LEGAL ETHICS
Based on the book ͞>ĞŐĂůĂŶĚ:ƵĚŝĐŝĂůƚŚŝĐƐ͟ by Atty. Ruben E. Agpalo
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DUTIES TO SOCIETY MEMORY AID FOR CANONS UNDER THIS SECTION: 1. Promote and Respect the Law and Legal Process (Canon 1) 2. Provide Efficient and Convenient Legal Services (Canon 2) 3. Information on Legal Services that is true, Honest, Fair and Dignified (Canon 3) 4. Support for Legal Reforms and Administration of Justice (Canon 4) 5. Participate in Legal Education Program (Canon 5) 6. Applies to Lawyers in Government Service (Canon 6) CANON 1: A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and legal process. Rule 1.01. A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. Rule 1.02. A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal profession. Rule 1.03. A lawyer shall not, for any corrupt motive or interest, encourage any suit or delay any PDQ¶V cause. Rule 1.04. A lawyer shall encourage his clients to avoid, end or settle a controversy if it will admit of a fair settlement ralc2011 A. UPHOLDING THE CONSTITUTION AND THE LAW Duty to uphold the Constitution and obey the law x First and foremost duty of a lawyer is to: 1. Maintain allegiance to the Republic of the Philippines;; 2. Uphold the Constitution and 3. Obey the laws of the land. x Code of Professional Responsibility underscores the primacy of such duty. x Canon 1: ³$ ODZ\HU VKDOO XSKROG
the Constitution, obey the laws of the land, and promote respect for ODZDQGOHJDOSURFHVVHV´ x Role of lawyers in the community: x While the duty to uphold the Constitution and obey the law is an obligation imposed on every citizen, a lawyer assumes responsibilities well beyond the basic requirements of good citizenship. x As a servant of the law, a lawyer should moreover make himself an example for others to emulate. x Being a lawyer, he is supposed to be a model in the community in so far as respect for the law is concerned. x $ ODZ\HU¶V UHVSRQsibilities are greater than those of a private citizen. x He must not subvert the law by counseling in activities which are in defiance of the law. x He should not allow his services to be engaged by an organization whose members are violating the law, to defend them when they get caught. Duty not to engage in unlawful conduct 24 LEGAL ETHICS
Based on the book ͞>ĞŐĂůĂŶĚ:ƵĚŝĐŝĂůƚŚŝĐƐ͟ by Atty. Ruben E. Agpalo
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Canon 1, Rule 1.01. A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. As servant of the law, a lawyer should moreover make himself an exemplar for others to emulate. Duty to obey the law and promote respect for law and legal processes demands that he shall not engage in unlawful, dishonest, and immoral, or deceitful conduct. Unlawful conduct is an act or omission which is against the law. Dishonesty involves lying or cheating. Immoral or deceitful conduct is that which is willful, flagrant or shameless and which shows a moral indifference to the opinion of the good and respectable members of the community. 0RUDO WXUSLWXGH ³LQFOXGHV HYHU\WKLQJ
which is done contrary to justice, honesty, modesty, or JRRG PRUDOV´ ,W
involves an act of baseness, vileness, or depravity in the private duties which a man owed 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. Duty not to counsel illegal activities x Canon1, Rule 1.02. A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal profession. x A lawyer who defies a writ or preliminary injunction has flouted his duties as a lawyer. x He should not promote an organization known to be violating the law nor assist it in a scheme which he knows is dishonest ralc2011 x
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He should not allow his services to be engaged by an organization whose member as violating the law, to defend them when they get caught. The Supreme Court will not denounce criticismmade 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 RXUSHRSOH¶VIDLWKLQthe judicial system, let alone, by those who have been privileged by it to practise law in the Philippines. (Estrada v. Sandiganbayan, 416 SCRA 465 (2003)) Terrel was found guilty of malpractice or gross misconduct for assisting in the establishment and acting as counsel for the Centro Bellas Artes Club, an organization intending to evade the practice of law. (In Re Terrel (1903)) Duty not to encourage lawsuits x Rule 1.03. A lawyer shall not, for any corrupt motive or interest, encourage any suit or delay DQ\PDQ¶VFDXVH x Among the unprofessional acts which come within the prohibition include the ODZ\HU¶V 1. Volunteering advice to bring lawsuit, except in rare cases where ties of blood, relationship, or trust. 2. Hunting up defects in titles or other causes of action. 3. Seeking out claims for personal injuries or those having any other grounds of action to secure them as clients. 4. Initiating a meeting of the members of a club and inducing 25 LEGAL ETHICS
Based on the book ͞>ĞŐĂůĂŶĚ:ƵĚŝĐŝĂůƚŚŝĐƐ͟ by Atty. Ruben E. Agpalo
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them to organize and contest a legislation under his guidance. 5. Purchasing notes to collect them by litigation at a profit. Purpose of the prohibition: To prevent ambulance chasing -­ solicitation of almost any kind of legal business by laymen employed by an attorney for the purpose or by the attorney himself. Ambulance chasing has spawned recognized evils and is prohibited because: 1. It stirs up litigation with resulting burdens on courts and the public;; 2. Supports perjury. 3. Defrauds innocent persons by judgments, upon manufactured causes of actions. 4. Defrauds injured persons having proper causes of action but ignorant of legal rights and court procedure by means of contracts which retain exorbitant expenses and by settlement made for quick returns of fees against the rights of the injured persons. x
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fees which are often considerably less when the cause is amicably settled. The problem of conflict of interests must be resolved against self-­interest. Parties to an amicable settlement enjoy benefits better than those which can legally be secured to them by judicial procedure. Litigation involves time, expense, and ill feelings, which may well be avoided by the settlement of the action. A compromise or even a confession of judgment will: 1. Accord respect to the just claim of the other party;; 2. Save the client additional expenses;; 3. Help prevent clogging of the docket. Duty to encourage amicable settlement x Rule 1.04. A lawyer shall encourage his clients to avoid, end or settle a controversy if it will admit of a fair settlement. x The function of a lawyer is not only to conduct litigation but to avoid it where possible, by advising settlement or withholding suit. x He/she must act as mediator for compromise rather than an instigator and conflict. x What VRPHWLPHV EHFORXGV D ODZ\HU¶V
judgment as to what is best for his client is his/her eye on the DWWRUQH\¶V
ralc2011 26 LEGAL ETHICS
Based on the book ͞>ĞŐĂůĂŶĚ:ƵĚŝĐŝĂůƚŚŝĐƐ͟ by Atty. Ruben E. Agpalo
CANON 2: A lawyer shall make his legal services available in an efficient and convenient manner compatible with the independence, integrity and effectiveness of the profession. Rule 2.01. A lawyer shall not reject, except for valid reasons, the cause of the defenseless or the oppressed. Rule 2.02. In such cases, even if the lawyer does not accept a case, he shall not refuse to render legal advice to the person concerned if only to the extent necessary to VDIHJXDUGWKHODWWHU¶VULJKWV Rule 2.03. A lawyer shall not do or permit to be done any act designed to primarily solicit legal business. Rule 2.04. A lawyer shall not charge rates lower than those customarily prescribed unless the circumstances so warrant. B. MAKING LEGAL SERVICES AVAILABLE Generally x A lawyer shall make his legal services available in an efficient and convenient manner compatible with the independence, integrity and effectiveness of the profession. x A lawyer who is qualified to provide efficient legal services should make available such services to those who are in need thereof. x IBP Committee that drafted the Code explained: ³$ SHUVRQ LQ QHHG RI OHJDO
services should be able to find a lawyer who is qualified to provide them. It is ralc2011 x
the responsibility of the bar to make such seUYLFHVDYDLODEOH´ A wide gap exists between the need and its satisfaction. This has been mainly ascribed mainly to 2 reasons: 1. Poverty and the consequent inability to pay. 2. Ignorance not only of the need of legal services but also of where to find a competent and dependable lawyer. A lawyer shall not reject the cause of the defenseless x Rule 2.01. A lawyer shall not reject, except for valid reasons, the cause of the defenseless or the oppressed. x Stems from one of the obligations incident to the status and privileges of a lawyer ± To represent the poor and oppressed in the prosecution of their claims or the defense of their rights. x Even in those instances in which he may not, for valid reasons, accept the FDVH WKH ODZ\HU ³shall not refuse to render legal advice to the person concerned if only to the extent QHFHVVDU\ WR VDIHJXDUG WKH ODWWHU¶V
rights.´ (Rule 2.02.) x The duty of a lawyer to accept the cause of the defenseless and the oppressed empowers the court to require him to render professional services to any party in a case, if the party is without means to employ an attorney and the services of a lawyer are necessary to protect the rights of such party or secure the ends of justice. x To designate him as counsel de oficio for an accused if the latter is unable to employ a counsel de parte. x The lawyer so assigned has to render effective legal services, under the pain of disciplinary sanction should he fail or 27 LEGAL ETHICS
Based on the book ͞>ĞŐĂůĂŶĚ:ƵĚŝĐŝĂůƚŚŝĐƐ͟ by Atty. Ruben E. Agpalo
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neglect to do so, until he is excused therefrom by the court. Every lawyer should: 1. Welcome the assignment as an opportunity to render public service;; 2. Show that the practice of law is a profession;; and 3. Demonstrate that the efficient discharge of his duties does not depend upon payment or amount of fees. The Integrated Bar of the Philippines through its Committee on Legal Aid has established legal aid offices throughout the country. Its objective is to provide on a nationwide basis legal services in favor of the poor segment of society. Their policy is that legal aid is not a matter of charity. It is a means for the correction of social imbalance that may and often do lead to injustice, which makes it a public responsibility of the Bar. A lawyer shall not refuse to render legal advice x Rule 2.02. In such cases, even if the lawyer does not accept a case, he shall not refuse to render legal advice to the person concerned if only to the extent QHFHVVDU\ WR VDIHJXDUG WKH ODWWHU¶V
rights. x GENERAL RULE: A lawyer may refuse to accept the cause of the defenseless or the oppressed. A lawyer is not obliged to act as legal counsel for any person who may wish to become his client. x EXCEPTIONS: 1. A lawyer shall not refuse his services to the needy. ralc2011 x
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2. He shall not decline to represent a person solely on account of the ODWWHU¶V UDFH VH[ FUHHG RU status of life or because of his own opinion regarding the guilt of said person. (Canon 14, Rule 14.01) 3. If there is serious and sufficient cause, an appointment as counsel de oficio or as amici curiae, or a request from the Integrated Bar of the Philippines or any of its chapters for rendition of free legal aid. (Canon 14, Rule 14.02) EXCEPTION TO THE EXCEPTION: A lawyer may refuse to accept representation of an indigent client if: a. He is not in a position to carry out the work effectively or competently;; b. He labors under a conflict of interests between him and the prospective client or between a present client and the prospective client. (Canon 14, Rule 14.03) A valid reason to refuse is when the lawyer is not in a position to carry out the work effectively and competently. However he shall still render legal advice (such as those pertaining to preliminary steps a person can take). But he shall refrain from giving legal advice if the reason for not accepting the case is that there involves a conflict of interest (between him and a prospective client or between a present client and a prospective client). In the case mentioned above, rendering legal advice to the prospective client will establish an attorney-­client relationship between them and this will constitute a violation of the rule prohibiting a lawyer from representing conflicting interests. (Canon 15, Rule 15.03) 28 LEGAL ETHICS
Based on the book ͞>ĞŐĂůĂŶĚ:ƵĚŝĐŝĂůƚŚŝĐƐ͟ by Atty. Ruben E. Agpalo
Participating in legal development CANON 5: A lawyer shall keep abreast of legal developments, participate in continuing legal education programs, support efforts to achieve highest standards in law schools as well as in the practical training of law students and assist in disseminating information regarding law and jurisprudence. x It is the bounden duty of counsel in the active practice to keep abreast of decisions of the Supreme Court and changes in the law. x It is imperative that judges should be conversant with basic legal principles and with the changes in the law and with the latest decisions and precedents. x For service in the judiciary and being in the active practice of law require continuous study and research on the law from beginning to end. x Legal education should be a continuing concern. x After admission to practice, a lawyer incurs a three-­fold obligation: 1. He owes it to himself to continue improving his knowledge of the law. 2. He owes it to his profession to take an active interest in the maintenance of high standards of legal obligation. 3. He owes it to the lay public to make the law a part of its social consciousness. Mandatory Continuing Legal Education (MCLE) x Members of the IBP, except those exempt under Rule 7 of Bar Matter No. ralc2011 850 (Mandatory Continuing Legal Education), are required every 3 years to complete at least 36 hours of continuing legal education activities, with appropriate penalties for failure to do so. C. APPLICABILITY OF CODE TO GOVERNMENT LAWYERS CANON 6. These Canons shall apply to lawyers in government service in the discharge of their official duties. Rule 6.01. The primary duty of a lawyer in public prosecution is not to convict but to see that justice is done. The suppression of facts or the concealment of witnesses capable of establishing the innocence of the accused is highly reprehensible and is cause for disciplinary action. Rule 6.02. A lawyer in government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties. Rule 6.03. 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. Code is applicable to government lawyers x Canon 6 makes the Code of Professional Responsibility applicable to lawyers in government service in the discharge of their official duties. 29 LEGAL ETHICS
Based on the book ͞>ĞŐĂůĂŶĚ:ƵĚŝĐŝĂůƚŚŝĐƐ͟ by Atty. Ruben E. Agpalo
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The reason for the rule is that a lawyer does not shed his professional obligations upon assuming public office. In fact, his professional obligations should make him more sensitive to his RIILFLDO REOLJDWLRQV EHFDXVH D ODZ\HU¶V
disreputable conduct is more likely to be magnified in the public eye. As government counsel, they have the added duty to abide by the policy of the State to promote a high standard of ethics in public service. As part of the government bureaucracy, it is incumbent upon lawyers to perform and discharge their duties with the highest degree of professionalism, intelligence, and skill, and to extend prompt, courteous, and adequate service to the public. Fundamental principle in public law: Public office is a public trust. A public servant owes utmost fidelity to the public service. Norms of conduct required of public officials: 1. Uphold the public interest over and above personal interest. 2. Discharge their duties with the highest degree of excellence, professionalism, intelligence, and skill. 3. Act with justness and sincerity. 4. Provide service without discrimination. 5. Extend prompt, courteous, and adequate service to the public. 6. Be loyal to the Republic. 7. Commit themselves to democratic way of life and values. 8. Live modest lives. A prosecutor shall see to it that justice is done ralc2011 x
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Rule 6.01. The primary duty of a lawyer in public prosecution is not to convict but to see that justice is done. The suppression of facts or the concealment of witnesses capable of establishing the innocence of the accused is highly reprehensible and is cause for disciplinary action. A public prosecutor is a quasi-­judicial officer who represents, not an ordinary party to a controversy, but sovereignty. This sovereignty has its obligation to govern impartially. Therefore, the interest in a criminal prosecution is not that it shall win a case but that justice shall be done. A public prosecutor should not hesitate to recommend to the court the acquittal of the accused if the evidence in his possession shows that the accused is innocent. If he finds no legal basis to sustain a conviction, he should not hesitate to recommend that the accused be acquitted. For ³KLVILQHVWKRXULVQRWZKHQKHZLQV
a case with the conviction of the accused. His finest hour is still when, RYHUFRPLQJ WKH DGYRFDWH¶V QDWXUDO
obsession for victory, he stands up before the court and pleads not for the conviction of the accused but for his acquittal. For indeed, his noble task is to prosecute only the guilty and to SURWHFWWKHLQQRFHQW´ Restrictions on the functions of public prosecutor x Public prosecutors should not allow giving the impression that their noble office is being used, wittingly or unwittingly, for political ends or other purposes alien to the basic objective of serving the interests of justice 30 LEGAL ETHICS
Based on the book ͞>ĞŐĂůĂŶĚ:ƵĚŝĐŝĂůƚŚŝĐƐ͟ by Atty. Ruben E. Agpalo
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evenhandedly, without fear or favor to any and all litigants, whether rich or poor, weak or strong, powerless or mighty. It is his duty to refrain from improper methods calculated to produce a wrongful conviction. He should not offer as proof of the guilt of the accused which is illegally seized. Nor suppress facts or conceal witnesses capable of establishing the innocence of the accused. It is improper for a public prosecutor to: 1. Assist in the escape of a prisoner. 2. Institute a criminal action to force settlement of a case. 3. Agree to refrain from prosecuting a person in consideration of some reward. 4. Receive money for dismissing a complaint. 5. Induce an accused to plead guilty. 6. Willfully fail to prosecute violations of law. 7. Have a secret partner with whom KHGLYLGHVWKHDWWRUQH\¶VIees. In appeals, the Solicitor General has control x GENERAL RULE: The Solicitor General shall represent the People in criminal actions brought to the Court of Appeals and the Supreme Court. x EXCEPTION: In all cases elevated to the Sandiganbayan and from there to the Supreme Court, the Office of the Ombudsman, through its special prosecutor, shall represent the People. 9RA 8249) x EXCEPTION TO THE EXCEPTION: Cases filed pursuant to Executive Order Nos. 1, 2, 14, and 14-­A issued in 1986. ralc2011 Role of the private prosecutor x GENERAL RULE: Where the civil action for recovery of civil liability is instituted in the criminal action, the offended party may intervene by counsel in the prosecution of the offense. (Rule 110, Sec. 16. Rules of Court) x EXCEPTIONS: Public prosecutor has direction and control of the prosecution: 1. Where from the nature of the crime and the law defining and punishing it, no civil liability arises in favor of a private offended party. 2. In cases where from the nature of the offense, the offended party is entitled to civil indemnity arising therefrom but he has: a. Waived the civil action or b. Expressly reserved the right to institute it separately from the criminal action. x The role of the private prosecutor in criminal actions is to represent the private offended party with respect to the civil action for the recovery of civil liability arising from the offense. x His sole purpose is to enforce the civil liability and not to demand the punishment of the accused. Intervention by private lawyer is subject to prosHFXWRU¶VFRQWURO x The intervention of the private prosecutor in the criminal prosecution is always subject to the direction and control of the public prosecutor. x Public prosecutor is duty bound to take charge of the prosecution until its termination. x While he may allow the private prosecutor to actively handle the 31 LEGAL ETHICS
Based on the book ͞>ĞŐĂůĂŶĚ:ƵĚŝĐŝĂůƚŚŝĐƐ͟ by Atty. Ruben E. Agpalo
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conduct of the trial, his duty to direct and control requires that: 1. He must be present during the proceedings. 2. He must at any time, take over the conduct of the trial from the private prosecutor. Where the prosecutor turned over the active conduct of the trial to the private prosecutor who presented testimonial evidence even when the public prosecutor was absent during the trial, the evidence presented could not be considered as valid evidence of the People of the Philippines. However, it applies only to courts which are provided by law with their own prosecutors, and not to Municipal Trial Courts which have no trial prosecutors. A private prosecutor taking over a criminal action cannot take a stand different from or opposed to that of the public prosecutor or cannot adopt a stand inconsistent with that of the Solicitor General, otherwise it would be tantamount to giving him the direction and control of the criminal proceedings, contrary to law and settled rules on the matter. When the public prosecutor should take over handling of the case x A public prosecutor should not allow the trial in the hands of a private prosecutor to degenerate into a private prosecution. x The administration of criminal law should never be for the accomplishment of a private gain or advantage nor it be a vehicle of oppression for the gratification of private malice. A lawyer shall not use his public position to promote his private interest ralc2011 x
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Rule 6.02. A lawyer in government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties. If the law allows a public official to practice law concurrently, he must not use his public position to feather his law practice. Neither should he accept any private legal business in which his duty to his client will or may conflict with his official duties, and if some unforeseen conflict with his official duties arises he should terminate his professional relationship. A public official should see to it that his private activity does not interfere with the discharge of his official functions. He should avoid all impropriety and the appearance of impropriety. Neither should he inferentially create a public image that he is utilizing his public position to advance his professional success or personal interest at the expense of the public. RA 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees. Sec. 7(b). In addition to acts and omissions of public officials and employees not prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful: (b) Outside employment and other activities related thereto.²Public officials and employees during their incumbency shall not: 1. Own, control, manage or accept employment as officer employee, 32 LEGAL ETHICS
Based on the book ͞>ĞŐĂůĂŶĚ:ƵĚŝĐŝĂůƚŚŝĐƐ͟ by Atty. Ruben E. Agpalo
consultant, counsel, broker, agent, trustee or nominee / in any private enterprise regulated, supervised or licensed by their office / unless expressly allowed by law;; 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 their official functions;; or 3. Recommend any person to any position in a private enterprise which has a regular or pending official transaction with their office. Former official may not accept certain employment x Rule 6.03. 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. x 7KHUHVWULFWLRQFRYHUV³HQJDJHPHQWDQG
HPSOR\PHQW´ ZKLFK PHDQV WKDW KH
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. x PCGG v. Sandiganbayan, 455 SCRA 526 (2005)): PCGG seeks to disqualify Atty. Estelito Mendoza as counsel for the Lucio Group of Companies in the suit involving the sequestration of shares of stock of the LGC as alleged ill-­gotten wealth, on the ground that as former Solicitor General, he intervened in the matter of the liquidation of Genbank, which was subsequently purchased by LGC. ralc2011 The Court ruled that ATty Mendoza could not be disqualified from representing the LGC. The Court explained: x The key to unlock Rule 6.03 lies in comprehending. 1. TKH PHDQLQJ RI ³PDWWHU´
referred to in the rules. 2. The metes and bounds of the ³LQWHUYHQWLRQ´ PDGH E\ WKH
former government lawyer on WKH³PDWWHU´ x The American Bar Association, in its )RUPDO 2SLQLRQ GHILQHG ³PDWWHU´
as: o Any discrete, isolatable act as well as identifiable transaction and not merely an act of drafting, enforcing or interpreting government or agency procedures, regulations or laws, or briefing abstract principles of law. x 7KH ³PDWWHU´ RU WKH DFW RI $WW\
Mendoza as Solicitor General is ³DGYLVLQJ WKH &HQWUDO %DQN RQ KRZ WR
SURFHHG ZLWK *HQEDQN¶s liquidation is KHOG QRW WR EH WKH ³PDWWHU´
contemplated by Rule 6.03. x Clearly, ABA Formal Opinion 342 VWUHVVHV WKDW $WW\ 0HQGR]D¶V DFWV GLG
not fall within the scope of the term ³PDWWHU´ x It is given that respondent Mendoza had nothing to do with the decision of the Central Bank to liquidate Genbank and did not even participate in the sale of Genbank to Allied Bank. x 7KH ³PDWWHU´ ZKLFK KH JRW KLPVHOI
involved was informing the Central bank on the procedure by law to liquidate Genbank. x It is not the same as the subject ³PDWWHU´ RI the civil case of sequestration of stocks owned by Tan in Allied Bank on the alleged ground that 33 LEGAL ETHICS
Based on the book ͞>ĞŐĂůĂŶĚ:ƵĚŝĐŝĂůƚŚŝĐƐ͟ by Atty. Ruben E. Agpalo
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they are ill-­gotten. This case does not involve the liquidation of Genbank. Whether the shares of stock of Allied Bank are ill-­gotten is far removed from the issue of the dissolution and liquidation of Genbank. ³,QWHUYHQWLRQ´ LV LQWHUIHUHQFH WKDW PD\
affect the interest of and influence others. Intervention must not be insubstantial and insignificant. ³6XEVWDQWLDO UHVSRQVLELOLW\´ is required by the prohibition. In interpreting Rule 6.03, the Court also cast a harsh eye on its use as a litigation tactic to harass opposing counsel as well as deprive his client of competent legal representation. In the case at bar, the new attempt to disqualify respondent Mendoza has long been a dead issue, resuscitated after the lapse of many years and only after PCGG has lost many legal incidents in the hands of the respondent. It is also submitted that the Court should apply Rule 6.03 in all its strictness for it FRUUHFWO\ GLVIDYRUV ODZ\HUV ZKR ³switch sides´ and intended to avoid conflict of loyalties. ,W LV FODLPHG WKDW ³VZLWFKLQJ
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government employee may compromise confidential official information in the process. The act of respondent Mendoza in informing the Central Bank on the procedure how to liquidate Genbank is a different matter from the subject matter of Civil Case No. 0005 which is about sequestration of the shares of respondents Tan in Allied Bank. There is no switching sides for no two sides are involved. ralc2011 34 LEGAL ETHICS
Based on the book ͞>ĞŐĂůĂŶĚ:ƵĚŝĐŝĂůƚŚŝĐƐ͟ by Atty. Ruben E. Agpalo
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DUTIES TO THE LEGAL PROFESSION x
A. UPHOLDING INTEGRITY OF PROFESSION Canon 7: A lawyer shall at all times uphold the integrity and dignity of the legal profession and support the activities of the integrated bar. Rule 7.01. A lawyer shall be answerable for knowingly making a false statement or suppressing a material fact in connection with his application for admission to the bar. Rule 7.02. A lawyer shall not support the application for admission to the bar of any person known by him to be unqualified in respect to character, education, or other relevant attribute. Rule 7.03. A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession. Generally x Canon 7: A lawyer shall at all times uphold the integrity and dignity of the legal profession and support the activities of the integrated bar. x Maintenance of a high standard of legal proficiency and fair dealing is a prerequisite to making the bar an effective instrument in the proper administration of justice. ralc2011 x
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It is necessary that lawyers strive to uphold the honor and maintain dignity of the profession and to improve the law and the administration of justice. The respect of the public to the legal profession is enhanced by the faithful SHUIRUPDQFH RI WKH ODZ\HU¶V GXWLHV WR
the court, to society, to his brethren in the profession, and to his client. Such respect is diminished whenever a member betrays the trust and confidence reposed in him by his client. Public confidence in law and lawyers may be eroded by the irresponsible and improper conduct of a member of the bar. Thus, every lawyer should act in a manner that would promote public confidence in the integrity of the profession. A lawyer should also involve in and actively support the activities of the IBP. A person shall make no false statement in his application for admission to the bar x Rule 7.01. A lawyer shall be answerable for knowingly making a false statement or suppressing a material fact in connection with his application for admission to the bar. x Observance of the duties and responsibilities of a lawyer begins even as D ODZ VWXGHQW $ VWXGHQW¶V IDLOXUH WR
live up to them may be a ground for SC to refuse admission to practice or for disbarment should SC learn later on about his/her transgressions. x A person seeking to be admitted to the bar must show that he has all the qualifications and none of the disqualifications prescribed by law. A lawyer shall not support unqualified applicant to the bar 35 LEGAL ETHICS
Based on the book ͞>ĞŐĂůĂŶĚ:ƵĚŝĐŝĂůƚŚŝĐƐ͟ by Atty. Ruben E. Agpalo
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x
Rule 7.02. A lawyer shall not support the application for admission to the bar of any person known by him to be unqualified in respect to character, education, or other relevant attribute. A lawyer should not readily execute an affidavit of good moral character in favor of an applicant who has not live up to the standard set by law. He should volunteer information or cooperate in any investigation concerning alleged anomaly in the bar examination. This is to help guard the profession from candidates who are unfit or unqualified. He should expose without fear or favor before the SC corrupt or dishonest conduct in the profession and should not hesitate to accept professional employment against a lawyer who has wronged his client. A lawyer shall always conduct himself ethically and morally x The best way a lawyer can uphold the integrity and dignity of the profession is not to engage in conduct that adversely reflects on his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession. (Rule 7.03.) x He should endeavor to conduct himself in such a way as to give credit to the legal profession and to inspire the confidence, respect, and trust of his clients and the community. x Acts which adversely reflect on the ODZ\HU¶V ILWQHVV WR SUDFWLFH ODZ ZKLFK
justify suspension: 1. Gross immorality. 2. Conviction of a crime involving moral turpitude. 3. Fraudulent transactions. ralc2011 Gross immorality reflective of unfitness to practice x Acts of personal immorality in his private relation with the opposite sex. x Gross immorality of the act, not merely immorality, to justify suspension or disbarment. x Grossly Immoral Act 1. One that is so corrupt and false as to constitute a criminal act. 2. Unprincipled or disgraceful as to be reprehensible to a high degree. x Acts of gross immorality, justifying denial of application to take the ODZ\HU¶V RDWK RU suspension or disbarment : 1. Living an adulterous life with a married woman. 2. Maintaining illicit relations with a niece. 3. Abandonment of his lawful wife to live with another woman. 4. Contracting marriage while first marriage still subsisting. 5. Seducing a woman to have carnal knowledge with her on the basis of misrepresentation that he is going to marry her, that he is single, or that they are already married upon signing a mere application for marriage license. 6. Carnal knowledge with a student by taking advantage of his position. x However, mere intimacy between man and woman either of whom possess no legal impediment to marry, voluntarily carried on and devoid of any deceit on the part of the lawyer, is not corrupt or unprincipled to warrant disciplinary action as member of the bar. Even if the relationship results in the woman giving birth to a child so long as he admits paternity and agrees to support the child. 36 LEGAL ETHICS
Based on the book ͞>ĞŐĂůĂŶĚ:ƵĚŝĐŝĂůƚŚŝĐƐ͟ by Atty. Ruben E. Agpalo
x
x
Cohabitation per se is not grossly immoral. o :KHWKHU D ODZ\HU¶V VH[XDO
congress with a woman not his wife should be characterized as grossly immoral will depend upon the surrounding circumstances. Even if the evidence is not sufficient to hold a lawyer liable for gross immorality, may nonetheless be reprimanded where such evidence shows failure on his part to comply with the rigorous standards of conduct. Conviction of a crime involving moral turpitude x Moral turpitude: o Anything which is done contrary to justice, honesty, modesty, or good morals. o Any act of vileness, baseness, or depravity in the private and social duties a man owes his fellowmen or to society, contrary to the accepted rule of right and duty between man and woman. o In general, all crimes which fraud or deceit is an element. x Lawyers convicted of such crime are either suspended or disbarred. Commission of fraud or falsehood x Commission of such may badly reflect on his fitness to practice law. x He may be administratively disciplined. x Acts of misconduct calling for disciplinary actions: 1. Falsely stating in a deed of sale that the property is free from liens or encumbrances. 2. Knowingly taking part in a false and simulated transaction. 3. Making it appear that a vendor, long dead, executed a document of sale in his favor. ralc2011 4. Concealing in an information sheet required by law in connection with his employment the fact that he was charged with or convicted of a crime. 5. Borrowing money as a guardian for his benefit XSRQ WKH ZDUG¶V
property as collateral without the FRXUW¶VDSSURYDO 6. Encashing a check payable to his deceased cousin by signing the ODWWHU¶VQDPH 7. Falsifying a power of attorney and using it to collect the money due the principal and converting it to his benefit. 8. Misappropriating money belonging to his employer. 37 LEGAL ETHICS
Based on the book ͞>ĞŐĂůĂŶĚ:ƵĚŝĐŝĂůƚŚŝĐƐ͟ by Atty. Ruben E. Agpalo
%/$:<(5¶65(/$7,21:,7+27+(5
LAWYERS Canon 8. 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. A lawyer shall not, in professional dealings, use language which is abusive, offensive or otherwise improper. Rule 8.02. A lawyer shall not, directly or indirectly, encroach upon the professional employment of another lawyer;; however, it is the right of any lawyer, without fear or favor, to give proper advice and assistance to those seeking relief against unfaithful or neglectful counsel. Generally x Membership in the bar imposes upon lawyers certain obligations to one another. x What makes the practice of law a profession: o Observance of honorable, candid, and courteous dealings with other lawyers. o Fidelity to known and recognized customs and practices of the bar. Candor, fairness, and truthfulness should characterize relations x The Court reminds parties and counsels to:avoid further squabbles and unnecessary filing of administrative cases against each other. x Mutual bickering and unjustified recriminations between attorneys detract from the dignity of the legal ralc2011 x
x
x
x
profession and will not receive sympathy from the Court. Duty of lawyer to restrain his client from improprieties and to terminate his relation with him if the latter persists in his wrongdoing. A lawyer should not use, to his or his FOLHQW¶V EHQHILW WKH VHFUHWV RI WKH
adverse party acquired through design or inadvertence. A lawyer who thinks a case is weak may not criticize the lawyer who accepts it, much less should he attribute to him HYLO PRWLYH IRU WDNLQJ XS WKH FOLHQW¶V
cause. It is not, however, improper for a lawyer to accept employment to compel another lawyer to honor the just claim of a layman. His action toward such end, as writing a letter of demand to the lawyer, is not unethical since it is mere honest effort to serve the interest of the client. A lawyer should use temperate language x Rule 8.01. A lawyer shall not, in professional dealings, use language which is abusive, offensive or otherwise improper. x His arguments, written or oral, should be gracious to both the court and the opposing counsel. x Should be of such words as may be properly addressed by one gentleman to another. x ³Do as adversaries do in law: strive mightily but eat and drink as friends.´ x Whatever may be the ill-­feelings between the clients should not influence counsel in their conduct and demeanor toward each other. x They should scrupulously avoid all personalities and personal history or personal peculiarities and idiosyncrasies of the other. 38 LEGAL ETHICS
Based on the book ͞>ĞŐĂůĂŶĚ:ƵĚŝĐŝĂůƚŚŝĐƐ͟ by Atty. Ruben E. Agpalo
A lawyer shall not encroach upon business of another x Rule 8.02. A lawyer shall not, directly or indirectly, encroach upon the professional employment of another lawyer;; however, it is the right of any lawyer, without fear or favor, to give proper advice and assistance to those seeking relief against unfaithful or neglectful counsel. x A lawyer should not steal the other ODZ\HU¶V FOLHQW QRU LQGXFH WKH ODWWHU WR
retain him by promise of better service, good result or reduced fees for his services. Neither should he disparage another, make comparisons or publicize his talent as a means to further his law practice. x It is, however, the right of a lawyer, without fear or favor, to give proper advice to those seeking relief against unfaithful or neglectful counsel. x He may accept employment to handle a matter previously handled by another lawyer, provided that the other lawyer has been given notice of termination of service. Without such notice, he shall only appear once he has obtained conformity or has, at the very least, given sufficient notice of contemplated substitution. x A ODZ\HU¶V DSSHDUDQFH LQ WKH FDVH
without notice to the first lawyer amounts to an improper encroachment upon the professional employment of the original counsel. Negotiation with opposite party x Canon 9 of the Canons of Professional (WKLFV SURYLGHV WKDW D ³ODZ\HU VKDOO QRW
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 ralc2011 x
should deal only with his counsel. It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the ODZ´ A lawyer should not, in the absence of WKH DGYHUVH SDUW\¶V FRXQVHO LQWHUYLHZ
the adverse party and question him as to the facts of the case even if the adverse party was willing to do so. Neither should he sanction the attempt of his client to settle a litigated matter with the adverse party without the consent nor NQRZOHGJH RI WKH ODWWHU¶V
counsel. Association as a colleague in a case x $ FOLHQW¶V SURIIHU RI DVVLVWDQFH RI
additional counsel should not be regarded as evidence of want of confidence but the matter should be left to the determination of the client. x The 2nd lawyer should communicate with the 1st before making an appearance. Should the 1st lawyer object, he should decline association but if the 1st lawyer is relieved, he may come into the case. x When there is conflict of opinions between two lawyers jointly associated in a case, the client should decide. The decision should be accepted unless the nature of the difference makes it impracticable for the lawyer whose judgment has been overruled to cooperate effectively. In this event, it is his/her duty to ask client to relieve him/her. C. PREVENTING UNAUTHORIZED PRACTICE OF LAW 39 LEGAL ETHICS
Based on the book ͞>ĞŐĂůĂŶĚ:ƵĚŝĐŝĂůƚŚŝĐƐ͟ by Atty. Ruben E. Agpalo
Canon 9. A lawyer shall not, directly or indirectly, assist in the unauthorized practice of law. Rule 9.01. A lawyer shall not delegate to any unqualified person the performance of any task which by law may only be performed by a member of the Bar in good standing. Rule 9.02. A lawyer shall not divide or stipulate to divide a fee for legal services with persons not licensed to practice law, except: 1. there is a pre-­existing agreement with a partner or associate that, XSRQ WKHODWWHU¶VGHDWK PRQH\ VKDOO
be paid over a reasonable period of time to his estate or to persons specified in the agreement;; or 2. Where a lawyer undertakes to complete unfinished or legal business of a deceased lawyer;; or 3. Where a lawyer or law firm includes non-­lawyer employees in a retirement plan, even if the plan is based in whole or in part, on profit-­
sharing arrangement. Duty to prevent unauthorized practice of law x Canon 9. A lawyer shall not, directly or indirectly, assist in the unauthorized practice of law. x Public policy requires that the practice of law be limited to those individuals found duly qualified in education and character. x 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. x Purpose is to protect the public, the court, the client, and the bar from incompetence and dishonesty of those ralc2011 x
x
x
unlicensed to practice law and not subject to the disciplinary control of the court. The law makes it a misbehavior on the part of the lawyer to aid a layman in the unauthorized practice of law. A person not admitted to the bar may not hold himself out to the public as engaged in the practice of law, either alone or as associated with a practicing attorney under a firm name. (US v. Ney (1907)) He may not form a partnership with a lay accountant to specialize in income tax work unless he ceases to hold himself out as a lawyer and strictly confine his activities to such as are open to lay accountants. Intervention of intermediary not allowed x Prohibition on intermediary to intervene LQ WKH SHUIRUPDQFH RI ODZ\HU¶V
professional obligations. x /DZ\HU¶V UHODWLRQ WR FOLHQW is personal and responsibility is direct. x Intervention of lay agency between lawyer and the client is forbidden. x It is thus improper for a lawyer to accept employment from an automobile club which, in soliciting membership, offers free services of it legal department to members. x Employment should not include the rendering of legal services to members of such an organization in respect to their individual affairs. x A charitable society rendering aid to the indigent is not, however, an intermediary within the meaning of the rule. A lawyer shall not delegate legal work to non-­lawyers x Rule 9.01. A lawyer shall not delegate to any unqualified person the 40 LEGAL ETHICS
Based on the book ͞>ĞŐĂůĂŶĚ:ƵĚŝĐŝĂůƚŚŝĐƐ͟ by Atty. Ruben E. Agpalo
x
x
performance of any task which by law may only be performed by a member of the Bar in good standing. He should not delegate to a layman any work which involves the application of law, such as: 1. The computation and determination of the period within which to appeal and adverse judgment. 2. Examination of witnesses. 3. Presentation of evidence. Can employ secretaries, investigators, detectives, researches as long as they are not involved in the practice of law HJQRW³ZULWLQJ´SOHDGLQJVDSSHDULQJ
in court, etc.) A lawyer shall not divide fees with non-­lawyers x Rule 9.02. A lawyer shall not divide or stipulate to divide a fee for legal services with persons not licensed to practice law. x Exceptions: 1. Where there is a pre-­existing agreement with a partner or DVVRFLDWH WKDW XSRQ WKH ODWWHU¶V
death, money shall be paid over a reasonable period of time to his estate or to persons specified in the agreement. 2. Where a lawyer undertakes to complete unfinished or legal business of a deceased lawyer. 3. Where a lawyer or law firm includes non-­lawyer employees in a retirement plan, even if the plan is based in whole or in part, on profitsharing arrangement. x The first two exceptions to the rule represent compensation for legal service rendered by the deceased lawyer during his lifetime, which is paid to his estate or heirs. ralc2011 x
x
x
The third exception to the rule does not involve, strictly speaking, a division of legal fees with non-­lawyer employees. The retirement benefits in the form of pension represent additional deferred wages or compensation for past services of the employees Impropriety arises where the effect of the arrangement is to make the estate or heir a member of the partnership along with the surviving partners, or where the estate or heir is to receive a percentage of fees that may be paid from future business of the deceased ODZ\HU¶V FOLHQWV. Such fees no longer represent compensation for past services of the deceased lawyer. An agreement between a union lawyer and a layman president of the union to GLYLGH HTXDOO\ WKH DWWRUQH\¶V IHHV WKDW
may be awarded in a labor case violates the rule. D. SOLICITATION AND ADVERTISING A lawyer shall not solicit legal business x The law prohibits lawyers from soliciting cases for the purpose of gain, either personally, or through paid agents or brokers, and makes the act malpractice. (Rule 138, Sec. 27, Rules or Court) x Sec. 27. Attorneys removed or suspended by Supreme Court on what grounds. -­ A member of the bar may be removed or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a wilfull 41 LEGAL ETHICS
Based on the book ͞>ĞŐĂůĂŶĚ:ƵĚŝĐŝĂůƚŚŝĐƐ͟ by Atty. Ruben E. Agpalo
x
x
disobedience of any lawful order of a superior court, or for corruptly or wilfully appearing as an attorney for a party to a case without authority so to do. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice. Rule 2.03. A lawyer shall not do or permit to be done any act designed to primarily solicit legal business. Among those that fall under the prohibition: 1. A lawyer who recommends employment of himself, his partner, associate, or member of his legal staff to a non-­lawyer who has not sought his advice regarding employment of a lawyer. 2. A lawyer who compensates and gives anything of value to a person or organization to recommend or secure his employment of a client. 3. A lawyer who gives a reward for having made a recommendation resulting in his employment by a client. A lawyer shall not charge lower rates to attract business x An unethical practice of indirect solicitation of legal business. x Rule 2.04. A lawyer shall not charge rates lower than those customarily prescribed unless the circumstances so warrant. x What the rule prohibits is the competition in the matter of charging professional fees for the purpose of attracting clients in favor of a lawyer with lower rates. x The rule does not prohibit the charging of a reduced fee or none at all, to an ralc2011 indigent or a person having difficulty paying the usual fee. A lawyer cannot advertise his talent;; reasons therfor x General rule: A lawyer cannot advertise his talent as a shopkeeper advertises his wares. x Restriction originated from practices in the Inns of Court of England. x Young men studying to become barristers regarded the law as primarily a form of public service in which the gaining of a livelihood was but a secondary consideration. x A lawyer is a member of an honorable profession whose primary purpose is to render public service and help secure justice and in which remuneration is a mere incident. x To allow a lawyer to advertise his talent or skill is to commercialize the practice of law, lower the profession in public confidence and lessen its ability to render efficiently that high character of service to which every member of the bar is called. x If competitive advertising were permitted, the conscientious and ethical lawyers will unavoidably be at the mercy of the braggart. Proper or permissible advertising or solicitation x Not all advertising or solicitation are prohibited. x What makes solicitation improper is: 1. the employment of such methods as are incompatible with the traditional dignity of a lawyer and maintenance of correct professional standards or 2. the use of artificial means to augment the publicity that normally results from what a lawyer does. 42 LEGAL ETHICS
Based on the book ͞>ĞŐĂůĂŶĚ:ƵĚŝĐŝĂůƚŚŝĐƐ͟ by Atty. Ruben E. Agpalo
x
x
x
x
x
Best advertising for a lawyer: A well-­
merited reputation for professional capacity and fidelity to trust. Good and efficient service to a client as well as to the community has a way of publicizing itself and catching public attention. That publicity is a normal by-­product of effective service. A good and reputable lawyer needs no artificial stimulus to generate it and to magnify his success. EXCEPTIONS: 1. Those which are expressly allowed. 2. Those which are necessarily implied from the restrictions. x
x
x
x
x
x
publication in reputable law list with brief biographical and other informative data which may include name, associates, address, phone numbers, branches of law practised, birthday, day admitted to the bar, schools and dates attended, degrees and distinctions, authorships, teaching positions, associations, legal fraternities and societies, references and regularly represented clients must be published for that purpose;; an ordinary, simple professional card;; publication of simple announcement of opening of law firm, change of firm;; telephone directory (but not under designation of special branch of law);; if acting as an associate (specialising in a branch of law), may publish a brief and dignified announcement to lawyers (law list, law journal);; seeking a public office (which can be filled only by a lawyer);; ralc2011 x
x
x
x
full time position as corporate counsel;; if in media, those acts incidental to his practice (i.e., not his own initiative);; write articles for publication giving information upon the law (and not individual rights or advising through column/ TV broadcast, lest such be considered indirect advertising);; if entering into other businesses (which are not inconsistent with ODZ\HU¶V duties) then it is advisable that they be entirely separate and apart such that a layman could distinguish between the two functions. Writing legal articles x $Q DWWRUQH\ ³PD\ ZLWK SURSULHW\ ZULWH
articles for publications in which he gives information upon the law;; but he should not accept employment from such publications to advise inquiries in UHVSHFW WR WKHLU LQGLYLGXDO ULJKWV´ (Canon 40, Code of Professional Ethics) x A lawyer may properly write and sell for publication, articles of general nature on legal subjects in a law journal. x What should be guarded against is the violation of the ethical principles concerning: 1. Improper advertising by a lawyer. 2. Giving of legal advice to one with whom no attorney-­client relationship exists. 3. Aiding of a layman to engage in unauthorized practice of law. Engaging in business or other occupation x It is not uncommon to see lawyers combining law practice with some other lawful occupation. 43 LEGAL ETHICS
Based on the book ͞>ĞŐĂůĂŶĚ:ƵĚŝĐŝĂůƚŚŝĐƐ͟ by Atty. Ruben E. Agpalo
x
x
x
x
x
The fact that he is a lawyer does not preclude him from engaging in business. Impropriety arises when the nature and manner of business is inconsistent with the duties of the lawyer such as when it is used as a cloak for indirect solicitation on his behalf. It is necessary that the lawyer keeps any business in which he is engaged, entirely separate and apart from his practice. He shall make it clear to his client in what capacity he is acting. Businesses closely associated with the practice of law: o Collection agency. o Real estate brokerage. o Insurance agency. o Mortgage service. o Tax service and consultancy. A lawyer shall make clear whether he is acting in another capacity x Rule 15.08. A lawyer who is engaged in another profession or occupation concurrently with the practice of law shall make clear to his client whether he is acting as a lawyer or in another capacity. x The reason is that certain ethical considerations governing the attorney-­
client relationship may be operative in one and not in the other. Lawyer shall not use false statement regarding his qualification or service x CANON 3: A lawyer in making known his legal services shall use only true, honest, fair, dignified and objective information or statement of facts. x Rule 3.01. A lawyer shall not use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-­
laudatory, or unfair statement or claim ralc2011 x
x
regarding his qualifications or legal services. Rule 3.04. A lawyer shall not pay or give anything of value to representatives of the mass media in anticipation of, or in return for, publicity to attract legal business. Similarly, he should not resort to indirect advertisements, such as furnishing or inspiring newspaper comments, or procuring his photograph to be published. CANON 3: A lawyer in making known his legal services shall use only true, honest, fair, dignified and objective information or statement of facts. Rule 3.01. A lawyer shall not use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-­
laudatory, or unfair statement or claim regarding his qualifications or legal services. Rule 3.02. In the choice of a firm name, no false, misleading or assumed name shall be used. The continued use of the name of a deceased partner is permissible provided that the firm indicates in all its communications that said partner is deceased. Rule 3.03. Where a partner accepts public office, he shall withdraw from the firm and his name shall be dropped from the firm name unless the law allows him to practice law concurrently. Rule 3.04. A lawyer shall not pay or give anything of value to representatives of the mass media in anticipation of, or in return for, publicity to attract legal business. 44 LEGAL ETHICS
Based on the book ͞>ĞŐĂůĂŶĚ:ƵĚŝĐŝĂůƚŚŝĐƐ͟ by Atty. Ruben E. Agpalo
x
x
x
x
It is highly unethical for an attorney to advertise his talents or skill as a merchant advertises his wares. The law is a profession and not a business. The lawyer may not sell or obtain employment himself or through others for to do so would be unprofessional. It is destructive of the honor of a great profession. It lowers the standards of that profession. It works against the confidence of the community and it results in needless litigation. (In Re: Tagorda, 53 Phil 37 (1929))7 Tagorda was suspended for soliciting EXVLQHVV%HIRUH7DJRUGD¶VHOHFWLRQWR
the provincial board of Isabela, he used a card offering services as an attorney and a notary public free. The card also stated that he was a candidate for the provincial board. After his election, he wrote a letter to the barrio lieutenant informing him that he would continue his practice as lawyer and asking that the lieutenant transmit this information to the barrio. Examples of improper advertising: o Distribution of a diary which has DQDWWRUQH\¶VFDUGSULQWHGLQWKH
cover. o 3URFXULQJDODZ\HU¶VQDPHWREH
written in an automobile insurance policy with direction to the insured to contact the attorney in case of accident. A lawyer shall not use false or misleading firm name x Law partnership among lawyers for the general practice of law is common. x Such partnership is a mere association of lawyers for such purpose and is a non-­legal entity. ralc2011 x
x
x
x
x
It is not a business partnership under the Civil Code. No person should be admitted or held out as a member who is not a lawyer. Rule 3.02. In the choice of a firm name, no false, misleading or assumed name shall be used. The continued use of the name of a deceased partner is permissible provided that the firm indicates in all its communications that said partner is deceased. The reason for allowing the continued use of the name of a deceased partner is that all the partners, by their joint efforts over a period of time, contributed to the goodwill attached to the firm name, and this goodwill is disturbed by a change in firm name every time a partner dies. Filipino lawyers cannot practice law under the name of a foreign law firm, as the latter cannot practice law in the Philippines. The use of the foreign law firm in the country is unethical: o 7KH UHVSRQGHQW¶V XVH RI WKH ILUP
name constitutes a representation that being associated with Baker and McKenzie they could ³UHQGHUOHJDO
services to the highest quality to multinational business enterprises and others engaged in foreign WUDGH DQG LQYHVWPHQW´ 7KLV is unethical because Baker & McKenzie is not authorized to practice law here. (Dacanay v. Baker and McKenzie, 136 SCRA 349 (1985)) A partner who accepts public office should withdraw from the firm;; exception x Rule 3.03. Where a partner accepts public office, he shall withdraw from the firm and his name shall be dropped 45 LEGAL ETHICS
Based on the book ͞>ĞŐĂůĂŶĚ:ƵĚŝĐŝĂůƚŚŝĐƐ͟ by Atty. Ruben E. Agpalo
x
from the firm name unless the law allows him to practice law concurrently. The purpose of the rule is to prevent the law firm from using his name to attract legal business and to avoid suspicion of undue influence. A lawyer shall not seek media publicity x Rule 3.04. A lawyer shall not pay or give anything of value to representatives of the mass media in anticipation of, or in return for, publicity to attract legal business. x Media publicity, as a normal by-­product of efficient legal service, is not improper. x What is improper is for a lawyer to resort to propaganda to secure media publicity for the purpose of attracting legal business. x The purpose of the rule is to prevent some lawyers from gaining unfair advantage over others through the use of gimmickry. o Procuring his photograph to be published in connection with cases he is handling. o Making a courtroom scene to attract the attention of newspapermen. o Arranging for the purpose an interview with him by media people. E. THE INTEGRATED BAR OF THE PHILIPPINES Integration of the bar x The official unification of the entire lawyer population. x Requires membership and financial support of every attorney as a condition sine qua non to the practice of law. x Bar integration signifies the setting up by the government authority of a ralc2011 x
national organization of the legal profession based on the recognition of the lawyer as an officer of the court. Integration fosters cohesion among lawyers and ensures the promotion of the objectives of the legal profession pursuant to the principle of maximum bar autonomy with minimum supervision by the Supreme Court. Power to integrate the bar x The Constitution vests upon the Supreme Court the power to integrate the Philippine bar. x Such power is an inherent part of the &RXUW¶VFRQVWLWXWLRQDOauthority over the bar. x ³6XSUHPH &RXUW PD\ DGRSW UXOHV RI
court to effect the integration of the 3KLOLSSLQH %DU´ 5$ $1 ACT PROVIDING FOR THE INTEGRATION OF THE PHILIPPINE BAR) x However, RA 6397 neither confers a QHZ SRZHU QRU UHVWULFWV WKH &RXUW¶V
inherent power but is a mere legislative declaration that the integration will promote public interest or will raise the standard of the legal profession. x January 16, 1973, Supreme Court ordained the integration of the Philippine Bar. x Presidential Decree 181 (CONSTITUTING THE INTEGRATED BAR OF THE PHILIPPINES INTO A BODY CORPORATE AND PROVIDING GOVERNMENT ASSISTANCE THERETO FOR THE ACCOMPLISHMENT OF ITS PURPOSES) constituted the Integrated Bar into a corporate body. Constitutionality of integration x Constitutionality hinges on the effects RI EDU LQWHJUDWLRQ RQ WKH ODZ\HU¶V
constitutional rights of freedom of association and freedom of speech and 46 LEGAL ETHICS
Based on the book ͞>ĞŐĂůĂŶĚ:ƵĚŝĐŝĂůƚŚŝĐƐ͟ by Atty. Ruben E. Agpalo
x
on the nature of the dues exacted from him. In upholding the constitutionality of integration, the Supreme Court quoted approvingly the report of the Commission on Bar Integration on the matter as follows: o Freedom of Association ± ³7R
compel a lawyer to be a member of an integrated bar is not violative of his constitutional freedom to associate (or the FRUROODU\ULJKWQRWWRDVVRFLDWH ´ ƒ ³,QWHJUDWLRQGRHVQRWPDNH
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 exams. All that integration does is to provide an official national organization for the well-­
defined but unorganized and incohesive group of which every lawyer is DOUHDG\DPHPEHU´ ƒ ³%DU LQWHJUDWLRQ GRHV QRW
compel the lawyer to associate with anyone. He is free to attend or not DWWHQGWKHPHHWLQJV´ ƒ ³7KH FRPSXOVLRQ WR ZKLFK
he is subjected is the SD\PHQWRIDQQXDOGXHV´ ƒ The issue, therefore, is a question of compelled financial support of group activities, not involuntary membership in any other aspect. ƒ Assuming that bar integration does compel a lawyer to be a member, such compulsion is justified ralc2011 as an exercise of the police power of the State. ƒ The inherent power of the Supreme Court to regulate the bar includes the authority to integrate the bar. o Regulatory fee ± For the Court to prescribe dues does not mean that the Court levies a tax. ƒ A membership fee is an exaction for regulation, while the purpose of a tax is revenue. ƒ An integrated bar program would not be possible to push through without means to defray the concomitant expenses. ƒ The public interest promoted by integration far outweighs the inconsequential inconvenience to a member that might result from his required payment of annual dues. o Freedom of Speech ± ³$ODZ\HULV
free, as he has always been, to voice his views on any subject in any manner he wishes, even though such views be opposed to positions taken by the unified EDU´ ƒ ³)RU WKH ,QWHJUDWHG %DU WR
use D PHPEHU¶V GXHV WR
promote measures to which said member is opposed, would not nullify or adversely affect his freedom of speech.´ ƒ ³6LQFH D 6WDWH PD\
constitutionally condition the right to practice law upon membership, it is difficult to understand why 47 LEGAL ETHICS
Based on the book ͞>ĞŐĂůĂŶĚ:ƵĚŝĐŝĂůƚŚŝĐƐ͟ by Atty. Ruben E. Agpalo
it should become unconstitutional for the bar to use WKH PHPEHU¶V GXHV
to fulfill the very purposes for which it was HVWDEOLVKHG´ o Fair to all lawyers ± ³%DU
integration is not unfair to lawyers already practicing because although the requirement to pay dues is a new regulation. It will give the member a new system which they hitherto have not had, and through which, by proper work, they will receive benefits they have not hereto enjoyed. Because it will apply equally to all lawyers. Because it is a new regulation in exchange for new benefits, it is not retroactive, XQHTXDORUXQIDLU´ Purposes and objectives of the Integrated Bar x By-­laws Integrated Bar Philippines x Sec. 2. Objectives and purposes. -­ The following are the general objectives of the Integrated bar: o to elevate the standards of the legal profession, o to improve the administration of justice;; and o to enable the Bar to discharge its public responsibilities more effectively. o The purposes of the Integrated Bar include, without being limited to, those specified in the per curiam Resolution of the Supreme Court dated January 9, 1973 ordaining the integration of the Philippine Bar, to wit: 1. Assist in the administration of justice;; ralc2011 2. Foster and maintain, on the part of its members, high ideals of integrity, learning, professional competence, public service and conduct;; 3. Safeguard the professional interests of its members;; 4. Cultivate among its members a spirit of cordiality and brotherhood;; 5. Provide a forum for the discussion of law, jurisprudence, law reform, pleading, practice and procedure, and the relations of the Bar to the Bench and to the public, and publish information relating thereto;; 6. Encourage and foster legal education;; and 7. Promote a continuing program of legal research in substantive and adjective law, and make reports and recommendations thereon. x
The purposes of an integrated Bar, in general, are: 1. Assist in the administration of justice;; 2. Foster and maintain on the part of its members high ideals of integrity, learning, professional competence, public service and conduct;; 3. Safeguard the professional interests of its members;; 4. Cultivate among its members a spirit of cordiality and brotherhood;; 5. Provide a forum for the discussion of law, jurisprudence, law reform, pleading, practice and procedure, and the relations of the Bar to the 48 LEGAL ETHICS
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Bench and to the public, and publish information relating thereto;; 6. Encourage and foster legal education;; 7. Promote a continuing program of legal research in substantive and adjective law, and make reports and recommendations thereon;; and 8. Enable the Bar to discharge its public responsibility effectively. x
Integration of the Bar will, among other things, make it possible for the legal profession to: 1. Render more effective assistance in maintaining the Rule of Law;; 2. Protect lawyers and litigants against the abuse of tyrannical judges and prosecuting officers;; 3. Discharge, fully and properly, its responsibility in the disciplining and/or removal of incompetent and unworthy judges and prosecuting officers;; 4. Shield the judiciary, which traditionally cannot defend itself except within its own forum, from the assaults that politics and self-­
interest may level at it, and assist it to maintain its integrity, impartiality and independence;; 5. Have an effective voice in the selection of judges and prosecuting officers;; 6. Prevent the unauthorized practice of law, and break up any monopoly of local practice maintained through influence or position;; 7. Establish welfare funds for families of disabled and deceased lawyers;; 8. Provide placement services, and establish legal aid offices and set up lawyer reference services throughout ralc2011 the country so that the poor may not lack competent legal service;; 9. Distribute educational and informational materials that are difficult to obtain in many of our provinces;; 10.
Devise and maintain a program of continuing legal education for practising attorneys in order to elevate the standards of the profession throughout the country;; 11.
Enforce rigid ethical standards, and promulgate minimum fees schedules;; 12.
Create law centers and establish law libraries for legal research;; 13.
Conduct campaigns to educate the people on their legal rights and obligations, on the importance of preventive legal advice, and on the functions and duties of the Filipino lawyer;; and 14.
Generate and maintain pervasive and meaningful country-­
wide involvement of the lawyer population in the solution of the multifarious problems that afflict the nation. (In re Integration of the Bar of the Philippines) Non-­political bar x By-­laws Integrated Bar Philippines x Sec. 4. Non-­political bar. -­ The Integrated Bar is strictly non-­political, and 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 49 LEGAL ETHICS
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employee of the Integrated Bar, or an officer or employee of any Chapter therof 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. x
x
The election of IBP officers is required to be conducted on a non-­political basis. Partisan politics may thus invalidate the elections. Partisan political activities of candidates for IBP positions, such as setting up campaign headquarters, island-­hopping to solicit votes of chapter presidents, made a political circus of the proceedings and tainted the whole election process. The candidates violated the IBP by-­laws and of the ethics of the legal profession. Membership, resignation, retirement, and reinstatement x By-­laws Integrated Bar Philippines o Sec. 18. Membership. -­ The following persons are, automatically and without exception members of the Integrated Bar of the Philippines: a. All lawyers whose names were in the Roll of Attorneys of the Supreme Court as of January 16, 1973;; and b. All lawyers whose names were included or are entered therein after the said date. o Sec. 19. Registration. -­ Unless he has already previously registered, every member heretofore admitted to the ralc2011 practice of law shall, not later than December 31, 1974, register in the Integrated Bar as hereunder required, at the national office or at the office of his Chapter. Every person admitted to the practice of law after these by-­
laws become effective shall register in like manner not later than sixty days after such admission. Registration shall be accomplished by signing and filing in duplicate the prescribed registration form containing such information as may be required by the Board of Governors, including the following: a. Full name, sex and civil status;; b. Month, date, year and place of birth;; c. Office address(es);; d. Residence address(es);; e. Occupation(s) or employment;; f. Name of law school and year of graduation;; g. Year of admission to the Bar;; and h. Field(s) of specialization in law, if any. It shall be the duty of the Secretary of every Chapter to promptly forward a copy of each accomplished registration form to the national office. o Sec. 20. Members in good standing. -­ Every member who has paid all membership dues and all authorized special 50 LEGAL ETHICS
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assessments, plus surcharges owing thereon, and who is not under suspension from the practice of law or from membership privileges, is a member in good standing. o Sec. 21. Voluntary termination of membership;; reinstatement. -­ A member may terminate his membership by filing a verified 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 from the Roll of Attorneys. Reinstatement may be made in accordance with rules and regulations prescribed by the Board of Governors and approved by the Court. o Sec. 22. Retirement;; reinstatement. -­ Any member in good standing who shall have attained the age of seventy-­five years, or who shall have been forty years as lawyer shall, by reason of physical disability or judicially adjudged mental incapacity, be unable to engage in the practice of Law, may be retired from the Integrated Bar upon verified petition to the Board of Governors. Retired members shall not practice law or be required to pay dues. A retired member may be reinstated to active membership upon written application to and approval by the Board. ralc2011 Membership dues and effect of nonpayment thereof x Sec. 23. Membership dues. -­ On or before the 31st day of December, every member of the Integrated Bar shall pay annual dues for the ensuing fiscal year in the amount of FIVE HUNDRED PESOS at the National Office or at the office of his Chapter, to take effect on January 1, 1995. x Subject to approval by the Supreme Court, the Board of Governors may increase the annual membership dues, or modify the apportionment thereof. All lawyers shall indicate in all pleadings, motions and papers signed and filed by them in any court in the Philippines -­ and in the case of government lawyers, in all official documents issued by them -­ the number and date of their official receipt indicating payment of their annual membership dues to the Integrated Bar of the Philippines for the current year, or in the case of life members, their life membership roll number. (As amended pursuant to Bar Matter No. 668). Sec. 24. Effect of non-­payment of dues. -­ Except for the fiscal year 1974-­ 1975, any member who has not paid his membership dues for any given fiscal year on or before the last day (June 30) of the immediately preceding fiscal year shall be considered as dues-­
delinquent members. For the fiscal year 1974-­1975 any member who has not paid the annual dues on or before November 30, 1974 shall be considered a dues-­delinquent. If the 51 LEGAL ETHICS
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delinquency continues until the following December 31, the Board of Governors shall by Resolution forthwith suspend all his membership privileges other than the practice of law. Sec. 25. Remission or lifting of sanctions. -­ The Board of Governors may, for justifiable reasons, remit or lift sanctions already imposed and authorize the retroactive reinstatement of the member concerned. However, sanctions imposed or approved by the Supreme Court may be remitted or lifted only by the Court. Organizational Setup x Sec. 47. National Officers. -­ The Integrated Bar of the Philippines shall have a President and Executive Vice President to be chosen by the Board of Governors from among nine (9) regional governors, as much as practicable, on a rotation basis. The governors shall be ex officio Vice President for their respective regions. There shall also be a Secretary and Treasurer of the Board of Governors to be appointed by the President with the consent of the Board. (As amended pursuant to Bar Matter 491). x The deliberative body is the House of Delegates. x Sec. 30. Composition of the House. -­ The Integrated Bar shall have a House of Delegates composed of not more than one hundred and twenty members apportioned among all the Chapters. On or before December 31, 1974, and every two years thereafter, the Board of Governors shall make a reappointment of Delegates among all the Chapters as nearly as may be according to the number of their ralc2011 x
x
respective members, but each Chapter shall have at least one Delegate. At the local level are the Chapter officials. Sec. 26. Chapters. -­ A Chapter of the Integrated Bar shall be organized in every province existing on the date of the effectivity of the Integration Rule. Except as hereinbelow provided, every city shall be considered part of the province within which it was geographically situated prior to its creation as a city. National officers x Sec. 50. Duties of officers. -­ (a) President: The President shall be the chief executive of the Integrated Bar, and shall preside at all meetings of the Board of Governors. x (b) Executive Vice President: The Executive Vice President shall exercise the powers and perform the functions and duties of the President during the absence or inability of the latter to act, and shall perform such other functions and duties as are assigned to him by the President and the Board of Governors. x (c) Governors: In addition to his duties as a member of the Board of Governors, each elective Governor shall act as representative of his Region in the Board. He shall promote, coordinate and correlate activities of the Chapters within his Region. x (d) Secretary: The Secretary shall attend all meetings of the Board of Governors, and keep a record of all the proceedings thereof;; prepare and maintain a register of all members of the Integrated Bar;; notify national officers as well as members of national committees of their election or appointments;; 52 LEGAL ETHICS
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x
x
cause to be prepared the necessary official ballots for the election of Governors;; and perform such other duties as are assigned to him by these By-­Laws, by the President and by the Board of Governors. (e) Treasurer: The Treasurer shall collect, receive, recorder and disburse ad funds of the Integrated Bar;; Sec. 49. Terms of office. -­ The President and the Executive Vice President shall hold office for a term of two years from July 1 following their election until June 30 of their second year in office and until their successors shall have been duly chosen and qualified. Board of Governors x Sec. 39. Nomination and election of the Governors. -­ At least one (1) month before the national convention the delegates from each region shall elect the governor for their region, the choice of which shall as much as possible be rotated among the chapters in the region. x The Integrated bar is governed by a Board of Governors consisting 9 Governors from the 9 regions. x The President and the Executive Vice President, if chosen by the Governors from outside themselves, shall ipso facto become members of the board. x Sec. 38. Term of office. -­ The Governors shall hold office for a term of two years from July 1 immediately following their election to June 30 of their second year in office and until their successors shall have been duly chosen and qualified. x Sec. 41. Functions of the Board. -­ The Board of Governors shall have general charge of the affairs and ralc2011 a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
l.
x
activities of the Integrated Bar. It shall have authority, inter alia, to: Fix the date, time and place of every convention of the House of Delegates;; Make appropriations and authorize disbursements from the funds of the Integrated Bar;; Engage the services of employees, define their duties and fix their compensation;; Receive, consider and act on reports and recommendations submitted by the House of Delegates or its committees;; Provide for the publication of the Journal of the Integrated Bar;; Administer the Welfare Fund;; Fill vacancies, however arising in the positions of officers of the Integrated Bar;; Subject to the approval of the Supreme Court, promulgate Canons of Professional Responsibility for all members of the Integrated Bar;; Promulgate rules and regulations for the establishment and maintenance of lawyer referral services throughout the Philippines;; Subject to the approval of the Supreme Court, impose special assessments for specific national purposes, and impose, or recommend sanctions for non-­
payment or delinquency in the payment thereof;; Prescribe such rules and regulations as may be necessary and proper to carry out the objectives and purposes of the Integrated Bar;; and Perform such other functions as may be necessary or expedient in the interest of the Integrated Bar. In the discharge of its duties, the Board of Governors is assisted by national committees. o Committee on Chapter Affairs. 53 LEGAL ETHICS
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o Committee on Legal Aid. o Committee on Administration of Justice. o Committee on Legal Education and Bar Admissions. o Committee on Professional Responsibility, Discipline and Disbarment. o Committee on Research Services. o Committee on Legislation. o Committee on Public Services. o Committee on Inter-­Professional and Business Relations. o Committee on Books and Publications. o Committee on Unauthorized Practice of Law. o Committee on Law Reporting. o Budget committee. House of Delegates x The deliberative body of the IBP is the House of delegates. x Sec. 30. Composition of the House. -­ The Integrated Bar shall have a House of Delegates composed of not more than one hundred and twenty members apportioned among all the Chapters. On or before December 31, 1974, and every two years thereafter, the Board of Governors shall make a reappointment of Delegates 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. x Sec. 31. Membership. -­ The membership of the House of Delegates shall consist of all the Chapter Presidents and in the case of Chapters entitled to more than one Delegate each, the Vice Presidents of the Chapters and such additional Delegates as the Chapters are entitled to. Unless the Vice President is already a Delegate, he shall be an alternate ralc2011 x
x
Delegate. Additional Delegates and alternates shall in proper cases be elected by the Board of Officers of the Chapter. Members of the Board of Governors who are not Delegates shall be members ex oficio of the House, without the right to vote. Sec. 34. Special convention. -­ Special conventions of the House may be called by the Board of Governors motu proprio, or upon written petition therefor filed with the Secretary of the Integrated Bar signed by not less than thirty Delegates. Sec. 33. (b) The President and Executive Vice President of the IBP shall be the Chairman and Vice-­Chairman, respectively, of the House of Delegates. The Secretary, Treasurer, and Sergeant-­at-­Arms shall be appointed by the President with the consent of the House of Delegates. Chapter Government x The fundamental objective of the Chapter is to administer the affairs of the IBP within its territorial jurisdiction under the general direction and supervision of the Board of Governors. x Sec. 2. Objectives and purposes. -­ The following are the general objectives of the Integrated bar: o to elevate the standards of the legal profession, o to improve the administration of justice;; and o to enable the Bar to discharge its public responsibilities more effectively. x Each chapter has its own government. x The chapter government is vested in a Board of Officers composed of a President, a Vice-­President, a Secretary, a Treasurer, and five Directors who shall be elected at the 54 LEGAL ETHICS
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biennial meeting and shall hold office for a term of 2 years. ralc2011 55