJC: Judges shall be
independent in relation to society in general
and in relation to the particular parties to a
dispute which he or she has to adjudicate.
Note: It is desirable that the judge should, as far as
reasonably possible, refrain from all relations which
would normally tend to arouse suspicion that such
relations warp or bias his judgment, and prevent an
impartial attitude of minds in the administration of
judicial duties.Judges should not fraternize with
litigants and their counsel; they should make a
conscious effort to avoid them in order to avoid the
perception that their independence has been
compromised. A judge’s act of sending his staff to
talk with the complainant and show copies of his
draft decisions, and his act of meeting with litigants
outside the office premises beyond office hours
violate the standard of judicial conduct required to
be observed by members of the bench. (Tan v.
Rosete, A.M. No. MTJ-04-1563, Sept. 8, 2004)
Q: Are judges allowed to join religious and
professional organizations?
A: Yes. Section 6, Canon 1 of the NCJC does not
require a judge to live a hermit’s life. Judges
should socialize and be sensitive to social
concerns and developments. They may join
religious or professional organizations but their
membership in these organizations should not
interfere with their judicial tasks.
Sec. 7, Canon 1, NCJC: Judges shall
encourage and uphold safeguards for the
discharge of judicial duties in order to
maintain and enhance the institutional and
operational independence of the judiciary.
3.
4.
Have the mastery of the principles of law,
Discharge their duties in accordance with
law,
Are permitted to perform the duties of the
office undeterred by outside influence,
and
Are independent and self-respecting
human units in a judicial system equal and
coordinate
with the
other two
departments
of
the
government
(Borromeo v. Mariano, G.R. No. 16808,
Jan. 3, 1921).
Judges must remain conscious of their character
and reputation as judges and should avoid
anything which will indignify their public positions
and demean the institution to which they belong,
in whatever atmosphere or environment they
may happen to be.
Note: The judge should always be imbued with a
high sense of duty and responsibility in the discharge
of his obligation to promptly and properly administer
justice. He must view himself as a priest for the
administration of justice is akin to a religious
crusade(Dimatulac v. Villon, G.R. No. 127107, Oct.
12, 1998)
CANON 2, NCJC- INTEGRITY
INTEGRITY IS ESSENTIAL NOT ONLY TO THE
PROPER DISCHARGE OF THE JUDICIAL
OFFICE, BUT ALSO TO THE PERSONAL
DEMEANOR OF JUDGES.
Note: A judge should act with integrity and behave
with integrity at all times so as to promote public
confidence in the integrity of the judiciary.
Sec. 8, Canon1, NCJC: Judges shall exhibit
and promote high standards of judicial
conduct in order to reinforce public
confidence in the judiciary, which is
fundamental to the maintenance of judicial
independence.
Q: Is integrity required only in the discharge of
judicial duties?
Note: Sections 7 and 8 of Canon 1 are intended to
serve as catch-all provisions for all other acts that
would guarantee the independence of the judiciary.
Note: The integrity of the judiciary rests not only
upon the fact that it is able to administer justice but
also upon the perception and confidence of the
community that people who run the system have
done justice. Justice must not be merely done but
must also be seen to be done. (Panaligan v. Judge
Ibay, A.M. No. TJ-06-1972, June 21, 2006)
There can be no sure guarantee of judicial
independence than the character of those appointed
to the Bench.
Q: Who are good judges?
A: Good judges are described as those who:
152
1.
2.
A: No. Integrity is essential not only to the proper
discharge of the judicial office but also to the
personal demeanor of judges. (Canon 2, NCJC)
Note: In the Judiciary, moral integrity is more than a
cardinal virtue, it is a necessity (Pascual v Bonifacio,
AM No. RTJ-01-1625, March 10, 2003).
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Judicial Ethics – New Code of Judicial Conduct
Judges must be models of uprightness, fairness and
honesty (Rural Bank of Barotac Nuevo, Inc v.
Cartagena, A.M. No. 707-MJ, July 21, 1978)
Note: Under the 1989 Code, the values of INTEGRITY
and INDEPENDENCE were grouped together, but the
New Code of Judicial Conduct separated them to
emphasize the need to maintain a life of PERSONAL
and PROFESSIONAL INTEGRITY in order to properly
carry out their judicial functions.
Q: What is the presumption as regards judges?
A: Judges are presumed honest and, are men of
integrity, unless proven otherwise.
Section 1, Canon 2, NCJC: Judges shall ensure
that not only is their conduct above
reproach, but that it is perceived to be so in
the view of a reasonable observer.
Q: Is the maintenance of the court’s integrity the
sole duty of the judge?
A: No, it is also the duty of court personnel to see
to it that its integrity is unblemished.
Note: A judge’s personal behavior, both in the
performance of his duties and in his daily life, must
be free from any appearance of impropriety as to be
beyond reproach.
Q: Judge Ferdinand Marcos of RTC Cebu is
married to Rotilla with whom he begot 2
children. However, during a Fun Run sponsored
by Philippine Judges Association (PJA), Judge
Marcos appeared with a woman other than his
wife whom he even introduced to Justice Davide
as his living partner. Should the judge be
disciplined?
A: Yes. The Code of Judicial Conduct requires a
judge to be the embodiment of integrity, and to
avoid appearance of impropriety in all activities.
Here, Judge Marcos’ conduct of flaunting his
mistress is a conduct unbecoming of a judge. By
living with a woman other than his legal wife,
Judge Marcos has demonstrated himself to be
wanting in integrity, thus, unfit to remain in office
and continue discharging the functions of a judge
(Re: Complaint of Mrs. Rotilla A. Marcos and Her
Children against Judge Ferdinand J. Marcos, RTC,
Br. 20, Cebu City, A.M. No. 97-2-53 RTC, July 6,
2001).
Q: May a judge be admonished for not wearing
the judicial robe in the performance of judicial
functions?
A: Yes. A judge must take care not only to remain
true to the high ideals of competence and
integrity his robe represents, but also that he
wears one in the first place. (Chan v. Majaducan
A.M. No. RTJ-02-1697 October 15, 2003)
Sec. 2, Canon 2,NCJC: The behavior and
conduct of judges must reaffirm the people’s
faith in the integrity of the Judiciary. Justice
must not merely be done, but must also be
seen to be done.
A judge has the duty to not only render a just and
impartial decision, but also render it in such a
manner as to be free from any suspicion as to its
fairness and impartiality, and also as to the
judge’s integrity. While judges should possess
proficiency in law in order that they can
completely construe and enforce the law, it is
more important that they should act and behave
in such a manner that the parties before them
should have confidence in their impartiality.
(Sibayan-Joaquin v. Javellana, A.M. No. RTJ-001601, Nov. 13, 2001)
Note: A judge must not only be honest but must also
appear to be so; not only be a good judge, but also a
good person. (Dawa v. De Asa, A.M. No. MTJ-981144, July 22, 1998)
Q: Justice Mariano Del Castillo was charged with
plagiarism, twisting of cited materials, and gross
neglect in connection with the decision he wrote
for the court in G.R. No. 162230, entitled Vinuya
v. Romulo. Petitioners, members of the Malaya
Lolas Organization, seek reconsideration of the
decision of the Court dated October 12, 2010
that dismissed the said complaint. Petitioners
claim that the Court has by its decision legalized
or approved of the commission of plagiarism in
the Philippines. Should the respondent justice be
held guilty for plagiarism?
A: No. A judge writing to resolve a dispute,
whether trial or appellate, is exempted from a
charge of plagiarism even if ideas, words or
phrases from a law review article, novel thoughts
published in a legal periodical or language from a
party’s brief are used without giving attribution.
Thus judges are free to use whatever sources
they deem appropriate to resolve the matter
before them, without fear of reprisal. This
exemption applies to judicial writings intended to
decide cases for two reasons: the judge is not
writing a literary work and, more importantly, the
purpose of the writing is to resolve a dispute. As
a result, judges adjudicating cases are not subject
to a claim of legal plagiarism.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
153
UST Golden Notes 2011
Although as a rule, practicing lawyers receive
compensation for every pleading or paper they
file in court or for every opinion they render to
clients, lawyers also need to strive for technical
accuracy in their writings. They should not be
exposed to charges of plagiarism in what they
write so long as they do not depart, as officers of
the court, from the objective of assisting the
Court in the administration of justice. (In matter
of the Charges of Plagiarism etc.. Against
Associate Justice Mariano C. Del Castillo, A.M. No.
10-7-17-SC, February 8, 2011)
Sec. 3, Canon 2, NCJC: Judges should take or
initiate appropriate disciplinary measures
against lawyers or court personnel for
unprofessional conduct of which the judge
may have become aware.
Q: Can a judge punish lawyers and court
personnel for their misbehavior?
A: Yes. A judge may summarily punish any person
including lawyers and court personnel, for direct
contempt for misbehavior committed in the
presence of or so near a court or a judge as to
obstruct or interrupt the proceedings before the
same. (Rule 71, Revised Rules of Court)
He may also punish any person for indirect
contempt after appropriate charge and hearing,
for acts enumerated under Section 3, Rule 71 of
the Rules of Court.
Q: What is the judge’s duty with respect to court
employees?
A: A judge should constantly keep a watchful eye
on the conduct of his employees. His constant
scrutiny of the behavior of his employees would
deter any abuse on the part of the latter in the
exercise of their duties. The slightest breach of
duty by and the slightest irregularity in the
conduct of court officers and employees detract
from the dignity of the courts and erode the faith
of the people in the judiciary. (Buenaventura v.
Benedicto, A.C. No. 137-5, Mar. 27, 1971)
Note: Judges should not be lenient in the
administrative supervision of employees. As an
administrator, the judge must ensure that all court
personnel perform efficiently and promptly in the
administration of justice. (Ramirez v. CorpuzMacandog, A.M. No. R-351-RTJ, Sept. 26, 1986)
All court personnel, from the lowliest employees to
the clerks of court, are involved in the dispensation
of justice like judges and justices, and parties seeking
redress from the courts for grievances look upon
154
them also as part of the judiciary. In performing their
duties and responsibilities, court personnel serve as
sentinels of justice, that any act of impropriety they
commit immeasurably affects the honor and dignity
of the judiciary and the people's confidence in the
judiciary. They are, therefore, expected to act and
behave in a manner that should uphold the honor
and dignity of the judiciary, if only to maintain the
people’s confidence in the judiciary. (Guerrero v.
Ong, A.M. No. P-09-2676, Dec. 16, 2009)
Q: Can a judge dismiss court personnel?
A: No. The power to dismiss a court employee is
vested in the Supreme Court. (Dailay-Papa v.
Almora, A.M. Nos. 543-MC and 1525-MJ, Dec. 19,
1981)
Q: While Judge Tuparin was in his chambers
dictating an order to a stenographer, two
lawyers who were in the courtroom waiting for
the start of the session almost came to blows as
a result of a heated argument. Tuparin came out
of his chambers and after identifying the lawyers
involved in the commotion promptly declared
them in contempt of court. Was the action of
Judge Tuparin proper?
A: No. The act committed by the two lawyers was
indirect contempt violative of the rule punishing
“any improper conduct tending directly or
indirectly, to impede, obstruct, or degrade the
administration of justice”, since the judge was
then engaged in dictating an order before the
morning session was called. The act of the two
lawyers constituted obstruction of the
administration of justice, which was indirect
contempt. Accordingly, they could only be
punished after notice and hearing.
CANON 3, NCJC -IMPARTIALITY
IMPARTIALITY IS ESSENTIAL TO THE PROPER
DISCHARGE OF THE JUDICIAL OFFICE. IT
APPLIES NOT ONLY TO THE DECISION ITSELF
BUT ALSO TO THE PROCESS BY WHICH THE
DECISION IS MADE.
Q: Is impartiality applicable only to the decision
rendered by the judge?
A: No. Impartiality is essential to the proper
discharge of the judicial office. It applies not only
to the decision itself but also to the process by
which the decision is made. (Canon 3, NCJC)
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Judicial Ethics – New Code of Judicial Conduct
Q: What is the principle of cold neutrality of an
impartial judge?
A: A judge should not only render just, correct,
and impartial decision but should do so in a
manner free from suspicion as to his fairness,
impartiality and integrity. This is an indispensable
requisite of due process. (Rallos v. Gako, A.M. No.
RTJ-98-1484, Mar. 17, 2000)
Note: A judge has both the duty of rendering a just
decision and the duty of doing it in a manner
completely free from suspicion as to his fairness and
as to his integrity.
Sec. 1, Canon 3,NCJC: Judges shall perform
their judicial duties without favor, bias or
prejudice.
Note: It is the duty of all judges not only to be
impartial but also to appear impartial.
A. No. For a judge to be inhibited, allegations of
partiality and pre-judgment must be proven by
clear and convincing evidence. Here, mere
allegation that the judge arbitrarily issued the
TRO without presenting evidence showing bias on
his part is not sufficient. While Judge Santiago
acted in excess of his jurisdiction when he issued
the TRO for such should only be enforceable
within his territorial jurisdiction, such error may
not necessarily warrant inhibition at most it is
correctible by certiorari(Dimo Realty &
Development, Inc. v. Dimaculangan, G.R. No.
130991, Mar. 11, 2004).
Q: What should the complainant show in order
to sustain the charge of bias on the part of the
judge?
A: The complainant must show that the resulting
opinion of the judge is based on extra-judicial
source.
Q: What is the extra-judicial source rule?
Q: Who has the burden of proof to show bias or
prejudice?
A: The burden of proof lies with the complainant
to show that there is bias sufficient to be a
ground for inhibition.
Note: There is Bias or Prejudice when the resulting
opinion is based upon an extrajudicial source: that is,
some influence other than the facts and law
presented in the courtroom.
Q: What is the degree of proof required to prove
bias and prejudice on the part of the judge?
A: The complainant must prove the same by clear
and convincing evidence since allegations of bias
are quite serious. Mere allegations are not
sufficient to constitute a violation of the rule.
Q: A filed an action for specific performance with
the RTC of Quezon City, presided by Judge
Santiago, against X corporation asking for the
delivery of the title of 1 subdivision lot in
Batangas which lot was given to him in payment
for his services as geodetic surveyor. Meanwhile
X Corporation filed with MTC of Batangas an
action for an unlawful detainer against certain
lot buyers on motion of A. Judge Santiago issued
TRO against X Corp. and Judge of MTC and
enjoining the latter from proceeding with the
case. X Corp. now filed a motion to inhibit the
judge on the ground that he arbitrarily issued
such TRO, but without presenting evidence
showing partiality on the part of the judge.
Should the judge be inhibited?
A: It means that the decision is based on some
influence other than the facts and law presented
in the courtroom.
Q: A motion to inhibit Judge Dicdican was filed
on the ground of partiality and bias on his part
for allegedly denying a motion to hear
affirmative defenses thereby denying the
movant the opportunity to be heard. Should the
judge be inhibited?
A: No. Judge Dicdican cannot be charged with
bias and partiality, merely on the basis of his
decision not to grant a motion for a preliminary
hearing. Allegations and perceptions of bias from
the mere tenor and language of a judge are
insufficient to show pre-judgment. Moreover, as
long as opinions formed in the course of judicial
proceedings are based on the evidence presented
and the conduct observed by the judge, such
opinion – even if later found to be erroneous on
appeal or made with grave abuse of discretion on
certiorari – will not necessarily prove personal
bias or prejudice on the part of the judge. To
allow inhibition for such reason would open
floodgates to abuse. Here, the denial of the
motion to hear affirmative defenses is based on
the Rules of Court which provides that
preliminary hearing of defenses is discretionary,
hence the judge cannot be charged with partiality
on the basis of such decision. (Gochan v. Gochan,
G.R. No. 143089, Feb. 27, 2003)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
155
UST Golden Notes 2011
Sec. 2, Canon 3, NCJC: Judges shall ensure
that his or her conduct, both in and out of
court, maintains and enhances the
confidence of the public, the legal profession
and litigants in the impartiality of the judge
and of the Judiciary.
Note: No judge should handle a case in which he
might be perceived, rightly or wrongly, to be
susceptible to bias and impartiality. His judgment
must not be tainted by even the slightest suspicion
of improbity or preconceived interest. The rule is
aimed at preserving at all times the faith and
confidence in courts of justice by any party to the
litigation. (Urbanes, Jr. v. C.A., G.R. No. 117964, Mar.
28, 2001)
Q: When is there undue interference by the
judge?
A: There is undue interference where the judge’s
participation in the conduct of the trial tends to
build or to bolster a case of one of the parties.
Q: Banco Filipino filed a complaint for
reconveyance of property against Ty and Tala
Realty Services Corp., which complaint was
dismissed on the ground of lack of jurisdiction.
However, on motion for reconsideration filed by
Banco Filipino, the case was reinstated and the
judge even relieved Banco Filipino from its
obligation to prove service of its motion for
reconsideration and presumed actual receipt of
the same by the other party. Thereafter, the
judge directed the respondents to present
certain documents within a certain period of
time despite failure of Banco Filipino to tender
the costs for such production and inspection.
Tala then filed a motion for inhibition but the
same was denied by the judge. Did the judge
commit any improper conduct?
A: Yes. The rule is that a judge may not be legally
prohibited from sitting in litigation, but when
circumstances appear that will induce doubt to
his honest actuations and probity in favor of
either party, or incite such state of mind; he
should conduct a careful self-examination. He
should exercise his discretion in a way that the
people's faith in the courts of justice is not
impaired. The better course for the judge under
such circumstances is to disqualify himself. That
way, he avoids being misunderstood; his
reputation for probity and objectivity is
preserved. What is more important, the ideal of
impartial administration of justice is lived up to.
Here, the judge, by assuming actual receipt by the
respondents of proof of service of the motion for
156
reconsideration, absolving Banco Filipino from
paying the expenses of production of documents,
and suggesting to Banco Filipino what evidence to
present to prove its case, transgressed the
boundaries of impartiality. Thus, the judge should
inhibit himself. (Ty v. Banco Filipino Savings and
Mortgage Bank, et. al., G.R. Nos. 149797-98, Feb.
13, 2004)
Q: Can a trial judge ask questions from
witnesses?
A: It is within the sound discretion of the trial
judge to ask questions from witnesses, if only to
clarify what may appear to him to be vague
points in the narration. Questions designed to
avoid obscurity in the testimony or to elicit
additional relevant evidence are not improper.
The judge may aptly need to intervene in the
presentation of evidence in order to expedite the
resolution of a case and prevent unnecessary
waste of time. Judges, however, should be
extremely careful so as not to be misunderstood,
and they must refrain from making comments,
remarks or suggestions that could lead to even
the slightest suspicion that he is thereby unduly
assisting a party or counsel. (Paco v. Quilala, A.M.
No. RTJ-02-1699, Oct. 15, 2003)
Note: In disposing of a criminal case, a judge should
avoid appearing like an advocate for either party. It
is also improper for the judge to push actively for
amicable settlement against the wishes of the
complainant. A judge’s unwelcome persistence
makes the judge vulnerable to suspicions of
favoritism. (Montemayor v. Bermejo, Jr.,A.M. No.
MTJ-04-1535, Mar. 12, 2004)
Note: Stating to his court staff and the Public
Assistance Office (PAO) lawyer that he is “proaccused”
particularly
concerning
detention
prisoners, the judge opened himself up to suspicion
regarding his impartiality. (OCA v. Judge Floro, A.M.
No. RTJ-99-1460, March 31, 2006)
Sec. 3, Canon 3,NCJC: Judges shall, so far as
is reasonable, so conduct themselves as to
minimize the occasions on which it will be
necessary for them to be disqualified from
hearing or deciding cases.
Q: What is meant by “duty to sit?”
A: It means that a judge must ensure that he will
not be unnecessarily disqualified from a case.
Q: May a judge inhibit himself as he pleases?
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Judicial Ethics – New Code of Judicial Conduct
A: No. A decision to inhibit must be based on
good, sound or ethical grounds, or for just and
valid reasons. It is not enough that a party cast
some tenuous allegations of partiality at the
judge.
A: Yes. The judge’s statement in the decision
acquitting Bayongan to the effect that the crime
was committed by Martinez renders it impossible
for the judge to be free from suspicion that in
deciding the case he will be biased. (Martinez v.
Gironella, G.R. No. L-37635, July 22, 1975)
Q: What is the Rule of Necessity?
A: It states that a judge is not disqualified to sit in
a case where there is no other judge available to
hear and decide the case. Furthermore, when all
judges will be disqualified as a result, it will not be
permitted to destroy the only tribunal with the
power in the premises. The doctrine operates on
the principle that a basic judge is better than no
judge at all. It is the duty of the disqualified judge
to hear and decide the case regardless of
objections or disagreements. (Parayno v.
Meneses, G.R. No. 112684, Apr. 26, 1994)
Sec. 4, Canon 3, NCJC: Judges shall not
knowingly, while a proceeding is before or
could come before them, make any
comment that might reasonably be
expected to affect the outcome of such
proceeding or impair the manifest fairness
of the process. Nor shall judges make any
comment in public or otherwise that might
affect the fair trial of any person or issue.
Note: A judge’s language, both written and spoken,
must be guarded and measured, lest the best of
intentions be misconstrued. (Fecundo v. Berjamen,
G.R. No. 88105, December 18, 1989)
Q: Justice Antonio Carpio penned a decision
regarding the invalidity of the amended joint
venture agreement between Public Estates
Authority (PEA) and Amari Coastal Bay
Development Corporation saying that the
agreement is unconstitutional as PEA cannot
transfer ownership of a reclaimed land to a
private corporation. Amari now filed a motion to
inhibit Justice Carpio on the ground of bias and
pre-judgment allegedly because he had
previously wrote in his column in Manila Times a
statement to the effect that the law requires
public bidding of reclaimed projects and that the
PEA-Amari contract is flawed for it was not bid
by the PEA. Decide on the motion.
A: The motion to inhibit must be denied for three
reasons:
1.
The motion to inhibit must be denied if
filed after a member of the court had
already rendered his opinion on the merits
of the case. Here,the motion was filed
after Justice Carpio had already rendered
a decision;
2.
The ratio decidendi of the decision was
not based on his statements on the
column. Here, the decision was based on
constitutional grounds and not in the
absence of public bidding; and
3.
Judges and justices are not disqualified
from participating in a case just because
they have written legal articles on the law
involved in the case. (Chavez v. PEA, G.R.
No. 133250, May 6, 2003)
Q: What is the reason for the rule?
A: This Section warns judges against making any
comment that might reasonably be expected to
affect the outcome of the proceedings before
them; or those that the judge may later decide
but not yet before him; or "impair the manifest
fairness of the process.”
Q: A murder case was filed against Martinez,
Duclan and Bayongan. As the first two were not
apprehended, trial proceeded with respect to
Bayongan. Thereafter, Judge Girronella rendered
a decision acquitting Bayongan saying that he
had no participation in the commission of the
crime as the crime was committed by Martinez.
Subsequent to the acquittal, Martinez
surrendered and was arraigned before the same
court presided by Judge Girronella. A Motion for
inhibition was then filed on the ground of
partiality saying that the judge has already
formed an opinion as to who committed the
crime. Should the judge be inhibited?
Q: Are judges absolutely prohibited from making
comments?
A: No. Not all comments are impermissible.
Judges may express their open-mindedness
regarding a pending issue in cases where the
judges’ comments do not necessarily favor one
side over the other.
Note: Judges should avoid side remarks, hasty
conclusions, loose statements or gratuitous
utterances that suggest they are prejudging a case.
Judges should be aware that the media might
consider them a good and credible source of opinion
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
157
UST Golden Notes 2011
or ideas, and therefore should refrain from making
any comment on a pending case. Not only is there
danger of being misquoted, but also of
compromising the rights of the litigants in the case.
Sec. 5, Canon 3, NCJC: Judges shall disqualify
themselves from participating in any
proceeding in which they are unable to
decide the matter impartially or in which it
may appear to a reasonable observer that
they are unable to decide the matter
impartially.
serious misconduct and ordered dismissed
from the bench before he was able to rescue
himself(Oktubre v. Velasco A.M. No. MTJ-0202-1444, July 20, 2004)
4.
Note: The restriction extends to judges who
served as lawyers in closely related cases.
Q: What does the phrase “any proceedings”
include?
5.
A: Such proceedings include, but are not limited
to instances where:
1.
The judge has actual bias or prejudice
concerning a party or personal knowledge
of disputed evidentiary facts concerning
the proceedings (Sec. 5(a), Canon 3, NCJC);
This prohibition also disallows extra-judicial
research on the internet.
Litigants are entitled to a judge who will
decide on the merits of the facts presented.
The judge previously served as a lawyer or
was a material witness in the matter in
controversy(Sec. 5(b), Canon 3, NCJC);
6. The judge is related by consanguinity or
affinity to a party litigant within the 6th
civil degree or to counsel within the 4th
civil degree (Sec. 5(f), Canon 3, NCJC); or
Note: A judge may be disqualified if he was
formerly associated with one of the parties
or their counsel.
Note: A preliminary injunction issued by a
judge in favor of his sister before inhibiting
himself was found reprehensible. (Hurtado v.
Judajena, G.R. No. L-40603, July 13, 1978)
A judge who previously notarized the
affidavit of a person to be presented as a
witness in a case before him shall be
disqualified from proceeding with the case.
3.
The judge, or a member of his or her
family, has an economic interest in the
outcome of the matter in controversy (Sec.
5(c), Canon 3, NCJC);
A municipal judge who filed complaints in his
own court for robbery and malicious
mischief against a party for the purpose of
protecting the property interests of the
judge’s co-heirs, and then issued warrants of
arrest against the party, was found guilty of
158
The judge’s ruling in a lower court is the
subject of review (Sec. 5(e), Canon 3,
NCJC);
Note: An associate justice of the Court of
Appeals refused to inhibit himself from
reviewing the decision in a case which he
had partially heard as a trial judge prior to
his promotion, on the ground that the
decision was not written by him. The
Supreme Court upheld his refusal, but
nevertheless commented that he "should
have been more prudent and circumspect
and declined to take on the case owing to his
earlier involvement in the case”. The Court
has held that a judge should not handle a
case in which he might be perceived, rightly
or wrongly, to be susceptible to bias and
prejudice. (Sandoval v. CA, G.R. No. 106657,
Aug. 1, 1996)
Note: The rule also requires disqualification
if a judge has outside knowledge of disputed
facts. To be a ground for disqualification, the
knowledge must be obtained extra-judicially
like out-of-court observations.
2.
The
judge
served
as
executor,
administrator, guardian, trustee or lawyer
in the case or matter in controversy, or a
former associate of the judge served as
counsel during their association, or the
judge or lawyer was a material witness
therein (Sec. 5(d), Canon 3, NCJC);
No judge should preside in a case which he is
not wholly free, disinterested, impartial and
independent. (Garcia v. De La Pena. A.M.
No.MTJ-92-637. February 9, 1994)
7.
The judge knows that his or her spouse or
child has a financial interest as heir,
legatee, creditor, fiduciary or otherwise, in
the subject matter in controversy or in a
party to the proceeding, or any other
interest that could be substantially
affected by the outcome of the
proceedings. (Sec. (g), Canon 3, NCJC)
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Judicial Ethics – New Code of Judicial Conduct
Note: This rule is intended to ensure judges’
impartiality by preventing situations in which
a judge must consider familial interests in
the conflicts before him or her. If the public
is aware of a family member’s financial
interest, the public may question the judge’s
impartiality
Q: When Atty. Rojas was appointed as a judge,
he inherited a criminal case in which he acted as
prosecutor. He explained that his delay in
inhibiting himself from presiding on that case
was because it was only after the belated
transcription of the stenographic notes that he
remembered that he handled that case. He also
says that the counsels did not object and he
never held “full-blown” hearings anyway. Should
Judge Rojas be reprimanded?
A: Yes. The Rules of Court prevent judges from
trying cases where they acted as counsel
“without” the consent of the parties. This
prevents not only a conflict of interest but also
the appearance of impropriety on the part of the
judge. Here, the judge should not have taken part
in the proceeding as his impartiality will naturally
be questioned considering that he previously
handled the case as prosecutor. He should
administer justice impartially & without delay.
The prohibition does not only cover hearings but
all judicial acts (e.g. orders, resolutions) some of
which, Judge Rojas did make.(Re: Inhibition of
Judge Eddie R. Rojas, A.M. No. 98-6-185-RTC, Oct.
30, 1998)
Q: Judge Mijares was charged with grave
misconduct for taking cognizance and deciding a
special proceeding for correction of entry in the
record of her grandson, notwithstanding such
relationship. It was also alleged that the judge
dispensed with the publication requirement in
said proceeding. In her answer, Judge Mijares
contended that the prohibition provided for
under the Code does not apply to special
proceeding which is not controversial in nature
and since she does not have any pecuniary
interest in the case. Is the contention correct?
A: No. A judge who is related to a party within the
6th degree of consanguinity is mandated to inhibit
himself from hearing the case “notwithstanding
lack of pecuniary interest in the case”. This is so
because lack of such interest does not mean that
she can already be free from bias and partiality in
resolving the case by reason of her close blood
relationship as evident from the fact that here,
she waived the publication requirement in order
to save the petitioner from the payment of
publication fee. Thus, the judge’s taking
cognizance of the petition is improper. (Villaluz v.
Mijares, A.M. No. RTJ -98-1402 288, Apr. 3, 1998)
Note: A judge improperly presided over the
preliminary investigation of a criminal complaint
wherein the complaining witness was his nephew.
The high court held that the judge should have
inhibited himself, because while conducting
preliminary investigation may not be construed
strictly as “sitting in a case,” the underlying reason
behind his disqualification under the code of judicial
conduct and Sec. 1 of Rule 137 are the same. (Perez
v. Suller, A.M. No. MTJ-94-436, Nov. 6, 1995)
Note: Judges no longer conduct preliminary
investigations. (A.M. No. 05-8-26-SC, Oct.3, 2005)
Q: What degree of compliance is required by the
rule under Canon 3, Section 5 of NCJC?
A: Strict compliance of the rule is required so as
to protect the rights of the parties and assure an
impartial administration of justice, as well as to
prevent erosion of the people's confidence in the
judiciary. (Marfil v. Cuachon, A.M. No. 2360-MJ,
Aug. 31, 1981)
Q: Are the grounds for disqualification of a judge
enumerated under Sec. 5 of Canon 3 exclusive?
A: No. The provision provides that it is not limited
to the grounds therein provided.
Sec. 6, Canon 3, NCJC: A judge disqualified as
stated above may, instead of withdrawing
from the proceeding, disclose on the records
the basis of disqualification. If, based on such
disclosure, the parties and lawyers,
independently of the judge’s participation, all
agree in writing that the reason for inhibition
is immaterial or unsubstantial, the judge may
then participate in the proceeding. The
agreement, signed by all parties and lawyers,
shall be incorporated in the record of the
proceedings.
Q: What are the types of disqualification?
A:
1.
2.
Mandatory or compulsory disqualification
Voluntary disqualification or inhibition
Note: A judge may, in the exercise of his sound
discretion, disqualify himself, for just and valid
reasons other than those mentioned under Rule 137
of the Rules of Court (2nd Paragraph of Sec. 1, Rule
137, RRC).
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
159
UST Golden Notes 2011
Q: What is inhibition?
A: An act when a judge personally prevents
himself from taking cognizance of the case. This is
made through a written petition to inhibit which
shall state the grounds for the same. The
explanation of the judge whether or not to take
cognizance of the case must also be in writing.
3.
When he has been an executor, guardian,
administrator, trustee, or counsel; or
4.
When he has presided in an inferior court
where his ruling or decision is subject to
review, without the written consent of the
parties. (Rule 137, RRC)
Q: When may a judge voluntarily inhibit himself?
Note: If the judge inhibits himself from taking
cognizance of the case, the same cannot be
appealed. However, the judge should not
immediately inhibit himself. He should make a
careful examination by first taking into consideration
the following:
1.
2.
General consideration– whether or not
people’s faith in the judicial system will be
impaired
Special consideration– He must reflect on the
probability that the losing party will nurture
at the back of his mind that he tilted the
scale of justice
Q: What are the distinctions
disqualification and inhibition?
between
The judge has no
discretion; mandatory
The rule only
provides broad
basis for inhibition.
The rule leaves the
matter to the
judge’s sound
discretion
Q: Does the filing of an administrative case
against a judge disqualify him from sitting in a
case?
INHIBITION
Note: The second paragraph of Section 1, Rule 137
does not give the judge the unfettered discretion to
decide whether or not he will desist from hearing a
case. The inhibition must be for just and valid
causes. The mere imputation of bias or partiality is
not enough ground for a judge to inhibit, especially
when the same is without any basis. (People v. Kho
G.R. No. 139381, April 20, 2001)
Q: What are the grounds for mandatory
disqualification?
A:
1.
2.
160
This leaves the discretion to the judge to decide
for himself questions as to whether he will desist
from sitting in a case for other just and valid
reasons with only his conscience to guide him,
unless he cannot discern for himself his inability
to meet the test of cold neutrality required of
him, in which event the appellate court will see to
it that he disqualifies himself.
A decision to disqualify himself is not conclusive
and his competency may be determined on
application for mandamus to compel him to act.
Judge’s decision to continue hearing a case in
which he is not legally prohibited from trying
notwithstanding challenge to his objectivity may
not constitute reversible error.
A:
DISQUALIFICATION
There are specific
grounds enumerated
under the rules of court
for disqualification.
A: The judge may in his discretion inhibit himself,
for just and valid reasons other than the grounds
for mandatory disqualification. The rule on
voluntary disqualification or inhibition is
discretionary upon the judge on the basis of his
conscience.
When he, or his wife, or child is
pecuniarily interested as heir, legatee,
creditor, or otherwise;
When he is related to either party within
th
the 6 degree of consanguinity or affinity
or to counsel within the 4th civil degree;
A: No, it does not automatically disqualify him. It
must be shown that there are other acts or
conducts by the judge which constitute a ground
for his disqualification.
Q: May mandamus lie to compel a judge to
inhibit himself?
A: Yes, a judge may by mandamus be compelled
to act on questions regarding his disqualification
from sitting in a case.
Q: When should the petition to disqualify be
filed?
A: The petition to disqualify a judge must be filed
before rendition of the judgment, and cannot be
raised on appeal. Otherwise, the parties are
deemed to have waived any objection regarding
the impartiality of the judge.
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Judicial Ethics – New Code of Judicial Conduct
Q: A judge rendered a decision in a criminal case
finding the accused guilty of estafa. Counsel for
the accused filed a motion for reconsideration
which was submitted without arguments. Later,
another lawyer entered his appearance for the
accused. The judge issued an order inhibiting
himself from further sitting in the case because
the latter lawyer had been among those who
recommended him to the bench. Can the judge’s
voluntary inhibition be sustained?
is immaterial or insubstantial; the judge may then
participate in the proceeding. The agreement,
signed by all parties and lawyers, shall be
incorporated in the record of the proceedings.
(Sec. 6, Canon 3, NCJC)
Q: What are the requirements for a judge to
continue hearing a case despite the existence of
reasons for disqualifications?
A:
A: The judge may not voluntarily inhibit himself
by the mere fact that a lawyer recommended him
to the bench. In fact, the appearance of said
lawyer is a test as to whether the judge can act
independently and courageously in deciding the
case according to his conscience. “Inhibition is not
allowed at every instance that a friend, classmate,
associate or patron of a presiding judge appears
before him as counsel for one of the parties to a
case. ‘Utang na loob’, per se, should not be a
hindrance to the administration of justice. Nor
should recognition of such value in Philippine
society prevent the performance of one’s duties
as judge.” However, in order to avoid any
suspicion of partiality, it is better for the judge to
voluntarily inhibit himself. (Query of Executive
Judge Estrella T. Estrada, Regional Trial Court of
Malolos, Bulacan, on the Conflicting Views of
Regional Trial Court – Judges Masadao and
Elizaga Re: Criminal Case No. 4954-M, A.M. No.
87-9-3918-RTC October 26, 1987)
Q: Does a judge’s active participation during the
hearing of the writ of preliminary injunction
amount to an evident display of his bias and
partiality in favor of the private respondents and
should he therefore disqualify himself from
further hearing the civil case?
A: No. Mere intervention of the respondent judge
during the hearing of preliminary injunction by
simply asking the materiality of a question
directed upon the witness and ruling against the
petitioners are within the prerogatives and
powers of the judge. The fact that the judge
asked questions in the course of the trial does not
make him a biased judge (Hizon v. DelaFuente,
G.R. No. 152328, Mar. 23, 2004).
Q: What is remittal of disqualification?
A: A judge disqualified may, instead of
withdrawing from the proceeding, disclose in the
records the basis of disqualification. If, based on
such disclosure, the parties and lawyers,
independently of the judge’s participation, all
agree in writing that the reason for the inhibition
1.
The bona fide disclosure to the parties in
litigation; and
2.
The express acceptance by all the parties
of the cited reason as not material or
substantial.
CANON 4, NCJC- PROPRIETY
PROPRIETY AND THE APPEARANCE OF
PROPRIETY ARE ESSENTIAL TO THE
PERFORMANCE OF ALL THE ACTIVITIES OF A
JUDGE.
Note: The judge’s own perception of motives is not
relevant when considering appearance of
impropriety.
Sec. 1, Canon 4, NCJC: Judges shall avoid
impropriety and the appearance of
impropriety in all of their activities.
Note: The public holds judges to higher standards of
integrity and ethical conduct than lawyers and other
persons not invested with public trust.
Q: What does the Code prohibit?
A: It prohibits not only actual impropriety but
even the mere appearance of impropriety.
Q: When can one say that there is an appearance
of impropriety?
A: When the conduct of a judge would create in
reasonable minds a perception that the judge’s
ability to carry out judicial responsibilities with
integrity, impartiality and competence is
impaired.
Note: Acts done by a judge which are not illegal may
still constitute a violation of this rule.
Q: Cite examples of acts of a judge which are not
illegal but will constitute a violation of this rule.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
161
UST Golden Notes 2011
A:
1.
The act of a judge of hearing cases on a
day when he is supposed to be on official
leave. (Re: Anonymous complaint Against
Judge EdmundoAcuña, A.M. No. RTJ-041891, July 28, 2005)
2.
Photograph showing the judge and a
subordinate coming out of a hotel
together even if there was no clear
evidence of sexual congress between
them is enough to give rise to the
appearance of impropriety that the code
strongly warns against. (Liwanag v. Lustre,
A.M. No. MTJ-98-1168, Apr. 21 1999)
3.
Joking remark made by a judge to a
litigant suggesting that the litigant prove
he harbored no ill feelings towards the
judge. (Co v. Plata, A.M. No. MTJ-03-1501,
Mar. 14, 2005)
Q: Judge Lee was charged with conduct
unbecoming of a judge for habitually using
vulgar words especially when solemnizing
marriage. It was alleged that in a certain
marriage ceremony he made a comment that
the bride and the groom should sexually satisfy
each other so that his or her partner will not
look for another. In his answer the judge
contended that as solemnizing officer, it was his
duty to so advice the couple, and his lecture
about sex was intended for purposes of family
planning and to forewarn the parties as to the
cause of marital failure. Should the judge be
disciplined?
A: Yes. A judge shall avoid impropriety and
appearance of impropriety in all his activities.
Here, the advice of the judge using vulgar words
during a wedding is not to be expected of a judge.
Such gutter-language is even rarely heard in
slums. When used by a judge, respect for the
entire judiciary plummets to the levels where the
people would begin to doubt the moral standards
of judges and their capacity and fitness to
dispense justice. (Hadap v. Lee, A.M. No. 1665MJ, June 29, 1982)
Q: During the hearing of an election protest filed
by the brother of Judge Dojillo, the latter sat
beside the counsel of his brother allegedly to
give moral support. Did the judge commit any
improper conduct?
A: Yes. The judge violated the rule on impropriety
under the NCJC Sec 1 Canon 4 for even if he did
not intend to use his position as a judge to
162
influence the outcome of his brother’s election
protest, it cannot be denied that his presence in
the courtroom during the hearing of his brother’s
case would immediately give cause for the
community to suspect that his being a colleague
in the judiciary would influence the judge trying
the case to favor his brother. (Vidal v. Judge
Dojillo Jr., A.M. No. MTJ-05-1591, July 14, 2005)
Note: The Judge’s act in riding in defendant’s car
deserves the stern probation of the Court. By such
act, he openly exposed himself and the office he
holds to suspicion, thus impairing the trust and faith
of the people in the administration of justice. A
judge’s official conduct should be free from the
appearance of impropriety and his personal conduct
and behavior should be beyond reproach. (Spouses
Cabreana v. Avelino A.M. No. 1733 CFI September
30, 1981)
Q: Judge Duque of the RTC was charged with
Impropriety, Corruption and Gross Misconduct.
Reyes alleged that she was a party-inintervention in Land Registration filed by the
Philippine Savings Bank against the spouses
Choi. In a Decision, Judge Duque granted the
motion for the issuance of a writ of possession in
favor of the bank. Complainant Reyes filed an
“Urgent Petition for Lifting and Setting Aside of
Writ of Possession and Quashal of Notice to
Vacate” claiming that she bought the subject
property from the spouses Choi and that she was
in actual possession of the property with full
knowledge of the bank.
At the hearing, Atty. Ubana, the lawyer of Reyes,
introduced her to Judge Duque who allegedly
gave Reyes 30 days to settle matters with the
bank. She was unable to re-negotiate with the
bank. Reyes then allegedly received a phone call
from Judge Duque and he instructed Reyes to go
“to his house and bring some money in order
that he can deny the pending motion to break
open.” When she already had the money, she
went to his house. The son of Judge Duque
opened the gate. At his house, Judge Duque
demanded money from her.
Another incident happened, whereby Reyes
went to the house of Judge Duque for the
payment of a sum of money. Judge Duque
allegedly scolded her for not bringing the whole
amount. Judge Duque then locked the main door
of his house and asked Reyes to step into his
office. Judge Duque held the waist of Reyes,
embraced and kissed her. Reyes tried to struggle
and free herself. Judge Duque raised her skirt,
opened her blouse and sucked her breasts. He
touched her private parts and attempted to have
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Judicial Ethics – New Code of Judicial Conduct
sexual intercourse with Reyes. Reyes shouted for
help but the TV was too loud. As a desperate
move, Reyes appealed to Judge Duque saying:
“kung gusto mo, huwag dito. Sa hotel, sasama
ako sayo.” Judge Duque suddenly stopped his
sexual advances and ordered Reyes to fix her
hair.
Is the respondent judge guilty of
impropriety and gross misconduct?
are essential to the preservation of the people’s faith
in the judicial system lest public confidence in the
judiciary would be eroded by the incompetent,
irresponsible and negligent conduct of judges.
(Bayaca v. Judge Ramos, A.M. No. MTJ-07-1676, Jan.
29, 2009)
A: Yes. Judges should avoid impropriety and the
appearance of impropriety in all of their activities.
Judges should conduct themselves in a way that is
consistent with the dignity of the judicial office.
Judges, like any other citizen, are entitled to
freedom of expression, belief, association and
assembly, but in exercising such rights, they
should always conduct themselves in such a
manner as to preserve the dignity of the judicial
office and the impartiality and independence of
the judiciary.
A: Dignified conduct is best described as conduct
befitting men and women possessed of
temperance and respect for the law and for
others.
The conduct of Judge Duque fell short of the
exacting standards for members of the judiciary.
He failed to behave in a manner that would
promote confidence in the judiciary. Considering
that a judge is a visible representation of the law
and of justice, he is naturally expected to be the
epitome of integrity and should be beyond
reproach. Judge Duque’s conduct indubitably
bore the marks of impropriety and immorality. He
failed to live up to the high moral standards of the
judiciary and even transgressed the ordinary
norms of decency of society. Had Judge Duque
not retired, his misconduct would have merited
his dismissal from the service. (Reyes v. Duque,
A.M. No. RTJ-08-2136 , September 21, 2010)
Sec. 2, Canon 4, NCJC: As a subject of
constant public scrutiny, judges must accept
personal restrictions that might be viewed as
burdensome by the ordinary citizen and
should do so freely and willingly. In
particular, judges shall conduct themselves in
a way that is consistent with the dignity of
the judicial office.
Note: Membership in the judiciary circumscribes
one’s personal conduct and imposes upon him
certain restrictions, the faithful observance of which,
is the price one has to pay for holding such a
distinguished position. Accordingly, a magistrate of
the law must comport himself in a manner that his
conduct must be free of a whiff of impropriety, not
only with respect to the performance of his official
duties, but also to his behavior outside his sala and
as a private individual. His conduct must be able to
withstand the most searching public scrutiny, for the
ethical principles and sense of propriety of a judge
Q: What is a dignified conduct?
Q: Judge Gonzales together with his two male
friends went to the house of A and asked the
two girls who were then boarding in A’s house to
accompany his two male friends and take a stroll
in the beach. When the girls refused, the judge
admonished them. Consequently, the judge was
charged with conduct unbecoming of a judge.
Will the action prosper?
A: Yes. A judge should so comport himself as not
to degrade or bring embarrassment to his office.
Here, Judge Gonzales’ act of imposing his will on
the
complainants
constitutes
conducts
unbecoming of a judge who should be civil,
humble and considerate of the rights of others.
(Mariano v. Gonzales, A.M. No. 2180-MJ 114,
May 31, 1982)
Note: In every litigation, the manner and attitude of
a judge are crucial to everyone concerned. It is not
for him to indulge or even to give the appearance of
catering to the at-times human failing of yielding to
first impressions. He is to refrain from reaching
hasty conclusions or prejudging matters. It would be
deplorable if he lays himself open to the suspicion of
reacting to feelings rather than to facts, of being
imprisoned in the net of his own sympathies and
predilections. His language, both written and
spoken, must be guarded and measured, lest the
best intentions be misconstrued. He should avoid
such action as would subject him to suspicion of
interest in a case in his court. It is of utmost
importance that a judge must preserve the trust and
confidence reposed in him by the parties as an
impartial, unbiased and dispassionate dispenser of
justice. When he conducts himself in a manner that
gives rise, fairly or unfairly, to perceptions of bias,
such faith and confidence are eroded. His decisions,
whether right or wrong, will always be under
suspicion of irregularity. (Abesa v. Judge Nacional,
A.M. No. MTJ-05-1605, June 8, 2006)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
163
UST Golden Notes 2011
Sec. 3, Canon 4, NCJC: Judges shall, in their
personal relations with individual members
of the legal profession who practice
regularly in their court, avoid situations
which might reasonably give rise to the
suspicion or appearance of favoritism or
partiality.
Q: What is the reason for this rule?
A: This section is directed at bolstering the
principle of cold neutrality of an impartial judge
as it requires judges to scrupulously guard against
any act that may be construed as an expression of
bias in favor of a litigant.
Note: Constant company with a lawyer tends to
breed intimacy and camaraderie to the point that
favors in the future may be asked from the judge
which he may find it hard to resist. If a judge is seen
eating and drinking in public places with a lawyer
who has cases pending in his or her sala, public
suspicion may be aroused, thus tending to erode the
trust of litigants in the impartiality of the judge.
(Padilla v. Zantua, G.R. No. 110990, Oct. 1994)
Note: A judge shall avoid fraternizing with lawyers
and litigants.
Q:
Complainant
Prosecutor
filed
an
administrative complaint against respondent
Sandiganbayan Justices for grave misconduct,
conduct unbecoming a Justice, and conduct
grossly prejudicial to the interest of the service.
Allegedly, during a hearing, Justice Ong uttered
words like “We are playing Gods here, we will do
what we want to do, your contempt is already
out, we fined you eighteen thousand pesos, even
if you will appeal, by that time I will be there,
Justice of the Supreme Court.” Also, he often
asked lawyers from which law schools they had
graduated, and frequently inquired whether the
law school in which Justice Hernandez had
studied and from which he had graduated was
better than his (Justice Ong’s) own alma mater.
The complainant opined that the query was
manifestly intended to emphasize that the San
Beda College of Law, the alma mater of Justice
Ong, and the UP College of Law, that of Justice
Hernandez, were the best law schools. On
another occasion in that hearing in Cebu City,
Justice Hernandez discourteously shouted at
Prosecutor HazelinaTujan-Militante, who was
then observing trial from the gallery and said
“You are better than Director Somido? Are you
better than Director Chua? Are you here to
supervise Somido? Your office is wasting funds
for one prosecutor who is doing nothing”.
164
Finally, Justice Hernandez berated Atty.
Pangalangan, the father of former UP Law Dean
Raul Pangalangan, and uttered words such as
“Just because your son is always nominated by
the JBC to Malacañang, you are acting like that!
Do not forget that the brain of the child follows
that of their (sic) mother.” Should the
respondent justices be held liable for conduct
unbecoming?
A: YES. Publicizing professional qualifications or
boasting of having studied in and graduated from
certain law schools, no matter how prestigious,
might have even revealed, on the part of Justice
Ong and Justice Hernandez, shows their bias for
or against some lawyers. Their conduct was
impermissible, consequently, for Section 3, Canon
4 of the New Code of Judicial Conduct for the
Philippine Judiciary, demands that judges avoid
situations that may reasonably give rise to the
suspicion or appearance of favoritism or partiality
in their personal relations with individual
members of the legal profession who practice
regularly in their courts. Judges should be
dignified in demeanor, and refined in speech. In
performing their judicial duties, they should not
manifest bias or prejudice by word or conduct
towards any person or group on irrelevant
grounds. It is very essential that they should live
up to the high standards their noble position on
the Bench demands. Their language must be
guarded and measured, lest the best of intentions
be misconstrued. In this regard, Section 3, Canon
5 of the New Code of Judicial Conduct for the
Philippine Judiciary, mandates judges to carry out
judicial duties with appropriate consideration for
all persons, such as the parties, witnesses,
lawyers, court staff, and judicial colleagues,
without differentiation on any irrelevant ground,
immaterial to the proper performance of such
duties. (Jamsani-Rodriguez v. Ong, A.M. No. 0819-SB-J, August 24, 2010)
Sec. 4, Canon 4, NCJC: Judges shall not
participate in the determination of a case in
which any member of their family represents
a litigant or is associated in any manner with
the case.
Note: This rule rests on the principle that no judge
should preside in a case in which the judge is not
wholly
free,
disinterested,
impartial
and
independent.
Sec. 5, Canon 4, NCJC: Judges shall not allow
the use of their residence by a member of
the legal profession to receive clients of the
latter or of other members of the legal
profession.
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Judicial Ethics – New Code of Judicial Conduct
Note: It was inappropriate for a judge to have
entertained a litigant in his house particularly when
the case is still pending before his sala. (J. King and
Sons. V Hontanosas, Adm. Matter No. RTJ-03-1802,
September 21, 2004)
Q: What is the reason for this rule?
A: The reason is that judges are required to
always exhibit cold neutrality of an impartial
judge.
Sec. 6, Canon 4, NCJC: Judges, like any other
citizen, are entitled to freedom of
expression, belief, association and assembly,
but in exercising such rights, they shall
always conduct themselves in such a manner
as to preserve the dignity of the judicial
office and the impartiality and independence
of the judiciary.
Note: While judges are not expected to live a
hermit-like existence or cease functioning as citizens
of the Republic, they should remember that they do
not disrobe themselves of their judicial office upon
leaving their salas. In the exercise of their civil
liberties, they should be circumspect and ever
mindful that their continuing commitment to
upholding the judiciary and its values places upon
them certain implied restraints to their freedom.
Q: In an anonymous letter sent to the OCA,
Judge Acuña was charged with improper conduct
for allegedly making humiliating statements
such as “putris,” and “putang-ina”. In his
comment, Judge Acuña explained that those
words are only his favorite expressions and they
are not directed to any particular person. He also
explained that his behavior is justified by the
fact that he is still mourning the sudden demise
of his eldest son. Is the Judge guilty of improper
conduct?
A: Yes. Judges are demanded to be always
temperate, patient and courteous both in the
conduct and language. Indeed, judges should so
behave at all times because having accepted the
esteemed position of a judge he ought to have
known that more is expected of him than
ordinary citizen. Here, the judge’s use of
humiliating and insensitive expressions like
“putris” and ”putang- ina” is improper as such
intemperate language detracts from how he
should conduct himself. Moreover, it does not
matter whether such expressions were directed
to a particular person or not, as they give the
impression of a person’s ill manners. (Re:
Anonymous complaint Against Judge Acuña, A.M.
No. RTJ-04-1891, July 28, 2005)
Note: Judges in the exercise of their civil liberties,
should be circumspect and ever mindful of their
continuing commitment to uphold the judiciary and
its values places upon them certain implied
restraints to their freedom. A judge was admonished
for the appearance of engaging in partisan politics
when he participated in a political rally sponsored by
one party, even though he only explained the
mechanics of block voting to the audience. (Macias
v. Arula, A.M. No. 1895-CFI, July 20, 1982)
Sec. 7, Canon 4, NCJC: Judges shall inform
themselves about their personal fiduciary
and financial interests and shall make
reasonable efforts to be informed about the
financial interests of members of their
family.
Note: This section should be read in conjunction
with Sec. 7 of the R.A. 6713 (Code of Conduct and
Ethical standards for Public officials and Employee),
which prohibits certain personal fiduciary and
financial conflicts.
A judge shall refrain from financial and business
dealings that tend to reflect adversely on the court's
impartiality, interfere with the proper performance
of judicial activities, or increase involvement with
lawyers or persons likely to come before the court.
Sec. 8, Canon 4, NCJC: Judges shall not use or
lend the prestige of the judicial office to
advance their private interests, or those of a
member of their family or of anyone else,
nor shall they convey or permit others to
convey the impression that anyone is in a
special position improperly to influence them
in the performance of judicial duties.
Q: What are the acts prohibited by the rule?
A:
1.
Judge’s act of using judicial office to
advance private interests
Note: An RTC judge took advantage of his
position, by filing in the Makati court a
collection case in which he and his wife were
the complainants. The Court ruled that
although a stipulation in the contract gave
the judge, as creditor, choice of venue, the
judge had nonetheless fallen short of what is
expected of him as a judicial officer. This act
of the judge would lead the public, and in
particular the judge’s adversary, to suspect
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
165
UST Golden Notes 2011
that the judge would use the choice of venue
as a means to exert influence in favor of
himself. (Javier v. De Guzman, A.M. No. RTJ89-380, Dec. 19, 1990)
2.
Judge’s act of giving impression that he
can be influenced to use the judicial office
to advance the private interests of others.
Note: Another common violation of this rule
is using judicial power to exact personal
vengeance.
Q: Judge Escano was charged with allegedly
using court facilities (bulletin board) in
advertising for attractive waitresses and cooks
for possible employment in their restaurant
business. In addition, the judge also allowed the
use of the court address to receive applications
as well as his office in screening the applicants.
In his comment, the judge explained that he
merely wanted to give assistance to his wife, and
the posting of advertisements as well as the
conduct of screening in his office is the most
convenient way for him considering the difficulty
of locating the residence. Did the judge commit
any unethical act?
A: Yes. Judges shall not use or lend the prestige of
the judicial office to advance their private
interests for those of a member of a family. This is
so to avoid possible interference which may be
created by such business involvements in the
exercise of their duties which may tend to
corrode the respect and dignity of the court as
bastion of justice. Here, the act of the judge in
using the court facilities to promote family
business is improper. (Dionisio v. Escano, A.M.
No. RTJ-98-1400, Feb. 1, 1999)
Q: What is ticket fixing?
A: Ticket fixing is misconduct in which judges
impermissibly take advantage of their public
position to avoid punishment for traffic violations.
Sec. 9, Canon 4, NCJC: Confidential
information acquired by judges in their
judicial capacity shall not be used or
disclosed for any other purpose not related
to their judicial duties.
Q: What is the reason for this rule?
A: The prohibition will discourage, if not stop
judges from making business speculations in
some business ventures, the secrets of which they
learned by reason of their position as judges.
166
Q: Judge Lilagam was charged with improper
conduct for allowing his wife to have access to
court records. In his answer, the judge admitted
that he requested his wife who was previously a
legal researcher, to go over the records and
pinpoint problem areas and to suggest measures
to rectify the same and to improve the system of
case monitoring. Is the judge guilty of improper
conduct?
A: Yes. Records of cases are necessarily
confidential, and to preserve their integrity and
confidentiality, access thereto ought to be limited
only to the judge, the parties or their counsel and
the appropriate court personnel in charged of the
custody of said records. Here, since Mrs. Lilagam
is not a court employee specifically in charge of
the custody of said records, the judge’s act of
allowing her to have access thereto is improper as
such would convey the impression that she isthe
one who can influence the judge’s official
function. (Gordon v. Lilagam, A.M. No. RTJ-001564, July 26, 2001)
Q: At the pre-trial of a civil case for collection,
one of the parties mentioned that he expected
to settle his obligation as he was investing in
some stocks of a realty corporation that were
sure to soar in the market because of some
confidential information he obtained from his
brother-in-law, a top rank officer of the
corporation. Upon hearing the information the
judge lost no time in buying the stocks in the
realty corporation and as predicted made a lot of
money. Is the judge guilty of unethical conduct?
A: Yes. Sec. 9, Canon 4 of NJCJprovides that “no
information acquired in a judicial capacity shall be
used or disclosed by a judge in any financial
dealing or for any other purpose not related to
judicial activities.” The judge in this case has
violated the foregoing rule, and acted unethically.
(1995 Bar Question)
Q: May a violation of this rule constitute criminal
offense?
A: Yes. The act may constitute the following
criminal offenses: Under Sec. ([k) of R.A. 3019,
and under Art. 229 and 230 of the RPC, to wit:
1.
Divulging valuable information of a
confidential character, acquired by his
office or by him on account of his official
position to unauthorized persons, or
releasing such information in advance of
its authorized release date. (3[k] of R.A.
3019)
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Judicial Ethics – New Code of Judicial Conduct
2.
Revelation of secrets by an officer – Any
public officer who shall reveal any secret
known to him by reason of his official
capacity, or shall wrongfully deliver papers
or copies of papers of which he may have
charge and which should not be
published, shall suffer imprisonment. (Art.
229, RPC)
3.
Public officer revealing secrets of private
individual – Any public officer to whom
the secrets of any private individual shall
become known by reason of his office who
shall reveal such secrets, shall suffer the
penalties of arresto mayor and a fine. (Art.
230, RPC)
Sec. 10, Canon 4, NCJC: Subject to the proper
performance of judicial duties, judges may:
1. Write, lecture, teach and participate in
activities concerning the law, the legal
system, the administration of justice or
related matter;
2. Appear at a public hearing before an
official body concerned with matters
relating to the law, the legal system,
the administration of justice or related
matters;
3. Engage in other activities if such
activities do not detract from the
dignity of the judicial office or
otherwise
interfere
with
the
performance of judicial duties.
Note: This section allows the judge to participate in
legal academia and public discourse on legal matters
with the proviso that there shall be no interference
in the performance of the judge’s primary functions
with respect to his or her jurisdiction. In dealing with
the media however, the Philippine Judicial Academy
suggests that a judge or court should avoid
acrimonious debate with reporters and the public,
for a knee jerk reaction from the court or judge may
only provoke negative follow-up reports and articles.
This section’s tolerance of judicially-related activities
is limited by Sec. 12, Article VIII of the Constitution,
which prohibits judges from being “designated to
any
agency
performing
quasi-judicial
or
administrative functions”.
Q: May a judge be a member of the Provincial
Committee on Justice?
A: No. Such membership would violate the
constitutional provision on the discharge by
members of the judiciary of administrative
functions in quasi-judicial or administrative
agencies. This does not mean, however, that
judges should adopt an attitude of monastic
insensibility or unbecoming indifference to the
Provincial/City Committee on Justice. As
incumbent judges, they form part of the structure
of government. Even as non-members, Judges
should render assistance to said Committees to
help promote the laudable purposes for which
they exist, but only when such assistance may be
reasonably incidental to the fulfillment of their
judicial duties. (In Re: Designation of Judge
Rodolfo U. Manzano, A.M. No. 88-7-1861-RTC,
Oct. 5, 1988)
Note: Under Sec. 10(c), Section 10, Canon 4, a judge
may engage in private business without the written
permission of the Supreme Court. (Borre v. Moya,
A.M. No. 1765-CFI, Oct. 17, 1980)
Sec. 11, Canon 4, NCJC: Judges shall not
practice law whilst the holder of judicial
office.
Q: What is the basis of the prohibition?
A: This prohibition is based on the inherent
incompatibility of the rights, duties and functions
of the office of an attorney with the powers,
duties and functions of a judge.
Note: Sec. 35 of Rule 138 of the Rules of Court
prohibits judges from engaging in the practice of law
or giving professional advice to clients.
Philippine courts not only prohibit judges from
overtly representing clients as counsel of record, but
also from acting more subtly in a way more befitting
an advocate than a judge.
Note: While municipal judges can administer oaths
or execute certificates on matters related to their
official functions, they cannot notarize private
documents. Judges assigned to municipalities and
circuits may act as notaries provided all notarial fees
charged be to the government’s account and a
certification attesting to the lack of lawyers on
notary in the municipality or circuit be made. (SC
Circular 1-90)
Note: The rule disqualifying a municipal judge from
engaging in the practice of law seeks to avoid the
evil of possible use of the power and influence of his
office to affect the outcome of the litigation where
he is retained as counsel. Compelling reasons of
public policy lie behind this prohibition, and judges
are expected to conduct themselves in such a
manner as to preclude any suspicion that they are
representing the interests of party litigant (Dia-
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
167
UST Golden Notes 2011
Anonuevo v. Bercacio, A.M. No. 177-MTJ, November
27, 1975)
Q:
Respondent
Judge
Lelina
was
administratively charged for violation of Section
35, Rule 138 of the Rules of Court and Rule 5.07,
Canon 5 of the Code of Judicial Conduct. He was
then preventively suspended by the Court on
account of an earlier administrative complaint
filed charging him with harassment in
connection with the criminal complaint for Rape
and the complaint for Abduction with Rape and
Slight Illegal Detention. He then filed a Motion
for Early Resolution of the criminal case praying
for a resolution in his favor. Subsequently he
appealed to the Court to grant him the
permission to practice law during the remainder
of his preventive suspension or, if such cannot
be granted, to consider him resigned from the
judiciary. It turned out that before he filed the
above-said Manifestation, Appeal and Omnibus
Motion, Judge Lelina engaged in the private
practice of law. Did the judge commit any
unethical act?
A: Yes. Since Section 35, Rule 138 of the Rules of
Court and Section 11, Canon 4 of the New Code
of Judicial Conduct for the Philippine Judiciary
does not make any distinction in prohibiting
judges from engaging in the private practice of
law while holding judicial office, no distinction
should be made in its application. In the present
case, Judge Lelina having been merely suspended
and not dismissed from the service, he was still
bound under the prohibition. (Binalay v. Lelina Jr,
A.M. No. RTJ-08-2132, July 31, 2009)
Q: In an extrajudicial settlement of the estate of
the late Juan Mayaman, the heirs requested
Judge Maawain, a family friend, to go over the
document prepared by a new lawyer before they
signed it. Judge Maawain agreed and even acted
as an instrumental witness. Did Judge Maawain
engage in the unauthorized practice of law?
Why?
A: No. In the case of de Castro v. Capulong, 118
SCRA 5 (1982), the Supreme Court held that a
judge who merely acted as a witness to a
document and who explained to the party
waiving his rights of redemption over mortgaged
properties the consequences thereof, does not
engage himself in the practice of law. This
appears to be more applicable to the case of
Judge Maawain. He did not give professional
advice in anticipation of litigation. He was just
asked to review a deed of extrajudicial settlement
of estate. He signed merely as an instrumental
168
witness and not as a legal counsel. Besides, his act
was an isolated act. (2002 Bar Question)
Sec. 12, Canon 4, NCJC: Judges may form or
join associations of judges or participate in
other organizations representing the
interests of judges.
Note: This rule recognizes the difference between
membership in associations of judges and
membership in associations of other legal
professionals. While attendance at lavish events
hosted by lawyers might create an appearance of
impropriety,
participation
in
judges-only
organizations does not.
Q: What is the general rule with regard to
prohibition against accepting gifts, bequests, or
loans?
A: The general rule is that found in Sections 13
and 14.
Sec. 13, Canon 4, NCJC: Judges and members
of their families shall neither ask for nor
accept, any gift, bequest, loan or favor in
relation to anything done or to be done or
omitted to be done by him or her in
connection with the performance of judicial
duties.
Sec. 14, Canon 4, NCJC: Judges shall not
knowingly permit court staff or others subject
to their influence, direction or authority, to
ask for, or accept, any gift, bequest, loan or
favor in relation to anything done, to be done
or omitted to be done in connection with
their duties or functions.
Note: Section 13 should be read in conjunction with
Section 7(d) of R.A. 6713 (Code of Conduct and
Ethical Standards for Public officials and Employee)
which provides that, public officials and employees
shall not solicit or accept, directly or indirectly, any
gift, gratuity, favor, entertainment, loan or anything
of money value from any person in the course of
their official duties or in connection with any
operation being regulated by, or any transaction
which may be affected by the functions of their
office.
Respondent Judge Ganay clearly fell short of the
exacting standards set by the New Code of Judicial
Conduct for the Philippine Judiciary. His acts of
receiving lawbooks worth fifty thousand pesos,
cellular phones and monthly cellular phone prepaid
cards from the property guardians of the late Rev.
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Judicial Ethics – New Code of Judicial Conduct
Fr. Aspiras, who was then the ward of the court,
constitute impropriety which the Court cannot allow.
Respondent Judge Ganay’s act of issuing Orders
directing the manager of the PNB, La Union Branch
to draw checks amounting to thousands of pesos
from the account of the late Rev. Fr. Aspiras creates
the impression of impropriety and subjects the court
to suspicion of irregularities in the conduct of the
proceedings. (Heirs of the late Rev. Fr. Jose Aspiras v.
Judge Ganay, A.M. No. RTJ-07-2055, Dec. 17, 2009)
Note: Section 14 should be read in relation to
Section 7(d) of RA No. 6713 which prohibits public
officials from soliciting or accepting gifts from any
person in the course of their official duties.
Q: What is the reason for this rule?
A: This section is intended to assure that what the
judge cannot do directly (soliciting gifts), may not
be done indirectly through the use of employees
or staff members.
Q: X was charged with grave threat before the
sala of Judge Elias Lelina. During the pendency of
the case, X offered a business partnership to the
daughter of Judge Lelina who then accepted the
same. Should the judge be disciplined?
A: Yes. Judges should not allow members of their
family to accept gifts nor favor in relation to
anything done, to be done, or omitted to be done
by the judge in connection with the performance
of his official duties. Here, the judge’s act of
allowing his daughter to accept the business offer
of X despite knowledge of the possible intention
of the latter who has pending case in his sala is
improper. (Dulay v. Lelina Jr., A.M. No. RTJ-991516, July 14, 2005)
Q: What is the exception to Sections 13 and 14
of Canon 4 of the NCJC?
A: Canon 4, Section 15 of NCJC.
Sec. 15, Canon 4, NCJC: Subject to law and
to any legal requirements of public
disclosure, judges may receive a token gift,
award or benefit as appropriate to the
occasion on which it is made, provided that
such gift, award or benefit might not
reasonably be perceived as intended to
influence the judge in the performance of
official duties or otherwise give rise to an
appearance of partiality.
Note: Judges are allowed to accept token gifts,
awards, or benefits when given as a consequence of
a special occasion.
Q: What gifts and grants from foreign countries
are allowed?
A:
1.
2.
3.
The acceptance and retention by a public
official or employee of a gift of nominal
value tendered and received as a souvenir
or mark of courtesy;
The acceptance by a public official or
employee of a gift in the nature of a
scholarship or fellowship grant or medical
treatment; or
The acceptance by a public official or
employee of travel grants or expenses for
travel taking place entirely outside the
Philippines
(such
as
allowances,
transportation, food and lodging) of more
than nominal value if such acceptance is
appropriate or consistent with the interest
of the Philippines, and permitted by the
head office, branch or agency to which the
judge belongs. (Sec. 7[d], R.A. 6713)
Q: When is a judge considered guilty of indirect
bribery? Of direct bribery?
A: Acceptance of gifts given by reason of the
office of the judge is indirect bribery (Art. 211,
Revised Penal Code) and when he agrees to
perform an act constituting a crime in connection
with the performance of his official duties in
consideration of any offer, promise, gift or
present receive by such officer, he is guilty of
direct bribery (Art. 210, Revised Penal Code).
Note:
GR: Under the Anti-Graft and Corrupt Practices
Act (RA 3019), the judge is liable criminally for
directly or indirectly receiving gifts, presents or
other pecuniary or material benefit for himself or
for another under conditions provided in Section
2, pars. b and c of the law.
XPN: Unsolicited gifts or presents of small value
offered or given as a mere ordinary token of
gratitude or friendship according to local custom
or usage (Section 14, RA 3019)
Note: Donations given to a judge or to his wife,
descendants or ascendants by reason of his office
are void (Art. 739, Civil Code). Ownership does not
pass to the donee. Money or property donated is
recoverably by the donor, his heirs or creditors.
Note: Under Section 16 Article XI of the 1987
Constitution “No loan, guarantee or other form of
financial accommodation for any business purpose
may be granted directly or indirectly by any
government-owned or controlled bank or financial
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
169
UST Golden Notes 2011
institution to xxx members of the Supreme Court xxx
during their tenure.
It is a serious misconduct for a judge to receive
money from a litigant in the form of loans which he
never intended to pay back. Even if the judge
intends to pay, it is an act of impropriety to take a
loan from a party litigant. The judge could not be
wholly free from bias in deciding a case where his
lender is a party. A judge should always strive to be
free from suspicion and all forms of improprieties.
(Ompoc v. Judge Torres, A.M. No. MTJ-86-11
September 27, 1989
Note: To ensure equality of treatment to all before
the courts is essential to the due performance of the
judicial office. As the guardians of justice, courts
must adhere to the principle of equality. People
expect the courts to be unaffected by differences in
social status, degree of education and even physical
abilities.
CANON 5,NCJC-EQUALITY
ENSURING EQUALITY OF TREATMENT TO ALL
BEFORE THE COURTS IS ESSENTIAL TO THE
DUE PERFORMANCE OF THE JUDICIAL
OFFICE.
Note: A judge must be able to render substantial
justice and maintain public confidence in the judicial
system, by being aware of the diversity in society.
With that awareness, a judge should not yield to first
impression, reach hasty conclusions or prejudge
matters. (Castillo v. Judge Juan, 62 SCRA 124)
Sec. 1,Canon 5,NCJC: Judges shall be aware
of and understand diversity in society and
differences arising from various sources,
including, but not limited to, race, color, sex,
religion, national origin, caste, disability,
age, marital status, sexual orientation, social
and economic status, and other like causes.
Q: What is the reason for this rule?
A: To render substantial justice and maintain
public confidence in the judicial system, judges
are expected to be aware of the diversity in
society that results from an increased worldwide
exchange of people and ideas.
Note: Judges should be mindful of the various
international instruments and treaties ratified by the
Philippines, which affirm the equality of all human
beings and establish a norm of non-discrimination
without distinction as to race, sex, language, or
religion.
170
Judges should not yield to first impression, reach
hasty conclusions or prejudge matters. They have a
duty to ensure that the minority status of a party
plays no part in their decisions.
Sec. 2, Canon 5, NCJC: Judges shall not, in
the performance of judicial duties, by words
or conduct, manifest bias or prejudice
towards any person or group on irrelevant
grounds.
Note: Magistrates of law must comport themselves
at all times in such a manner that their conduct, can
withstand the highest level of public scrutiny.
Judges should avoid private remarks, hasty
conclusions, or distasteful jokes that may give even
erroneous impressions of prejudice and lead the
public to believe that cases before them are being
prejudged.
Sec. 3, Canon 5, NCJC: Judges shall carry out
judicial
duties
with
appropriate
consideration for all persons, such as the
parties, witnesses, lawyers, court staff and
judicial colleagues, without differentiation
on any irrelevant ground, immaterial to the
proper performance of such duties.
Note: As arbiters of the law, judges should be
conscientious, studious, courteous, patient and
punctual in the discharge of their judicial duties,
recognizing that time of litigants, witnesses and
counsel is of value.
Judges should act with decorum toward jurors,
parties, court staff, spectators, and alike.
Q: Judge Tormis made a comment in a certain
case to the effect that the same should be
dismissed as the act complained of was already
decriminalized by a special law. Thereafter,
Judge Navarro, who previously handled the case
before he was appointed as a judge, barged into
the office of Judge Tormis telling to the staff that
their judge does not know her law. Judge Tormis
then retaliated by saying that to her, the office
of Judge Navarro does not exist. Are the judges
guilty of conduct unbecoming of a judge?
A: Yes. Judges, being dispensers of justice should
not act in a way that would cast suspicion in order
to preserve faith in the administration of justice.
They should so behave to avoid poor public
impression on the judiciary. Here, the judges act
of fighting each other by uttering derogatory
remarks against each other is a conduct
unbecoming of a judge for which they should be
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Judicial Ethics – New Code of Judicial Conduct
disciplined as their fight has impaired the image
of the judiciary. (Navarro v. Tormis, A.M. No. MTJ00-1337, Apr. 27, 2004)
whether such information came from
authorized or unauthorized sources; and
2.
Q: Atty. Quinto was the defense counsel in a
criminal case. In his verified complaint, he
alleged that during the hearing, he manifested
that he was waiving the presentation of
evidence for the accused. Judge Vios then
allegedly got angry, shouted and scolded him,
stating that the defense had no right to waive
the presentation of evidence. He did not even
listen to Atty. Quinto’s explanation and,
thereafter, compelled the latter to withdraw his
appearance as counsel of the accused, under
pain of contempt. In the presence of the
complainant, Judge Vios appointed a counsel de
officio.
May Judge Vios be held administratively liable
for compelling the lawyer to withdraw as
counsel for the accused under pain of contempt?
A: Yes. A judge should avoid unconsciously falling
into the attitude of mind that the litigants are
made for the courts, instead of the courts for the
litigants. Here, the judge should be held liable for
misconduct when he threatened to punish
complainant for contempt of court if he would
refuse to withdraw his appearance, as counsel for
the accused, when the latter insisted on waiving
the presentation of the evidence for the defense.
(Atty. Quinto v. Judge Vios, A.M. No. MTJ-041551, May 21, 2004)
Note: Unequal and disparate treatment in the
courthouse, whether intentional or perceived, is
unacceptable and can negatively impact the
professional lives of attorneys and employees, the
assessment of claims of litigants, and the respect
and credibility of the justice system.
Sec. 4, Canon 5, NCJC: Judges shall not
knowingly permit court staff or others
subject to his or her influence, direction or
control to differentiate between persons
concerned, in a matter before the judge, on
any irrelevant ground.
Q: What are the duties of judges under this
section?
A:
1.
To ensure that court personnel under
their supervision do not discriminate by
dispensing special favors or disclosing
confidential
information
to
any
unauthorized person, regardless of
To organize their courts to ensure the
prompt and convenient dispatch of
business and should not tolerate
misconduct by clerks, sheriffs and other
assistants who are sometimes prone to
expect favors or special treatment due to
their professional relationship with the
judge.
Note: All personnel involved in the dispensation of
justice should conduct themselves with a high
degree of responsibility. (Mataga v. Rosete, A.M. No.
MTJ-03-1488, Oct. 13, 2004)
Sec. 5, Canon 5,NCJC: Judges shall require
lawyers in proceedings before the court to
refrain from manifesting, by words or
conduct, bias or prejudice based on irrelevant
grounds, except such as are legally relevant
to an issue in proceedings and may be the
subject of legitimate advocacy.
Note: Judges should conduct proceedings in court
with dignity and in a manner that reflects the
importance and seriousness of proceedings. They
should maintain order and proper decorum in the
court. (Rule 3.03, Canon 3, 1989 Code of Judicial
Conduct)
Judges have the duty to prevent lawyers from
abusing witnesses with unfair treatment.
As courts are expected to ensure equality, any
lawyer who makes an insensitive or demeaning
comment in court should be admonished.
Q: During the hearing of a case for statutory
rape filed against X, the lawyer is asking the 6year-old victim to relate exactly and step by step
the sexual intercourse between her and the
accused. The lawyer is also asking questions
whether at the time of the alleged rape, the
accused’s penis was hard, and whether at the
time they were caught, the accused was still
pushing and pulling his penis inside her vagina.
Should the judge allow such questions?
A: No. The judge shall require lawyers to refrain
from making abusive and uncalled for queries.
Here, the fact that the victim of rape is a child of
tender years, there is more reason to require the
lawyer to be tactful. No woman especially child of
tender years would exactly remember step by
step the sexual intercourse in the hands of the
maniacal beast. Hence, all the questions asked
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
171
UST Golden Notes 2011
are excessive. (People v. Boras, G.R. No. 127495,
Dec. 22, 2000)
Note: This line of questioning may be relevant if the
aggrieved party is an adult but not to a child. The
Rule on the examination of a child witness (A.M. No.
004-07-SC)
protects
children
so
that
developmentally appropriate questions can only be
asked.
CANON 6, NCJC-COMPETENCE AND
DILIGENCE
COMPETENCE AND DILIGENCE ARE PREREQUISITES TO THE DUE PERFORMANCE OF
JUDICIAL OFFICE.
Q: What are the pre-requisites to the due
performance of judicial office?
A: Competence and diligence. (Canon 6, NCJC)
A judge upon assumption to office, becomes the
visible representation of law and of justice,
hence, the Constitution (Section 7 (3), Article VIII),
prescribes that he must be a person of proven
competence as a requisite of his membership in
the judiciary.
A judge should be the epitome of competence,
integrity and independence to be able to render
justice and uphold public confidence in the legal
system. He must be conversant with basic legal
principles and well-settled doctrines. He should
strive for excellence and seek the truth with
passion.(Rino v. Judge Cawaling, A.M. No. MTJ02-1391, June 7, 2004)
Note: As members of the judiciary, judges ought to
know the fundamental legal principles; otherwise,
they are susceptible to administrative sanction for
gross ignorance of the law. (Heirs of Piedad v.
Estrella, A.M. No. RTJ-09-2170, Dec. 16, 2009)
Note: To constitute gross ignorance of the law must
not only be contrary to existing law and
jurisprudence, but also motivated, by bad faith,
fraud, dishonesty and corruption.(Duduaco v.
Laquindanum, A.M. No. MTJ-05-1601, August 11,
2005)
Q: Judge Ramos was charged with gross
misconduct, dishonesty, gross ignorance of the
law, arbitrary detention, incompetence, grave
abuse of discretion, and conduct prejudicial to
the best interest of the service allegedly for
erroneously issuing a warrant of arrest against
Bayaca. It was alleged that Bayaca was convicted
172
by Judge Ramos in a criminal case for arson
through reckless imprudence and imposed upon
him the penalty of imprisonment, with all the
accessory penalties imposed by law in addition
to the payment of costs and damages. On
appeal, the RTC deleted the penalty of
imprisonment.
However,
Judge
Ramos
subsequently issued a warrant of arrest and
Commitment on Final Sentence which led to
complainant’s incarceration at the Solano
District Jail from August 8 to 28, 2006. In his
comment, the judge clarified that his issuance of
the warrant of arrest against Bacaya was a
mistake done in good faith and that the same
was just a simple negligence. Should the judge
be disciplined?
A: Yes. The judge was inexcusably negligent when
he issued a Warrant of Arrest and Commitment to
Final Sentence despite the deletion by the
appellate court of that portion of the judgment
imposing the penalty of imprisonment. In the
performance of his duties, Judge Ramos failed to
observe
that
diligence,
prudence
and
circumspection which the law requires in the
rendition of any public service. If only Judge
Ramos had exercised the requisite thoroughness
and caution, he would have noted not only the
modification of the monetary awards by the
appellate court, but also the deletion of the
penalty of imprisonment upon which the Warrant
of Arrest and Commitment to Final Sentence that
he signed was based. (Bayaca v. Judge Ramos,
A.M. No. MTJ-07-1676, Jan. 29, 2009)
Sec.1, Canon 6, NCJC: The judicial duties of a
judge take precedence over all activities.
Q: What are the duties of a judge under this
section?
A:
1.
A judge must perform his judicial duties
with regard to a case where he is not
disqualified to do so and, may not divest
himself of such case if he is not so
disqualified; and
2.
A judge shall not inhibit himself simply to
avoid sitting on difficult or controversial
cases.
Q: An administrative case against Judge
Calderon was filed for incurring leaves of
absence for almost a straight period of 3 years.
In his comment, he claimed that he was
suffering from a lingering illness of malignant
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Judicial Ethics – New Code of Judicial Conduct
hypertension which claim was supported by
medical certificates prepared by his personal
doctor. However, when the court physician
conducted some tests, the same contradicted
the diagnosis given by the judge’s personal
doctor. Is Judge Calderon guilty of gross
misconduct?
A: Yes. A judge shall be cautious of his court
duties. Here, the judge should have been aware
that, in frequently leaving his station, he has
caused great disservice to many litigants and has
denied them speedy justice. (Re: Leaves of
Absence Without Approval of Judge Eric Calderon,
Municipal Trial Court Judge of Calumpit, Bulacan,
A.M. No. 98-8-105-MTC, Jan. 26, 1999)
Q: Judge Limsiaco was charged with gross
ignorance of the law and procedure and
violations of the Code of Judicial Conduct when
it was established by the records and by his own
admission that he decided an ejectment case
before his sala more than two (2) years after it
was declared submitted for resolution. Due to
his delay of rendering the decision, he was held
guilty of the said charge. He moved for an
extension of time to file a motion for
reconsideration. Despite the extension of time
given however, Judge Limsiaco failed to file his
motion for reconsideration and the required
explanation thrice. In another complaint against
him for Delay in the Disposition of a Case, the
OCA issued an order for him to file a comment
for the administrative complaint. Is the
respondent judge administratively liable for
unethical conduct and gross inefficiency under
the provisions of the New Code of Judicial
Conduct, specifically, Sections 7 and 8 of Canon
1, and Section 5 of Canon 6?
A: Yes. A judge is the visible representation of the
law, and more importantly of justice; he or she
must, therefore, be the first to follow the law and
weave an example for the others to follow. For a
judge to exhibit indifference to a resolution
requiring him to comment on the accusations in
the complaint thoroughly and substantially is
gross misconduct, and may even be considered as
outright disrespect for the Court. The office of the
judge requires him to obey all the lawful orders of
his superiors.
After all, a resolution of the Supreme Court is not
a mere request and should be complied with
promptly and completely. Such failure to comply
accordingly betrays not only a recalcitrant streak
in character, but has likewise been considered as
an utter lack of interest to remain with, if not
contempt of the judicial system. A resolution of
the Supreme Court requiring comment on an
administrative complaint against officials and
employees of the judiciary should not be
construed as a mere request from the Court. Nor
should it be complied with partially, inadequately
or selectively. Respondents in administrative
complaints should comment on all accusations or
allegations against them in the administrative
complaints because it is their duty to preserve the
integrity of the judiciary.
Moreover, the Court should not and will not
tolerate future indifference of respondents to
administrative complaints and to resolutions
requiring comment on such administrative
complaints. Under the circumstances, the
conduct exhibited by Judge Limsiaco constitutes
no less than clear acts of defiance against the
Court’s authority. His conduct also reveals his
deliberate disrespect and indifference to the
authority of the Court, shown by his failure to
heed our warnings and directives. Judge
Limsiaco’s actions further disclose his inability to
accept our instructions. Moreover, his conduct
failed to provide a good example for other court
personnel, and the public as well, in placing
significance to the Court’s directives and the
importance of complying with them. (Inoturan, v.
Limsiaco, Jr., A.M. No. MTJ-01-1362, February. 22,
2011)
Sec. 2, Canon 6, NCJC: Judges shall devote
their professional activity to judicial duties,
which include not only the performance of
judicial functions and responsibilities in
court and the making of decisions, but also
other tasks relevant to the judicial office or
the court’s operations.
Note: Violations of this section often involve a
failure to keep records or handle funds in
compliance with court rules.
Q: Judge Daguman was charged with neglect of
duty in failing to retain a copy and to register
with the Local Civil Registrar a marriage contract.
In his comment, the judge explained that his
failure to do so was occasioned by circumstances
beyond his control. He averred that after the
wedding ceremony, the copies of the marriage
contract were left on top of his desk in his
private office where the ceremony was held but
after few days, when he gathered all the
documents relating to the marriage, the copies
were already missing. He also explained that he
was not able to inform the parties about the fact
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
173
UST Golden Notes 2011
of loss as they were already out of the country.
Should the judge be disciplined?
A: Yes. A judge is charged with extra care in
ensuring that records of the cases and official
documents in his custody are intact. Moreover,
judges must adopt a system of record
management, and organize their dockets in order
to bolster the prompt and efficient dispatch of
business. Here, the circumstances show that the
loss of the documents was occasioned by the
carelessness on the part of the judge. The judge
should not have left such important documents in
his table to be gathered only after few days,
instead, he should have devised a filing system in
his court so as to avoid such incident. (Beso v.
Daguman, A.M. No. MTJ-99-1211, Jan. 28, 2000)
Q: X charged Judge Garillo with dishonesty and
corrupt practices for allegedly requiring the
former to deposit with the latter a sum of
money in connection with a pending case in the
latter’s sala but failed to give the deposited
sums of money to the adverse party. It was also
alleged that when X demanded the return of
money, the judge failed to return the same
despite his promise. Is the judge guilty of serious
misconduct?
A: Yes. A judge should always be a symbol of
rectitude and propriety, and should always
comport himself in a manner that will raise no
doubt whatsoever about his honesty. Here, the
judge’s act of misappropriating the money
entrusted to him by litigants in connection with a
case pending in his court constitutes gross
misconduct. Moreover, the judge violated Circular
No. 50-95 which provides that, fiduciary
collections should be deposited with the Land
Bank of the Philippines. Because of his actuations,
the image of the judiciary was impaired. (De
Pacete v. Judge Garillo, A.M. No. MTJ-03-1473,
Aug. 20, 2003)
Q: Should the judge return court records upon
retirement?
A: Yes. Since the proper and efficient
management of the court is the responsibility of
the judge, he is the one directly responsible for
the proper discharge of official functions. Thus, a
judge is obliged to return to the court the records
of the cases filed in his sala upon his retirement.
(Office of the Court Administrator v. Retired Judge
Carteciano,A.M. No. MTJ-07-1664, Feb. 18, 2008)
174
Sec. 3, Canon 6, NCJC: Judges shall take
reasonable steps to maintain and enhance
their knowledge, skills and personal qualities
necessary for the proper performance of
judicial duties, taking advantage for this
purpose the training and other facilities
which should be made available, under
judicial control, to judges.
Note: Service in the judiciary means a continuous
study and research on the law from beginning to
end. Judges are regarded as persons learned in the
law. “Ignorance of the law excuses no one” has
special application to judges.
Though good faith and absence of malice or
corruption are sufficient defenses, such does not
apply where the issues are so simple and the
applicable legal principles evident and basic as to be
beyond possible margin of error. (Corpus v.
Ochotoresa, A.M. No. RTJ 04-1861, July 30 2004)
Note: One who accepts the exalted position of a
judge owes the public and the Court the duty to
maintain professional competence at all times.
When a judge displays an utter lack of familiarity
with the rules, he erodes the confidence of the
public in the courts. A judge owes the public and the
Court the duty to be proficient in the law and is
expected to keep abreast of laws and prevailing
jurisprudence. Ignorance of the law by a judge can
easily be the mainspring of injustice. (Villanueva v.
Judge Buaya, A.M. No. RTJ-08-2131, November 22,
2010).
Q: Judge Delos Santos averred that Judge
Mangino of the MTC Tarlac approved the bail
bond for provisional liberty of the accused
Santos who was arrested and whose criminal
cases were pending in Angeles City. It was also
made to appear from the contents of the said
bond that the accused appeared before notary
public Ancanan in Makati City. According to the
accused, she never went to Tarlac and appeared
before said Judge Mangino. She also alleged that
she never went to Makati City and appeared
before Notary Public Ancanan. Is Judge Mangino
guilty of grave misconduct?
A: Yes. Judges should be diligently acquainted
with the law and jurisprudence. As an advocate of
justice and a visible representation of the law, a
judge is expected to keep abreast with and be
proficient in the application and interpretation of
the law. Here, by mere glancing at the bail bond
application, the judge ought to know that he had
absolutely no authority or jurisdiction to approve
the bail bond of the accused as the case was
pending with another court. By approving the bail
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Judicial Ethics – New Code of Judicial Conduct
bond application, the judge failed to exert such
conscientiousness,
studiousness,
and
thoroughness expected and demanded of a
judge. (Judge de los Santos v. Judge Mangino,
A.M. No. MTJ-03-1496, July 10, 2003)
Q: Judge Gacott Jr. dismissed an election case on
the ground of non-payment of docket fees,
although the case had been previously admitted
and was deemed properly filed by the original
Judge (who inhibited himself due to relationship
to one of the parties). Judge Gacott issued the
dismissal order relying on a case (Manchester v.
CA) which states that - a case is deemed
commenced only upon the payment of the
proper docket fees. To his opinion, the required
fees in this case were not yet paid by the
protestant. Enojas charged him with gross
ignorance of the law. Is Judge Gacott Jr. guilty of
gross ignorance of the law?
A: Yes. A judge is duty bound to adhere to, and
apply the recent jurisprudence, and he cannot
feign ignorance thereof, because he is required to
be an embodiment of, among other things,
judicial competence. Here, the ruling relied upon
by the judge does not apply to election cases as in
the latter case the filing fee is fixed and the claim
for damages, to which the docket fess shall be
made to apply, is merely ancillary to the main
cause of action and is not even determinative of
the court’s jurisdiction. It must also be noted that
in this case, the original judge already made an
order that from the deposit given by the
protestant for the expenses of reopening the
questioned ballots, an amount shall be allocated
for the payment of the required fees. Thus, the
election protest was already properly filed.
(Enojas v. Judge Gacott, Jr., A.M. No. RTJ-99-1513,
Jan. 19, 2000)
Sec. 4, Canon 6, NCJC: Judges shall keep
themselves informed about relevant
developments of international law, including
international conventions and other
instruments establishing human rights
norms.
Note: Norms of international law has become the
concern of judges because they form part of legal
standards by which their competence and diligence
required by the New Code of Judicial Conduct are to
be measured.
Sec. 5, Canon 6, NCJC: Judges shall perform
all judicial duties, including the delivery of
reserved decisions, efficiently, fairly and
with reasonable promptness.
Note: A judge may be subject to an administrative
fine for inefficiency, neglect, and unreasonable delay
in elevating the records of a civil case to the Court of
Appeals.
A delay of three years in the transmission of court
records to the appellate court, where a period of 30
days is required, is inexcusable. (Pataleon v. Guidez,
A.M. No. RTJ-00-1525, Jan. 2000)
Q: Why should delay be avoided in the
administration of justice?
A: Delay results in undermining the people's faith
in the judiciary and from whom the prompt
hearing of their supplications is anticipated and
expected, and reinforces in the mind of the
litigants the impression that the wheels of justice
grind ever so slowly. Certainly, undue delay
cannot be countenanced at a time when the
clogging of the court dockets is still the bane of
the judiciary. Judges are expected to observe
utmost diligence and dedication in the
performance of their judicial functions and the
discharge of their duties. (Imbang v. Judge del
Rosario, A.M. No. MTJ-03-1515, Feb. 3, 2004)
Q: Judge Diaz was charged with inefficiency
allegedly for his failure to render a decision on
time. It was alleged that in an unlawful detainer
case filed by De Joya against spouses Hornillos
which was already submitted for decision upon
the approval of a motion for summary judgment
filed by De Joya, Judge Diaz failed to render a
decision despite the lapse of several months
from the submission of the case for resolution.
In his comment, the judge explained that his
delay was the result of an oversight due to the
volume of work that he and his staff had to
handle. Should the judge be disciplined?
A: Yes. Decision-making is a primordial and by far
the most important duty of a member of the
bench. The Code of Judicial Conduct mandates
that a judge must dispose of the court's business
promptly and to act on cases pending before him
within the prescribed periods therefore. A judge's
failure to observe time prescriptions for the
rendition of judgments in derogation of an
otherwise speedy administration of justice
constitutes a ground for administrative sanction.
A judge can not be excused from complying with
the periods on the ground that he has heavy case
loads, for in such cases, all he has to do is to
request for additional time to decide cases. Here,
the judge’s failure to decide the unlawful detainer
case within 30 days from the submission for
decision renders him liable for inefficiency for
which he should be disciplined unless he was
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
175
UST Golden Notes 2011
granted, upon his request, additional time to
decide the case. (De Joya v. Judge Diaz, A.M. No.
MTJ-02-1450, Sept. 23, 2003)
Q: Judge Pascua was charged with inefficiency in
resolving an election protest pending in her sala.
It was alleged that she issued an order archiving
the case because of her erroneous perception
that an appeal was filed by the parties to the SC
where in fact the same was filed with the
COMELEC. As a result, the hearing as well as the
resolution of the case was delayed for 6 months.
In her comment, the judge explained that in
issuing such order, she relied on the copy of a
petition by appeal on certiorari that was shown
to her. Should the judge be disciplined?
A: Yes. Judges should maintain professional
competence and decide cases within the required
periods. Here, had the judge carefully read the
copy of the petition by appeal on certiorari that
was presented to her, she would have been able
to ascertain that the same was not filed with the
SC. Moreover, had she been careful, she would
not have issued such erroneous order that caused
the undue delay in the resolution of the case. For
her inefficiency, the judge should be disciplined.
(Dela Cruz v. Pascua, A.M. No. RTJ-99-1461, June
26, 2001)
Q: A judge was due for compulsory retirement.
The Office of the Court Administrator found that
he had many pending cases, some of which were
undecided beyond the 90-day period. Should the
judge be disciplined under the circumstance
despite his impending compulsory retirement?
A: Yes. All judges are enjoined to attend promptly
to the business of the court and decide cases
within the time fixed by law. A judge is mandated
to render judgment not more than 90 days from
the time the case is submitted for decision.
Failure to render the decision within the said
period of 90 days from submission of a case for
decision constitutes serious misconduct and gross
inefficiency. (Re: Report on the Judicial Audit
Conducted in the RTC, Branch 68 of Camilang,
Tarlac, A.M. No. 97-6-182-RTC, Mar. 19, 1999)
Note: The Constitution provides that all lower courts
must decide all cases filed within three months.
Further, the Code of Judicial Conduct states that a
judge shall dispose of the court’s business promptly
and decide the cases within the required periods.
Delay in the disposition of cases erodes the faith and
confidence of the people in the judiciary, lowers its
standards, and brings it to disrepute. Judges should
not abuse the grant of an extension to decide a case,
and strive to decide the case within the extended
176
period granted by the Court. Under Sec. 9, Rule 140
of the Rules of Court, undue delay in rendering a
decision or order is classified as a less serious charge
punishable with suspension from office without
salary and other benefits for not less than one (1)
nor more than three (3) months; ora fine of more
than P10,000.00, but not exceeding P20,000.00.
(Request of Judge Nino Batingana, A.M. No. 05-8463-RTC, Feb. 17, 2010)
Q: Amion was charged with murder. During the
trial, Judge Chiongson ordered that he be
represented by counsel de oficio because
Amion’s attorney is always postponing the trial
for various reasons like illness and unavailability
for trial. Amion then charged said judge with
ignorance of the law and oppression because the
fact that the counsel de officio did not know the
particulars of the case meant that Amion would
be denied due process. Should Judge Chiongson
be disciplined?
A: No. A judge should always be imbued with a
high sense of duty and responsibility in the
discharge of his obligation to promptly administer
justice. Here, Judge Chiongson appointed a FLAG
lawyer because of various dilatory means used by
the complainant. Thus, the judge should be
commended for his effort to expedite the case.
(Amion v. Judge Chiongson, A.M. No. RTJ-971371, Jan. 22, 1999)
Note: A Flag lawyer refers to a lawyer of nongovernmental organizations (NGOs) and people’s
organizations (POs) who by the nature of his work
already render free legal aid to indigent and pauper
litigants. (Section 4a(iii), BAR MATTER No. 2012,
February 10, 2009)
Sec. 6, Canon 6, NCJC: Judges shall maintain
order and decorum in all proceedings before
the court and be patient, dignified and
courteous in relation to litigants, witnesses,
lawyers and others with whom the judge
deals in an official capacity. Judges shall
require
similar
conduct
of
legal
representatives, court staff and others
subject to their influence, direction or
control.
Note: Besides possessing the requisite learning in
the law, a magistrate must exhibit that hallmark
judicial temperament of utmost sobriety and selfrestraint which are indispensable qualities of every
judge. (Rodriguez v. Bonifacio, A.M. No. RTJ-99-1510,
Nov. 6, 2000)
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Judicial Ethics – New Code of Judicial Conduct
Q: Judge Belen was charged with conduct
unbecoming of a judge allegedly for humiliating,
demeaning and berating a young lawyer who
appeared in his sala. It was alleged that when
the judge learned that the lawyer was an
alumnus of MCQU and not of UP, the judge
made the following statement “you’re not from
UP”. Then you cannot equate yourself to me
because there is a saying and I know this, not all
law students are created equal, not all law
schools are created equal, not all lawyers are
created equal despite what the Supreme Being
stated that we all are created equal in His form
and substance.” Should the judge be disciplined?
A: Yes. The judge’s sarcastic, humiliating,
threatening and boastful remarks to a young
lawyer are improper. A judge must be aware that
an alumnus of a particular law school has no
monopoly of knowledge of the law. By hurdling
the Bar Examinations, taking of the Lawyer’s oath,
and signing of the Roll of Attorneys, a lawyer is
presumed to be competent to discharge his
functions and duties as, inter alia, an officer of
the court, irrespective of where he obtained his
law degree. For a judge to determine the fitness
or competence of a lawyer primarily on the basis
of his alma mater is clearly an engagement in an
argumentumad hominem. As a judge, he must
address the merits of the case and not on the
person of the counsel. Judges must be that even
on the face of boorish behavior from those they
deal with, they ought to conduct themselves in a
manner befitting gentlemen and high officers of
the court. (Atty. Mane v. Judge Belen, A.M. No.
RTJ-08-2119, June 30, 2008)
Note: Respondent Judge was found guilty of serious
misconduct and inefficiency by reason of habitual
tardiness. He was fined and suspended for judicial
indolence. (Yu-Asensi v. Villanueva A.M. No. MTJ-001245, January 2000)
Sec. 7, Canon 6, NCJC: Judges shall not
engage in conduct incompatible with the
diligent discharge of judicial duties.
Q: What is the duty under this Section?
A: A judge shall not accept duties that will
interfere with his devotion to the expeditious and
proper administration of his official functions
Note: When a judge, along with two other people,
acted as real estate agents for the sale of a parcel of
land for which he agreed to give a commission of
P100,000 to each of his companions, and after the
transaction was completed only gave the
complainants P25,000 each, the high Court held that
the judge violated the section of the prior Code of
Judicial Conduct. (Catbagan v. Barte, A.M. No. MTJ02-1452, Apr. 6, 2005)
Q: Judge Ante Jr. was charged with conduct
unbecoming of a judge. It was alleged that when
the court employee placed the docket book on
top of the filing cabinet, the same fell on the
floor causing loud sound. Unexpectedly, the
judge shouted saying “why did you throw the
docket book? You get out of here, punyeta, we
don’t need you!” The judge also threw a
monobloc chair at the court employee. Should
the judge be disciplined?
A: Yes. The judge, for shouting invectives and
hitting complainant with a chair displayed a
predisposition to use physical violence and
intemperate language which reveals a marked
lack of judicial temperament and self-restraint traits which, aside from the basic equipment of
learning in the law - are indispensable qualities of
every judge. (Briones v. Judge Ante Jr., A.M. No.
MTJ-02-1411, Apr. 11, 2002)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
177
UST golden notes 2011
III. CODE OF JUDICIAL CONDUCT
(1989)
right to a speedy disposition of their case and
undermines the people’s faith in the judiciary.
Indeed, justice delayed is justice denied (Angelia
v. Grageda, A.M. No. RTJ-10-2220, February 7,
2011).
Q: What is the applicability of this Code?
A: This code applies suppletorily.
CANON 1, CJC
A JUDGE SHOULD UPHOLD THE INTEGRITY
AND INDEPENDENCE OF THE JUDICIARY.
Rule 1.01,Canon 1, CJC: A judge should be
the embodiment of competence, integrity
and independence.
Q: A complaint was filed against respondent
Judge Grageda for the delay in the resolution of
motions relative to Civil Case No. 54-2001,
entitled Pio Angelia v. Arnold Oghayan. Plaintiff
Angelia averred that the case was filed way back
on August 8, 2001. After numerous
postponements, pre-trial was finally set on
December 6, 2007. On December 20, 2007,
counsel for complainant received an order dated
December 6, 2007 dismissing the case for failure
to prosecute. On December 28, 2007, Angelia
filed a motion for reconsideration reasoning out
that the failure to prosecute could not be
attributed to him. On July 28, 2008, he filed his
Urgent Motion for the Early Resolution of said
December 2007 Motion for Reconsideration. He
claimed that despite the lapse of a considerably
long period of time, no action was taken by
Judge Grageda. Is respondent Judge Gragela
GUILTY of undue delay in resolving a motion in
violation of Rule 1.02, Canon 1 and Rule 3.05,
Canon 3 of the Code of Judicial Conduct?
A: Yes. Failure to decide cases and other matters
within the reglementary period constitutes gross
inefficiency and warrants the imposition of
administrative sanction against the erring
magistrate. Such delay is clearly violative of the
above-cited rules. Delay in resolving motions and
incidents pending before a judge within the
reglementary period of ninety (90) days fixed by
the Constitution and the law is not excusable and
constitutes gross inefficiency. As a trial judge,
Judge Grageda was a frontline official of the
judiciary and should have at all times acted with
efficiency and with probity.
Judges must decide cases and resolve matters
with dispatch because any delay in the
administration of justice deprives litigants of their
178
Rule 1.02, Canon 1, CJC: A judge should
administer justice impartially and without
delay.
Rule 1.03, Canon 1, CJC: A judge should be
vigilant against any attempt to subvert the
independence of the judiciary and should
forthwith resist any pressure from whatever
source from whatever source intended to
influence the performance of official
functions.
CANON 2, CJC
A JUDGE SHOULD AVOID IMPROPRIETY AND
THE APPEARANCE OF IMPROPRIETY IN ALL
ACTIVITES
Rule 2.01, Canon 2, CJC: A judge should so
behave at all times as to promote public
confidence in the integrity and impartiality
of the judiciary.
Q: Judge Canoy was charged with several counts
of gross ignorance of the law and/or procedures,
grave abuse of authority, and appearance of
impropriety (Canon 2, Code of Judicial Conduct)
for granting bail to Melgazo, the accused in a
criminal case, without any application or
petition for the grant of bail filed before his
court or any court. He verbally ordered the
branch clerk of court to accept the cash deposit
as bail, to earmark an official receipt for the cash
deposit, and to date it the following day. He did
not require Melgazo to sign a written
undertaking containing the conditions of the bail
under Sec. 2, Rule 114 to be complied with by
Melgazo. Thus, Judge Canoy ordered the police
escorts to release Melgazo without any written
order of release. Should respondent Judge Canoy
be held administratively liable for violating of
Supreme Court rules, directives and circulars
under Sec. 9, Rule 140, RRC (as amended by A.M.
No. 01-8-10-SC) ?
A: Yes. Granting of bail without any application or
petition to grant bail is a clear deviation from the
procedure laid down in Sec. 17 of Rule 114.
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Judicial Ethics – code of judicial conduct
As regards the insistence of Judge Canoy that
such may be considered as “constructive bail,”
there is no such species of bail under the Rules.
Despite the noblest of reasons, the Rules of Court
may not be ignored at will and at random to the
prejudice of the rights of another. Rules of
procedure are intended to ensure the orderly
administration of justice and the protection of
substantive rights in judicial and extrajudicial
proceedings. In this case, the reason of Judge
Canoy is hardly persuasive enough to disregard
the Rules. (Pantilo III v. Canoy, A.M. No. RTJ-112262, February 9, 2011)
Rule 2.02, Canon 2,CJC: A judge should not
seek Publicity for personal vainglory.
Rule 2.03, Canon 2,CJC: A judge shall not
allow family, social, or other relationships to
influence judicial conduct or judgment. The
prestige of judicial office shall not be used
or lent to advance the private interests of
others, nor convey the impression that they
are in a special position to influence the
judge.
Q: Judge Belen was charged with grave abuse of
authority and conduct unbecoming a judge. He
filed a complaint for Estafa against
complainant’s father. However such was
dismissed by the city prosecutor for lack of
probable cause. After the dismissal of the
complaint, Judge Belen started harassing and
threatening the complainant with filing of
several cases against the latter. He also wrote
using his personal stationary, several letters
addressed to certain local government
authorities
and
employees,
requesting
information on
complainant’s piggery and
poultry business and advising them of the
alleged violations by the complainant of the
National
Building
Code
and
certain
environmental
laws.
An
administrative
complaint was filed against the judge for
violation of the New Code of Judicial Conduct on
the ground that by using the letter head
indicating his position as the Presiding Judge he
was trying to use the prestige of his judicial
office for his own personal interest. Is the judge
liable?
A: YES. While the use of the title is an official
designation as well as an honor that an
incumbent has earned, a line still has to be drawn
based on the circumstances of the use of the
appellation. While the title can be used for social
and other identification purposes, it cannot be
used with the intent to use the prestige of his
judicial office to gainfully advance his personal,
family or other pecuniary interests. Nor can the
prestige of a judicial office be used or lent to
advance the private interests of others, or to
convey or permit others to convey the impression
that they are in a special position to influence the
judge. (Canon 2, Rule 2.03 of the Code of Judicial
Conduct) To do any of these is to cross into the
prohibited field of impropriety. (Belen v. Belen,
A.M. No. RTJ-08-2139, August 9, 2010)
Rule 2.04, Canon 2,CJC: A judge should
refrain from influencing in any manner the
the outcome of litigation or dispute pending
before another court or administrative
agency.
CANON 3, CJC
A JUDGE SHOULD PERFOM OFFICIAL DUTIES
HONESTLY, AND WITH IMPARTIALITY AND
DILIGENCE
ADJUDICATIVE RESPONSIBILITIES
Rule 3.01, Canon 3,CJC: A judge shall be
faithful to the law and maintain
professional competence.
Q. Plaintiff Conquilla was charged for direct
assault after respondent Judge B conducted a
preliminary investigation and found probable
cause to hold the complainant for trial for the
said crime. Complainant then filed an
administrative complaint, alleging that under
A.M. No. 05-08-[2]6-SC, first level court judges
no longer have the authority to conduct
preliminary investigations. Is the respondent
judge guilty of gross ignorance of the law?
A: Yes. When a law or a rule is basic, judges owe it
to their office to simply apply the law. Anything
less is gross ignorance of the law. Judges should
exhibit more than just a cursory acquaintance
with the statutes and procedural rules, and
should be diligent in keeping abreast with
developments in law and jurisprudence.
It was therefore incumbent upon respondent
judge to forward the records of the case to the
Office of the Provincial Prosecutor for preliminary
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
179
UST golden notes 2011
investigation, instead of conducting the
preliminary
investigation
himself
upon
amendment of the law stripping the power of first
level court judges to conduct preliminary
investigation. (Conquilla v. Bernando, A.M. No.
MTJ-09-1737, February 9, 2011)
Rule 3.02, Canon 3, CJC: In every case, a
judge shall endeavor diligently to ascertain
the facts and the applicable law unswayed
by partisan interests, public opinion or fear
of criticism.
Note: A judge is expected to decide cases only on
the basis of the applicable law on the matter, not on
any other extraneous factors, such as public opinion,
personal convictions and partisan interests (Lapena,
2009).
Rule 3.03, Canon 3,CJC: A judge shall
maintain order and proper decorum in the
court.
Rule 3.04, Canon 3,CJC: A judge should be
patient, attentive, and courteous to lawyers,
especially the inexperienced, to litigants,
witnesses, and others appearing before the
court. A judge should avoid unconsciously
falling into the attitude of mind that the
litigants are made for the courts, instead of
the courts for the litigants.
Note: The Court has repeatedly emphasized the
need for judges to resolve their cases with dispatch.
Delay does not only constitute a serious violation of
the parties’ constitutional right to speedy disposition
of cases, it also erodes the faith and confidence of
the people in the judiciary, lowers its standards, and
brings it into disrepute. (Office of the Court
Administrator v. Quilatan, A.M. No. MTJ-09-1745,
September 27, 2010)
Rule 3.06, Canon 3, CJC: While a judge may,
to promote justice, prevent waste of time or
clear up some obscurity, properly intervene in
the presentation of evidence during the trial,
it should always be borne in mind that undue
interference may prevent the proper
presentation of the cause or the
ascertainment of truth.
Rule 3.07, Canon 3; CJC: A judge should
abstain from making public comments on any
pending or impending case and should
require similar restraint on the part of court
personnel.
Q: How would you characterize the relationship
between the judge and a lawyer? Explain
ADMINISTRATIVE RESPONSIBILITIES
A: The Code of Professional Responsibility
requires lawyers to observe and maintain respect
for judicial officers (Canon 11,CPR). On the other
hand, the Code of Judicial Conduct requires
judges to be patient, attentive and courteous to
lawyers (Rule 3.03, CJC). In a word, lawyers and
judges owe each other mutual respect and
courtesy. (1996 Bar Question)
Rule 3.08, Canon 3,CJC: A judge should
diligently
discharge
administrative
responsibilities,
maintain
professional
competence in court management, and
facilitate
the
performance
of
the
administrative functions or other judges and
court personnel.
Rule 3.05, Canon 3,CJC: A judge shall dispose
of the court’s business promptly and decide
cases within the required periods.
Note: Article VIII, Section 15(1) of the 1987
Constitution mandates lower court judges to decide
a case within the reglementary period of 90 days.
The Code of Judicial Conduct under Rule 3.05 of
Canon 3 likewise enunciates that judges should
administer justice without delay and directs every
judge to dispose of the court’s business promptly
within the period prescribed by law.
Rules
180
prescribing the time within which certain acts must
be done are indispensable to prevent needless
delays in the orderly and speedy disposition of cases.
Thus, the 90-day period is mandatory. (Re: Cases
Submitted for Decision Before Hon. Teresito A.
Andoy, A.M. No. 09-9-163-MTC, May 6, 2010)
Rule 3.09, Canon 3,CJC: A judge should
organize and supervise the court personnel to
ensure the prompt and efficient dispatch of
business, and require at all times the
observance of high standards of public
service and fidelity.
Rule 3.10, Canon 3,CJC: A judge should take
or initiate appropriate disciplinary measures
against lawyers or court personnel for
unprofessional conduct of which the judge
may have become aware.
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Judicial Ethics – code of judicial conduct
Rule 3.11, Canon 3, CJC: A judge should
appoint commissioners, receivers, trustees,
guardians, administrators and others strictly
on the basis of merit and qualifications,
avoiding nepotism and favoritism. Unless
otherwise allowed by law, the same criteria
should be observed in recommending
appointment of court counsel. Where the
payment of compensation is allowed, it
should be reasonable and commensurate
with the fair value of services rendered.
DISQUALIFICATION
Rule 3.12, Canon 3,CJC: A judge should take
no part in a proceeding where the judge’s
impartiality might reasonably be questioned.
These cases include among others,
proceedings where:
a.
The judge has personal knowledge of
disputed evidentiary facts concerning
the proceeding;
b. The judge served as executor,
administrator, guardian, trustee or
lawyer in the case or matter in
controversy, or a former associate of
the judge served as counsel during
their association, or the judge or
lawyer was a material witness
therein;
c. The judge’s ruling in a lower court is
the subject of review
d. The judge is related by consanguinity
or affinity to a party litigant within
the sixth degree or to counsel within
the fourth degree;
e. The judge knows the judge’s spouse
or child has a financial interest, as
heir, legatee, creditor, fiduciary, or
otherwise, in the subject matter in
f. Controversy or in a party to the
proceeding, or any other interest that
could be substantially affected by the
outcome of the proceeding.
In every instance, the judge shall indicate the
legal reason for inhibition.
Q: In a hearing before the Court of Tax Appeals,
Atty. G was invited to appear as amicus curiae.
One of the Judges hearing the tax case is the
father of Atty. G. The counsel for the respondent
moved for the inhibition of the judge in view of
the father-son relationship. Is there merit to the
motion? Decide.
A: There is no merit to the motion. Rule 3.12 of
the CJC provides that “a judge should take no part
where the judge’s impartiality might reasonably
be questioned. Among the instances for the
disqualification of a judge is that he is related to a
party litigant within the sixth degree or to counsel
within the fourth degree of consanguinity or
affinity. But this refers to counsel of the parties.
As amicus, he represents no party to the case.
There is, therefore, no ground to fear the loss of
the judge’s impartiality in this case if his son is
appointed amicus curiae. (1996 Bar Question)
REMITTAL OF DISQUALIFICATION
Rule 3.13, Canon 3, CJC: A judge disqualified
by the terms of rule 3.12 may, instead of
withdrawing from the proceeding, disclose
on the record the basis of disqualification. If,
based on such disclosure the parties and
lawyers independently of the judge’s
participation, all agree in writing that the
reason for the inhibition is immaterial or
insubstantial, the judge may then participate
in the proceeding. The agreement signed by
the parties, shall be incorporated in the
record of the proceeding.
CANON 4, CJC
A JUDGE MAY, WITH DUE REGARD TO
OFFICIAL DUTIES, ENGAGE IN ACTIVITIES TO
IMPROVE THE LAW, THE LEGAL SYSTEM AND
THE ADMINISTRATION OF JUSTICE.
Rule 4.01, Canon 4, CJC: A judge may, to the
extent that the following activities do not
impair the performance of judicial duties or
cast doubt on the judge’s impartiality:
a. Speak, write, lecture, teach of
participate in activities concerning
the law, the legal system and the
administration of justice;
b. Appear at a public hearing before a
legislative or executive body on
matters concerning the law, the legal
system or the administration of
justice and otherwise consult with
them on matters concerning the
administration of justice;
c. Serve on any organization devoted to
the improvement of the law, the legal
system or the administration of
justice.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
181
UST golden notes 2011
2.
CANON 5, CJC
A JUDGE SHOULD REGULATE EXTRAJUDICIAL
ACTIVITIES TO MINIMIZE THE RISK OF
CONFLICT WITH JUDICIAL DUTIES.
(1995, 1997, 1999, 2000, 2002 Bar Question)
Note: A judge should regulate his extra-judicial
activities so as to minimize the risk of conflict
with judicial duties.
ADVOCATIONAL, CIVIL AND
CHARITABLE ACTIVITES
Rule 5.01, Canon 5, CJC: A judge may engage
in the following activities provided that
they do not interfere with the performance
of judicial duties or detract from dignity of
the court:
a.
b.
c.
d.
Write, teach and speak on nonlegal subjects;
Engage in the arts, sports, and
other
special
recreational
activities;
Participate in civic and charitable
activities;
Serve as an officer, director,
trustee, or non-legal advisor of
non-profit
or
non-political,
educational, religious, charitable,
fraternal, or civic organization.
FINANCIAL ACTIVITIES
Rule 5.02, Canon 5, CJC: A judge shall refrain
from financial and business dealing that
tend to reflect adversely on the court’s
impartiality, interfere with the proper
performance of judicial activities or increase
involvement with lawyers or persons likely
to come before the court. A judge should so
manage investments and other financial
interests as to minimize the number of cases
giving grounds for disqualifications.
3.
Interfere with the proper performance of
judicial activities; or
Increase involvement with lawyers or
persons likely to come before the court.
A judge should so manage investments and other
financial interests as to minimize the number of
cases giving grounds for disqualification. (Rule
5.02)
Rule 5.03, Canon 5, CJC: Subject to the
provisions of the proceeding rule, a judge
may hold and manage investments but
should not serve as officer, director,
manager or advisor, or employee of any
business except as director of a family
business of the judge.
Q: May a judge hold and manage an investment?
A: Subject to the provisions of the preceding rule,
GR: A judge may hold and manage investments
but should not serve as:
1. An officer
2. Director
3. Manager
4. Advisor
5. Employee of any business
XPN: As director of a family business of the
judge. (Rule 5.03)
Rule 5.04, Canon 5, CJC: A judge or any
immediate member of the family shall not
accept a gift, bequest, factor or loan from
any one except as may be allowed by law.
Rule 5.05, Canon 5, CJC: No information
acquired in judicial capacity shall be sued of
disclosed by a judge in any financial dealing
or for any other purpose not related to
judicial activities.
Q: What is the rule regarding financial activities?
A:A judge shall refrain from financial and business
dealings that tend to:
1.
182
Reflect adversely
impartiality;
on
the
court’s
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Judicial Ethics – code of judicial conduct
FIDUCIARY ACTIVITIES
Rule 5.06, Canon 5, CJC: A judge should not
serve as the executor, administrator, trustee,
guardian, or other fiduciary, except for the
estate, trusts, or person of a member of the
immediate family, and then only if such
service will not interfere with the proper
performance of judicial duties.
“Member of immediate family” shall be
limited to the spouse and relative within the
second degree of consanguinity. As a family,
a judge shall not:
a. Serve in proceedings that might
come before the court of said
judge; or
b. Act as such contrary to rule 5.02 to
5.05.
Q: What is the rule regarding fiduciary activities?
PRACTICE OF LAW AND OTHER
PROFESSION
Rule 5.07, Canon 5, CJC: A judge shall not
engage in the private practice of law. Unless
prohibited by the Constitution or law, a
judge may engage in the practice of any
other profession provided that such practice
will not conflict or tend to conflict with
judicial functions.
FINANCIAL DISCLOSURE
Rule 5.08, Canon 5, CJC: A judge shall make
full financial disclosure as required by law.
Q: What is the rule on financial disclosure?
A: A judge shall make full financial disclosure as
required by law. (Rule 5.08)
A:
GR: A judge should not serve as;
1. Executor
2. Administrator
3. Trustee
4. Guardian
5. Other fiduciary
XPN: For the:
1. Estate;
2. Trust; or
3. Person of a member of the immediate
family.
Provided, that such service shall not interfere
with the proper performance of judicial office.
(Rule 5.06)
Q: As a family fiduciary, what should a judge
refrain from doing?
A: As a Family Fiduciary, a judge shall not:
1.
2.
Serve in proceedings that might come
before the court of said judge; or
Act as such contrary to rules 5.02 and
5.05
Note: “Member of the immediate family” shall be
limited to the spouse and relatives within the second
degree of consanguinity.
The relationship mentioned is consanguinity not
affinity.
EXTRAJUDICIAL APPOINTMENTS
Rule 5.09, Canon 5, CJC: A judge shall not
accept appointment or designation to any
agency
performing
quasi-judicial
or
administrative functions.
Note: The prohibition is based on Section 12, Article
VIII of the Constitution, which provides that, “The
members of the Supreme Court and of other courts
established by law shall not be designated to any
agency performing quasi-judicial or administrative
functions.”
Reason: The appointment to such positions will likely
interfere with the performance of the judicial
functions of a judge.
POLITICAL ACTIVITIES
Rule 5.10, Canon 10, CJC: A judge is entitled
to entertain personal views on political
questions. But to avoid suspicion of political
partisanship, a judge shall not make
political speeches, contribute to party fund,
publicly endorse candidates for political
office or participate in other partisan
political activities.
Note: What is prohibited is partisan political activity.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
183
UST golden notes 2011
IV. DISCIPLINE OF MEMBERS OF
THE JUDICIARY
A. DISCIPLINE OF THE MEMBERS OF THE
SUPREME COURT
Q: Who has the power to discipline members of
the bench?
A:
1.
2.
The Supreme Court has exclusive
administrative supervision over all
courts and its personnel. (Section 6, Art.
VIII, 1986 Constitution)
The Court en banc has the power to
discipline all judges of lower courts
including justices of the Court of
Appeals. (Section 11, Art. VIII, 1986
Constitution)
Q: May judges and justices be disbarred?
A: Yes. Judges and justices, being lawyers, may
also be disbarred, if found guilty of certain crimes
and/or other causes for disbarment under the
Rules of Court.
rather than promote the orderly administration of
justice. (Ocenar v. .Judge Mabutin, A.M. No. MTJ 05158, Feb. 2005)
B. DISCIPLINE OF LOWER COURT JUDGES AND
JUSTICES
Note: The acts of a judge in his judicial capacity are
not subject to disciplinary action. In the absence of
fraud, malice or dishonesty in rendering the assailed
decision or order, the remedy of the aggrieved party is
to elevate the assailed decision or order to the higher
court for review and correction. However, an inquiry
into a judge’s civil, criminal and/or administrative
liability may be made after the available remedies
have been exhausted and decided with finality.
(Republic v. Caguioa, A.M. No. RTJ-07-2063, June 26,
2009)
Q: How are the proceedings for the discipline of
judges instituted?
A: Proceedings for the discipline of judges of
regular and special courts and justices of the
Court of Appeals and the Sandiganbayan may be
instituted:
1.
2.
Justices of the Supreme Court however may not
be disbarred unless and until they shall have been
first impeached in accordance with the
Constitution.
Motu propio by the Supreme Court;
Upon a verified complaint filed before the
Supreme Court supported by:
a.
b.
A. IMPEACHMENT
Q: What is the nature of impeachment
proceedings against SC justices?
A: Penal in nature governed by rules on criminal
case.
3.
Affidavit of persons who have
personal knowledge of the facts
alleged therein; or
Documents which may substantiate
said allegations.
Anonymous complaint supported by
public records of indubitable integrity filed
with the Supreme Court.
Q: What is the form of the complaint and what
should it state?
Q: What is the degree of proof required?
A: Requires proof beyond reasonable doubt.
Q: Who are subject to impeachment?
A: The complaint shall be in writing and shall
state clearly and concisely the acts and omissions
constituting violations of standards of conduct
prescribed for judges by law, the Rules of Court,
or the Code of Judicial Conduct.
A: Only SC Justices are subject to impeachment.
C. GROUNDS
Note: While it is the duty of the court to investigate
and determine the truth behind every matter in
complaints against judges and other court
personnel, it is also their duty to see to it that they
are protected and exonerated from baseless
administrative charges. The Court will not shirk from
its responsibility of imposing discipline upon its
magistrates, but neither will it hesitate to shield
them from unfounded suits that serve to disrupt
184
Q. What are the grounds for discipline of judges?
A.
1.
Serious Misconduct – implies malice or
wrongful intent, not mere error of
judgment.
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Judicial Ethics – discipline of members of the judiciary
Judicial acts complained of:
a. Must be corrupt or inspired by an
intention to violate the law; or
b. Were in persistent disregard for wellknown legal rules.
Note: There is misconduct when there is reliable
evidence showing that judicial actions are corrupt or
inspired by intent to violate the law or in persistent
disregard of legal rules.
Note: Serious misconduct implies malice or a
wrongful intent, not a mere error of judgment. For it
to exist, there must be reliable evidence showing
that the judicial acts complained of were corrupt or
inspired by an intention to violate the law or were in
persistent disregard of well-known legal rules.
2.
Inefficiency
–
implies
negligence,
incompetence,
ignorance
and
carelessness. A judge would be
inexcusably negligent if he failed to
observe in the performance of his duties
that
diligence,
prudence
and
circumspection which the law requires in
the rendition of any public service.
Q: Should a judge be held administratively liable
for ignorance of the law for granting bail to an
accused in a criminal case without the requisite
bail hearing, and despite the fact that there was
an eyewitness to the murder who made a
positive identification of the accused?
A: Yes. It is already settled that when a judge
grants bail to a person charged with a capital
offense, or an offense punishable by reclusion
perpetua or life imprisonment without conducting
the required bail hearing, he is considered guilty
of ignorance or incompetence the gravity of
which cannot be excused by a claim of good faith
or excusable negligence. When a judge displays
an utter unfamiliarity with the law and the rules,
he erodes the confidence of the public in the
courts. A judge owes the public and the court the
duty to be proficient in the law and is expected to
keep abreast of laws and the prevailing
jurisprudence. Ignorance of the law by a judge
can easily be the mainspring of injustice.(Grageda
v. Judge Tresvalles, A.M. MTJ No. 04-1526, Feb. 2,
2004)
Q: Santiago and Sanchez were complainants in
two different criminal cases before the MTC of
Bulacan and the RTC of Pampanga respectively.
The suspects in each of the criminal cases were
caught and detained by authorities. However,
both suspects were released by order of Judge
Jovellanos
of
MCTC
Pangasinan.
The
complainants questioned both Orders for
Release, alleging that the requirements for the
bail bond had not been fulfilled and that the said
judge had no jurisdiction to order the release. Is
Judge Jovellanos guilty of gross incompetence
and gross ignorance of the law?
A: Yes. A judge should be acquainted with legal
norms and precepts as well as with statutes and
procedural rules. Unfamiliarity with the Rules of
Court is a sign of incompetence. He must have the
basic rules at the palm of his hands as he is
expected to maintain professional competence at
all times. Here, there are two defects in the
Orders for Release signed by Judge Jovellanos.
First, in both cases, the detainees had not
registered the bailbond in accordance with the
Rules of Criminal Procedure. One may not be
given provisional liberty if the bailbond is not
registered with the proper office. Secondly, Judge
Jovellanos did not have jurisdiction to order the
release of the detainees as the cases were not
pending in his court and the suspects were not
arrested within his jurisdiction. (Santiago v. Judge
Jovellanos, A.M. No. MTJ-00-1289, Aug. 1, 2000)
Note: Judges are not expected to be infallible; not
every error or irregularity committed by judges in
the performance of official duties is subject to
administrative sanction. In the absence of bad faith,
fraud, dishonesty, or deliberate intent to do
injustice, incorrect rulings do not constitute
misconduct and may give rise to a charge of gross
ignorance of the law. (Cruz v. Iturralde, A.M. No.
MTJ-03-1775, April 30. 2003).
Q: Cruz was the defendant in an ejectment case
filed by the Province of Bulacan involving a
parcel of land owned by the said province. A
decision was rendered against Cruz. He then
filed an appeal and several motions for
reconsideration but all were subsequently
denied by Justice Alino-Hormachuelos before
whom the motions were filed. Consequently,
Cruz charged all the judges and justices with
grave misconduct, gross inexcusable negligence,
and rendering a void judgment. Should the
judges be held liable for grave misconduct and
gross ignorance of the law?
A: No. The Court has consistently held that judges
will not be held administratively liable for mere
errors of judgment in their rulings or decisions
absent a showing of malice or gross ignorance on
their part. Bad faith or malice cannot be inferred
simply because the judgment is adverse to a
party. To hold a judge administratively
accountable for every erroneous ruling or
decision he renders, assuming that he has erred,
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
185
UST golden notes 2011
would be nothing short of harassment and would
make his position unbearable. Here, the fact that
the judge or justices rendered a decision not
favorable to Cruz is not enough to make them
liable for grave misconduct. (Cruz v. Justice AlinoHormachuelos et. al., A.M. No. CA-04-38, Mar.
31, 2004)
Q: Judge Caguioa cited attorney X in direct
contempt for allegedly using disrespectful
language in his pleadings, and directed the
latter’s arrest. Thereafter, the judge denied Atty.
X’ request to allow him to post a bond for his
provisional liberty. Atty. X now charged Judge
Caguioa of gross ignorance of law for denying his
request. Is the judge guilty of gross ignorance of
law?
A: Yes. When the law violated is so elementary, as
in this case, where there is a rule which provides
for the procedure to be followed in case of
contempt, for a judge not to know or to act as if
he does not know it constitutes gross ignorance.
The judge’s act therefore of denying the request
to post a bond despite the presence of a rule
allowing such constitutes gross ignorance of the
law. (Dantes v. Caguioa, A.M. No. RTJ-05-1919,
June 27, 2005)
Note: Resort to administrative sanction is an
exceptional remedy. The normal course of action is
to correct the errors or irregularities in the
application of law by the judge by way of motion for
reconsideration, or where appropriate under the
rules of procedure, motion for new trial or special
civil action of certiorari, prohibition or mandamus.
An administrative case against the judge would not
lie, even if the actions were perceived to have gone
beyond the norms of propriety, where a sufficient
judicial remedy exists. With much less reason could
an administrative case against the judge be a vehicle
to correct possible mistakes of one’s counsel.
(Dadizon v. Judge Asis, A.M. No. RTJ-03-1760,
January 15, 2004)
Q: Is a disciplinary and criminal action against a
judge a substitute for judicial remedies?
A: Disciplinary and criminal actions against a
judge, are not complementary or suppletory of,
nor a substitute for, judicial remedies, whether
ordinary or extraordinary. Resort to and
exhaustion of judicial remedies are prerequisites
for the taking of other measures against the
persons of the judges concerned, whether of civil,
administrative, or criminal nature. It is only after
the available judicial remedies have been
exhausted and the appellate tribunals have
186
spoken with finality that the door to an inquiry
into his criminal, civil, or administrative liability
may be said to have opened, or closed. (Maquiran
v. Grageda, A.M. No. RTJ-04-1888, Feb. 11, 2005)
Q: Santiago’s Petition for Reconstitution of
Lost/Destroyed Original Certificate of Title was
granted by the Quezon City RTC. The Republic of
the Philippines through the Office of the Solicitor
General appealed the decision to the Court of
Appeals the case of which was raffled to the
Division
where
Justice
Enriquez
was
Chairperson. The special division reversed and
set aside the Decision of the Quezon City RTC.
Motion for Reconsideration having been denied,
complainant filed the present complaint before
the SC. Pending the decision of the SC, an
administrative charge of Gross Ignorance of the
law/Gross Incompetence was filed against
respondent Associate Enriquez. Is the filing of
the administrative complaint against him
proper?
A: No. The remedy of the aggrieved party is not
to file an administrative complaint against the
judge, but to elevate the assailed decision or
order to the higher court for review and
correction. An administrative complaint is not an
appropriate remedy where judicial recourse is still
available, such as a motion for reconsideration,
an appeal, or a petition for certiorari, unless the
assailed order or decision is tainted with fraud,
malice, or dishonesty.
The failure to interpret the law or to properly
appreciate the evidence presented does not
necessarily render a judge administratively liable.
A judicial officer cannot be called to account in a
civil action for acts done by him in the exercise of
his judicial function, however erroneous. In the
words of Alzua and Arnalot v. Johnson, “ it is a
general principle of the highest importance to the
proper administration of justice that a judicial
officer, in exercising the authority vested in him,
shall be free to act upon his own convictions,
without apprehension of personal consequences
to himself." This concept of judicial immunity
rests upon consideration of public policy, its
purpose being to preserve the integrity and
independence of the judiciary. This principle is of
universal application and applies to all grades of
judicial officers from the highest judge of the
nation and to the lowest officer who sits as a
court. (Santiago III v. Justice Enriquez, Jr. A.M. No.
CA-09-47-J, February 13, 2009)
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Judicial Ethics – discipline of members of the judiciary
Q: What are the classifications of charges?
A: Administrative charges are classified as:
1. Serious
2. Less serious
3. Light.
Q: What are considered as serious charges?
A:
1.
2.
Bribery, direct or indirect;
Dishonesty and violations of the Anti-Graft
and Corrupt Practices Law; (R.A. 3019)
3. Gross misconduct constituting violations
of the Code of Judicial Conduct
4. Knowingly rendering an unjust judgment
or order as determined by a competent
court in an appropriate proceeding
5. Conviction of a crime involving moral
turpitude
6. Willful failure to pay a just debt
7. Borrowing money or property from
lawyers and litigants in a case pending
before the court
8. Immorality
9. Gross ignorance of the law or procedure
10. Partisan political activities
11. Alcoholism and/or vicious habits
Q: What are considered as less serious charges?
A:
1.
2.
3.
4.
5.
6.
7.
Undue delay in rendering a decision or
order, or in transmitting the records of a
case
Frequently and unjustified absences
without leave or habitual tardiness
Unauthorized practice of law
Violation of Supreme Court rules,
directives, and circulars
Receiving
additional
or
double
compensation
unless
specifically
authorized by law
Untruthful statements in the certificate of
service
Simple misconduct
Q: What are considered as light charges?
A:
1.
2.
3.
4.
Vulgar and unbecoming conduct
Gambling in public
Fraternizing with lawyers and litigants
with pending case/cases in his court
Undue delay in the submission of monthly
reports
Q: Are the
confidential?
proceedings
against
them
A: Proceedings against judges of regular and
special courts and justices of the Court of Appeals
and the Sandiganbayan shall be private and
confidential, but a copy of the decision or
resolution of the Court shall be attached to the
record of the respondent in the Office of the
Court Administrator. (Sec 12, Rule 140,RRC)
Q: What is the effect of resignation or
retirement of a judge when there is a pending
administrative case against him?
A: The retirement of a judge or any judicial officer
from service does not preclude the finding of any
administrative liability to which he should still be
answerable. Also, the withdrawal or recantation
of the complaint does not necessarily result in the
dismissal of the case. (Atty. Molina v. Judge Paz,
A.M. No. RTJ -01-1638, December 8, 2003)
Note: The acceptance by the President of the
resignation does not necessarily render the case
moot or deprive the SC of the authority to
investigate the charges. The court retains its
jurisdiction either to pronounce the respondent
official innocent of the charges or declare him guilty
thereof. A contrary rule will be fraught with injustice
and pregnant with dreadful and dangerous
implications (Pesole v. Rodriguez A.M. No. 755-MTJ,
January 31, 1978)
Q:May the heirs of a judge who was found guilty
of gross neglect of duty and dismissed from the
service with disqualification from holding public
office for an offense committed before he was
appointed judge, be entitled to gratuity
benefits?
A: Yes. Upon demise, the administrative
complaint of the OCA had to be considered closed
and terminated. Therefore, there is no valid
reason why the heirs of the deceased should not
be entitled to gratuity benefits for the period he
rendered service as MTCC judge up to the finality
of the CSC Resolution which imposed the penalty
of "dismissal from service with all the accessory
penalties including disqualification from holding
public office and forfeiture of benefits”.
The penalty of disqualification from holding
public office and forfeiture of benefits may not be
applied retroactively, however, the judge should
be considered terminated from service in the
judiciary as his appointment as MTCC judge is
deemed conditional upon his exoneration of the
CSC administrative charges against him. (Re:
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
187
UST golden notes 2011
Application for retirement/gratuity benefits under
R.A. 910 as amended by R.A. 5095 and P.D. 1438
filed by Mrs. Butacan, surviving spouse of the late
Hon. Jimmy Butacan, former judge of MTC,
Tuguegarao City, who died on July 28, 2005,A.M.
No. 12535-Ret, Apr. 22, 2008)
merely dispenses with the procedure laid down in
Rule 140, RRC. (Aguirre, 2006)
Q: What is the quantum of evidence required for
the removal of a judicial officer?
All judges are reminded that the Supreme Court
has applied the Res Ipsa Loquitor rule in the
removal of judges even without any formal
investigation whenever a decision, on its face,
indicates gross incompetence or gross ignorance
of the law or gross misconduct (Cathay Pacific
Airways v. Romillo, G.R. No. 64276, 12 August
1986)
A: The ground for removal of a judicial officer
should be established beyond reasonable doubt.
Such is the rule where the charge on which the
removal is sought is misconduct in office, willful
neglect, corruption or incompetence. The general
rules in regard to admissibility of evidence in
criminal trials apply.
Note: For liability to attach, the assailed order,
decision or actuation of the judge in the
performance of official duties must not only found to
be erroneous but, most importantly, it must be
established that he was moved by bad faith,
dishonesty, hatred or some other like motive.
Similarly, a judge will be held administratively liable
for rendering an unjust judgment – one which is
contrary to law or jurisprudence or is not supported
by evidence - when he acts in bad faith, malice,
revenge or some other similar motive. In other
words, in order to hold a judge liable for knowingly
rendering an unjust judgment, it must be shown
beyond reasonable doubt that the judgment was
made with a conscious and deliberate intent to do
an injustice. (Judge De Guzman v Dy A.M. No. RTJ1755, July 3, 2003)
Q: May a judge be disciplined by the Supreme
Court based solely on a complaint filed by the
complainant and the answer of respondent
judge? If so, under what circumstances? What is
the rationale behind this power of the Supreme
Court?
A: A judge may be disciplined by the Supreme
Court based solely on the basis of the complaint
filed by the complainant and the answer of the
respondent judge, under the principle of res ipsa
loquitor. The Supreme Court has held that when
the facts alleged in the complaint are admitted or
are already shown on the record, and no credible
explanation that would negate the strong
inference of evil intent is forthcoming, no further
hearing to establish such facts to support a
judgment as to culpability of the respondent is
necessary (In Re: Petition for dismissal of Judge
Dizon). (1996 Bar Question)
Note: The doctrine of res ipsa loquitur does not and
cannot dispense with the twin requirements of due
process, notice and the opportunity to be heard. It
188
Q: In Administrative Circular No. 1 addressed to
all lower courts dated January 28, 1988, the
Supreme Court stressed:
The application of the res ipsa loquitor rule in
the removal of judges is assailed in various
quarters as inconsistent with due process and
fair play.
Is there any basis for such a reaction? Explain.
A:
1. First view - there is a basis for the reaction
against the res ipsa loquitor rule on removing
judges. According to the position taken by the
Philippine Bar Association, the res ipsa loquitor
rule might violate the principle of due process
that is the right to be heard before one is
condemned.
Moreover, Rule 140 of the Rules of Court
provides for the procedure for the removal of
judges. Upon service of the complaint against
him, he is entitled to file an answer. If the
answer merits a hearing, it is referred to a
justice of the Court of Appeals for investigation,
the report of the investigation is submitted to
the Supreme Court for proper disposition.
The danger in applying the res ipsa loquitor rule
is that the judge may have committed only an
error of judgment. His outright dismissal does
violence to the jurisprudence set in (In Re
Horilleno, 43 Phil. 212, March 20, 1922)
2. Second view- According to the Supreme Court
the lawyer or a judge can be suspended or
dismissed based in his activities or decision, as
long as he has been given an opportunity to
explain his side. No investigation is necessary.
Q: Does suspension pendente lite apply to
judges?
A: No. While it is true that preventive suspension
pendente lite does not violate the right of the
accused to be presumed innocent as the same is
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Judicial Ethics – discipline of members of the judiciary
not a penalty, the rules on preventive suspension
of judges, not having been expressly included in
the Rules of Court, are amorphous at best.
Moreover, it is established that any
administrative complaint leveled against a judge
must always be examined with a discriminating
eye, for its consequential effects are, by their
nature, highly penal, such that the respondent
judge stands to face the sanction of dismissal or
disbarment. As aforementioned, the filing of
criminal cases against judges may be used as tools
to harass them and may in the long run create
adverse consequences. (Re: Conviction of Judge
Adoracion G. Angeles, A.M. No. 06-9-545-RTC,
Jan. 31, 2008)
XPN: Where an error is gross or patent,
deliberate and malicious, or is incurred with
evident bad faith; or when there is fraud,
dishonesty, or corruption.
Q: What are the civil liabilities under the civil
code?
A:
1.
Article 27 – refusal or neglect without just
cause by a public servant to perform his
official duty.
2.
Article 32 – directly or indirectly
obstructing, defeating, violating or in any
manner impeding or impairing civil
liberties guaranteed by the Constitution.
Q: May justices and judges be investigated under
the grievance procedure in the RRC?
A: No. Complaints against justices and judges are
filed with the Supreme Court which has exclusive
administrative supervision over all courts and the
personnel thereof pursuant to Section 6 Art. VIII,
Constitution. The Court en banc has the power to
discipline all judges of lower courts including
justices of the Court of Appeals (Section 11, Art.
VIII, 1987 Constitution)
This responsibility for damages is not,
however, demandable of judges except
when his act or omission constitutes a
violation of the Penal Code or other penal
statute.
Q: What are the disabilities/restrictions under
the Civil Code?
A:
1.
As a matter of practice, the Supreme Court has
assigned complaints against Municipal or
Metropolitan Trial Judges to an Executive Judge
of a Regional Trial Court and complaints against
judges of Regional Trial Courts to a justice of the
Court of Appeals, while a complaint against a
member of the Court of Appeals would probably
be assigned to a member of the Supreme Court
for investigation, report and recommendation.
Retired SC Justices are now tasked for this
purpose.
This prohibition includes the act of
acquiring by assignment and shall apply to
lawyers, with respect to the property and
rights which may be the object of any
litigation in which they may take part by
virtue of their profession. (1996 Bar
Question)
Q: What is the rule on the liability of judges?
A:
GR: A judge is not liable administratively, civilly,
or criminally, when he acts within his legal
powers and jurisdiction, even though such acts
are erroneous so long as he acts in good faith.
In such a case, the remedy of aggrieved party is
not to file an administrative complaint against
the judge but to elevate the error to a higher
court for review and correction.
Reason: To free the judge from apprehension
of personal consequences to himself and to
preserve the integrity and independence of the
judiciary.
Article 1491 (5) – Justices, judges,
prosecuting attorneys, clerks of court of
superior and inferior courts and other
officers and employees connected with
the administration of justice cannot
acquire by purchase, even at a public or
judicial action, either in person or through
the mediation of another the property and
rights in litigation or levied upon an
execution before the court within whose
jurisdiction or territory they exercise their
respective functions.
2.
Article 739 – Donations made to a judge,
his wife, descendants and ascendants by
reason of his office are void.
Q: What are the Criminal Liabilities under the
RPC and the Anti-Graft and Corrupt Practices
Act?
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
189
UST golden notes 2011
A:
1.
Misfeasance
a. Article 204 – Knowingly rendering
unjust judgment.
b. Manifestly Unjust Judgment – one
which is so patently against the law,
public order, public policy and good
morals that a person of ordinary
discernment can easily sense its
invalidity and injustice.
2.
Suspension from office without salary and
other benefits for more than three (3) but
not exceeding six (6) months
3.
A fine of more than P20,000.00 but not
exceeding P40,000.00
Q: What are the sanctions if the respondent is
found guilty of a less serious charge?
A:
Note: It must be shown beyond doubt that the
judgment is unjust as it is contrary to law or is not
supported by evidence and the same was made with
conscious and deliberate intent to do an injustice. (In
Re: Climaco, A.C. No. 134-J, January 21, 1974)
If the decision rendered by the judge is still on
appeal, the judge cannot be disqualified on the
ground of knowingly rendering an unjust judgment.
(Abad v. Bleza, A.M. No. R-227-RTJ, October 13,
1986)
2.
Article 205 – Judgment rendered through
negligence – committed by reason of
inexcusable negligence or ignorance.
Note: Negligence and ignorance are inexcusable if
they imply a manifest injustice, which cannot be
explained by reasonable interpretation (In Re:
Climaco).
3.
4.
Suspension from office without salary and
other benefits for not less than one (1) nor
more than three (3) months; or
2.
A fine of more than P10,000.00 but not
exceeding P20,000.00.
Note: The failure of a judge to decide even a single
case within the 90-day period was considered gross
inefficiency warranting the imposition of fine
equivalent to his 1 month salary. (In Re: Judge Danilo
Tenerife, A.M. No. 94-5-42-MTC, Mar. 1996)
Q: What are the sanctions if the respondent is
found guilty of a light charge?
A: Any of the following sanctions shall be
imposed:
1.
Article 206 – Knowingly rendering an
unjust interlocutory order; and
A fine of not less than P1,000.00 but not
exceeding P10,000.00 and/or
Censure
Reprimand
Admonition with warning
2.
3.
4.
Maliciously delaying the administration of
justice.
Note: The act must be committed maliciously with
deliberate intent to prejudice a party in a case.
1.
E. REINSTATEMENT OF A JUDGE PREVIOUSLY
DISCIPLINED
Q: When is reinstatement proper?
D. SANCTIONS IMPOSED BY THE SUPREME
COURT ON ERRING MEMBERS OF THE JUDICIARY
Q: What are the sanctions if the judge is found
guilty of a serious charge?
A: Reinstatement is proper when there is no
indication that the judge is inspired by corrupt
motives or reprehensive purpose in the
performance of his functions.
A: Any of the following sanctions may be
imposed:
Q: What are the factors to be considered in
reinstatement?
1.
190
Dismissal from the service, forfeiture of all
or part of the benefits as the Court may
determine, and disqualification from
reinstatement or appointment to any
public office, including governmentowned or controlled corporations.
Provided, however, that the forfeiture of
benefits shall in no case include accrued
leave credits
A:
1.
2.
3.
4.
Unsullied name and service of record
prior to dismissal
Commitment to avoid situation that
spur suspicion of arbitrary conditions
Complainant mellowed down in pushing
from his removal
Length of time separated from service
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Judicial Ethics – discipline of members of the judiciary
PROCEDURE FOR DISCIPLINE OF JUDGES OF
REGULAR AND SPECIAL COURTS.
AND JUSTICES.
OF THE COURT OF APPEALS AND THE SANDIGANBAYAN.
(A.M. NO. 01-8-10-SC).
(2005 Bar Question).
If the complaint is sufficient in form and
substance, a copy thereof shall be served
upon the respondent and he shall be
required to comment within 10 days from
date of service.
If the complaint is not sufficient
in form and substance, the
same shall be dismissed.
Upon the filing of the respondent’s comment or upon
the expiration of the time for filing the same and
unless other pleadings or documents are required,
the Supreme Court shall refer the matter to:
Office of the Court Administrator for
evaluation, report, and recommendation
Or assign the case for investigation, report,
and recommendation to a retired member
of the Supreme Court, if the respondent is
a justice of the CA and the Sandiganbayan
Or to a justice of the CA, if the respondent
is a judge of a Regional Trial Court or of a
special court of equivalent rank
The investigating justice or judge
shall set a day of the HEARING
and send notice thereof to both
parties. At such hearing the
parties may present oral and
documentary evidence.
If, after due notice, the
respondent fails to appear, the
investigation shall proceed ex
parte.
The investigating justice or judge
shall terminate the investigation
within ninety (90) days from the
date of its commencement or
within such extension as the
Supreme Court may grant.
Or to a judge of the Regional Trial Court
if the respondent is a judge of an inferior
court.
The Court shall take
such ACTION on the
report as the facts and
the law may warrant.
Within thirty (30) days from the termination of the
investigation, the investigating Justice or Judge shall submit
to the Supreme Court a REPORT containing findings of fact
and recommendation. The report shall be accompanied by
the record containing the evidence and the pleadings filed by
the parties. The report shall be confidential and shall be for
the exclusive use of the Court.
Note: Before the Court approved this resolution, administrative and disbarment cases against members of the bar who were
likewise members of the court were treated separately. However, pursuant to the new rule, an administrative case against a
judge of a regular court based on grounds which are also grounds for the disciplinary action against members of the Bar shall
be automatically considered as disciplinary proceedings against such judge as a member of the Bar.
Since membership in the bar is an integral qualification for membership in the bench, the moral fitness of a judge also
reflects his moral fitness as a lawyer. A judge who disobeys the basic rules of judicial conduct also violates his oath as a
lawyer. (Samson v. Judge Caballero, A.M. No. RTJ-08-2138 ,Aug. 5, 2009)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
191
UST golden notes 2011
I. COMMON FORMS
LEGAL FORMS
A. ACKNOWLEDGMENT
Note: Form is important when the law requires a
document or other special form, such as those
mentioned in Article 1358 of the New Civil Code,
donation of an immovable property under Art. 749,
NCC, pledge under Art. 2096, NCC. (Suarez, 2007)
Q: What does the study of Legal Forms include?
Note: Acknowledgment is a statutory act such that
only those instruments that are required by law to
be acknowledged shall be acknowledged; it is also a
personal act such that it cannot be acknowledged by
a person other than the one who executed it.
(Suarez, 2007)
Q: What are examples of instruments that must
be acknowledged?
A: It includes the following:
1. Business Forms – Forms used in conveyance,
or of the forms of deeds, instruments or
documents creating, transferring, modifying
or limiting rights to real as well as personal
properties, and other forms related to
business contracts or transactions. (Legal
Forms, Suarez 2007)
2. Judicial Forms – Forms which pertain to
different kinds of pleadings, applications,
petitions, affidavits, motions and the like.
(Ibid)
Q: What is a document?
A: It is a writing or instrument by which a fact
may be proven or affirmed. A document may
either be private or public.
1. Private Document – a deed or instrument
executed by a private person, without the
intervention of a notary public or of other
person legally authorized, by which a
document, some disposition or agreement is
proved, evidenced or set forth.
2. Public Document
a. An instrument authenticated by a
notary public or a competent public
official, with the formalities required by
law
b. An instrument executed in due form
before a notary certified by him
c. That which is made by a notary public in
the presence of the parties who
executed it, with the assistance of two
witnesses. (Suarez, 2007)
A:
a. Deeds
b. Conveyances
c. Mortgages
d. Leases
e. Releases and discharges affecting lands
whether registered under Act 496 or
unregistered
Note: If not acknowledged, such documents will not
be accepted by the Register of Deeds for registration
(Suarez, 2007)
Note: The person who executed the instrument is
the one who executes an acknowledgment.
Q: When is an acknowledgment made?
A: An acknowledgment is made in documents
where there is transfer or conveyance of title to
property, transmission of rights or manifestation
of agreement of parties (fulfilment of a prestation
to give, to do or not to do)
Note: It should be used only in contracts, never in
affidavits or sworn statements. (Albano, Albano, Jr.
and Albano, 2004)
Q: What is the meaning of Scilicet or “S.S.”?
A: “S.S.” literally means more particularly (Suarez,
2007), to wit, or namely (Guevara, 2010).It is used
to particularize a general statement. (Ibid)
In notarized documents, it indicates that the legal
document was executed in the designated place
within that particular jurisdiction for such an act.
Note: The omission of “SS” in a legal document is
not material so as to invalidate it. (McCord, et al. v.
Glenn, 6 Utah 139, 21 Pac. 500; Guevara, 2010)
192
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Ust golden notes 2011
Form 1: General Form of Acknowledgment
[1] ACKNOWLEDGMENT
[2] REPUBLIC OF THE PHILIPPINES)
PROVINCE OF _______________)
CITY/MUNICIPALITY OF _______) S.S.
[3] BEFORE ME, a NOTARY PUBLIC for and in the above jurisdiction, this ___ day of _____,
2011, personally appeared the following persons
[4] NAME
[5] IDENTIFICATION
____________________
____________________
___________________
___________________
[6] DATE AND PLACE
OF ISSUANCE
_______________________
_______________________
[7] Known to me to be the same persons who executed the foregoing instrument and they
acknowledged to me that the same is their own free and voluntary act and deed [12] and of the
corporations herein represented.
[8] This instrument refers to a (title of document) and consists of ___ pages including the
page on which this acknowledgment is written and signed by the parties and their instrumental
witnesses on each and every page thereof.
[9] WITNESS MY HAND AND SEAL on the date and at the place above written.
[10] JUAN DELA CRUZ
NOTARY PUBLIC- Makati City
Appointment No. ____
Until December 31, 2010
Roll no. ____
PTR no. ____, date of issue, place of issue
IBP no. _____, date of issue, place of issue
Office Address:
Email:
Contact Number:
[11] Doc. No._____;
Page No. ____;
Book No.____;
Series of 2011.
Q: What are
acknowledgment?
the
contents
of
an
A:
[1]
[2]
[3]
[4]
Title of the notarial act
Place of execution
Date
Name of person acknowledging the
document (as well as name/s of the
entity/ies being represented, if such is the
case)
[5] Competent evidence of identity presented
[6] Date and place of issue of the competent
evidence of identity presented
[7] Acknowledgment made to the notary
public that it is the person’s voluntary act
and deed
[8] Type of document executed and number
of pages
[9] Notarial certificate
[10] Identity of notary public
[11] Details of the notarial register
[12] If executed in a representative capacity, a
statement to that effect.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
193
UST- Golden Notes 2011
Q: When should jurats be executed?
B. JURAT
A: It is used in any notarized document that is
declaratory in nature, such as:
Q: What is a Jurat?
A: It is that part of an affidavit in which the officer
certifies that the instrument was sworn to before
him. It is not part of the affidavit. (Suarez, 2007)
a.
b.
c.
Note: Jurat is important as it gives the document a
legal character.(Ibid)
Affidavits
Certifications
Whenever the person executing the
document makes a statement of facts
or attests to the truthfulness of an
event, under oath.
Q: Who executes a Jurat?
A: The notary public. He certifies that the same
was sworn before him.
Note: A jurat should be used only in affidavits, sworn
statements, certifications, verifications and the like.
Never use it in contracts. (Albano, Albano, Jr. and
Albano, 2004)
Form 2: Jurat
REPUBLIC OF THE PHILIPPINES)
PROVINCE OF _______________)
CITY/MUNICIPALITY OF ______ ) S.S.
[1] SUBSCRIBED AND SWORN to before me, in the municipality/ city of_____, this ____ day of ____,
20011, the affiant exhibiting to me his (any competent evidence of identity) issued by (issuing
agency) on (date of issue) at (place of issue).
[2] JUAN DELA CRUZ
NOTARY PUBLIC- Makati City
Appointment No. ____
Until December 31, 2010
Roll no. ____
PTR no. ____, date of issue, place of issue
IBP no. _____, date of issue, place of issue
Office Address:
Email:
Contact Number:
[3] Doc. No._____;
Page No. ____;
Book NO.____;
Series of 2011
Q: What are the contents of a Jurat?
c.
A: Remember its three (3) sections:
d.
e.
f.
g.
[1] The Notary’s declaration regarding when
and where the person took an oath or
affirmation as to the document or
instrument and his competent evidence of
identity, bearing his picture and signature
was presented.
[2] The identity of the notary public with the
following: a. Complete name of the
Notary Public
a. Place of commission
b. Appointment number
194
[3]
Expiration date of the Notarial
Commission
Roll Number
PTR number
IBP Number
Office address
The details of the Notarial Register
a. Document number
b. Page number
c. Book number
d. Series number (year)
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Forms – Common Forms
C. PLEADING
Q: What are the parts of a pleading?
Q: What are pleadings?
A: Pleadings are the written statements of the
respective claims and defenses submitted to the
court for appropriate judgment. (Sec. 1, Rule 6,
RRC)
Q: What is the purpose of a pleading?
A: Its purpose is to define the issues and form the
foundation of the proof to be submitted at the
trial. It narrows the case down to a specific issue
or issues which will be submitted to the court for
trial and judgment. (Suarez, 2007)
A: Cap-Ti-BRA PLUS
[1] Caption
[2] Title
[3] Body
[4] Relief
[5] Attorney
[6] PLUS
a. Verification, if required
b. Certificate of non-forum shopping,
when appropriate
c. Notice of hearing, when required
d. Proof of service
e. Explanation
Form 3: General Format of a Pleading
REPUBLIC OF THE PHILIPPINES
REGIONAL TRIAL COURT
NATIONAL CAPITAL JUDICIAL REGION
BRANCH ________, MAKATI CITY
[1]________________________,
Plaintiff,
-versus-
Civil Case No.____
For: ____________
________________________,
Defendant.
x--------------------------------------x
[2] (TITLE)
(Plaintiff/ Defendant), through Counsel, unto this Court, respectfully states:
[3] (BODY)
-allegations[4](PRAYER)
Makati City, Philippines, ________ (date) __________.
_________________
[5] Attorney
[6] VERIFICATION, if required
CERTIFICATE OF NON-FORUM SHOPPING, when appropriate
NOTICE OF HEARING, when required
PROOF OF SERVICE
EXPLANATION
ACADEMICS CHAIR: LESTER JAY ALLAN FLORES
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN SABUGO & JOHN HENRY MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE MASACAYAN & THEENA MARTINEZ
195
UST- Golden Notes 2011
D. PRAYER
Note: The relief or reliefs prayed for may be proper
or not, but as long as the plaintiff deserves a relief,
the court will grant him the relief to which he is
entitled under the facts as proven. (Guidotte v
Yeung, CA-CR No. 6268, July 10, 1951)
Q: What is a Prayer?
A: This is a part of the pleading which states the
relief or reliefs prayed for by the parties.
Note: It is not a part of the cause of action.
Form 4: Prayer
PRAYER
WHEREFORE, it is respectfully prayed, after notice and hearing, that the defendant be
ordered to pay the plaintiff the amount of One Million Pesos (Php1,000,000.00) for actual and
compensatory damages, Fifty Thousand Pesos (Php50,000.00) for moral damages, Fifty Thousand
Pesos (Php50,000.00) for exemplary damages and Fifty Thousand Pesos (Php50,000.00) for attorney’s
fees.
Other reliefs just and equitable under the circumstances are also prayed for.
E. PROOF OF SERVICE
Form 5: Proof of Service.
Copy furnished through personal service:
Atty. __________
Counsel for _______________
(firm name)
(office address)
Received By. ______
Date: ____________
Form 6: Proof of Service Through Registered Mail with Explanation
Copy furnished
Through registered mail:
Atty.____________
Counsel for ______
(firm name)
(Office Address)
Registry Receipt No.___________
Date: _______________
Post Office: ____________
EXPLANATION
Pursuant to the Rules of Court, service of the above (designation of pleading or document)
was effected through registered mail because of the impracticability of personal service. The
office of the undersigned counsel is located at (Makati City for example) while that of the adverse
counsel is located at (Baguio City for example), and there are no messengerial personnel in the
employ of the undersigned counsel who could effect personal service.
Name and signature
196
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Forms – Common Forms
F. CERTIFICATION OF NON-FORUM SHOPPING
Q: What is a certificate of non-forum shopping?
A: It is a certification under oath in the complaint
or other initiatory pleading asserting a claim for
relief, or in a sworn certification annexed to such
pleading and simultaneously filed therewith,
where the party:
a.
Certifies that he has not theretofore
commenced any action or filed any
claim involving the same issues in any
court, tribunal or quasi-judicial agency
and, to the best of his knowledge, no
such other action or claim is pending.
b.
If there is such other pending action or
claim, gives a complete statement of
the present status thereof
c.
Undertakes that if he should thereafter
learn that the same or similar action or
claim has been filed or is pending, he
shall report that fact within five (5) days
therefrom to the court wherein his
aforesaid complaint or initiatory
pleading has been filed.
Q: What is the consequence on failure to
execute such certification when necessary?
A: Failure to comply shall be cause for dismissal of
the case without prejudice, unless otherwise
provided, upon motion and hearing. The
foregoing requirements shall not be curable by
mere amendment of the complaint or other
initiatory pleading. (Suarez, 2007)
Note: Submission of a false certification or noncompliance with any of the undertakings shall
constitute indirect contempt of court, without
prejudice to the corresponding administrative and
criminal actions.
Q: Who executes the certification against forum
shopping?
A: The plaintiff or principal party
Q: When should the certification be executed?
A: It is executed simultaneously with a complaint
or any other initiatory pleading
Form 7: Certification of Non-forum Shopping
Republic of the Philippines)
City of _______________ )s.s.
(Person verifying) after having been duly sworn deposes and says:
That he is the (usually the one executing is the plaintiff but it may be the defendant in the
case of a permissive counterclaim) in the above-entitled case and he certifies that he has not
heretofore commenced any action or filed any claim involving the same issues before any other
court, tribunal or quasi-judicial agency, that to the best of his knowledge, there is no other pending
action or claim, and that if he should thereafter learn that the same or similar action or claim has
been filed or is pending, he shall report such fact within five (5) days therefrom to this Honorable
Court.
Party executing
JURAT
ACADEMICS CHAIR: LESTER JAY ALLAN FLORES
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN SABUGO & JOHN HENRY MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE MASACAYAN & THEENA MARTINEZ
197
UST Golden Notes 2011
G. VERIFICATION
4.
Q: When is verification necessary?
5.
6.
A: Verification is necessary only when the law or
rule specifically requires it. Example, under the
Rules of Court, verification is necessary in the
following pleadings:
1.
2.
3.
Appeal from CTA and quasi-judicial
agencies to the CA (Rule 43, RRC)
Appeal by certiorari under Rule 45, RRC
Certiorari, prohibition and mandamus
(Rule 65, RRC)
Q: What are the contents of verification?
A: It contains a statement that an affiant has read
the pleading, that he has caused the preparation
of said pleading and that the allegations therein
are true and correct based on authentic records
and of his personal knowledge.
Complaint and other initiatory pleadings
Answer, if there are actionable documents
Petition for review under Rule 42, RRC
Form 8: Verification
Republic of the Philippines)
City of _______________ )s.s.
(Person verifying) after having been duly sworn deposes and says that he is the (designnation) in the above-entitled (name of pleading); that he has caused its preparation; that he has
read it and the allegations therein are true and correct based on his personal knowledge and
based on authentic records.
Party verifying
JURAT
Form 9: Verification and Certification of Non-forum Shopping
Republic of the Philippines)
City of _______________ )s.s.
(Person verifying) after having been duly sworn deposes and says:
1. That he is the (designation) in the above- entitled (name of pleading); that he has
caused its preparation; that he has read it and the allegations therein are true of his own
personal knowledge and based on authentic records;
2. That he certifies that he has not heretofore commenced any action or filed any claim
involving the same issues before any other court, tribunal or quasi-judicial agency, that to
the best of his knowledge, there is no other pending action or claim, and that if he should
thereafter learn that the same or similar action or claim has been filed or is pending, he
shall report such fact within five (5) days therefrom to this Honorable Court.
Party executing
JURAT
198
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Forms - Business Form
parties bind themselves in favor of another or
others, or reciprocally, to the fulfillment of a
prestation to give, to do or not to do.
II. BUSINESS FORMS
Note: Conveyance is a deed whereby the ownership
of a real property is transferred from one person to
another. (Suarez, 2007)
A. CONTRACTS
Note: A contract is a meeting of minds between two
persons whereby one binds himself, with respect to
the other, to give something or to render some
service. (Art. 1305, NCC)
Q: What are the parts of a contract of lease of
personal property?
A: TAP-WAC-SA
[1] Title
[2] Announcement
[3] Parties
[4] Conditions or terms
[5] Signatures
[6] Acknowledgement
Contract is a juridical convention manifested in legal
form, by virtue of which one or more persons or
Form 10: Contract of Lease of Personal Property
[1] Contract of Lease
[2] Know All Men by These Presents:
That [3] __________, of legal age, (citizenship), (single/married) an resident of ______,
Philippines, hereby leases his/her car (make/model), with Plate No. ____, Motor No. ____ and
Engine No. ____ to [3] _____, of legal age, (citizenship), single/married, and resident of _____, who
hereby accepts to leases the said motor vehicle, subject to the following terms and conditions:
[4] (State terms and conditions)
IN ITNESS WHEREOF, the parties have hereunto set their hands this ____day of ___,2009, in
______, Philippines.
[5]FELIPE DE GUZMAN
Lessor
ARTHUR MIRANDA
Lessee
[6] (ACKNOWLEDGMENT)
Q: What are the parts of a contract of lease of
real property?
A: TAP-WAC-SA
[1] Title
[2] Announcement
[3] Parties
[4] Whereases
[5] Agreement proper
[6] Conditions or terms
[7] Signatures
[8] Acknowledgement
Note: State citizenship, if the transaction involves
titled property. (Albano, Albano, Jr. and Albano,
2004)
Note: State marital status, if the transaction involves
titles real property. If a party is married, state full
name and his/ her citizenship.(Ibid)
Note: in the “whereas” clauses, the representations
of the parties as well as their respective intentions or
motives, are usually stated. (Ibid)
ACADEMICS CHAIR: LESTER JAY ALLAN FLORES
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN SABUGO & JOHN HENRY MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE MASACAYAN & THEENA MARTINEZ
199
UST Golden Notes 2011
Form 11: Contract of Lease of Real Property
[1]
[2]
Contract of Lease
Know All Men by These Presents:
This Contract of Lease is made and executed by and between:
[3] FELIPE DE GUZMAN, , of legal age, Filipino, married to Linda Conanan, with address at # 28
Aurora Blvd., Quezon City, hereinafter called the LESSOR;
- and –
ARTHUR MIRANDA, of legal age, Filipino, married to Agnes Sison, with address at # 30 Aurora
Blvd., Quezon City, hereinafter called the LESSEE;
Witnesseth that:
[4] WHEREAS, the LESSOR is the true and absolute owner of a residential house and lot located at
#30 Aurora Boulevard, Quezon City, herein after referred to as “Property” ; and
WHEREAS, the LESSOR leases unto the lessee, and the latter hereby accepts the lease from the
former.
[5] NOW THEREFORE, for and in consideration of the above premises and covenants provided below,
the LESSOR hereby leases the PROPERTY to the LESSEE who accepts it [6] under the following terms
and conditions:
1.
2.
3.
4.
The lease shall be for one year from execution of this agreement;
The monthly rental on the PROPERTY leased shall be P5,000.00, payable in advance within
the first five (5) days of each month;
All ordinary repairs concerning the PROPERTY shall be for the sole account and expense of
the LESSEE, without right to reimbursement;
The LESSEE shall use the PROPERTY exclusively for family dwelling, and shall have no right
to use the same for business and other purposes;
The Lessee hereby acknowledge that he has received the Property in good, habitable
condition and undertake to maintain the such condition throughout the duration of the
lease;
[7] FELIPE DE GUZMAN
ARTHUR MIRANDA
Lessor
Lessee
With my marital consent:
Zenaida de Guzman
Signed in the Presence of:
_____________________
________________
[8] (ACKNOWLEDGMENT)
200
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Forms - Business Form
Form 12: Contract of Real Estate Mortgage.
[1] Real Estate Mortgage
Know All Men By These Presents:
[2] I, ______________, of legal age, Filipino, single/married to __________ and with
residence at ________, Philippines, for and in consideration of [3]________________ Pesos
(Php__________), Philippines currency, to me and in hand paid by [4] _____________ of legal age,
Filipino, single/married to __________ and with residence at ________, Philippines, do hereby
convey, by way of MORTGAGE unto said _________(full name of the mortgagee), his/her heirs and
assigns, that certain parcel of land, together with all the buildings and improvements thereon,
situated in _______, particularly described as follows:
[5] (description of property)
“Containing an area of ___ Square meters, more or less.
xxx
xxx
xxx
Bounded on the S. along 1-2 by Lot 1234; on the W. along lines 2-3-4-5-6 by Lot 4567; on the
N. along lines 7-8-9 by Lot 2345 and on the E., along line 9-1 by Lot 3456, all Cad-7890,
Manila Cadastre.”
xxx
xxx
xxx
[6] Of which real property I am the registered owner as evidenced by Original/ Transfer
Certificate of Title No. ____ of the Registry of Deeds of ____: [7] PROVIDED, HOWEVER, that if said
__________( Full name of mortgagor) shall pay or cause to be paid to the said (Full name of
mortgagee), his heirs or assigns, the said sum of ___________ pesos (Php________), Philippine
Currency, within the period of ___________ (__) years from and after the execution of this
MORTGAGE together with the interest thereon at the rate of _______ per centum (__%) per
annum, this MORTGAGE shall be discharged and be of no effect; OTHERWISE, it shall remain in full
force and effect and shall be enforceable in the manner provided for by law.
IN WITNESS WHEREOF, these presents are signed at the City of ____, Philippines, on this
____ day of ____, 2011.
________________
Mortgagor
_______________
Mortgagee
With my marital consent (if married):
__________________
(Wife of mortgagor)
Signed in the Presence of:
_______________
________________
[8] (ACKNOWLEDGMENT)
Q: What are the parts of a real estate mortgage?
A: VeT-Mam-CODAck
[1] Venue and Title
[2] Mortgagor
[3] Amount of loan
[4]
[5]
Mortgagee
Conveyance of real property with
technical description
[6] Ownership of real property
[7] Discharge of mortgage
[8] Acknowledgment
ACADEMICS CHAIR: LESTER JAY ALLAN FLORES
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN SABUGO & JOHN HENRY MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE MASACAYAN & THEENA MARTINEZ
201
UST Golden Notes 2011
Form 13: Chattel Mortgage.
Know All Men By These Presents:
[2] JUAN DE LA CRUZ, of legal age, Filipino, single with residence at
_______________________, hereinafter referred to as the “MORTGAGOR”
And
PEDRO DE LOS SANTOS, of legal age, Filipino, married with residence at
___________________, hereinafter referred to as the “MORTGAGEE”,
WITNESSETH: That:
[3] The Mortgagor does hereby convey by way of chattel mortgage unto the Mortgagee, the
following described personal property, ordinarily situated and presently in the possession of the
said Mortgagor, to wit:
(Specify and describe the article/s mortgaged)
Make and type:
Serial/ Chassis No.:
Motor No.:
Plate No.:
Q: What are the parts of a chattel mortgage?
[4] That this Chattel Mortgage is given as security for the payment to the Mortgagee, of a
certain promissory note, dated ______ for the A:
sum
of ___________ Pesos (Php_______),
Vet-PeCon-SDAG
Philippine Currency, with interest thereon at the rate of1. _____
perand
centum
Venue
Title (___%)per annum,
according to the terms and in the words and figures following:
(optionCircumstances
2: attach theof
promissory
2. Personal
the Parties
note and make reference to such attachment)
3. Conveyance of mortgage and technical
description of personal property
(Copy of the promissory note)
4. Fact that the property was given as a
Date______
Security for a loan or a copy
of the PN
P_____________
5. Discharge of the mortgage
6. Acknowledgment
_____ days after date, I, ______, promise to
to the order
of ______,
7.payAffidavit
of Good
Faith the sum of
_____ pesos (Php______).
Maker_____
[5] That the condition of this Chattel Mortgage is such that if the said Mortgagor, his heirs,
executors, or administrators shall well and truly perform the full obligation above-stated according
to the terms thereof, this Chattel Mortgage shall be discharged and be of no effect, otherwise, it
shall remain in full force and effect and shall be enforceable in the manner provided by law.
IN WITNESS WHEREOF, the parties have hereunto set their hands this ___ day of ____ 2011 in
_____, Philippines.
________________
_______________
Mortgagor
Mortgagee
Signed in the Presence of:
______________
________________
[6] (ACKNOWLEDGMENT)
[7] (AFFIDAVIT OF GOOD FAITH)
[8] (JURAT)
202
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Forms - Business Form
Q: What are the parts of a Chattel Mortgage?
[4] Fact that the property was given as a
Security for a loan or a copy of the PN
[5] Discharge of the mortgage
[6] Acknowledgment
[7] Affidavit of Good Faith
[8] Jurat
A: Vet-PeCon-SDAGJ
[1] Venue and Title
[2] Personal Circumstances of the Parties
[3] Conveyance of mortgage and technical
description of personal property
Form 14: Pledge Agreement.
This AGREEMENT, made and entered into this ___ day of ____ 2011 by and between
__________, of legal age, Filipino, single and residing at _____, Philippines, now and hereinafter
called the Pledgor, and _____________, likewise of legal age, married and residing at ________,
Philippines, now and hereinafter called the Pledgee.
Witnesseth that:
WHEREAS the Pledgor has executed a promissory note dated ____, 2011 in favor of the
Pledgee and made payable within ___ (___) days after date at _______. Philippines, for the amount
of _____ (Php______), Philippine currency;
WHEREAS, the Pledgor has agreed with the Pledgee to secure the payment of said note;
NOW, THEREFORE, for and in consideration of the premises and mutual covenants herein
contained, the Pledgor has, as collateral security for the payment of the aforementioned note and
by way of pledge, deposited with the said Pledgee the following personal property of his own
exclusive ownership, and of which he has the free disposal, to wit:
(Description of the property)
And the said parties to this instrument agree that the Pledgee who acknowledges the
receipt of the aforementioned personal property of the Pledgor shall take good care of the said
property until redeemed by the said Pledgor;
That should the said note or any part thereof, or interest to grow thereon, remain due and
unpaid, after the note shall have been due, according to the terms thereof, the said Pledgor,
irrevocably empowers and authorizes the said Pledgee, his heirs, executors, administrators and
assigns, to sell or dispose of the above-mentioned property or any part thereof at public auction as
provided for in Article 2112, of the Civil Code, from the proceeds of such sale to pay the principal
and interests due therefore, otherwise, this Agreement shall become null and void and of no
further effect and the above-named securities are to be returned to the Pledgor.
IN WITNESS WHEREOF, we have set our hands this ____ day of ____, 2011 at ______,
Philippines.
____________________
Pledgor
__________________
__________________
Pledgee
In the Presence of:
__________________
ACADEMICS CHAIR: LESTER JAY ALLAN FLORES
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN SABUGO & JOHN HENRY MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE MASACAYAN & THEENA MARTINEZ
203
UST Golden Notes 2011
the maker. During his lifetime, it is ambulatory
and revocable.
B. DEED
Q: What is a deed?
Q: What are the typical parts of a deed?
A: A deed is a written instrument under seal
containing a contract or agreement which has
been delivered by the parties to be bound and
accepted by the obligee or covenantee. (Suarez,
2007)
Note: In a deed, a person disposes of his property or
right in favor of another.
Q: What is the difference between a deed and a
will?
A: A deed, once executed and delivered is
irrevocable in the absence of reservation of the
right to revoke. On the other hand, a will
operates only upon and by reason of the death of
A: TAP-CAP-SA
[1] Title
[2] Announcement
[3] Party one
[4] Consideration
[5] Act or Conveyance
[6] Party two
[7] Signatures
[8] Acknowledgment
Note: You can use this pattern for all kinds of deeds.
You need only vary the “act or conveyance” portion
to convert it into a deed of assignment, a deed of
easement of right of way, a deed of real estate
mortgage, a deed of chattel mortgage, and others.
Form 15 :Deed of Sale of Personal Property
[1] DEED OF SALE OF MOTOR VEHICLE
[2] KNOW ALL MEN BY THESE PRESENTS:
[3] I, ANGEL CRUZ, of legal age, Filipino, married, with address at No. 12 Apo St., Quezon City
(SELLER), [4] for and in consideration of the sum of One Hundred Thousand Pesos (P100,000.00),
[5] hereby sell, convey, and transfer my motor vehicle, more particularly described as follows:
Make ________, Type ________, Motor No. ________,
Serial/Chassis No. ___________, File No.___________,
Reg. Cert. No. ______________, Plate No.__________,
[6] to RICARDO LIM, of legal age, married, with postal address at No. 2 Bangkal St., Manila
(BUYER).
[7] ANGEL CRUZ
Seller
With my consent:
Helen Cruz
Wife
[8] ACKNOWLEDGMENT
204
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Forms - Business Form
Form 16: Deed of Sale of Unregistered Land.
DEED OF ABSOLUTE SALE
Know All Men By These Presents:
I, ____________, of legal age, Filipino, single, and resident of _______________ (VENDOR),
for and in consideration of the amount of ______________, paid to me today by _______________,
of legal age, Filipino, single and resident of _______________(VENDEE), do hereby SELL, TRANSFER,
and CONVEY absolutely and unconditionally unto said ____________ that certain parcel (s) of land,
together with the buildings and improvements thereon situated in the City of Makati, and more
particularly described as follows:
(description: state the nature of each piece of land and its improvements, situations and
boundaries, area in square meters, whether or not the boundaries are visible on the land by means
of monuments or otherwise; and if they are, what they consist of, the permanent improvements, if
any, the page number of the assessment of each property for current year (s) when registration is
made, the assessed value of the property for the year)
It is hereby declared that the boundaries of the foregoing land are visible by means of
_______________; that permanent improvements existing thereon consist of ________ (if none,
state so); that the land is assessed for the current year at Php___________ as per Tax Declaration
No.________, and the buildings and/or improvements, at Php___________ as per Tax declaration
No._______________, of the City Assessor of Makati.
The above described real estate, not having been registered under Act No. 496 nor under the
Spanish Mortgage Law, the parties hereto have agreed to register this instrument under the
provisions of Sec. 194 of the Revised Administrative Code, as amended.
IN WITNESS WHEREOF, I have signed this deed this ____ day of ______, 2011 at _________.
________________
(Vendor)
With my consent:
___________________
(Vendor’s wife)
Signed in the Presence of:
_______________
_______________
Acknowledgment
ACADEMICS CHAIR: LESTER JAY ALLAN FLORES
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN SABUGO & JOHN HENRY MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE MASACAYAN & THEENA MARTINEZ
205
UST Golden Notes 2011
Form 17: Deed of Sale with Pacto de Retro
DEED OF SALE WITH PACTO DE RETRO
Know All Men By These Presents:
This Deed of Sale with Pacto de Retro made and executed by and between:
____________________,of legal age, Filipino, married to ______, with residence at
______________ (Vendor);
-and__________________, Filipino, of legal age, married to _________, with residence at
________________ (Vendee);
WITNESSETH: That
The VENDOR is the absolute owner of a certain parcel of land with all the buildings and
improvements thereon, situated in the City of Makati, covered by Transfer (or Original) Certificate
of Title (TCT/OCT) No.__________ issued by the Registry of Deeds of Makati City and more
particularly described as follows:
(Copy technical description in TCT/OCT)
The VENDOR, for and in consideration of the amount of _________ Pesos (Php________),
to him paid by VENDEE and receipt of which is acknowledged, does hereby SELL, TRANSFER and
CONVEY under pacto de retro unto the said VENDEE, his heirs and assigns, the said property with
all the buildings and improvements thereon, free from all liens and encumbrances whatsoever;
The VENDOR, in executing this conveyance, hereby reserves the right to REPURCHASE, and
the VENDEE, in accepting the same, hereby obligates himself to RESELL the property herein
conveyed within a period of _____ years from date of this Deed for the same price of ______
(Php_______); provided, however, that if the VENDOR shall fail to exercise his right to repurchase
as herein granted within the period provided, then this conveyance shall become absolute and
irrevocable, without need of a new Deed of Absolute Sale, subject to the requirements of law
regarding consolidation of ownership of real property.
IN WITNESS WHEREOF, the parties have signed this Deed this ____ day of ____, 2011 at
_________.
________________
(Vendor)
________________
(Vendee)
With my consent:
___________________
(Vendor’s wife)
Signed in the Presence of:
_________________
_________________
Acknowledgment
206
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Forms - Business Form
Form 18: Deed of Repurchase of Land Sold Under Pacto de Retro
DEED OF RESALE
Know All Men By These Presents:
I, ______________, of legal age, Filipino, married to ______, with residence at
______________ (VENDOR), for and in consideration of __________________ Pesos
(Php___________), to me paid by _______________, of legal age, Filipino married and resident of
____________________ (VENDEE), do hereby RESELL, RETRANSFER and RECONVEY unto said
___________that certain parcel of land, with all the buildings and improvements thereon, situated
at Makati City, covered by Transfer (or Original) Certificate of Title No. _____ of the Registry of
Deeds of Makati City, and more particularly described as follows:
(Copy technical description of title)
and which property was previously sold under pacto de retro by the said ____________,
executed before Notary Public ______ and bearing Notarial Registration No. ____, Page No. ____,
Book No. ____ and Series of 2011 of his Notarial Register, a copy of which is attached as ANNEX A.
IN WITNESS WHEREOF, the parties have signed this Deed this ____ day of ____, 2011 at
Makati City.
________________
________________
(Vendor)
(Vendee)
With my consent:
___________________
(Vendor’s wife)
With my consent:
______________________
(Vendee’s Wife)
Signed in the Presence of:
_________________
_________________
Acknowledgment
ACADEMICS CHAIR: LESTER JAY ALLAN FLORES
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN SABUGO & JOHN HENRY MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE MASACAYAN & THEENA MARTINEZ
207
UST Golden Notes 2011
Form 19: Deed of Assignment.
DEED OF ASSIGNMENT
Know All Men By These Presents:
That I, _____, of legal age, Filipino, single/ married to __________ and residing at
_____________, Philippines (ASSIGNOR), for and in consideration of the sum of ___________
pesos (Php______________) to me and in hand paid by ______________, of legal age, Filipino,
single/married to _______________, and residing at ____________, Philippines (ASSIGNEE), the
receipt of which is hereby acknowledged, do hereby sell, assign, transfer and set over unto said
_____________, his heirs, executors, administrators and assigns, a certain debt now due and
owing to me by _________________, of legal age, Filipino, single/married to _______, and
residing at ______________, Philippines, amounting to ________________ pesos
(Php___________), plus interest due and accruing thereon, for money loaned by me to the said
______________.
And I do hereby grant said __________, his heirs, executors, administrators and assigns,
the full power and authority, for his/their own use and benefit, but at his/their own cost and
expense, to demand, collect, receive, compound, compromise and give acquaintance for the
same or any part thereof, and in my name and stead or otherwise to prosecute and withdraw any
suit or proceeding thereof.
And I do hereby agree and stipulate to and with said ____________, his heirs, assigns,
executors, administrators and assigns that the said debt is justly owing and due to me from said
_________ and that I have not done and will not cause anything to be done that will diminish or
discharge said debt, or to delay or prevent said ________, his heirs, assigns, executors or
administrators, from collecting the same.
And I further agree and stipulate as aforesaid that I, my heirs, executors, administrators,
assigns, shall and will at all times hereafter at the request of said __________, his heirs,
executors, administrators and assigns at his cost and expense, execute and do all such further
acts and deeds as shall be reasonably necessary for proving said debt and to more effectually
enable him to recover same in accordance with the true intent and meaning of these presents.
IN WITNESS WHEREOF, we have hereunto set our hands on this __ day of ______, 2008 at
the city of _____________.
___________________________
(Assignor)
___________________________
(Assignee)
In the presence of:
______________________
______________________
Acknowledgment
208
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Forms - Business Form
Form 20: Deed of Donation Inter Vivos.
Know All Men By These Presents:
This DEED OF DONATION made and executed in ____________, Philippines, by
_______________, of legal age, single/ married to ______________, Filipino citizen and with
residence and postal address at ________________, hereinafter called the DONOR
-In favor of_____________, of legal age, single/married to ____________, Filipino citizen and with
residence and postal address at ________________, hereinafter called the DONEE
WITNESSETH:
WHEREAS, the Donor is the absolute owner of that certain real property situated at
____________-- and more particularly described as follows:
(Description of Property)
“Containing an area of ___ square meters, more or less.
xxx
xxx
xxx
Bounded on the S. along 1-2 by Lot 1234; on the W. along lines 2-3-4-5-6 by Lot 4567; on the N. along
lines 7-8-9 by Lot 2345 and on the E., along line 9-1 by Lot 3456, all Cad-7890, Manila Cadastre.
xxx
xxx
xxx
NOW, THEREFORE, for and in consideration of the love and affection of the Donor for the
Donee (and for the faithful services the latter has rendered in the past to the former), the said
DONOR by these presents, hereby cedes, transfers and conveys, by way of donation, unto said Donee
the real property above described, together with all the buildings and improvements existing thereon,
free and clear of all liens and encumbrances.
That the Donor hereby states that, for the purpose of giving effect to the donation, he has
reserved for himself in full ownership sufficient property to support him in a manner appropriate to
his needs.
ACCEPTANCE
That the Donee hereby accepts the foregoing donation of the above-described property for
which he/she expresses his/her sincerest appreciation and gratitude for the kindness and liberality
shown by the Donor.
IN WITNESS WHEREOF, we have hereunto signed this deed of sale, this _____ day of
______, 2009 at _____________, Philippines.
__________________
Donor
Accepted:
__________________
Donee
Signed in the presence of:
__________________
_______________
JOINT ACKNOWLEDGMENT
ACADEMICS CHAIR: LESTER JAY ALLAN FLORES
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN SABUGO & JOHN HENRY MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE MASACAYAN & THEENA MARTINEZ
209
UST Golden Notes 2011
Form 21: Deed of Donation Mortis Causa.
Know All Men By These Presents:
This DEED OF DONATION made and executed in ____________, Philippines by
_______________, of legal age, single/ married to ______________, Filipino citizen and with
residence and postal address at ________________, hereinafter called the DONOR, in favor of
_____________, of legal age, single/married to ____________, Filipino citizen and with residence and
postal address at ________________, hereinafter called the DONEE
WITNESSETH:
That the Donor is the absolute owner of that certain real property situated at ____________
and more particularly described in Original/Transfer Certificate of Title NO. _____ of the Land registry
of ______, as follows:
(Description of Property)
“Containing an area of ___ square meters, more or less.
xxx
xxx
xxx
Bounded on the S. along 1-2 by Lot 1234; on the W. along lines 2-3-4-5-6 by Lot 4567; on the N. along
lines 7-8-9 by Lot 2345 and on the E., along line 9-1 by Lot 3456, all Cad-7890, Manila Cadastre.
xxx
xxx
xxx
That for and in consideration of the love and affection which the Donor has for the Donee,
said Donor by these presents do hereby cedes, transfers and conveys unto said Donee the real
property above described, together with all the buildings and improvements existing thereon, to
become effective upon the death of the Donor, but in the event that the Donee should die before the
Donor, the present donation shall be deemed rescinded and of no further force and effect.
That the Donee does hereby accepts this donation of the above-described real property and
do hereby expresses gratitude for the kindness and liberality of the Donor.
That the Donor hereby retains the right to rescind the right to control and dispose at will the
above-described property before his death, without need of the consent or intervention of the
Donee.
IN WITNESS WHEREOF, we have hereunto signed this deed of sale, this _____ day of ______,
2009 at _____________, Philippines.
___________________
___________________
(Donor)
(Donee)
ATTESTATION CLAUSE
We, the undersigned attesting witnesses, whose residences are stated opposite our respective
names, do hereby certify: That the donor, ________, has made known unto us the foregoing
donation mortis causa consisting of ____ pages numbered correlatively in letters on the upper part of
each page, as her donation mortis causa and has signed the same and every page therein in the left
margin, in our joint presence and we, in turn, at his request have witnesses and signed the same and
every page thereof, on the left margin, in the presence of the donor and in the presence of each and
all of us.
__________________________
___________________________________________
(name and signature of witness)
(residence)
__________________________
___________________________________________
(name and signature of witness)
(residence)
__________________________
___________________________________________
(name and signature of witness)
(residence)
JOINT ACKNOWLEDGMENT
210
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Forms - Business Form
C. POWER OF ATTORNEY
Q: How is a General Power of Attorney different
from Special Power of Attorney?
A: A special power of attorney is a very limited
power of attorney as it allows the Attorney-inFact to do only those things specified by the
principal. The authority granted is usually very
limited and clearly defined in the power of
attorney form. A general power of attorney
allows the Attorney-in-Fact to do anything the
principal would legally be able to do in his name.
Q: What are the parts of a general power of
attorney?
[3]
[4]
[5]
[6]
Appointment operative words
Power
Granting authority operatives
Acknowledgment
Q: What are the parts of a special power of
attorney?
A: VeT-PAP-GA
[1] Venue and Title
[2] Personal Circumstance
[3] Appointment operative words
[4] Power
[5] Granting authority operatives
[6] Acknowledgment
A: VeT-PAP-GA
[1] Venue and Title
[2] Personal Circumstance
Form 22: General Power of Attorney
KNOW ALL MEN BY THESE PRESENTS:
[2] I, ____________, of legal age, Filipino, single/married to ____________, resident of
___________, do hereby [3] name, constitute and appoint ____________, of legal age, Filipino,
single/married, resident of ___________, to be my true and lawful attorney-in-fact, and in my
name, place and stead, to do and perform the following acts, to wit:
[4] (specify general acts that Attorney-in-Fact may do)
[5] GIVING AND GRANTING unto the said Attorney-in-Fact full power and authority necessary to
carry out the acts stated above as fully to all intents and purposes as I might or could lawfully do if
personally present, with full power of substitution, and hereby ratifying and confirming all that my
said attorney-in-fact or his substitute shall lawfully do or cause to be done under and by virtue of
these presents.
IN WITNESS WHEREOF, we have set our hands this __day of __________, 2011, in ___________,
Philippines.
_________________
(Principal)
Conforme:
___________________
(Attorney-in-Fact)
Signed in the presence of:
________________
___________________
[6] JOINT ACKNOWLEDGMENT
ACADEMICS CHAIR: LESTER JAY ALLAN FLORES
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN SABUGO & JOHN HENRY MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE MASACAYAN & THEENA MARTINEZ
211
UST Golden Notes 2011
Form 23: Special Power of Attorney
KNOW ALL MEN BY THESE PRESENTS:
[2] I, ____________, of legal age, Filipino, single/married to ____________, resident of
___________, do hereby [3] name, constitute and appoint ____________, of legal age, Filipino,
single/married, resident of ___________, to be my true and lawful attorney-in-fact, for me and in
my name, place and stead within the period of ____ months (or years), [4] to SELL, TRANSFER and
CONVEY, for the price not less than ___________ PESOS (Php_____), Philippine Currency, to
whosoever may purchase or buy the parcel of land, with (or without) improvements, located in
__________, and more particularly described, to wit:
(copy technical description of property from the TCT)
of which I am the registered owner in fee simple, my title thereto being evidenced by
Transfer/Original Certificate of Title No. _______________, issued by the Registry of Deeds of
_________, free from all liens and encumbrances; and,
[5] HEREBY GIVING AND GRANTING unto the said attorney-in-fact full powers and authority
to do and perform all and every act requisite or necessary to carry into effect the foregoing
authority to sell, as fully to all intents and purposes as I might or could lawfully do if personally
present, with full power of substitution, and hereby ratifying and confirming all that the said
attorney or his substitute shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, we have set our hands this __day of __________, 2011, in
___________, Philippines.
_________________
(Principal)
Conforme:
___________________
(Attorney-in-Fact)
Signed in the presence of:
____________________
______________________
[6] JOINT ACKNOWLEDGMENT
212
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Forms - Business Form
Form 24: Revocation of Power of Attorney
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, I, _________________, of legal age, Filipino, single/married to ___________,
resident of _______________, by certain public instrument made and executed in
_______________ on ________________ before ____________, Notary Public for and in the City
of ____________, and bearing Notarial Register No. ___, Page No. ___, Book No. ___, Series of
20__ of his notarial register, did name, constitute, and appoint ______________, resident of
_______________ as my true and lawful ATTORNEY-IN-FACT, for the purpose and with powers
mentioned in the said public instrument.
WHEREAS, the said public instrument or Power of Attorney, was duly registered in the
Office of the Register of Deeds of _______ on ___________, 20__, as per Entry No. ___, Vol.___,
Book___ of said Office.
NOW, THEREFORE, I _______________, by virtue of these presents, hereby REVOKE,
ANNUL, and make VOID the said power of attorney and all powers and authority therein or
thereby given and granted, or intended to be given or granted to said _______________.
IN WITNESS WHEREOF, I have hereunto set my hand this ______ day of ______________,
20__, in ______________, Philippines.
_________________
(signature)
Signed in the presence of:
_____________________ ______________________
ACKNOWLEDGMENT
ACADEMICS CHAIR: LESTER JAY ALLAN FLORES
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN SABUGO & JOHN HENRY MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE MASACAYAN & THEENA MARTINEZ
213
UST Golden Notes 2011
D. CORPORATION
Form 25: Articles of Incorporation
ARTICLES OF INCORPORATION
OF ___________(Name of Corporation)
KNOW ALL MEN BY THESE PRESENTS:
The undersigned incorporators, all of legal age and a majority of whom are residents of the Philippines,
have this day voluntarily agreed to form a stock (non-stock) corporation under the laws of the Republic
of the Philippines;
AND WE HEREBY CERTIFY:
FIRST: That the name of said corporation shall be “………………………………………., INC. (NB: Must end with
Inc., Incorporated, Corp. or Corporated)
SECOND: That the purpose or purposes for which such corporation is incorporated are: (If there is more
than one purpose, indicate primary and secondary purposes);
THIRD: That the principal office of the corporation is located in the City/Municipality of
………………………………………, Province of ………………………………………….., Philippines;
FOURTH: That the term for which said corporation is to exist is fifty years from and after the date of
issuance of the certificate of incorporation;
FIFTH: That the names, nationalities and residences of the incorporators of the corporation are as
follows:
NAME
NATIONALITY
RESIDENCE
………………………………. ………………………………. ……………………………….
………………………………. ………………………………. ……………………………….
………………………………. ………………………………. ……………………………….
………………………………. ………………………………. ……………………………….
………………………………. ………………………………. ……………………………….
SIXTH: That the number of directors of the corporation shall be ………….; and the names, nationalities
and residences of the first directors or trustees of the corporation who are to serve until their successors
are elected and qualified as provided by the by-laws are as follows:
NAME
NATIONALITY
RESIDENCE
………………………………. ………………………………. ……………………………….
………………………………. ………………………………. ……………………………….
………………………………. ………………………………. ……………………………….
………………………………. ………………………………. ……………………………….
………………………………. ………………………………. ……………………………….
SEVENTH: That the authorized capital stock of the corporation is …………………………… (P………………….)
PESOS in lawful money of the Philippines, divided into …………… shares with the par value of
…………………………….. (P…………………..) Pesos per share.
(In case all the share are without par value):
That the capital stock of the corporation is ……………………… shares without par value. (In case some
shares have par value and some are without par value): That the capital stock of said corporation
consists of …………………… shares of which ………………….. shares are of the par value of …………………………
(P…………………) PESOS each, and of which ………………………….. shares are without par value.
214
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Forms - Business Form
(Articles of Incorporation: continuation...)
EIGHTH: That the amount of said capital stock which has been actually subscribed is
__________________ PESOS (P________________) and the following persons have subscribed for
the number of shares and amount of capital stock set out after their respective names which
constitutes at least twenty five (25%) per cent of the authorized capital:
Name of Subscriber
Residence Nationality No of Shares Amount Subscribed
……………………………. ……………….. …………………… …………………..
…………………..
……………………………. ……………….. …………………… …………………..
…………………..
……………………………. ……………….. …………………… …………………..
…………………..
……………………………. ……………….. …………………… …………………..
…………………..
……………………………. ……………….. …………………… …………………..
…………………..
NINTH: That the above-named subscribers have paid at least twenty-five (25%) percent of the total
subscription as follows:
Name of Subscriber
Amount Subscribed Total Paid-In
…………………………….. ……………………………….. ………………………….
…………………………….. ……………………………….. ………………………….
…………………………….. ……………………………….. ………………………….
…………………………….. ……………………………….. ………………………….
…………………………….. ……………………………….. ………………………….
(Modify Nos. 8 and 9 if shares are with no par value. In case the corporation is non-stock, Nos. 7, 8
and 9 of the above articles may be modified accordingly, and it is sufficient if the articles state the
amount of capital or money contributed or donated by specified persons, stating the names,
nationalities and residences of the contributors or donors and the respective amount given by
each.)
TENTH: That ………………………………… has been elected by the subscribers as Treasurer of the
Corporation to act as such until his successor is duly elected and qualified in accordance with the
by-laws, and that as such Treasurer, he has been authorized to receive for and in the name and for
the benefit of the corporation, all subscription (or fees) or contributions or donations paid or given
by the subscribers or members.
ELEVENTH: That no transfer of stock or interest which shall reduce the ownership of Filipino
citizens to less than the required percentage of the capital stock as provided by existing laws shall
be allowed or permitted to recorded in the proper books of the corporation and this restriction
shall be indicated in all stock certificates issued by the corporation.
TWELFTH: That the incorporators undertake to change the name of the corporation immediately
upon receipt of notice or directive from the Securities and Exchange Commission that another
corporation, partnership or person has acquired a prior right to the use of that name or that the
name has been declared as misleading, deceptive, confusingly similar to a registered name, or
contrary to public morals, good customs or public policy.
IN WITNESS WHEREOF, we have hereunto signed these Articles of Incorporation, this ……………….
day of …………………………, 2011 in the City/Municipality of …………………………………., Province of
…………………………………………., Republic of the Philippines.
……………………………………..
………………………………………
……………………………………..
………………………………………
…………………………………………
(Names and signatures of the incorporators WITH Taxpayer Identification Number)
SIGNED IN THE PRESENCE OF:
…………………………………
………………………………………
(Acknowledgment)
ACADEMICS CHAIR: LESTER JAY ALLAN FLORES
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN SABUGO & JOHN HENRY MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE MASACAYAN & THEENA MARTINEZ
215
UST Golden Notes 2011
Form 26: Waiver of Pre-emptive Rights
WAIVER OF PRE-EMPTIVE RIGHTS
We, the stockholders of XXX REALTY DEVELOPMENT, INC. (the “Corporation”), hereby waive
our right to subscribe to the increase in the authorized capital stock (or additional issuance from the
unissued capital stock, as the case may be) of the Corporation from ONE BILLION PESOS
(P1,000,000,000.00) to TWO BILLION PESOS (P2,000,000,000.00), as approved by at least majority of
the board of directors and stockholders owning or representing at least two-thirds (2/3) of the
outstanding capital stock of the Corporation in meetings both held on ___________________.
Signed this ___ day of ____________, 2011.
_________________________
_________________________
(Signature of Stockholder)
(Signature of Stockholder)
________________________
(Signature of Stockholder)
Form 27: Secretary’s Certificate
Republic of the Philippines )
_____________________ ) S.S.
SECRETARY’S CERTIFICATE
[1] I, _______________, of legal age, Filipino, single/married with residence at ____________
after having been sworn in accordance with law hereby depose and state that:
1.
I am the corporate secretary of X corporation, a corporation duly organized and
existing under the laws of the Philippines with principal office at ______________;
2.
As such officer of the Corporation, I have custody and access to all the corporate
records of X corporation;
3.
[2]On _______________, the board of directors of X corporation, in a meeting duly
called for the purpose, wherein quorum was present and acted throughout, passed
the following resolution;]
Resolution No. ______________
RESOLVED as it is hereby RESOLVED, that the President, Mr. Jose Cruz,
__________ be, as he is hereby authorized to enter into a Service
Agremeent with Y Corporation
REOLVED FURTHER that Mr. Cruz be authorized to negotiate and
determine the terms and conditions of said Agreement as may be
beneficial to the Corporation, to sign, excute and deliver any and all
documents necessary and desirable and to do such acts and deeds as
may be proper and necessary to implement the foregoing authority.
[3]The above-quoted resolution is still in force and has not yet been revoked by the board
as of this date.
IN WITNESS WHEREOF, I have hereunto affixed my signature and the seal of the
corporation, this ___ day of ____, 2011.
______________________________
(Name & Signature of Secretary)
[4] JURAT
216
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Forms - Business Form
Note: Being regular on its face, a Secretary's
Certificate is sufficient for a third party to rely on. It
does not have to investigate the truth of the facts
contained in such certification; otherwise business
transaction of corporations would become
tortuously slow and unnecessarily hampered.
Q: What does a secretary’s certificate contain?
A:
[1] Personal circumstances of the secretary
[2] Date of the Meeting and Resolution of
the Board
[3] Resolutions still in force
[4] Jurat
Form 28: Treasurer’s Affidavit
REPUBLIC OF THE PHILIPPINES
PROVINCE OF ______________
CITY/MUNICIPALITY OF_______
S. S.
TREASURER’S AFFIDAVIT
[1] I, _________________, of legal age, Filipino, single, after having been sowrn in
accordance with law, hereby depose and state that;
[2] 1. I have been elected by the subscribers as the Corporate Treasurer of
____________________________, to act until my successor has been duly elected and
qualified in accordance with the By-laws of the Corporation.
[3] 2. As such Treasurer, I hereby certify under oath that at least 25% of the authorized capital
stock of the Corporation has been subscribed and that at least 25% of the total subscriptions
has been paid, and received by me in cash, in the amount not less that P5,000.00, in
accordance with the Corporation Code.
[4] 3.The Securities and Exchange Commission and Bangko Sentral ng Pilipinas are hereby
authorized to examine and verify the deposit in the
____________
,
_________________
Branch, in my name as treasurer in trust for
__________________________ in the amount of _______________________________
Pesos (P________________) representing the paid-up capital of the said corporation which is
in the process of incorporation. This authority is valid and inspection of said deposit may be
made even after the issuance of the Certificate of Incorporation to the corporation. Should
the deposit be transferred to another bank prior to or after incorporation, this will also serve
as authority to verify and examine the same. The representative of the Securities and
Exchange Commission is also authorized to examine the pertinent books and records of
accounts of the corporation as well as all supporting papers to determine the utilization and
disbursement of said paid-up capital.
In case the paid-up capital is not deposited or withdrawn prior to the approval of
the Articles of Incorporation, I, on behalf of the above named corporation, waive our right to
a notice and hearing in the revocation of our Certificate of Incorporation.
___________________________
(Treasurer’s name & signature)
[6] JURAT
Note: The following are parts of a treasurer’s affidavit:
[1] Name of treasurer
[2] Election as treasurer
[3] Certification as to amount of subscription received (25%-25% rule)
[4] Authority to examine account
[6] Jurat
ACADEMICS CHAIR: LESTER JAY ALLAN FLORES
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN SABUGO & JOHN HENRY MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE MASACAYAN & THEENA MARTINEZ
217
UST Golden Notes 2011
E. PARTNERSHIP
Form 29: Articles of General Partnership
ARTICLES OF PARTNERSHIP OF
______________________________________
KNOW ALL MEN BY THESE PRESENTS
[1] These Articles of Partnership made and executed by and among;
__________, (citizenship), residing at _______________________;
__________, (citizenship), residing at _______________________; and
__________, (citizenship), residing at _______________________; all of legal age,
WITNESSETH:
[2] They have formed a partnership among themselves under the name and style of
_________________.
[3]The purposes for which said partnership is formed are:
(here state purposes of the firm)
[4]The principal office for which said partnership shall be located is at _________________;
[5]It is hereby stipulated that ________________ shall be the partner upon whom the
management of the firm and the use of its signature shall be entrusted; that he shall exercise such
powers necessary to attain the purpose of this partnership, including the power to draw drafts, bills
of exchange and other negotiable instruments and accept the same the same for in the name of the
firm; to appoint and dismiss employees and to fix their tenure and compensation; to deposit money
in banks and with the counter-signature of the Treasurer, withdraw the same for purposes of the
partnership; and (others).
[6]The term of existence of this partnership shall be ___ years commence from and after the
execution of these articles;
[7]The capital of the partnership as contributed by the partners is as follows, to wit:
__________________ Php______;
__________________ Php______;
Thereby making a TOTAL CAPITAL of Php______;
[8]The profits and losses shall be divided share and share alike among the partners of the
partnership (or in proportion to their respective capital);
The treasurer shall be ___________________;
[9]The managing partner is hereby given a salary of _____________PESOS (Php________)
per month;
[10]If during the term of the partnership, any of the partners shall die, the partnership shall
continue among the surviving partners, unless one of the latter expressly requests for dissolution.
IN WITNESS WHEREOF, the parties have hereunto set their hands, this ___day of _______,
2011, in _____________, Philippines.
_______________________
_______________________
_______________________
(Name and Signature of
partners)
Signed in the Presence of:
___________________
___________________
[11]JOINT ACKNOWLEDGMENT
218
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Forms - Business Form
Q: What are the contents of an Articles of
Partnership?
A: PeN-POM-TeCa-DiSa-Dis-Jack
[1] Personal circumstances of the partners
[2] Name of partnership
[3] Purposes of partnership
[4] Principal Office address
[5]
[6]
[7]
[8]
[9]
[10]
[11]
Managing partner and duties
Term of existence
Capital contribution of each partner
Division of profits
Salary of managing partner
Dissolution of partnership
Joint Acknowledgment
Form 30: Articles of Limited Partnership
ARTICLES OF PARTNERSHIP OF
______________________________ LTD
KNOW ALL MEN BY THESE PRESENTS:
[1] These Articles of Partnership made and executed by and among:
__________, general partner, (citizenship), residing at __________;
__________, general partner, (citizenship), residing at __________ ;( and)
__________, general partner, (citizenship), residing at __________; all of legal age,
WITNESSETH:
[2]That above-named partners have formed a limited partnership among themselves
under the name and style of _________________Ltd;
[3]That the purposes for which said partnership is formed are;
(state the object or character of the business);
[4]That the principal place of business of the partnership shall be at__________;
[5]That the term for which the partnership is to exist shall be ___ years from and after
the execution of this agreement;
[6]That the capital of this partnership shall be ____PESOS (Php__________), Philippine
currency, contributed by the partners, as follows, to wit:
_____________ (general partner)….. Php_______________;
_____________ (limited partner)…... Php_______________; and
_____________ (limited partner)…… Php_______________;
[7]That ___________, general partner, is hereby designated the manager of the
partnership, with a monthly salary of Php_______________;
[8]That the profits and losses shall be apportioned among the partners of the
partnership___________ (state in what proportion they shall share in the profits and in the
losses).
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands this ____ day
of ___________, 2011, in ___________________, Philippines.
_______________________
_______________________
(Name and Signature of partners)
Signed in the presence of:
__________________
_________________
[9]JOINT ACKNOWLEDGEMENT
ACADEMICS CHAIR: LESTER JAY ALLAN FLORES
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN SABUGO & JOHN HENRY MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE MASACAYAN & THEENA MARTINEZ
219
UST Golden Notes 2011
Q: What are the parts of the articles of limited
partnership?
A: PNP-PrinTeC-DDJ
[1] Personal circumstances of partners
[2] Name of limited partnership should
always be accompanied by LTD after the
name
[3]
[4]
[5]
[6]
[7]
Purposes of limited partnership
Principal place of business
Term of existence
Capital contribution
Designation and salary of general
partner
[8] Division of profits
[9] Joint Acknowledgment
F. NEGOTIABLE INSTRUMENTS
Form 31: Promissory Note.
(Date)
P _________
_______________, Philippines
_____________ month (or days) after date, I promise to pay, for value received, to
_______________ or order the sum of ________________ Pesos, with interest at ____ per centum
per annum until fully paid. The makers and endorsers severally waive presentment for payment,
protest and notice of non-payment of this note.
________________
(Maker)
Form 32: Bill of Exchange.
Manila, August ____, 2011
For value received, pay to ______ (name of payee) or order the sum of ______
(Php________) pesos, Philippine Currency, and charge the same to the account of _______ (name of
drawer).
___________________
(Name & Signature of
Drawer)
To: (Name of Drawee)
(Address)
G. WILL
Form 33: Holographic Will .
(Date)
I, _____________________, of ________________, being of sound and disposing mind, do
hereby declare this to be my last will and testament which I have written in my own handwriting in
English, a language known to me, and I hereby declare that all my properties shall upon my death be
distributed to my wife ______________ and to my only child ____________ share and share alike.
______________________
(Name & Signature)
Note: A holographic will1. Should be entirely written, dated and signed by the hand of the testator (Art. 810, NCC)
2. Need not be acknowledged or subscribed before a notary public
3. For purposes of its PROBATE, it is better that the signature of the testator of a holographic will be
witnessed by at least three (3) witnesses. (Art. 811, NCC)
220
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Forms - Business Form
Form 34: Notarial Will .
Last Will and Testament
Of
____________________
Know All Men By These Presents:
I, ____________, of legal age, Filipino, single/ married to ____________, a native of
_______________, now actually residing at _____________, being of sound and disposing mind and
memory, and not acting under influence, violence, fraud or intimidation of whatever kind, by these
presents declare this to be my Last Will and Testament which I have caused to be written in English,
the language which is known to me and I hereby declare that:
The following are my children and their addresses:
(names and addresses)
I give and bequeath to my children ___________, _____________, and ______________, in equal
shares, the following properties, real and personal, whatsoever and wheresoever located:
(Description)
I designate _______________ as the sole executor of this Last Will and Testament.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of ________, 2011, in
____________, Philippines.
__________________
(Signature of testator)
ATTESTATION CLAUSE
We, the undersigned attesting witnesses, whose residences are stated opposite our
respective names, do hereby certify: That the donor, ________, has made known unto us the
foregoing donation mortis causa consisting of ____ pages numbered correlatively in letters on the
upper part of each page, as her donation mortis causa and has signed the same and every page
therein in the left margin, in our joint presence and we, in turn, at his request have witnessed and
signed the same and every page thereof, on the left margin, in the presence of the donor and in the
presence of each and all of us.
__________________________
(name and signature of witness)
__________________________
(name and signature of witness)
__________________________
(name and signature of witness)
___________________________________________
(residence)
___________________________________________
(residence)
___________________________________________
(residence)
JOINT ACKNOWLEDGMENT
ACADEMICS CHAIR: LESTER JAY ALLAN FLORES
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN SABUGO & JOHN HENRY MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE MASACAYAN & THEENA MARTINEZ
221
UST Golden Notes 2011
(Notarial Will: continuation…)
Republic of the Philippines)
City of ___________
) s.s.
At the City of __________, on this ___ day of (month and year), personally appeared the
Testator “X”, and his three (3) instrumental witnesses to wit: AB, BC and CD, all known to me to be
the same persons who executed and attested, respectively, the foregoing Last Will and Testament,
consisting (number of pages), including this page on which this acknowledgment is written, and they
all acknowledged to me that the Testator signed the will and every page thereof on the left margin in
the presence of the instrumental witnesses, that the latter signed and witnessed the will on every
page thereof on the left margin in the presence of the testator and of one another ; that all the pages
of said will are numbered correlatively in letters placed on the upper part of each page, and that the
attestation clause is in English, a language known to the instrumental witnesses; they further
acknowledged to me that the said will and attestation are their own free and voluntary act and deed.
The community tax certificates and competent evidences of identities of the said Testator and three
(3) instrumental witnesses were exhibited to me, to wit:
Com. Tax Cert.
Date and
No.
Place of Issue
Sr. Citizen
I.D. No.
Place of
Issue
WITNESS MY HAND AND SEAL at the place and date first above stated.
NOTARY PUBLIC
For the City of ________
Commission serial no. __
Until December 31, 200__
Office address _________
Roll No._______________
PTR OR No. ___________
issued at ______________
on ________________
IBP Membership No. ____
Doc. No.___
Page No.___
Book No. ___
Series of 200__
Note: A notarial will must be1. In writing
2. In a language or dialect known to the
testator
3. Subscribed at the end by the testator or by
testator’s name written by a person in its
presence
4. Attested and subscribed by at least three
instrumental witnesses
222
5.
6.
7.
8.
Testator and witnesses must sign in each and
every page thereof, except the last page, on
the left margin
Pages should be numbered correlatively in
letters on the upper part of each page
Attestation clause
Acknowledged before a notary public (Art.
797, 798, 802, 819, NCC)
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Forms – judicial forms
Q: Is oath similar from an affidavit?
III. JUDICIAL FORMS
Note: All judicial forms have one mold or pattern.
The parts of a typical judicial form are:
A: No. An affidavit consists of statement of fact
which is sworn as to the truth, while an oath is a
pledge. (Suarez, 2007)
Q: Who is an affiant?
[1] Caption
[2] Title
[3] Introduction
[4] Body
[5] Relief
[6] Attorney
[7] Plus or addendums
A: It refers to a person who signs an affidavit and
swears to its truth before a Notary Public or some
person authorized to take oath.
Q: What are the parts of a typical sworn
statement or affidavit?
A. AFFIDAVITS
A:
Q: What is an Affidavit?
A: It is an ex parte statement in writng made
under oath before a notary public or other officer
authorized to administer oaths, about facts which
the affiant either knows of his personal
knowledge or is aware of to the best of his
knowledge. (Khan, Jr.,2007)
[1]
[2]
[3]
[4]
[5]
[6]
[7]
Venue
Title
Person
Oath
Statement
Signature
Jurat
Form 35: Affidavit
[1] REPUBLIC OF THE PHILIPPINES)
CITY OF MANILA ……………………) SS.
[2] AFFIDAVIT
[3] I, HENRY ROBLES, of legal age, married, residing at 5 V.G. Cruz, Sampaloc, Manila, [4]
state under oath that:
[5] 1. I am a licensed physician.
2. I examined accused Raul Ramos at 5 p.m. today and found him suffering from
intestinal flu for which I prescribed medicine and bed rest for three days.
[6] HENRY ROBLES
Affiant
[7] SUBSCRIBED AND SWORN to before me in the City of Manila, Philippines, this 10th
day of July, 2011. I have identified affiant through his LTO Driver's License No. N10-68-034785
dated May 22, 2011.
Name _______________________
Notary Public for (City/ Province)
Office Address of Notary Public
Appointment No. _______ until (date)
Roll of Attorney No.
PTR No.__, __ (date and place of issue)
IBP No. __, __ (date of issue) (chapter)
Serial No. of Commission_____
Doc. No._____;
Page No. ____;
Book NO.____;
Series of 2011.
ACADEMICS CHAIR: LESTER JAY ALLAN FLORES
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN SABUGO & JOHN HENRY MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE MASACAYAN & THEENA MARTINEZ
223
UST Golden Notes 2011
Form 36: Affidavit of Merit
substantial and not merely technical nature and
stating the facts constituting the same.
Q: What is an Affidavit of Merit?
Note: In executing an affidavit, the affiant’s primary
qualification is that he has knowledge of the facts
which he states, and the truth of which he affirms.
(Suarez, 2007)
A: It is an affidavit which states that the
defendant has a meritorious defense of a
REPUBLIC OF THE PHILIPPINES)
CITY OF MAKATI
) s.s.
AFFIDAVIT OF MERIT
I, ___________, of legal age, Filipino and resident of _______________, after being duly
sworn to in accordance with law, hereby depose and state that:
1.
I am the Petitioner in the case entitled ___________docketed as Civil/ Criminal Case
No._______ and pending before the Regional Trial Court;
2.
I have caused the preparation of the “Motion for Reconsideration” to which this
affidavit is attached;
3.
I have read the allegations contained therein and I hereby state that the same is true
and correct of my personal knowledge and based on authentic records;
4.
I have received a copy of the resolution of the Regional Trial Court dismissing my
petition for failure to prosecute for an unreasonable length of time;
5.
The reason for my failure to proceed with the steps necessary for my case was due to
the fact that my counsel, Atty. _____ was admitted in the National Kidney Institute for
an emergency operation;
6.
The partners of my lawyer were not able to handle my case because of their individual
work load and hectic schedule;
7.
The foregoing circumstance that led to the dismissal of my petition constitute mistake
and/or excusable negligence which ordinary prudence could not have guarded against
and by reason of which I have been impaired of my rights, especially because a
judgment was rendered by the court without affording me the chance to present my
evidence;
8.
I voluntarily execute this Affidavit of Merit to attest to the truth of the foregoing facts
and in order to support the grounds in my “Motion for Reconsideration” as it really
shows that the same is meritorious and in order that the Order or Judgment rendered
against me be reconsidered and set aside and a new one be issued reinstating the
instant case.
Affiant adds nothing more at this time.
August 1, 2011, Makati City
___________________
(Affiant)
(JURAT)
224
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal Forms – judicial forms
Form 37: Affidavit of Good Faith
Q: What is an Affidavit of Good Faith?
A: A certificate included in the chattel mortgage
contract executed by both the mortgagor and
mortgagee that the mortgage is constituted to
secure the specified obligation, and that the said
obligation is a valid, just and subsisting obligation
and not one entered into for the purpose of
fraud. (Sec. 5, Chattel Mortgage Law)
We, the undersigned MORTGAGOR and MORTGAGEE, severally swear that the foregoing
chattel mortgage is made and executed for the purpose of securing the obligation specified therein, and
for no other purpose and that the same is a just and valid obligation and one not entered into for
purposes of fraud.
August 1, 2011, Makati City.
______________
(Mortgagor)
_____________
(Mortgagee)
(JURAT)
B. MOTIONS
need to give an explanation why personal filing or
service could not be done.
Q: What is a motion?
A: A motion is an application for relief other than
by a pleading. (Sec. 1, Rule 15)
Note: A motion shall state the relief sought to be
obtained and the grounds upon which it is based,
and if required by the Rules or necessary to prove
facts alleged therein, shall be accompanied by
supporting affidavits and other papers. (Sec. 3,
Rule 15, RRC)
Note: The plus for a motion is the notice of hearing
(mandatory if the motion is a litigated motion). If
filing of a pleading or service of its copy on adverse
party is done by registered mail, another plus is the
Q: What are the parts of a motion:
[1] Caption
[2] Title of the case
[3] Body of the motion
Note: The body of a motion usually has two
parts:
a. The ground for the motion
b. The argument in support of the motion
[4]
[5]
[6]
[7]
Prayer
Place, date and signature
Notice of Hearing
Proof of Service
ACADEMICS CHAIR: LESTER JAY ALLAN FLORES
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN SABUGO & JOHN HENRY MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE MASACAYAN & THEENA MARTINEZ
225
UST Golden Notes 2011
Form 38: Motion for Judgment on the Pleadings
[1] Republic of the Philippines
REGIONAL TRIAL COURT
National Capital Judicial Region
Branch ___
Manila
[2] A,
Plaintiff,
- versus-
Civil Case No. ___
B,
Defendant,
X- - - - - - - - - - - - - - - -x
Plaintiff, by counsel, respectfully states that:
[3] 1. In the answer of the defendant filed on _________--- he admitted having signed the
promissory note and merely interposed the defense that he was asking for time within which to pay
the obligation;
2. Said answer does not tender any issue and in fact it can be read therefrom that
defendant admitted his obligation.
[4] WHEREFORE, it is respectfully prayed that this Honorable Court render judgment on the
pleadings.
[5]________ City, Philippines, this _____ day of _______2011 .
Name ____________________________
Office Address ____________________
Roll of Attorney No. ________________
PTR No.___, ___ (date and place of issue)
IBP No. ____, ___ (date of issue) (chapter)
MCLE Compliance No.
[6] NOTICE OF HEARING
[7] PROOF OF SERVICE (affidavit of service by mail)
EXPLANATION
Following the above format, the body and prayer for other types of motions should be as follows:
Form 39: Motion to Declare Defendant in Default
1. Plaintiff filed this Complaint against defendant on _________; summons were served on
defendant on _________ as indicated by the Sheriff’s return of even date, a copy of which is attached
as Annex A;
2. Defendant’s reglementary period to file Answer ended on ________; no motion for
extension of such period was filed nor was any granted motu propio by this Honorable Court. Despite
the lapse of time, defendant has failed to answer the Complaint against her; plaintiff is entitled to a
declaration of default and the right to present evidence ex parte against defendant.
WHEREFORE, plaintiff respectfully prays that defendant be declared in default and that
plaintiff be allowed to present evidence ex parte before the Clerk of Court acting as Commissioner.
226
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal forms - judicial form
Form 40: Motion to Lift Order of Default
Note: A motion to lift an order of default based on FAME, should be accompanied by an affidavit of merits. However
if it is grounded on the very root of the proceedings, i.e. invalid service of summons, affidavit of merits is not
necessary.
1. That ten (10) days after the summons of the complaint was received by this defendant,
she filed a motion to dismiss;
2. That plaintiff had not filed any opposition to said motion and no hearing was held on said
motion to dismiss;
3. That while the said motion to dismiss was still pending, this Honorable Court declared
defendant in default; and
That said order declaring defendant in default is premature and without legal basis since there is still
a pending motion to dismiss.
Form 41: Motion for Postponement of Hearing
Note: For a motion to postpone trial on the ground of illness by a party or counsel, the following must appear in
an affidavit or sworn certification:
1.
2.
The appearance of counsel or party is indispensable
The illness is such as to render his non-attendance excusable (Sec. 4, RRC)
1. That the above-entitled case is set for hearing on __________;
2. That counsel for defendant is afflicted with chicken pox and is now under the medical
care of Dr. ________. A copy of the physician’s certificate under is hereto attached;
WHEREFORE, it is respectfully prayed that the hearing set for ___________ be reset to
another day preferably on the first week of June 2010 or at the convenience of this Honorable
Court.
Form 42: Motion to Dismiss
Defendant, by counsel, respectfully moves that the complaint be dismissed on the following
grounds:
(Here mention one or more grounds provided for in Rule 16, Rules of Court: Lack of Jurisdiction,
Payment; Novation; Prescription; lack of Capacity)
ARGUMENTS
(Here set forth the reasons in support of the grounds mentioned)
PRAYER
WHEREFORE, it is respectfully prayed that the complaint be dismissed.
ACADEMICS CHAIR: LESTER JAY ALLAN FLORES
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN SABUGO & JOHN HENRY MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE MASACAYAN & THEENA MARTINEZ
227
UST golden notes 2011
Form 43: Motion to Intervene
NAME, by counsel, respectfully prays that he be permitted to intervene in this case as a party
plaintiff/party-defendant on the ground that he has legal interest in the matter under litigation and
that he may be adversely affected in these proceedings as shown in the attached Complaint-inIntervention/ Answer-in-Intervention.
WHEREFORE, it is respectfully prayed that ______________ be allowed to intervene as party
plaintiff/ party defendant and the attached complaint or answer in intervention be admitted and that
herein intervenor be allowed to serve copy of the same to the plaintiff/defendant.
Form 44: Motion for New Trial
Note: Grounds for filing a Motion for New Trial include:
1. Fraud
2. Accident
3. Mistake
4. Excusable negligence
5. Newly discovered evidence which with reasonable diligence have discovered and produced at the trial,
which if presented will alter the results.
Defendant/Plaintiff, by counsel, respectfully moves that the decision of this Honorable Court dated
_________ and received on _________ be set aside and new trial be granted on the following
grounds:
(Here give the grounds provided for in Rule 37, Rules of Court; such as fraud, accident, mistake, or
newly discovered evidence or excessive damages awarded)
ARGUMENTS
(Here set forth the reasons in support of the ground/s mentioned)
WHEREFORE, it is respectfully prayed that the decision of this Honorable Court be set aside
and new trial be granted.
Form 45: Motion for Extension
1. That on _____ he received a copy of a summons in the above-entitled case, with a copy of a
summons in the above-entitled case, with a copy of the complaint attached thereto, giving him a
period of fifteen (15) days within which to file his answer, or until _______;
2. That considering the numerous causes of actions raised in the complaint, and the other
equally important cases which require the almost daily attendance in court by the under-signed, he
may not be able to file the defend-ant’s answer by ____ and would require an additional fifteen (15)
days from that day or until ______ within which to file the requisite answer;
3. That this motion is filed solely for the above reason and is not interposed for delay.
PRAYER
WHEREFORE, it is respectfully prayed that the defendant be given an extension of time of fifteen (15)
days from ______ or until _______ within which to file defendant’s answer to the complaint. Other
just and equitable reliefs are also prayed.
228
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal forms - judicial form
Form 46: Motion for Bail
1. That the defendant is presently in custody of the law for the alleged commission of a
capital offense and is being detained at ____________;
2. That no bail has been recommended for his temporary release on the assumption
that the evidence of guilt is strong;
3. That the burden of showing that evidence of guilt is strong is on the prosecution and
unless this fact is satisfactorily shown, the defendant may be granted bail at the court’s
discretion.
WHEREFORE, upon prior notice and hearing, it is respectfully prayed that the defendant
be admitted to bail in such amount as this Honorable Court may fix.
Form 47: Motion to Quash
Accused, by counsel, respectfully moves to quash the information filed against him on
the ground that:
Lack of Jurisdiction
Prescription
Facts alleged do not constitute an offense, etc.
ARGUMENTS
(Here set forth the reasons in support of the motion to quash)
WHEREFORE, it is respectfully prayed that the information filed against the accused be
dismissed.
Form 48: Demurrer to Evidence
Accused, __________________, through counsel, and pursuant to leave granted by this Honorable
Court, in its order dated _____________ respectfully submits this motion to dismiss by way of
demurrer to evidence and alleges that:
THE INDICTMENT
THE EVIDENCE FOR THE PROSECUTION
ARGUMENTS
(why the case should be dismissed; insufficiency of evidence should be among those enumerated
showing why the same is insufficient)
WHEREFORE, it is respectfully prayed that the case against the accused be dismissed.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
229
UST golden notes 2011
C. COMPLAINT
Forum 49: Complaint
COMPLAINT
Plaintiff, by counsel, respectfully alleges:
1. That the plaintiff is of legal age, single and a resident of ______, while the defendant is
of legal age, single and a resident of _______ where he may be served with summons;
2. That on _______ (date), defendant obtained a loan from the plaintiff in the amount of
________ pesos (Php__________) for which he executed and delivered to plaintiff a promissory
note, a copy of which is hereto attached as “Annex A”, and made part of this complaint, to wit:
(copy promissory note)
Date_____________
P___________
__________ after date, I ______, promise to pay to the order of _______, the sum of
________ pesos (Php_____________).
____________
Maker
3. That despite the lapse of the period for the payment of the amount stated in said note,
defendant has not paid the same, or any part thereof or interest thereon;
WHEREFORE, it is respectfully prayed that judgment be rendered in favor of plaintiff and
against defendant for the sum of _____________ (total sum of the promissory notes) pesos
(Php________) with interest at the rate of twelve per centum (12%) per annum on each of the
aforesaid notes, until paid; interest at the legal rate on the interest due from the time of the filing
of the complaint and attorney’s fees plus costs.
Such other reliefs as may be just and equitable under the premises are likewise prayed for.
________ City, Philippines, this _____ day of _______2011.
Name ____________________________
Office Address ____________________
Roll of Attorney No. ________________
PTR No.___, ___ (date and place of issue)
IBP No. ____, ___ (date of issue) (chapter)
VERIFICATION with CERTIFICATION OF NON-FORUM SHOPPING
230
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal forms - judicial form
Following the above format, the body and prayer for other types of Complaints should be as follows:
1. That the plaintiff and the defendant are both of age and residents of _____________;
2. That the said parties are co-owners, by virtue of intestate inheritance from their
deceased parents, of certain real properties located in ______________, more particularly
described as follows, to wit:
(description of the estate which partition is demanded)
3. That the plaintiff desired that the above real estate be partitioned between the plaintiff
and the defendant;
4. That the plaintiff has requested of the defendant that the above-described real estate
be amicably partitioned between them by mutual agreement, but said defendant refused and
continued to refuse to do so.
WHEREFORE, it is respectfully prayed:
1. That after due hearing, the partition of the above-described real estate be ordered
between the plaintiff and the defendant, share and share alike;
2. That the costs and expenses of these proceedings be taxed solely against the
defendant.
3. Other reliefs just and equitable under the premises are likewise prayed for.
Form 50: Complaint for Unlawful Detainer
1. That Plaintiff is married, Filipino citizen and residing at _________-- where he may be
served with court processes, motions and decisions while defendant is a Filipino citizen, married
and residing at _______ where he may be served with summons and other court processes;
2. That plaintiff is the owner of a land over which an apartment had been constructed,
located at ______;
3. That by virtue of a contract of lease, plaintiff leased unto the defendant the aforesaid
apartment for a consideration so _______________ (Php__________________) a month as
rental to be paid within the first ten (10) days of each month starting______ (date);
4. That defendant failed to pay the agreed rental for several months starting from ______
up to present;
5. That on ______, plaintiff sent a letter of demand to vacate the apartment which was
received by the defendant as shown in the registry return receipt hereto attached;
6. That despite said letter of demand which was repeated by oral demands defendant
failed and still refused to pay the agreed rentals and to vacate the apartment;
7. That by reason of the failure of the defendant to vacate the premises and to pay the
unpaid rentals, plaintiff was compelled to file this complaint engaging the services of counsel in
the amount of ______;
WHEREFORE, it is respectfully prayed that judgment be rendered ordering the defendant
to vacate the premises to pay the unpaid monthly rentals in the amount of ______ and further
rentals until the said defendant fully vacates the premises and to pay the costs of the suit.
Plaintiff prays for such other reliefs, as the Honorable Court may deem just and equitable
under the premises.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
231
UST golden notes 2011
Form 51: Complaint for Replevin
1. That both the plaintiff and the defendant are of age and residents of ______________;
2. That said plaintiff is the lawful owner of a personal property, namely, _____________,
valued at _____________ and more particularly described as follows:
(description of property)
3. That on or about the ____ day of _____, herein defendant borrowed said property from
Plaintiff promising to return the same the next day;
4. That on _____, and for ten (10) days thereafter, the herein Plaintiff demanded for the
return of the said property but despite repeated demands, said Defendant refused and still refuses
the said property claiming that the same belongs to him;
5. That plaintiff, in accordance with the Rules of Court, hereby applies for an order for the
delivery of said ________________- and hereby files the necessary affidavit and bond hereto
attached, as “Annex A” and “Annex B”, respectively, and made integral parts of this application and
complaint;
6. That the herein plaintiff is ready and willing to file a bond, executed to the defendant in
double the value of the property stated above, for the return of the property to the Defendant if the
return thereof be adjudged and for the payment to the Defendant of such sum as he may recover
from the Plaintiff in the action.
WHEREFORE, it is respectfully prayed:
1. That the property in question be ordered delivered to the plaintiff or if material delivery
be not possible, that defendant be ordered to pay the plaintiff its actual value, namely the sum of
_________.
2. That the defendant be made to pay the costs of this suit, and plaintiff be granted such
other equitable relief consistent with law and equity.
232
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal forms - judicial form
Form 52: Complaint for Interpleader
CAPTION AND TITLE
COMPLAINT
1. Averment of names, personal circumstances and residences of the parties;
2. That on December 18, 2000, XYZ took a life insurance policy for P2 million from the
plaintiff and that the primary beneficiary designated was simply “wife”;
3. That said XYZ died intestate on June 30, 2008;
4. That both defendants, claiming to be the wife of XYZ, filed their respective claims with
the plaintiff;
5. That the plaintiff is ready, willing and able to pay the proceeds of such insurance policy,
however, it has no means of knowing definitely to whom as to the two defendants
payment should be made;
6. That defendants should interplead and litigate their conflicting claims to the insurance
proceeds.
PRAYER
WHEREFORE it is respectfully prayed that judgment issue:
1. Ordering defendants to interplead and litigate their conflicting claims between them;
2. Ordering the deposit with this Honorable Court the insurance proceeds and that the plaintiff
be discharged from whatever claims that may be had against it relative to the life
insurance policy of XYZ.
Other just and equitable reliefs are also prayed.
PLACE AND DATE
COUNSEL’S NAME,
ADDRESS, etc.
VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING
D. ANSWER
Q: What is an answer?
A: An answer is a pleading in which a defending
party sets forth his defenses. (Sec. 4, Rule 6, RRC)
Q: What does the body of an answer contain?
A: The body of an answer usually has three parts
1.
2.
3.
The admissions and denials,
The special and affirmative defenses,
The counterclaim.
Note: The plus in an answer is a statement of copy
furnished the adverse party. When an actionable
document has to be denied, verification has to be
added to the answer. If it includes a permissible
counterclaim, a certification of non-forum shopping
must also be added.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
233
UST golden notes 2011
Form 53: Answer with Special and Affirmative Defenses and Counterclaim
ANSWER
Defendant, by counsel, respectfully alleges:
1. Defendant admits the averment in paragraph 1, 2 and 3 of the complaint;
2. Defendant specifically denies the allegation in paragraph 4 of the complaint, the truth
being that (state here the fact being claimed by the defendant as the true state of facts or the
truth being those stated in the special and affirmative defenses herein set forth);
3. Defendant has no knowledge or information to form a belief as to the truth of the
averment on paragraphs 5, 6, 7 and 8 of the complaint;
By way of special and affirmative defenses, defendant avers:
4. (state defenses, e.g. that the obligation has already been paid)
By way of counterclaim, defendant alleges:
Form 53: Complaint
for Ejectmente.g. attorney’s fees at Php50,000.00)
5. (state counterclaim,
WHEREFORE, it is respectfully prayed that the complaint be dismissed and defendant be
awarded the amount of _________________ pesos (Php____________). Other reliefs just and
equitable under the premises are likewise prayed or.
________ City, Philippines, this _____ day of _______2011.
Name ____________________________
Office Address_____________________
Roll of Attorney No. ________________
PTR No.___, ___ (date and place of issue)
IBP No. ____, ___ (date of issue)
(chapter)
MCLE Compliance No. _______________
Copy furnished:
_________________________________
Name and Address of adverse counsel
PROOF OF SERVICE (affidavit of service by mail)
EXPLANATION
234
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal forms - judicial form
Following the above format, the body and prayer for other types of Answer should be as follows:
Form 54: Answer with Third Party Complaint
1. He admits the allegations contained in paragraph 1 of the complaint;
2. He admits paragraphs 3 and 4 of the complaint;
3. He admits partially the allegations of paragraph 3 of the complaint in the sense that he
signed a promissory note for five thousand (Php5,000.00) pesos, but he qualifies his admission in
the sense that not a single centavo of the loan was used by him, he being only an accommodation
maker;
4. He admits that the loan is now long overdue but he specifically denies that he has failed
and refused to pay the same, because he did not get anything out of the loan, as it was Jose Maximo
who pocketed the whole amount of said loan;
5. He admits that he has not paid any interest on said loan, because he had no obligation of
paying said interest, the whole amount having accrued to the benefit of Jose Maximo;
6. He specifically denied the allegation s of paragraph 7 of the complaint, because his failure
to pay the loan is not justified nor was there any refusal on his part;
7. He has no knowledge or information to form a belief as to the truth of paragraph 8 of the
complaint and therefore, he specifically denies the same.
BY WAY OF THIRD-PARTY COMPLAINT, he alleges:
1. Third-party plaintiff is of legal age, married and with residence and postal address at
________________;
2. Defendant Jose Maximo is likewise of legal age, and he may be served with summons at
_____________;
3. (here state the circumstances how Jose Maximo got involved)
BY WAY OF SPECIAL AND AFFIRMATIVE DEFENSES TO THE COMPLAINT, defendant alleges:
1. The complaint states no cause of action, because the obligation has been satisfied, for, on
___________, the plaintiff proceeded before the notary public _______________ for the sale of the
100 shares of stock put up as collateral of the loan mentioned in “Annex A” of plaintiff’s complaint;
2. Defendant was only an accommodation maker, as may be seen from the promissory note
itself that the amount of Php5,000.00 was credited to Jose Maximo which reads as follows: “Please
credit Php5,000.00 to Jose Maximo”;
WHEREFORE, it is most respectfully prayed that judgment be rendered as follows:
1. Dismissing plaintiff’s complaint for failure to state a cause of action, the obligation having
been fully satisfied;
2. Ordering the plaintiff to pay the costs, and granting unto defendant such other remedy
which this honourable Court may deem proper.
ON THE THIRD-PARTY COMPLAINT
1. That summons be issued against third-party defendant, Jose Maximo;
2. That after sue hearing, he be sentenced to pay the defendant whatever amount this Honorable
Court may order him to pay unto the plaintiff;
3. That he be ordered to pay unto third-party plaintiff the sum of Php5,000.00 as and for attorney’s
fees;
4. That Jose Maximo be ordered to pay the costs; Third-party plaintiff prays for such other relief that
may be reasonable in the premises.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
235
UST golden notes 2011
Form 55: Answer with Specific Denial of Document Under Oath
THAT defendant, by counsel,,specifically denies under oath the genuineness and due
execution of the instrument a copy of which is attached to Plaintiff’s complaint as Annex “A”, the
truth being that his signature thereon is forged and that he did not in fact sign the said instrument.
E. PETITIONS
Form 56: Petition for Adoption
CAPTION/TITLE
PETITION
PETITIONERS, by counsel, respectfully state that:
1. Petitioners are husband and wife, both of legal age, and residents of _________;
2. They have no legitimate children of their own and desire to jointly adopt a minor named
_______________, ______ years old, the legitimate child of _______;
3. The parents of the minor are not insane, intemperate and are in full possession of civil
capacity; they have not abandoned the minor child. With full knowledge of petitioner’s intention
they have expressly given their written consent to the adoption, as shown by their statement, a
copy of which is attached as ANNEX A;
4. Petitioners are qualified to adopt the minor and are financially capable of supporting the
minor; they are also morally qualified to bring up and educate the said minor;
WHEREFORE, it is respectfully prayed that judgment be rendered in petitioner’s favor
adjudging the minor child _______ freed from all legal obligations of obedience and maintenance
with respect to his/her natural parents and that he/she be declared to all legal intents and purposes,
the child of herein petitioners and that his/her surname be changed to that of the petitioners.
________ City, Philippines, this _____ day of _______2011
Name _______________________________
Appointment No. _____________________
Roll of Attorney No. ___________________
PTR No.____, ____ (date and place of issue)
IBP No. ____, ____ (date of issue) (chapter)
Office Address________________________
Email Address ________________________
Contact No. __________________________
MCLE Compliance (or Exemption) No._____
VERIFICATION AND CERTIFICATION AGAINST FORUM-SHOPPING
236
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal forms - judicial form
Following the above format, the body and prayer for other types of Petitions should be as follows:
Form 57: Petition for Guardianship
Q: What shall the petition contain?
6.
A:
1.
2.
3.
4.
5.
Jurisdictional facts
Personal circumstance of the ward
Ground for guardianship
Death of parents of the minor or
termination or suspension of parental
authority
Remarriage of minor’s surviving parent
7.
8.
9.
Personal circumstances of the relatives of
the minor within the fourth civil degree
and reasons having himself the care and
custody
Probable value, character and location of
property
Personal circumstances of the prospective
guardian
Verification and certification of non-forum
shopping
1. That he is the father of the minor _____;
2. That minor _____ is presently a resident of the City of _____;
3. That minor ______ is the owner of a parcel of land located in the City of Manila valued at
________ pesos (Php_______) and as such minor can make no transactions regarding the same;
4. That the nearest of kin of minor _____ are the following:
(here mention the nearest kin and their addresses)
5. That due to the minority of the said ______, it is necessary and convenient that a guardian
over his person and property be appointed;
6. That, as above states, _______ is the person having the said minor in his care, and that he
possesses all qualifications of a person to whom letters of guardianship should issue.
(furnish a bond of not less than 10% of the value of the property or annual income if it exceeds
P50,000.00)
WHEREFORE, it is respectfully prayed that, after due notice and hearing, petitioner be
appointed guardian over the estate of ______.
Form 58: Petition for Habeas Corpus
Q: What is habeas corpus?
A: This is a writ directed to a person detaining
another and commanding him to produce the
body of the prisoner at a certain time and place
and to state the cause of his capture and
detention. Habeas corpus is a remedy to relieve
persons from unlawful restraint.
Q: Who files the petition for writ of habeas
corpus?
A: it is filed by the party for whose relief it is
intended, or by some person on his behalf.
1. That he is the father of Y, who is presently in the custody of Z, maternal grandmother of Y,
who (Z) forcibly abducted him (Y) and up to now actually restrains him (Y) of his liberty;
2. That despite demands, Z refuses to turn over the custody to petitioner;
WHEREFORE, it is respectfully prayed that an order be issued to Z to bring the minor to this
Honorable Court at the hour and date to be set by this Honorable Court, and thereafter that the
custody of the minor Y be turned over to the petitioner.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
237
UST golden notes 2011
Form 59: Petition for Writ of Amparo
Q: What is writ of amparo?
3.
A: It is a remedy available to any person whose
right to life, liberty and security is violated or
threatened with violation by an unlawful actor o
omission of a public official or employee, or fo a
private individual or entity. The writ shall cover
extralegal killings and enforced disappearances or
threats thereof. (Sec 1, Rule on the Writ of
Amparo)
Q: Who may file?
A: It may be filed by the aggrieved party or by any
qualified person or entity in the following order:
1. Any member of the immediate family,
namely, the spouse, children and parents
of the aggrieved party
2. Any ascendant, descendant or collateral
relative of the aggrieved party within the
fourth civil degree of consanguinity or
affinity, in default of those mentioned in
the preceding paragraph
Any concerned citizen, organization,
association or institution, if there is no
known member of the immediate family
or relative of the aggrieved party. The
filing of a petition by the aggrieved party
suspends the right of all other authorized
parties to file similar petitions. Likewise,
the fling of the petition by an authorized
party on behalf of the aggrieved party
suspends the right of all others, observing
the order established herein. (Sec. 2, Writ
of Amparo)
Q: Where is the petition filed?
A: The petition may be filed on any day and at any
time with the RTC of the place where the threat,
act or omission was committed or any of its
elements occurred, or with the Sandiganbayan,
the Court of Appeals, the Supreme Court, or any
justice of such courts. The writ shall be
enforceable anywhere in the Philippines.
(Sec. 3, Writ of Amparo)
1. That petitioner is a Filipino citizen, of legal age, with address at ________ and the
respondent is a Filipino citizen , of legal age , with address at _________;
2. That the petitioner, ______, in whose behalf this application is being made, is actually
restrained of his liberty by the respondent, _____ at the latter’s residence at _________;
3. (State facts pertaining to the right to life, liberty and security of the aggrieved party
violated or threatened with violation by the unlawful act or omission of the respondent, and how
such threat or violation is committed with the attendant circumstance detained in supporting
affidavits);
4. (The investigation conducted, if any, specifying the names, personal circumstances and
addresses of the investigating authority or individuals, as well as the manner and conduct of the
investigation together with any report);
5. (The actions and recourses taken by the petitioner to determine the fate and whereabouts
of the aggrieved party and the identity of the person responsible for the threat, act or omission).
PRAYER
WHEREFORE, petitioner respectfully prays that a WRIT OF AMPARO be issued by this
Honorable Court, ordering respondents ________ to immediately release from their custody the
person of _________ to petitioners if still alive, or if already dead, to show the place where his
remains is placed or buried and to pay the petitioner _____________.
(may also include prayer for:
1. Order enjoining respondent from doing harm or harassment.
2. Order allowing inspection by the court of the premises
3. Order respondents to produce documents to or in their custody related to the detention.)
238
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal forms - judicial form
Form 60: Petition for Habeas Data
I.
NATURE OF THE PETITION
1. This is a petition for the writ of habeas data filed under A.M. No. 08-1-16-SC, also known as
the Rule on the Writ of Habeas Data to require the respondent/s to produce and, if necessary
update and rectify, or, in the alternative, suppress or destroy information within its control and/or
contained in its database, which relates to petitioner, his/her family, his/her home and his/her
correspondence.
2. Petitioner respectfully submits that respondent obtained the information through an
unlawful act, has unjustifiably failed to disclose the information to petitioner, and/or has
unjustifiably refused to update, rectify, suppress or destroy the information.
3. This act or omission of respondent to comply with petitioner's demand is a violation of, or
poses a threat of violation to, petitioner's right to privacy in life, liberty and security.
4. In view of the foregoing, petitioner brings this petition before this Honorable Court praying
that the respondent be required to cause the immediate production of the information requested so
that the same may be revealed to petitioner for proper updating, rectification or, in the alternative,
for its suppression or destruction, whatever may be necessary to protect petitioner's privacy.
5. Finally, petitioner respectfully submits that he/she is an indigent person and prays that this
Honorable Court exempt him/her from docket and other legal fees in this case, subject to the
submission of proof of his/her indigency within fifteen days from the filing of this petition.
II
PARTIES
6. Petitioner is a Filipino, of legal age, and residing at [state address]. He/She may be served
with notices from this Honorable Court through his/her undersigned counsel.
7. Respondent is being impleaded in his capacity as a public officer or employee, in charge of
the information or database of [state office], which office is engaged in the gathering, collecting, and
storing of data. He/She may be served summons and other processes of this Honorable Court at the
[state office address]. Respondent is of legal age, residing at [state address] and is engaged in the
gathering, collecting, and storing of data. He/She may be served summons and other processes of
this Honorable Court at the [state office address].
8. Respondent is a corporation organized and existing by virtue of the laws of the Republic of
the Philippines. It is engaged in the gathering, collecting, and storing of data. It may be served
summons and other processes of this Honorable Court at [state office address].
III
MATERIAL ALLEGATIONS
9. Petitioner is a citizen of the Republic of the Philippines whose right to privacy is protected
by the Bill of Rights found in Article III of the 1987 Philippine Constitution, which provides:
Section 3. (1) The privacy of communication and correspondence shall be inviolable except
upon lawful order of the court, or when public safety or order requires otherwise as prescribed
by law.
Any evidence obtained in violation of this or the preceding section shall be inadmissible for any
purpose in any proceeding.
Section 7. The right of the people to information of matters of public concern shall be
recognized.
Access to official records and documents, and papers pertaining to official acts, transactions, or
decisions as well as to government research data used as basis for policy development, shall be
afforded the citizen, subject to such limitations as may be provided by law.
10. Also, in Lourdes T. Marquez vs. Hon. Aniano A. Desierto, et al., this Honorable Court had
occasion to rule:
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
239
UST golden notes 2011
(Petition for Habeas Data: Continuation…)
Zones of privacy are recognized and protected in our laws. The Civil Code provides that
"[e]very person shall respect the dignity, personality, privacy, and peace of mind of his
neighbors and other persons" and punishes as actionable torts several acts for meddling and
prying into the privacy of another. It also holds a public officer or employee or any private
individual liable for damages for any violation of the rights and liberties of another person,
and recognizes the privacy of letters and other private communications. The Revised Penal
Code makes a crime of the violation of secrets by an officer, the revelation of trade and
industrial secrets, and trespass to dwelling. Invasion of privacy is an offense in special laws
like the Anti-Wiretapping Law, the Secrecy of Bank Deposits Act, and the Intellectual Property
Code. (G.R. No. 135882, June 27, 2001.)
11. Finally, Republic Act 6713, known as the Code of Conduct and Ethical Standards for Public
Officials and Employees, makes it a duty of every public officer and employee to allow the inspection
of all public documents, and to respond to requests within fifteen days. Viz:
Section 5. Duties of Public Officials and Employees. — In the performance of their duties, all
public officials and employees are under obligation to:
(a) Act promptly on letters and requests. — All public officials and employees shall, within
fifteen (15) working days from receipt thereof, respond to letters, telegrams or other means
of communications sent by the public. The reply must contain the action taken on the
request.
xxx
xxx
xxx
(e) Make documents accessible to the public. — All public documents must be made
accessible to, and readily available for inspection by, the public within reasonable working
hours.
12. On [date], petitioner requested access to all information held about him/her by the
respondent, within fifteen days from respondent's receipt. A copy of the written request is attached
as Annex "A".
13. The period given to respondent to allow petitioner access to its database has already
lapsed.
14. As a result of respondent's failure or unjustifiable refusal to allow access to its database,
petitioner’s right to privacy is being violated.
15. The use and possible dissemination of the information held by respondent is an unlawful
intrusion into petitioner's privacy, which intrusion threatens to ultimately violate petitioner's right to
life, liberty and security.
16. The information which remains hidden from petitioner is in the database of respondent
located in the following offices: [state the offices or known location of the information].
PRAYER
WHEREFORE, petitioner prays that this Honorable Court give due course to this petition and
issue the writ of habeas data and rule, as follows:
1. Upon the filing of the petition, ENJOIN respondent from disseminating the information;
2. Upon notice and hearing, ORDER respondent to:
a. Produce the information in its possession regarding petitioner's person, his/her family,
home and correspondence;
b. Correct, suppress or destroy the information in its database, whatever may be applicable
as determined by this Honorable Court; and
c. Rectify the damage caused to petitioner's reputation by making a public apology to
petitioner, which shall be circulated in the manner and to such persons as the petitioner may deem
appropriate.
Other reliefs just and equitable under the premises are likewise prayed for.
240
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal forms - judicial form
Q: What is the writ of habeas data?
A: It is a remedy available to any person whose
right to privacy in life, liberty or security is
violated or threatened by an unlawful act or
omission of a public official or employee, or for a
private individual or entity engaged in the
gathering, collecting or storing of data or
information regarding the person, family, home
and correspondence of the aggrieved party.
Note: The petition may be filed with the RTC where
the petitioner or respondent resides, or that which
has jurisdiction over the place where the data or
information is gathered, collected or stored, at the
option of the petitioner.
Note: The petition may also be filed with the
Supreme Court or the Court of Appeals or the
Sandiganbayan when the action concerns public data
files of government offices.
Note: Any aggrieved party may file a petition for the
writ of habeas data. However, in cases of extralegal
killings and enforced disappearances, the petition
may be filed by:
1. Any member of the immediate family of the
aggrieved party, namely: the spouse,
children and parents
2. Any ascendant, descendant or collateral
relative of the aggrieved party within the
fourth civil degree of consanguinity or
affinity, in default of those mentioned in the
preceding paragraph
Form 61: Petition for Change of Name
Q: Who shall file the petition for change of
name?
Q: What are the grounds for change of name?
A:
A: A person desiring to change his name shall file
his petition to the RTC of the province in which he
resides or in the City of Manila, to the Juvenile
and Domestic Court or RTC.
Q: What shall the petition contain?
A: It shall be signed and verified by the person
desiring to change his name or some other
persons in his behalf. The petition shall set forth:
1. That the petitioner has been bona fide
resident of the province where the
petition is filed for at least three (3) years
prior to the date of such filing
2. The cause for which the change of the
petitioner’s name is sought
3. The name asked for
1.
2.
3.
4.
5.
6.
Name is ridiculous dishonourable and
extremely difficult to pronounce
Change of name is a legal consequence as
in legitimation
When the change will avoid confusion
Having continuously used and been known
since childhood by a Filipino name,
unaware of her alien parentage
A sincere desire to adopt a Filipino name
to erase signs of former alienage, all in
good faith and without prejudicing
anybody
When the surname causes embarrassment
no fraudulent purpose is intended for such
change
1. That the petitioner is of age, single/married, and a resident of ___________;
2. That he has been a bona fide resident of the province of _______ since year ______ or for
at least three (3) yeas prior to the date of the filing of this petition;
3. That his present name is______________;
4. That the petitioner is also knows as (a.k.a.) __________________;
5. That (here state the reason for which the change of petitioner’s name is sought);
6. That petitioner requests that his present name be change to ______;
WHEREFORE, it is respectfully prayed that, after due notice and publication in accordance
with the Rules of Court, and hearing this Honorable Court adjudge that the petitioner’s name of
_____________ be change to _________________.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
241
UST golden notes 2011
Form 62: Petition for Certiorari
1. That the petitioner is of legal age, (state the capacity and residence of the petitioner, and
of the public and private respondents);
2. That (state the facts and circumstances under which the respondent tribunal, board or
officer, exercising judicial functions) has acted without, or in excess of its jurisdiction, or with grave
abuse of discretion in the exercise of his judicial functions (including your arguments);
3. That (state that there is no appeal from such decision or any plain, speedy and adequate
remedy in the ordinary course of law);
4. That a certified true copy of the decision (or order) herein sought to be annulled is
hereto attached as “Annex A”, together with copies of all pleadings and documents relevant and
pertinent thereto.
5. That (state the material dates showing when notice of judgment or final order or
resolution subject thereof was received, when a motion for new consideration, if any, was filed
and when notice of the denial thereof was received).
WHEREFORE, it is respectfully prayed, that a writ of certiorari be issued annulling the judgment or
order herein complained of (with prayer for a preliminary injunction as the case may be, for the
protection of the rights of petitioner pending such proceedings), and after due hearing, that
judgment be rendered annulling or modifying the decision or order subject of this petition and the
proceedings of (the defendant tribunal, board or officer), with costs against private respondent.
242
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal forms - judicial form
Form 63: Complaint Declaratory Relief
Q: What is declaratory relief?
A: It is a special civil action instituted by any
person interested under a deed, will, contract, or
other written instrument, or whose right are
affected by statute, executive order or regulation,
or ordinance before breach or violation thereof in
order to determine any question of construction
or validity arising under the instrument or statue
and for a declaration of his right or duties
thereunder.
(Caption and Title)
COMPLAINT
PLAINTIFF, thru counsel, respectfully avers that:
1. (State the capacity, civil status, and residence of the plaintiff and defendant/s, who have or claim
any interest which would be affected by the declaration.)
2. (State the deed, will, contract, or statute or ordinance under which a declaratory relief is sought.)
3. (State or quote in full the particular parts of the instrument or statue or ordinance which affect the
rights of the plaintiff, or in which he is particularly interested.)
4. ( If the plaintiff or petitioner attacks the validity of the statute, state why such law is invalid or
unconstitutional.)
5. (State or show why the plaintiff is interested under such instrument, or how his rights are affected
by such statute or ordinance.)
6. (Make an allegation that the declaration by the court on this question is necessary and proper at
the time all the circumstances, and that the declaration would terminate the uncertainty or
controversy which gave rise to the action.)
WHEREFORE, it is respectfully prayed of this Honorable Court to determine the validity of the
statue in question (or the construction of the instrument in question) and to declare plaintiff’s rights
and duties thereunder.
(Venue, date, signature)
(VERIFICATION/CERTIFICATION OF NON-FORUM SHOPPING)
Form 64: Petition for Prohibition
Q: What is prohibition?
A: it is a special civil action directed against any
tribunal, corporation, board or person whether
exercising judicial or ministerial functions claiming
that said tribunal, corporation, board or persons
acted without jurisdiction or with grave abuse of
discretion and there is no appeal, nor any plain,
speedy, and adequate remedy in the ordinary
course of law. All these must be alleged by the
plaintiff through a verified petition filed in the
proper court and praying the judgment be
rendered commanding the defendant to desist
from further proceedings in the action or matter
specified therein. (Suarez, 2007)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
243
UST golden notes 2011
1. That the petitioner is of legal age, (state the capacity and residence of the petitioner, and
of the public and private respondents);
2. That (state the facts and circumstances under which the respondent-tribunal, board or
officer, exercising judicial functions, has acted without, or in excess of its jurisdiction, or with grave
abuse of discretion in the proceedings complained of);
3. That (state that there is no appeal from such act or any plain, speedy and adequate
remedy in the ordinary course of law);
4. That a certified true copy of the decision (or order) herein sought to be annulled is hereto
attached as “Annex A”, together with copies of all pleadings and documents relevant and pertinent
thereto.
5. That (state the material dates showing when notice of judgment or final order or
resolution subject thereof was received, when a motion for new consideration, if any, was filed and
when notice of the denial thereof was received).
WHEREFORE, it is respectfully prayed, that pending the proceedings in the action, a
preliminary injunction be granted ordering the respondent _________ to desist and refrain from
further proceedings in the premises, and that after due notice and hearing, a Writ of Prohibition be
issued commanding the said respondent to desist absolutely and perpetually from further
proceedings (in the action or matter in question), with costs.
________ City, Philippines, this _____ day of _______2010.
Form 65: Mandamus
Q: What is mandamus?
A: It is a special civil action directed against any
tribunal, corporation, board or person claiming
that said tribunal, corporation, board or person
has unlawfully neglected the performance of an
act which the law specifically enjoins as a duty
resulting from an office, trust or station or has
excluded another from the use and enjoyment or
the right or office to which such person is entitled
form the use and there is no other plain, speedy,
and adequate remedy in the ordinary course of
law. All these must be alleged by the plaintiff
through a verified petition filed in a proper court
and praying that judgment be rendered
commanding the defendant immediately or at
some other specified time to do the act required
to be done to protect the life of the petitioner
and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the
defendant.
1. That the petitioner is of legal age, (state the capacity and residence of the petitioner, and of
the public and private respondents);
2. That (state the facts and circumstances under which the respondent-tribunal, board or
officer) unlawfully neglected the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust or station, or unlawfully excluded the petitioner from the enjoyment of a
right or office to which the petitioner is entitled;
3. That the petitioner has no other plain, speedy and adequate remedies in the ordinary course
of law other than this action;
4. That (state the material dates showing when notice of judgment or final order or resolution
subject thereof was received, when a motion for new consideration, if any, was filed and when notice
of the denial thereof was received).
5. That the petitioner by reason of the wrongful act of the respondent has sustained damages
in the sum of __________ pesos (Php___________);
WHEREFORE, it is respectfully prayed, that after due notice and hearing, a Writ of mandamus
be issued, commanding the respondent forthwith to: (here state the act required to be done, with
damages and costs.)
244
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal forms - judicial form
Form 66: Probate of Will
Petitioner, by counsel, respectfully avers:
1. That the petitioner, of legal age and resident of ______, is the executor named in the last
will and testament of _______, deceased who died in ______, on ______;
2. That the said last will and testament (photostatic copy only) is hereto attached as Annex
“A” and made an integral part of this petition, the original thereof to be presented to this Honorable
Court at the time of the probate;
3. That the subscribing witnesses to said will are ____-, _____, ________, all of whom are
residents of ________;
4. That the decedent is an inhabitant of the Philippines and a resident of _______ at the time
of his death;
5. That the petitioner, named in the will as executor thereof, is legally qualified to act as such
and hereby consents and agrees to accept said trust;
6. That the following persons, all of age, have been named in the said will as devisees of the
deceased, to wit: ___________
7. That the property left by the deceased consists of the real and personal property, the gross
value of which is _______;
8. That the testator, at the time of the execution of the said will, was _____ years old, of
sound and disposing mind, and not acting under duress, fraud, or undue influence and was in every
respect capacitated to dispose of his estate by will.
WHEREFORE, it is respectfully prayed:
1. That, upon proper notice and hearing, the above-mentioned Will be admitted to probate;
2. That letters testamentary (or of administration) be issued to herein petitioner, without
bond;
3. That such other relief be granted as may be deemed just and equitable in the premises.
________ City, Philippines, this _____ day of _______2011.
Name _______________________________
Appointment No. _____________________
Roll of Attorney No. ___________________
PTR No.____, ____ (date and place of issue)
IBP No. ____, ____ (date of issue) (chapter)
Office Address________________________
Email Address ________________________
Contact No. __________________________
MCLE Compliance (or Exemption) No._____
VERIFICATION WITH CERTIFICATION OF NON-FORUM SHOPPING
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
245
UST golden notes 2011
Form 67: Quo Warranto
1. That the petitioner is of legal age, (state the capacity and residence of the petitioner, and
of the public and private respondents);
2. That (state fully and clearly the facts and circumstances showing that the defendant is in
unlawful possession of a public office and that the plaintiff is entitled to hold the same)
3. That (state that the plaintiff has demanded of defendant to vacate the office in question
and to deliver the same to the plaintiff, but the defendant unlawfully refused);
WHEREFORE, it is respectfully prayed:
1. That a writ of quo warranto be issued ousting and altogether excluding the defendant from
the office of _________;
2. That the plaintiff be declared entitled to said office and that he be placed forthwith in
possession thereof;
3. That the plaintiff recovers his costs.
Form 68: Petition for Extradition
In view of the Extradition Treaty entered into between the Republic of the Philippines and (country
where the fugitive is), effective (date of effectively of the treaty), the Solicitor General of the
Republic of the Philippines requests that the (Officer in charge) of the (state where the fugitive is
found) issue a requisition for the return of a fugitive who is charged with violations of the (specific
offense) and with being a fugitive from justice. I offer the following information to request that the
(country) law enforcement officer(s) cited herein be empowered as authorized agents to receive and
return the fugitive to the Republic of the Philippines.
In support of this application, I certify that:
1. The fugitive who is the subject of this application was in the republic of the Philippines at
the time of the commission of the crime;
2. In my opinion, the end of justice required that this fugitive be brought to the republic of
the Philippines at public expense for trial;
3. In my opinion, I have sufficient evidence to secure the conviction of the fugitive;
4. The Philippine law enforcement officer(s) who are proposed to receive and return the
fugitive are qualified to do so and have no private interest in the arrest of the fugitive;
5. No other application has been made for a requisition of this fugitive growing out of the
same transaction herein alleged;
6. This fugitive is not known to be under either civil or criminal arrest in my jurisdiction,
except as set forth in this application;
7. This application is not made for the purpose of enforcing the collection of a debt, for
removing the fugitive to a foreign jurisdiction with a view there to serve him with civil process or for
any private purpose whatsoever. If this application for requisition is granted the criminal proceedings
shall not be used for any other purpose not set forth in this application;
8. There has been no avoidable delay in making this application;
246
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal forms - judicial form
(Petition for Extradition: continuation....)
9. The fugitive has been indicted;
FULL NAME AND GENDER OF THIS FUGITIVE AND ALL KNOWN ALIASES.
JURISDICTION THAT WILL BE RENDERING THIS FUGITIVE:
TITILES, FIRST AND LAST NAMES AND GENDERS OF QUALIFIED PHILIPPINE LAW
ENFORCEMENT OFFICERS WHO ARE TO BE EMPOWERED TO RECEIVE AND RETURN THIS FUGITIVE TO
THE PHILIPPINES
NAME IF OTHER JURISDICTION IN WHICH THIS FUGITIVE IS KNOWN TO BE UNDER CIVIL OR
CRIMINAL ARREST
A LISTING OF THE NATURE OF EACH CRIME THAT THIS FUGITIVE IS CHARGED WITH
COMMITTING INCLUDING THE CITATIONS OF WHAT SECTION OF THE PHILPPINE LAWS FOR THE
CRIME AND THE PUNISHMENT THEREFORE,
DATE OF THIS FUGITIVE’S ARREST BY THE RENDERING JURISDICTION
NAME OF THE RENDERING JURISDICTION
This application is submitted this ____ day of ______ 2010.
_________________________
Solicitor General
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
247
UST golden notes 2011
F. CRIMINAL ACTIONS
Form 69: Criminal Complaint-Affidavit
Note: A complaint affidavit is in the form of an
affidavit, narrating the facts and circumstances
surrounding the alleged crime, based on the point
of view of the complainant. The narration may
also include the elements of the crime as applied
in the set of facts or circumstances.
REPUBLIC OF THE PHILIPPINES
METROPOLITAN TRIAL COURT
NATIONAL CAPITAL JUDICIAL REGION
BRANCH ____, QUEZON CITY
THE PEOPLE OF THE PHILIPPINES,
Complainant,
-versus-
Criminal Case No._____________
For: ________________________
Xxx
Accused,
x--------------------------------------------x
CRIMINAL COMPLAINT
The undersigned accuses ________________ of the crime of ______________, committed as
follows:
(Here set out the time and place, when and where the crime is committed, and the facts
constituting the offense.)
Contrary to law.
________________________
Complainant
VERIFICATION
A preliminary investigation has been conducted in this case under my direction, having examined
the witnesses under oath.
(MTC Judge)
Witnesses:
248
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal forms - judicial form
Form 70: Counter- Affidavit
CAPTION
COUNTER-AFFIDAVIT
1. I, _______, of legal age, with assistance of counsel, do hereby state under oath that:
(state the circumstances)
6. It is utterly inexplicable that _____ would hold me liable for estafa when all that I did was to
refer ______ to Mr. _____; to a certain extent, I even exerted my best efforts to see that Ms.____ was
paid due simply to my great embarrassment at the prospect of being accused of referring a person
who does not know how to pay for an obligation.
I performed no act of deceit or fraud against her in ordering the units. I performed NO ACT that even
remotely resembles ANY of the acts punished under Article 315 of the Revised Penal Code. If at all, any
cause of action is PURELY CIVIL in nature and that liability does not pertain to my personal account in
the absence of a showing that I benefited from the Nextel units; any liability should pertain to the
office of the mayor, not to me.
8. Considering the foregoing, I respectfully submit that there is no prima facie basis to conclude
that the crime of estafa or that any crime at all has been committed. The complaint against me should,
thus, be dismissed.
To the truth of the foregoing, I have signed this Counter-Affidavit on _____________.
Affiant
Jurat
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
249
UST golden notes 2011
Form 71: General Form of Information I
[1]REPUBLIC OF THE PHILIPPINES
NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
BRANCH ________, MAKATI
[2]________________________,
Plaintiff,
-versus-
Criminal Case No.____
I.S. No.__________
For: ____________
________________________,
Accused,
x--------------------------------------x
INFORMATION
[3]The undersigned Public Prosecutor accuses (name of accused) of the crime of (name of the crime)
punishable under (Revised Penal Code or state the special law violated) committed as follows:
[4] That on (date when crime was committed), the said accused did then and there willfully, and
unlawfully (include feloniously if it is a violation of the Revised Penal Code) (state how committed
and the name of the private offended party) in the (place where committed) within the City of
(place where committed) resulting to damage to the private offended party in the amount of (state
amount).
[5]Contrary to law.
date and place
Asst. Public Prosecutor
[6]CERTIFICATION OF PRELIMINARY INVESTIGATION
I hereby certify a) that I have conducted a preliminary investigation in the case; b) that I examined the
complainant and his witnesses; c) that based on the evidence presented, there is reasonable ground to
believe that the accused is probably guilty of the offense charged; d) that I gave the accused the
opportunity to submit controverting evidence; and e) that the filing of this information has been
approved by the City Prosecutor.
Asst. City Prosecutor
[7]JURAT
[8] 1st Public Prosecutor
[9]List of Witnesses:
[10]Bail Recommended:
Note: Essential parts of information include:
[1] Heading
[2] Caption
[3] Opening sentence
[4] Body alleging the acts or omissions constituting the crime
[5] Contrary to law
[6] Certification of preliminary investigation
[7] Jurat
[8] Approval of city prosecutor if filed by assistant city prosecutor
[9] List of witnesses
[10] Bail recommended
250
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal forms - judicial form
"Following the above format, you may draft the information for other crimes using the following accusatory
portions."
i. Acts of Lasciviousness.
That on or about ____________, in the Municipality of ______________, Province of
_________________, Philippines, within the jurisdiction of this Court, the said accused, actuated by lust,
did then and there, willfully, unlawfully, and feloniously, commit an act of lasciviousness on the person of
___________ by then and there embracing and kissing her and touching her breasts and sexual organs,
against her will, and by means of force.
ii. Serious Illegal Detention.
That about and during the period beginning the _____ day of _____, 2010, in the Municipality of
______________, Province of _________________, Philippines, and within the jurisdiction of this Court,
said accused suspecting that one ____ had knowledge of the elopement of her sister, did then and there
willfully, unlawfully, feloniously and by force, take said _______, a man of 50 years old, while the latter
was walking in _______, to whom said accused detained and kept locked in his room from ____________
to ___________ or a period of ____ days under restraint and against the will of the said ____, and said
accused did, during said period of detention, maltreat and refuse to release said ____ until the sister of
the accused was found.
iii. Simple Seduction.
That on or about ____________, 2010, in _____________, province of _____________, Philippines,
within the jurisdiction of this court, the said accused did then and there willfully, unlawfully, and
feloniously, and by means of deceit, have sexual intercourse with _________, an unmarried girl over
twelve but under eighteen years of age.
iv. Attempted Rape.
That on or about _____, in __________, the accused did then and there willfully, unlawfully, and
feloniously enter the house of ____________, a married woman, and finding that her husband was away,
with lewd designs and by means of force and intimidation, commenced directly by overt acts to commit
the crime of attempted rape upon her person, to wit: while ______ was cooking lunch, the accused
seized her from behind, threw her to the floor, raised her skirt, pulled down her underwear and
attempted to penetrate her with his sexual organ and would have succeeded in doing so had not her loud
protests and vigorous resistance brought her neighbors to her assistance, causing the accused to flee
from the premises without completing all the acts of execution.
v. Frustrated Murder.
That on or about _____, in __________, the accused did then and there take a loaded .45 Caliber
Magnum Pistol, directly aim the same firearm at the person of ___________, an invalid septuagenarian
and at point blank range, with intent to kill, discharge the firearm twice against the person of said
___________, inflicting on said _______ two (2) wounds on his chest and stomach, which would have
been fatal had not timely medical assistance been rendered to the said _______.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
251
UST golden notes 2011
vi. Rape.
That on or about _______________, province of ___________, Philippines, within the
jurisdiction of this court, the said accused entered the house of ________ who was then and there alone,
and by means of force and intimidation, willfully, unlawfully, and feloniously did lie and succeeded in
having carnal knowledge of said ___________, without her consent.
vii. Murder.
That on or about _______, in the Province of _________, Philippines, within the jurisdiction of
this court, the said accused did, then and there, with malice aforethought and with deliberate intent to
take the life of ___________, willfully unlawfully, feloniously, suddenly, unexpectedly, and treacherously,
attack the latter with a knife, first wounding him in the chest, and afterwards, when enfeebled and
unable to defend himself, again stabbed him in the stomach, both wounds being necessarily mortal,
thereby causing the direct and immediate death of said ________.
viii. Bigamy.
That on or about _______, in the City of _________, Philippines, within the jurisdiction of this
Honorable Court, the said accused being legally married to ___________ and without such marriage
having been legally dissolved and thus valid and existing, did willfully, unlawfully and felicitously contract
a second marriage with ________ in the City of _______.
ix. Theft.
That on or about _______, in the City of _________, Philippines, within the jurisdiction of this
court, the said accused, then 11 years old and without any known address, willfully unlawfully,
feloniously, with intent to gain, without force upon things or violence upon persons and without the
knowledge and consent of ________, the owner, took a gold necklace studded with diamonds valued at
____________ to the prejudice of said owner.
x. Homicide thru Reckless Imprudence.
That on or about the ___ day of _____, ____, in the City of _____, the said accused, being then the
driver and person in charge of service jeepney bearing plate no. _____, did then and there unlawfully and
feloniously drive, manage and operate the said vehicle along _____ Blvd. in the City of _____, in a
careless, reckless and imprudent manner, by then and there making the vehicle run at a speed greater
than was reasonable and proper, without taking the necessary precaution to avoid accident to person or
damage to property, causing by such carelessness, recklessness, imprudence and lack of precaution the
said vehicle so driven, managed and operated y him to hit and bump, as in fact it hit and bumped Y, a
pedestrian who was crossing said _____________ Blvd., thereby inflicting upon said Y mortal physical
injuries which were the direct and immediate cause of his death soon thereafter.
252
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal forms - judicial form
xi. Anti-graft and Corrupt Practices Act (RA 3019) filed by Ombudsman.
That on or about ________________ in ____________, province of __________, Philippines,
within the jurisdiction of this court (or the Sandiganbayan depending on the salary grade of the accused),
the said accused did, then and there a, with malice afterthought and with deliberate intent committed a
violation of Section 3 (e) of RA 3019, otherwise known as the Anti-graft and Corrupt Practices Act (or
whatever private complainant is involved, you may include the amount malversed if it is the case or the
specific act complained of).
xii. Information for Highway Robbery::
That on (date when crime was committed), the said accused did then and there willfully, and
unlawfully (state how committed and the name of the private offended party) in the (place where
committed) within the City of (place where committed) resulting to damage to the private offended party
in the amount of (state amount).
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
253
UST golden notes 2011
OTHER FORMS
Form 72: Substitution of Counsel
THE UNDERSIGNED respectfully enters his appearance as counsel for defendant ________ in
substitution of former counsel ______, as shown by her express conformity below. Henceforth, kindly
address all pertinent notices to the undersigned at the address given below.
RESPECTFULLY SUBMITTED.
________ City, Philippines, this _____ day of _______2011.
Name _______________________________
Appointment No. _____________________
Roll of Attorney No. ___________________
PTR No.____, ____ (date and place of issue)
IBP No. ____, ____ (date of issue) (chapter)
Office Address________________________
Email Address ________________________
Contact No. __________________________
MCLE Compliance (or Exemption) No._____
With my conformity:
_________________
Defendant
Form 73: Notice of Appeal
The defendant, (or plaintiff as the case may be) by counsel, hereby gives notice that he is
appealing from the judgment of this Honorable Court in the above-entitled case, dated ___________, a
copy of which was received by him on ________________, to the Court of Appeals.
________ City, Philippines, this _____ day of _______2011.
Name ______________________________
Appointment No. _____________________
Roll of Attorney No. ___________________
PTR No.____, ____ (date and place of issue)
IBP No. ____, ____ (date of issue) (chapter)
Office Address________________________
Email Address ________________________
Contact No. _________________________
MCLE Compliance (or Exemption) No._____
Copy furnished:
_________________________________
Name and Address of adverse counsel
PROOF OF SERVICE (affidavit of service by mail)
254
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal forms - judicial form
Form 74: Comment/ Opposition to Offer
COMMENT ON THE PROSECUTION’S
FORMAL OFFER OF EVIDENCE
THE ACCUSED, by counsel, respectfully opposes the Prosecution’s Offer of Evidence for the
following reasons:
Exhibit A, the sworn statement of “A”, the private complainant, and Exhibit A-1, his signature
are INADMISSIBLE because the private complainant was never presented to authenticate the
document or subjected to cross-examination, thus, the document is hearsay and inadmissible.
Exhibit B, the post-dated check dated ________, issued by the accused in the amount of
__________________; Exhibit B-1, the dorsal side of the check with notation “DAIF”, Exhibit B-2, the
signature of accused on face of the check are INADMISSIBLE for violation of the Best Evidence Rule as
the original check was never presented; and no basis for the presentation of secondary evidence laid.
ACCORDINGLY, the ACCUSED respectfully submits that the prosecution’s Exhibits are
INADMISSIBLE and must, thus, be EXCLUDED.
________ City, Philippines, this _____ day of _______2011.
Name _______________________________
Appointment No. _____________________
Roll of Attorney No. ___________________
PTR No.____, ____ (date and place of issue)
IBP No. ____, ____ (date of issue) (chapter)
Office Address________________________
Email Address ________________________
Contact No. __________________________
MCLE Compliance (or Exemption) No._____
Copy furnished:
________________
Public Prosecutor
_________________
Private Prosecutor
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
255
UST golden notes 2011
A. ELECTION FORMS
Form 75: Certificate of Candidacy
CERTIFICATE OF CANDIDACY
OF
___________________
To: The Commission on Elections
Manila
Sir:
Pursuant to the requirements of the Election Code, the undersigned hereby files his certificate
of candidacy for the general elections on _______________, and states the following:
1. That his full name is ______________, also generally known with the nickname of ________;
2. That he announces his candidacy for the office of ________;
3. That he is eligible for the said office, he being a natural-born citizen of the Philippines,
____years of age, having been born in _________ on _______, a qualified voter, and a resident
of the Province of __________ and of the city/municipality of ________ for the last ____years;
4. That his residence is ______, and that his post-office address for all election purposes is that
his profession or occupation is _______________, his civil status is _______ and that the full
name of his spouse is ________;
5. That the name of the political party to which he belongs is ________;
6. That for the last two years of _____ and _____ his gross incomes, including deductions and
exemptions therefrom, income tax payment, were as follows:
(income)
______________________
Signature of Candidate
REPUBLIC OF THE PHILIPPINES)
PROVINCE OF ______________ )
CITY/MUNICIPALITY OF ______ ) S.S.
I, _________________, being sworn to in accordance with law, hereby declare that I will
support and defend the Constitution of the Philippines and will maintain true faith and
allegiance thereto; that I will obey the laws, legal orders, and decrees promulgated by its duly
constituted authorities; that the obligation imposed by my oath is assumed voluntarily by me,
without mental reservation or purpose of evasion; and that the facts stated in this certificate of
candidacy are true to the best of my knowledge.
______________________
Signature of Candidate
JURAT
256
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal forms - judicial form
Form 76: Election Protest
PETITION
Petitioner through counsel respectfully alleges:
1. That he is a qualified voter and was one of the registered candidates voted for in the
general election held on _____________ in the province of _______________, Philippines, within
the jurisdiction of the court;
2. That according to the certificate of canvass of the provincial board of canvassers for the
province of ________, the total votes for the office of the provincial Governor for the said province
was ___________ the respondent appearing to have received ______ votes, the petitioner
____________votes and the other registered candidate voted for, as follows:_______________
3. That on _______, the said provincial board of canvassers proclaimed the respondent
________ elected to the office of the provincial Governor of the province of _______;
4. That the petitioner contests the election of the said respondent on the following grounds:
__________________5. That the petitioner is willing to give a bond, as this Honorable Court may determine to
cover all reasonable expenses and costs and damages, incidental to these proceedings;
WHEREFORE, it is respectfully prayed:
1. That upon service of summons in accordance with law, a day be set for the hearing of the
protest;
2. That an order be issued to the municipal treasurers of the Municipalities of ______ to
bring and present before the Honorable Court on or before the day of the hearing of this protest the
ballot boxes, copies of the registry list, the election statements, the voter’s affidavits, and other
documents used in the said election in said municipalities, in order that this Honorable Court may
re-examine and revise the same;
3. That after due proceedings, the election of the respondent, and ________________ for
the office of Provincial Governor ____________ be annulled and that the petitioner be declared duly
elected instead;
4. That the expenses and costs incurred in these proceedings be assessed against the
respondent.
________ City, Philippines, this _____ day of _______2010.
Name _______________________________
Appointment No. _____________________
Roll of Attorney No. ___________________
PTR No.____, ____ (date and place of issue)
IBP No. ____, ____ (date of issue) (chapter)
Office Address________________________
Email Address ________________________
Contact No. __________________________
MCLE Compliance (or Exemption) No._____
Copy Furnished:
_________________________________
Name and address of adverse counsel
(Personal Service)
VERIFICATION
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
257
UST golden notes 2011
IV. LEGAL OPINION
HOW TO WRITE A LEGAL OPINION:
Points to remember in writing a legal opinon:
1.
Ascertain the purpose for which your client seeks
your opinion; (Abad, 2009)
Do pre-work.
a. Get all the facts you need for forming a
competent opinion;
b. Make a summary of the relevant facts of the
case and put them in correct sequence.
c. Identify the issues that have to be resolved and
rough out the arguments that support your
thesis; (Ibid.)
2.
Note: Determine preliminarily the principal issue
or issues involved in the case. (Ibid.)
3.
After pre-work, do write up.(Ibid.)
Note: As a general rule, there is no prescribed form for Legal
Opinion.
However, the substance must meet certain
minimum requirements of content. (Abad,2009)
PARTS OF A LEGAL OPINION:
1. HEADING AND INTRODUCTION
- Consist of the letter head of the law firm, date, name
and address (inside address) of the client, salutation and
a short introduction. (Tabucanon, 2010)
2. BACKGROUND FACTS THAT ADEQUATELY INTRODUCE
THE ISSUES IN THE CASE
- Introduce the issues by providing the background facts
that are need to understand those issues. (Abad, 2009)
Note: Only as much background facts as are needed for an
understanding of the issue or issues included. (Ibid.)
- Standard of sufficiency in introducing an issue or issues
of the case requires the following:
258
a.
The Statement of the Case
Purpose: To provide a clear and concise statement
of the nature of the action. (Ibid.)
- it describes the nature of the action and the
proceedings it had gone through. (Ibid.)
b.
The Statement of Facts
Purpose: To provide a background of the
transaction or event involved to enable the court
or reader to see the issues in the proper context.
(Ibid.)
- narrates the transaction or event that created the
legal dispute and led to the filing of the suit.
3. THE POSITION YOU TAKE ON THOSE ISSUES
a. State the issue or issues – this is the query in which
the client seeks out your opinion concerning the facts
surrounding the issue. (Ibid.)
b. State the position you take on those issues - This is
the part where you answer the query, answering
based on relevant laws and jurisprudence. (Ibid.)
How to create an argument?
The legal argument is the right rule and the right
fact put together. A legal argument is made up of three
statements:
a. The statement of a rule that applies to a given fact
or set of facts (the rule statement);
b. The statement of the fact of a particular case that
opens up such case or closes it to the application of
the rule (the case fact statement); and
c. The conclusion that the rule applies or does not
apply to the particular case (the conclusion
statement).
Knowing the essential statements of your legal
argument is important because the effectiveness of
your argument depends on how ably you write up
each statement of your argument into a convincing
part.
Knowing the essentials enables you to
dismantle your argument, reinforce or improve the
weak parts, emphasize the strong, and put them
together again to produce a persuasive argument
(Abad, 2009).
4. THE ARGUMENTS THAT MAY BE MADE AGAINST YOU
- List all the pertinent laws and jurisprudence which are
not in your favor to show your client both sides as to
not incite overexcitement to a winning case nor distress
over a possibly losing case.
5. ARGUMENTS IN YOUR FAVOR
4. CONCLUSION AND RECOMMENDATION (WHAT YOU
WHAT YOUR READER TO UNDER THE CIRCUMSTANCES)
- In the Conclusion, reiterate the answer to the question
raised in the issue/issues. (Tabucanon, 2010)
- The Recommendation on the other hand answers the
question: “What do you propose the client would do?”
It states the proposed solution to the issue. (Ibid.)
The idea behind every closing statement is to depart on
a good note after pacing your pleading with every sort
of argument in support of your stand. The closing
statement should not appear to argue even if it may
appeal to the good sense of the judge exercised in your
favor (Abad, 2009).
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal forms – legal opinion
ILLUSTRATION 1: LEGAL OPINION:
Page 1 of 5
September 14, 2009
Mr. Rogelio G. Chan
Milan Furniture Co., Inc.
245 Juan Luna Street
Binondo, Manila
HEADING AND
INTRODUCTION
Dear Mr. Chan:
Here is the opinion that you requested.
The facts, as I gather from you and your documents, are as follows:
On May 12, 2008 you applied with the Century Bank in Binondo, Manila, on
behalf of Milan Furniture Co., Inc., for a letter of credit, Annex “A”, covering its
importation of hardwood from Vietnam. On arrival of the goods, the bank
agreed to advance the payment of their price to your supplier. In turn, you
executed a promissory note in the name of Milan Furniture, Annex “B”,
undertaking to pay back the bank’s advance within three months of the date of
the note. You also signed a trust receipt, Annex “C”, covering receipt of the
goods.
The trust receipt provided that, in case of the sale of the imported
hardwood, Milan Furniture would turn over the proceeds of that sale to the bank
to apply to your loan. Because Milan Furniture had been unable to pay its
promissory note to the bank when it fell due, on October 17,2008 the lawyers of
the bank sent you a demand letter, Annex “D”, requesting full payment of the
debt of return of the goods.
BACKGROUND
FACTS THAT
ADEQUATELY
INTRODUCE
THE ISSUES IN
THE CASE
I understand that, on receipt of the letter, you tried to negotiate with the
manager of the bank, offering to return the imported hardwood that you were
yet unable to sell or use. But the bank manager rejected your offer, stating that
the bank did not accept goods in payment of debts owed it. Since further
negotiations also failed, the bank sent you a final demand for payment on
December 4 under a threat of filing a criminal complaint for estafa involving the
trust receipt that you executed in its favor.
The question you pose is whether or not, under the above facts, you may
be held liable for estafa under PD 115, the Trust Receipt Law, in relation to
Section 1(b) of Article 315 of the Revised Penal Code.
In my opinion, since the bank opted not to accept the goods even when
you offered to return them on behalf of Milan Furniture, it should be deemed to
have withdrawn its earlier demand from you to pay or “ return the goods
covered by said Trust Receipt.” Effectively, the bank chose to consider Milan
Furniture to have already bought those goods, altogether removing the
transaction from the coverage of Section 13 of the Trust Receipt Law.
I base my opinion on the following:
THE POSITION YOU
TAKE ON THOSE
ISSUES
The relevant provision of the Trust Receipt Law or PD 115 provides:
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
259
UST golden notes 2011
Page 2 of 5
SEC.13. Penalty Clause.—The failure of an entrustee to turn
over the proceeds of the sale of goods, documents or instruments
covered by a trust receipt to the extent of the amount owing to the
entruster or as appears in the trust receipt or to return said goods,
documents or instruments if they were not sold or disposed of in
accordance with the terms of the trust receipt shall constitute the
crime of estafa, punishable under the provisions of Article Three
Hundred and Fifteen, Paragraph One (b), of Act Numbered Three
Thousand Eight Hundred and Fifteen, as amended, otherwise known
as the Revised Penal Code.xxx
The related provisions of Section 1(b), Article 315 of the Revised Penal
Code, under which the vi9olation is made to fall, states:
ART. 315. Swindling (estafa).—Any person who shall defraud
another by any of the means mentioned herein below xxx:
xxx
1. With unfaithfulness or abuse of confidence, namely:
xxx
xxx
b. By misappropriating or converting, to the prejudice of
another, money, goods or any other personal property received by
the offender in trust or on commission, or for administration, or
under any other obligation involving the duty to make delivery of or
to return the same, even though such obligation be totally or
partially guaranteed by a bond; or by denying having received such
money, goods, or other property.”
From the above, the following are the elements of estafa involving a
trust receipt:
1. The entrustee received the goods under a trust receipt from the
entruster under an obligation to turn over the proceeds of the sale of goods
or to return said goods;
THE POSITION YOU
TAKE ON THOSE
ISSUES
2. The entrustee misappropriated or converted the goods by failing to
turn over the proceeds of their sale or to return said goods to the entruster;
3. The misappropriation or conversion is to the prejudice of the entruster; and
4. The entruster made a demand on the entrustee.
One of the elements of estafa involving a trust receipt is that the
entrustee [in this case, you or Milan Furniture] received the goods under a
trust receipt from the entruster [in this case, Century Bank] under an
obligation to turn over the proceeds of the sale of the goods or to return said
goods. The Trust Receipt Law, PD 115, provides in Section 11 that the liability
for estafa under paragraph 1(b) of Article 315 of the Penal Code arises in case
of “the failure of an entrustee to turn over the proceeds of the sale of the
goods… or to return said goods.”
The trust receipt in this case, Annex “A”, echoes the above provisions of
the Trust Receipt Law. Under it, Milan Furniture or you as its signatory,
260
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal forms – legal opinion
Page 3 of 5
undertook “to turn over to the BANK the proceeds” of the sale of the
goods1 or, “in case on non-sale,” to “return the goods covered by this Trust
Receipt to the BANK upon its demand.”2
But the terms of the trust receipt does not end there. The trust receipt,
Annex “A”, gives Century Bank an option not “to accept the return of the
goods.” In effect, Century Bank could chose to regard such goods already
sold to Milan Furniture even though the latter could and wanted to return
them. The seventh paragraph f the Trust Receipt, Annex “A”, thus reads:
We agree that the BANK is not obliged to accept any return
of the goods under this Trust Receipt by us or to consider any
return thereof if accepted or demanded by the BANK, as
satisfaction of our indebtedness to the BANK.
Century Bank in fact availed itself of the above option. It opted not to
accept the goods even when you offered to return them. Consequently,
Century Bank should be deemed to have withdrawn its earlier demand that
you or Milan Furniture pay or “return the goods covered by said Trust
Receipt immediately.” Effectively, Century Bank chose by its action to
consider the subject goods sold to Milan Furniture, altogether removing the
transaction from the coverage of Section 13 of the Trust Receipt Law.
The essence of the crime of conversion or misappropriation is that the
offender to whom money or goods has been entrusted has unfaithfully or
with abuse of confidence failed to return what was merely entrusted to him
and appropriated it for his own. Here, neither Milan Furniture nor you could
be considered as having unfaithfully or with abuse of confidence
misappropriated and converted the goods subject of the trust receipt.
Century Bank did
not want those goods back. It had regarded them sold outright to Milan
Furniture. The latter’s liability for the goods should, therefore, be
considered purely civil.
ARGUMENTS IN
YOUR FAVOR
Moreover, Section 13 of the Trust Receipt Law provides that the
“failure of an entrustee to turn over the proceeds of the sale of the goods…
or to return said goods… if they were not sold or disposed of in accordance
with the terms of the trust receipt shall constitute the crime of estafa.” The
essence of the penal provision of the law, therefore, is that the entrusted
[here, Century Bank] has entrusted the good to the entrustee [Milan
Furniture or you] for him to sell. Once sold, the entrustee was to turn over
the proceeds of the sale to the entruster.
Section 13 does not embrace instances where the goods are turned
over by the entrustor to the entrustee for the latter’s use in his own
business. This is clear from the ruling of the Supreme Court in Colinares v.
Court of Appeals3 that reads:
_____________________
1
2
Third paragraph, Trust Receipt, Annex “B”.
Id., fifth paragraph.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
261
UST golden notes 2011
Page 4 of 5
Also, noteworthy is the fact that Petitioners are not importers
acquiring the goods for re-sale, contrary to the express provision
embodied in the trust receipt. They are contractors who obtained
the fungible goods for their construction project. At no time did
title over the construction materials pass to the bank, but directly
to the Petitioners from CM Builders Centre. This impresses upon
the trust receipt in question vagueness and ambiguity, which
should not be the basis for criminal prosecution in the event of
violation of its provisions.4
In this case, on May 12, 2008 Century Bank agreed with Milan Furniture
to open a letter of credit (LC) on the latter’s behalf to cover a shipment of
hardwood from Vietnam for use in its manufacture of furniture.
Notwithstanding that Milan Furniture imported the hardwood in
question so it could use them in manufacturing furniture, Century Bank made
you, a representative of your company, sign a trust receipt that made it
appear as if Century Bank had turned over the hardwood to Milan Furniture
for it to sell to others and to turn over to the bank the proceeds of the sale.
The Supreme Court has long condemned such practice. Thus, it said in the
Colinares case:
The practice of banks of making borrowers sign trust receipts
to facilitate collection of loans and place them under the threats of
criminal prosecution should they be unable to pay it may the
unjust and inequitable, if not reprehensible. Such agreements are
contracts of adhesion which borrowers have no option to sign lest
their loan be disapproved. The resort to this scheme leaves poor
and hapless borrowers at the mercy of banks, and is prone to
misinterpretation, as had happened in this case. Eventually, PBC
showed its true colors and admitted that it was only after collection
of the money as manifested by its Affidavit of Desistance.5
That the transaction was a loan is made clear from paragraph 1 of the
agreement for the opening of a letter of credit between Century Bank and
MHTI, Annex “A”. It provides that, in consideration of the opening of the
letter of credit on behalf of Milan Furniture in the amount of US$39,060, the
latter undertook to pay the bank on demand for all drafts drawn against such
letter of credit, with 13% per annum. The title to the goods never really
passed to the bank. Century bank did not import them from Vietnam; it
merely opened a letter of credit for the benefit of Milan Furniture. The
supplier shipped the hardwood to Milan Furniture under the cover of that
letter of credit. In short, Century Bank merely provided the loan that financed
the shipment.
Since the transaction was a loan, Milan Furniture’s liability to Century
Bank should only be regarded as civil. The criminal action against you must
fail. It is but fair and the investigating prosecutor or the court should see the
point.
_______________________
3
339 SCRA 609 (2000)
At pp. 623.
5
Supra, at pp. 623-624.
4
262
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal forms – legal opinion
Page 5 of 5
A word of reservation: I base my opinion on the language of the laws
involved as well as on settled judicial precedents. But, in the event the bank
files criminal complaint against you, there is the chance, however small, that
the public prosecutor may just decide to file it in court, subjecting you to the
hassle, expense, and risk that criminal trials entail. But I am confident that,
ultimately, you will be absolved.
CONCLUSION AND
RECOMMENDATION
Please let me know if I can be of further service to you in this matter.
Very truly yours,
ANNA ELIZABETH A. DE DIOS
There is one last point. Legal opinions have their limitations. You have to
realize that not all legal disputes are best resolved through judicial remedies.
Litigations are best avoided if the economics do not make sense as when your
client’s debtor is practically bankrupt. In such a case, your client would merely
be throwing away good money after bad by incurring expenses for docket fees
and attorney’s fees with no hope of recovering anything. Further, a legal
confrontation could irreparably damage relationships that may be far more
valuable than the benefits derived from a judicial resolution of the dispute.
Law is based on wisdom but law is not wisdom.
_______________
Source: Abad, Roberto. The Fundamentals of
Legal Writing. 2009.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
263
UST golden notes 2011
SAMPLE: LEGAL OPINION
Page 1 of 3
OPINION NO. 51, S.2010
November 11, 2010
Secretary Rogelio L. Singson
Department of Public Works and Highways
Manila
Dear Secretary Singson:
This refers to your request for legal opinion on the amount of just compensation
Mesdames Nelly S. Sarabia and Louce S. Ozoa are entitled to when their property was partially
taken by the Department of Public Works and Highways (DPWH) in 2001 in connection with
the Construction of the Metro Manila Flood Control Project – West of Manggahan
As a backgrounder, it appears that the DPWH offered the claimants to acquire their
property needed as right-of-way in the construction of the Metro Manila Flood Control
Project-West of Manggahan through a negotiated sale; that the latter accepted the value of
P600.00 per square meter as just compensation based on the Bureau of Internal Revenue (BIR)
zonal valuation of the property per certification dated December 15, 2004, of the Acting
Revenue District Officer who classified it as agricultural lot; that however, when the claimants
went to the BIR to pay the capital gains tax on the sale of the said property, it refused to
accept the said payment based on the zonal valuation of land of P600.00 per square meter on
the ground that the current zonal valuation of the property is P2,000.00 per square meter as
shown by the certification previously issued by the BIR dated October 4, 2004, stating that the
current zonal valuation of the said property is P2,000.00 per square meter and categorized it
as residential in nature; that on account of the refusal of the BIR to accept the payment of the
capital gains tax based on the zonal valuation of land of P600.00 per square meter, the Deed of
Sale for the property cannot be registered in the Office of the Registry of Deeds for Taguig City
resulting in the non-registration of the certificate of title of the property in the name of the
Republic of the Philippines and the non-payment of just compensation to the claimants up to
the present.
It also appears that on July 4, 2007, the claimants executed a notarized Revocation and
Rescission of the subject Deed of Sale invoking the Civil Code Provisions on void and inexistent
contracts because of the two (2) conflicting zonal valuations issued by the BIR; that, however,
the Office of the Solicitor General opined in its letter dated November 29, 2007, that the Deed
of Sale executed by the parties is a perfected contract, and the fact that the BIR assessed a
capital gains tax based on a higher zonal value does not affect the validity of the sale, and its
mere inadequacy of the purchase price is not a valid ground for rescission.
It further appears that to clarify the true zonal valuation for the subject property, the BIR
stated in its BIR Technical Committee on Real Property Valuation (TCPRV) Resolution No. 172008 dated March 4, 2008, that pursuant to revenue Memorandum Order (RMO) No. 41-91
dated November 11, 1991, the actual consideration appearing on the Deed of Absolute Sale
shall be an acceptable tax base in the computation of capital gains and documentary stamp
taxes in cases of negotiated purchase and/or sale of land by a government agency or
government-owned corporation; that, however, the Central IROW-Committee passed a
resolution recommending the reformation of the Deed of Sale by adopting the P2,000.00 per
square meter as the just compensation for the property based on equity and Article 1359 of
the Civil Code, which provides that when there having been a meeting of the minds of the
parties to a contract, their true intention is not expressed in the instrument purporting to
embody the agreement, by reason of mistake, fraud, inequitable conduct or accident, one of
the parties may ask for reformation of the instrument to the end that such true intention may
be expressed.
With regret, this Department has to decline rendition of the requested opinion.
264
LEGAL ETHICS TEAM:
ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA
SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE
MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Legal forms – legal opinion
Page 2 of 3
Please be informed that as a matter of policy and established precedents, this
Department does not render opinion on questions of just compensation, which is a
justiciable matter and could at best resolved only tentatively by the administrative
authorities because the final decision rests not with them but with the courts of justice.
(Secretary of Justie Opinion No. 95, s. 2002)
Moreover, the specific issue raised in the instant query necessarily affects the
substantive rights of private parties upon whom the opinion of the Secretary of Justice
which is merely advisory in nature, has no binding effect, and who may, in all probability,
contest the same in court if the opinion turns out to be adverse to the interests. Inasmuch
as the matter herein might subsequently be the subject of judicial controversy, it is
neither advisable nor proper for this Office to comment thereon. (Secretary of Justice
Opinions No. 89, s. 1999 and No. 31, s. 1997)
Further, the resolution of the issue would require us to pass upon the
legality/validity of the action of the BIR relative to the payment of the capital gains tax
and the refusal of the Registry of Deeds to register the Deed of Sale. Both the BIR and the
register of Deeds of Taguig City are, however, beyond the revisory authority of the
Department. Pursuant to settled practice and precedents, the Secretary of Justice does
not render opinion or express any comments on q