LEGAL & JUDICIAL
ETHICS
2017 GOLDEN NOTES
FACULTY OF CIVIL LAW
UNIVERSITY OF SANTO TOMAS
MANILA
The UST GOLDEN NOTES is the annual student-edited bar review
material of the University of Santo Tomas, Faculty of Civil Law.
Communications regarding the Notes should be addressed to the
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Address:
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Academics Committee
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University of Santo Tomas
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2017 Edition.
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No. ____________
Printed in the Philippines June 2017.
ACADEMIC YEAR 2017-2018
CIVIL LAW STUDENT COUNCIL
JONATHAN SANTOS
MA. JASMIN A. LABACO
NIÑO JOSEPH B. PIO RODA
KARIZZA KAMILLE M. CRUZ
PRESIDENT
INTERNAL VICE PRESIDENT
EXTERNAL VICE PRESIDENT
SECRETARY
UST BAR OPERATIONS
NIKKI MEI Q. KO
RHOSE AZCELLE L. MAGAOAY
JANN PATRICIA M. TORRES
JERREMIAH KRIZIAH B. BATALLER
NELLE FRANCESE DELA PAZ
ALEXANDER MARA J. VINLUAN
DENZ CHRISTIAN A. RESENTES
CLARICE ANGELINE V. QUESTIN
KAIRA MARIE B. CARLOS
CLARA LOUISSE J. YUMANG
EMMANUEL A. LANDAYAN
JOHN AL-NAIR SIMONE L. JUMAMIL
PATRICIA MAE D. GUILLERMO
NIÑO JOSEPH B. PIO RODA
JOCHRIS DANIEL Z. GUADES
BERYLL ANDRÉ Y. BARCENAS
MON FRANCIS A. TOLENTINO
MICHAEL EARVIN R. SABADO
CHAIRPERSON
VICE-CHAIRPERSON
SECRETARY
ASST. SECRETARY
ASST. SECRETARY
HEAD, PUBLIC RELATIONS OFFICER
ASST. HEAD PUBLIC RELATIONS OFFICER
HEAD, FINANCE COMMITTEE
ASST. HEAD, FINANCE COMMITTEE
HEAD, HOTEL ACCOMMODATIONS COMMITTEE
ASST. HEAD, HOTEL ACCOMMODATIONS
COMMITTEE
ASST. HEAD, HOTEL ACCOMMODATIONS
COMMITTEE
ASST. HEAD, HOTEL ACCOMMODATIONS
COMMITTEE
LOGISTICS COMMITTEE
LOGISTICS COMMITTEE
LOGISTICS COMMITTEE
LOGISTICS COMMITTEE
LOGISTICS COMMITTEE
ATTY. AL CONRAD B. ESPALDON
ADVISER
ACADEMICS COMMITTEE
CAMILLE ANGELICA B. GONZALES
EMNIE VALERIE B. DURAN
IRVIN L. PALANCA
MARIELLA A. MARASIGAN
LARA NICOLE T. GONZALES
SECRETARY GENERAL
DEPUTY SECRETARY GENERAL
EXECUTIVE COMMITTEE
EXECUTIVE COMMITTEE
EXECUTIVE COMMITTEE
CAMILLE ANGELICA B. GONZALES
CIARI T. MENDOZA
LAYOUT ARTIST
COVER DESIGN ARTIST
LEGAL & JUDICIAL ETHICS COMMITTEE
STEFFI NICOLE P. FLORES
LEGAL & JUDICIAL ETHICS COMMITTEE HEAD
MEMBERS
FLORRENCE FAYE S. FRANCO
NEIL L. NABUAB
ATTY. AL CONRAD B. ESPALDON
ADVISER
FACULTY OF CIVIL LAW
UNIVERSITY OF SANTO TOMAS
ACADEMIC OFFICIALS
ATTY. NILO T. DIVINA
REV. FR. ISIDRO C. ABAÑO, O.P.
DEAN
REGENT
ATTY. ARTHUR B. CAPILI
FACULTY SECRETARY
ATTY. ELGIN MICHAEL C. PEREZ
LEGAL COUNSEL
UST CHIEF JUSTICE ROBERTO CONCEPCION LEGAL AID CLINIC
JUDGE PHILIP A. AGUINALDO
SWDB COORDINATOR
LENY G. GADANIA, R.G.C.
GUIDANCE COUNSELOR
OUR DEEPEST APPRECIATION TO OUR
MENTORS AND INSPIRATION
JUDGE OSCAR PIMENTEL
JUDGE PHILIP A. AGUINALDO
JUSTICE AMY L. JAVIER
JUSTICE MYRA G. FERNANDEZ
ATTY. ELGIN MICHAEL C. PEREZ
ATTY. ARNOLD E. CACHO
JUDGE NOLI C. DIAZ
JUDGE GEORGINA D. HIDALGO
DEAN JOSE I. DELA RAMA, JR.
For being our guideposts in understanding the intricate sphere of Legal and Judicial
Ethics.
-Academics Committee 2017
Foreword for 2017 Golden Notes
Dean Nilo T. Divina
It is with pleasure that I introduce to you the 2017 Golden Notes - a product of the concerted
and dedicated efforts of our students, faculty and staff to ensure that our Bar candidates are
armed with the most comprehensive, updated and easy to digest reviewer as their companion
in the review process. This will provide key concepts, updated jurisprudence, relevant
comparisons and notable changes in the law, if any, right at your fingertips.
With the aid of selected lawyers, Golden Notes remains at the forefront of providing legal
insights raised from past bar questions and current events that could be part of the discussion
in the bar examinations.
Notably, the editors of this book signified their intention to serve in assisting our aspiring
lawyers to develop the kind of mentality needed in justifying answers supported by facts and
relevant provisions of laws during the Bar examinations, through the publication’s logical
sequence and meticulous presentation of even the most difficult legal concepts.
With the aim of increasing the candidate’s confidence and ensuring the efficient use of his/her
time in pouring through all eight (8) Bar subjects, we have enlisted the expertise of some of
the most senior practitioners in the different fields of law, including noted jurists and
esteemed bar reviewers. The diversity of the publication's roster of consultants and editors
ensures that it remains relevant and essential. Indeed, with contributions from different
people mentioned above, this issue of the Golden Notes marks an important new step in the
direction of the UST Faculty of Civil Law.
Let these notes, however, not detract you from the true goal. There is no substitute for hard
work, and there is no shortcut to excellence. Persevere. Strive. Keep the faith. You will make
it.
“Courage and perseverance have a magical talisman, before which difficulties disappear and
obstacles vanish into air.”
- John Quincy Adams
Table of Contents
*based on 2017 Bar Syllabus
Practice of Law (Rule 138) .......................................................................................................................................................................... 1
A. Concept ................................................................................................................................................................................................... 1
1. Definition of the practice of law. ....................................................................................................................................... 1
2. Practice of law is a privilege, not a right........................................................................................................................ 4
3. Law as a profession, not a business or trade............................................................................................................... 4
B. Qualifications for Admission to the Bar .................................................................................................................................. 4
C. Appearance of Non-Lawyers ........................................................................................................................................................ 7
1. Law student practice rule (Rule 138-A) ........................................................................................................................ 7
2. Non-lawyers in courts. ........................................................................................................................................................... 8
3. Non-lawyers in administrative tribunals ...................................................................................................................... 9
4. Proceedings where lawyers are prohibited from appearing as counsels. .................................................... 9
D. Sanctions for Practice or appearance without authority ............................................................................................ 10
1. Lawyers without authority .................................................................................................................................................. 9
2. Persons who are not lawyers........................................................................................................................................... 11
E. Public officials and the practice of law ................................................................................................................................. 13
1. Prohibition or disqualification of former government attorneys. ................................................................. 13
2. Public officials who cannot practice law or can practice law with restrictions. ..................................... 13
F. Lawyers who are authorized to represent government .............................................................................................. 15
G. Lawyer's Oath ................................................................................................................................................................................... 16
Code of Professional Responsibility .................................................................................................................................................. 17
A. To society (Canons 1-6)............................................................................................................................................................... 17
1. Respect for law and legal processes ............................................................................................................................. 18
2. Efficient and convenient legal services ....................................................................................................................... 26
3. True, honest, fair, dignified and objective information on legal services .................................................. 29
4. Participation in the improvement and reforms in the legal system ............................................................. 32
5. Participation in legal education program .................................................................................................................. 32
B. To the legal profession ................................................................................................................................................................. 35
1. Integrated Bar of the Philippines (Rule 139-A) ...................................................................................................... 35
i.
Membership and dues .............................................................................................................................................. 38
2. Upholding the dignity and integrity of the profession ........................................................................................ 39
3. Courtesy, fairness, and candor towards professional colleagues .................................................................. 41
4. No assistance in unauthorized practice of law. ....................................................................................................... 44
C. To the courts ..................................................................................................................................................................................... 47
1. Candor, fairness and good faith towards the courts ............................................................................................. 47
2. Respect for courts and judicial officers....................................................................................................................... 49
3. Assistance in the speedy and efficient administration of justice.................................................................... 54
4. Reliance on merits of his cause and avoidance of any impropriety which tends to influence or gives
the appearance of influence upon the courts ........................................................................................................... 58
D. To the clients..................................................................................................................................................................................... 59
1. Availability of service without discrimination ........................................................................................................ 61
i.
Services regardless of a person's status .......................................................................................................... 62
ii.
Services as counsel de officio ............................................................................................................................... 63
iii.
Valid grounds for refusal to serve ...................................................................................................................... 63
2. Candor, fairness and loyalty to clients ........................................................................................................................ 65
i.
Confidentiality rule.................................................................................................................................................... 66
ii.
Privileged communications ................................................................................................................................... 66
iii.
Conflict of interest...................................................................................................................................................... 68
iv.
Candid and honest advise to clients .................................................................................................................. 72
v.
Compliance with laws .............................................................................................................................................. 73
vi.
Concurrent practice of another profession.................................................................................................... 74
3. Client's moneys and properties ...................................................................................................................................... 74
i.
Fiduciary relationship .............................................................................................................................................. 75
ii.
Co-mingling of funds................................................................................................................................................. 77
iii.
Delivery of funds......................................................................................................................................................... 77
4.
5.
6.
7.
8.
9.
iv.
Borrowing or lending ............................................................................................................................................... 78
Fidelity to client's cause ..................................................................................................................................................... 79
Competence and diligence ................................................................................................................................................ 80
i.
Adequate preparation .............................................................................................................................................. 81
ii.
Negligence...................................................................................................................................................................... 82
iii.
Collaborating counsel ............................................................................................................................................... 81
iv.
Duty to apprise client ............................................................................................................................................... 84
Representation with zeal within legal bounds ........................................................................................................ 85
i.
Use of fair and honest means ................................................................................................................................ 86
ii.
Client's fraud................................................................................................................................................................. 86
iii.
Procedure in handling cases ................................................................................................................................. 87
Attorney's Fees ....................................................................................................................................................................... 88
i.
Acceptance fees ........................................................................................................................................................... 92
ii.
Contingency fee arrangements ............................................................................................................................ 93
iii.
Attorney's Liens .......................................................................................................................................................... 95
iv.
Fees and controversies with clients (Quantum Meruit) .......................................................................... 97
v.
Concepts of attorney's fees .................................................................................................................................... 99
Preservation of client's confidences .......................................................................................................................... 100
i.
Prohibited disclosures and use......................................................................................................................... 100
ii.
Disclosure, when allowed.................................................................................................................................... 102
Withdrawal of Services .................................................................................................................................................... 103
Suspension, disbarment and discipline of lawyers (Rule 139-B, Rules of Court) .............................................. 105
A. Nature and characteristics of disciplinary actions against lawyers.................................................................... 105
1. Sui Generis ............................................................................................................................................................................. 107
2. Prescription ........................................................................................................................................................................... 108
B. Grounds ............................................................................................................................................................................................ 108
C. Proceedings .................................................................................................................................................................................... 110
D. Discipline of Filipino Lawyers practicing abroad ........................................................................................................ 114
Readmission to the Bar ........................................................................................................................................................................... 118
A. Lawyers who have been suspended ................................................................................................................................... 118
B. Lawyers who have been disbarred ..................................................................................................................................... 119
C. Lawyers who have been repatriated .................................................................................................................................. 120
Mandatory Continuing Legal Education ....................................................................................................................................... 122
A. Purpose............................................................................................................................................................................................. 122
B. Requirements ................................................................................................................................................................................ 122
C. Compliance ..................................................................................................................................................................................... 122
D. Exemptions ..................................................................................................................................................................................... 123
E. Sanctions .......................................................................................................................................................................................... 124
F. Bar Matter 2012, Rule on Mandatory Legal Aid Service ........................................................................................... 124
Notarial Practice (A.M. No. 02-8-13-SC)........................................................................................................................................ 126
A. Qualifications on notary public............................................................................................................................................. 126
B. Term of office of notary public .............................................................................................................................................. 129
C. Powers and Limitations............................................................................................................................................................ 129
D. Notarial Register .......................................................................................................................................................................... 134
E. Jurisdiction of notary public and place of notarization............................................................................................. 135
F. Revocation of commission ...................................................................................................................................................... 136
G. Competent evidence of identity ............................................................................................................................................ 136
H. Sanctions .......................................................................................................................................................................................... 137
Canons of Professional Ethics ............................................................................................................................................................. 137
Judicial Ethics ................................................................................................................................................................................................ 138
A. Administrative Jurisdiction over Judges and Justices (All levels) ........................................................................ 176
B. Disqualification of Justices and Judges (Rule 137) ...................................................................................................... 188
1. Compulsory ........................................................................................................................................................................... 188
2. Voluntary ................................................................................................................................................................................ 188
C. Initiation of complaint against Judges and Justices .................................................................................................... 179
D. Discipline of members of the Judiciary ............................................................................................................................. 176
1. Supreme Court ..................................................................................................................................................................... 176
2. Lower court judges and justices of the Court of Appeals, Sandiganbayan and Court of Tax Appeals
(Rule 140) .............................................................................................................................................................................. 179
3. Grounds ................................................................................................................................................................................... 179
4. Sanctions imposed by the Supreme Court on erring members of the Judiciary .................................. 186
Practical Exercises ..................................................................................................................................................................................... 197
A. Quitclaims in Labor Cases ....................................................................................................................................................... 197
B. Simple Contracts - Lease, Sale of Realty or Personal property.............................................................................. 198
C. Promissory Note .......................................................................................................................................................................... 202
D. Verification and Certificate of Non-forum Shopping .................................................................................................. 202
E. Notice of Hearing and Explanation (All levels) ............................................................................................................. 202
F. Affidavits - Loss, Change of Name ........................................................................................................................................ 203
DISCLAIMER
THE RISK OF USE OF THIS BAR
REVIEW MATERIAL SHALL BE
BORNE BY THE USER
PRACTICE OF LAW
All prisoners whether under preventive detention
or serving final sentence cannot 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, January 24, 2000).
LEGAL ETHICS
Legal Ethics
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 Responsibility,
Canons of Professional Ethics, jurisprudence, moral,
law and special laws (Justice George Malcolm).
Essential criteria in determining whether a
person is engaged in the practice of law [CAHA]
1.
Compensation – implies that one must have
presented himself to be in 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. Ten (10) years of
practice of law includes work as a litigator, inhouse counsel, giving of legal advice, teaching of
law, and even foreign assignment which
requires the knowledge and application of the
laws.
---
Sources of ethical standards for the Judiciary
1. Primary
a. Bar
i. Code of Professional Responsibility
ii. Constitution
iii. Rules of Court
b. Bench
i. New Code of Judicial Conduct for the
Philippine Judiciary
ii. Rules of Court
c. Other personnel – Code of Conduct for
Court Personnel
2. Secondary
a. Decisions/Resolutions of the Supreme
Court
b. Supreme Court Circulars
c. Order/Resolution of other courts
d. IBP Issuances
e. Treatises and Publications
PRACTICE OF LAW
Concept
Q: Ronnie, a paralegal in a law firm, helped Beth
in a property dispute in which she was involved
by giving her legal advice and preparing a
complaint that she eventually filed in court
under her own signature. When the lawyer for
the defendant learned of it, he told Ronnie to
desist from practicing law. But he disputed this,
claiming that he had not practiced law since he
did not receive compensation from Beth for his
help. Is Ronnie correct? (2011 Bar)
Practice of law means any activity, in or out of court,
which requires the application of law, legal
procedure, knowledge, training, and experience
(Cayetano v. Monsod, G.R. No. 100113, September 3,
1991).
The following acts constitute practice of law:
a.
b.
c.
d.
Giving of advice or rendering any kind of
service that involves legal knowledge;
Appearance in court and conduct of cases in
court;
Preparation of pleadings and other papers
incident to actions as well as drawing of
deeds and instruments of conveyance; and
Notarial acts.
A: NO. The receipt of compensation is not the sole
determinant of legal practice. Giving of advice or
rendering any kind of service that involves legal
knowledge is also considered as practice of law. As
such, Ronnie should desist from giving legal advice
since the same is considered a practice of law for
which he is not qualified.
NOTE: A lawyer who is a detention prisoner is not
allowed to practice his profession as a necessary
consequence of his status as a detention prisoner.
---
1
LEGAL ETHICS
Q: Medado passed the bar exams in 1979 and
took the Attorney’s Oath at PICC. He was
scheduled to sign in the Roll of Attorneys but he
failed to do so on his scheduled date, allegedly
because he had misplaced the Notice to Sign the
Roll of Attorneys given by the Office of the Bar
Confidant when he went home to his province
for a vacation. Several years later, Medado found
the Notice and then realized that what he signed
at the PICC was merely an attendance record. In
2012, Medado filed the instant Petition, praying
that he be allowed to sign in the Roll of
Attorneys.
Does the preparation of an extrajudicial
settlement of estate constitute practice of law?
A: YES. The preparation of an extrajudicial
settlement of the estate constitutes “practice of law”
as defined in the case of Cayetano v. Monsod. Not
being a lawyer, Evelyn had no authority to prepare
and finalize an extrajudicial settlement of estate.
Worse, she even received money from Leticia for
her services. In preparing and finalizing the
extrajudicial settlement of estate and receiving
compensation for the same even when she is not a
lawyer, Evelyn is guilty of simple misconduct
punishable under Sec. 52(B)(2) of the Revised
Uniform Rules on Administrative Cases in the Civil
Service.
a. Should his petition be allowed?
b. Did he engage in unauthorized practice of
law?
Evelyn is a court employee whose conduct must
always be beyond reproach from any suspicion that
may taint the judiciary. Evelyn is expected to exhibit
the highest sense of honesty and integrity not only
in the performance of her official duties but also in
her personal and private dealings with other people
to preserve the court's good name and standing
(Arienda v. Monilla, Court Stenographer, RTC, A.M.
No. P-11-2980, June 10, 2013).
A:
a. YES. At the outset, not allowing Medado to sign
the Roll of Attorneys would be akin to imposing
upon him the ultimate penalty of disbarment, a
penalty that is reserved for the most serious ethical
transgressions of members of the Bar. Medado
demonstrated good faith and good moral character
when he finally filed the instant Petition to Sign in
the Roll of Attorneys. It was not a third party who
called the Court’s attention to petitioner’s omission;
rather, it was Medado himself who acknowledged
his own lapse, albeit after the passage of more than
30 years.
--Persons excluded in the term “Practicing
Lawyer”
b. YES. Medado may have at first operated under an
honest mistake of fact when he thought that what he
had signed at the PICC entrance before the oathtaking was already the Roll of Attorneys. However,
the moment he realized that what he had signed was
merely an attendance record, he could no longer
claim an honest mistake of fact as a valid
justification. In spite of this knowledge, he chose to
continue practicing law without taking the
necessary steps to complete all the requirements for
admission to the Bar, he willfully engaged in the
unauthorized practice of law (In Re: Petition to sign
in the Roll of Attorneys Michael Medado, B.M. No.
2540, September 24, 2013).
1.
2.
3.
4.
---
Government employees and incumbent elective
officials are not allowed 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 quasi-judicial agencies.
DEFINITIONS
Q: Evelyn works as a court stenographer at the
Regional Trial Court of Legaspi City. One day,
Evelyn offered to extrajudicially settle the estate
of the mother of her friend, Leticia. Evelyn was
paid for her services. Leticia later on learned
that Evelyn had no authority to settle her
deceased mother's estate as she was not even a
lawyer but an ordinary court employee.
Consequently, Leticia filed an administrative
case against Evelyn.
1. Bar vs. Bench
BAR
Refers to the whole
body of attorneys and
counselors.
Collectively,
the
members of the legal
2
BENCH
Refers to the whole
body of judges and
justices.
PRACTICE OF LAW
profession.
7. Amicus Curiae par excellence
2. Bar Admission
A bar association which appears in court as amicus
curiae or a friend of the court; it acts merely as a
consultant to guide the court in doubtful questions
or issues pending before it.
It is the act by which one is licensed to practice
before courts of a particular state or jurisdiction
after satisfying certain requirements:
a.
b.
c.
8. Practicing Lawyer vs. Trial lawyer (2006 Bar)
Bar examinations;
Period of residency; and
Admission on grounds of reciprocity after
period of years as member of the bar
(Pineda, 2009).
PRACTICING LAWYER
One engaged in the
practice of law, which is
not limited to the
conduct of cases in court,
but includes legal advice
and counseling, and the
preparation
of
instruments
and
contracts by which legal
rights are secured.
3. Attorney-at-law vs. Attorney-in-fact
ATTORNEY-AT-LAW
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 a
consequence.
ATTORNEY-IN-FACT
Simply an agent whose
authority is strictly
limited
by
the
instrument 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.
9. Lead counsel vs. In-house counsel vs. Of
counsel
LEAD
COUNSEL
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.
4. Attorney of record vs. Attorney ad hoc
ATTORNEY OF
RECORD
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.
TRIAL LAWYER
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.
ATTORNEY AD HOC
An attorney ad hoc is a
person appointed by
the court to defend an
absentee defendant in
the suit in which the
appointment
was
made.
4. Counsel de oficio
An attorney appointed by the court to defend an
indigent defendant in a criminal action.
IN-HOUSE /
HOUSE
COUNSEL
He is one who
acts
as
attorney for a
business
though carried
as an employee
of that business
and not as an
independent
lawyer.
OF COUNSEL
He
is
an
experienced
lawyer, usually
a
retired
member of the
judiciary,
employed by
law firms as
consultants.
10. Public Prosecutor vs. Private Prosecutor
PUBLIC
PROSECUTOR
He is a quasi-judicial
officer who represents
the state in criminal
proceedings.
5. Counsel de parte
A private counsel of a party secured by him, without
intervention from the government.
6. Amicus Curiae
An experienced and impartial attorney invited by
the court to appear and help in the disposition of the
issues submitted to it. Amicus curiae appear in court
not to represent any particular party but only to
assist the court (plural: Amici Curiae).
3
PRIVATE
PROSECUTOR
A private prosecutor is
a lawyer engaged by a
litigant to 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
LEGAL ETHICS
PRIVILEGE
action for damages. He
is under the direction
and control of the
public prosecutor (Sec.
5 Rule 110 RRC as
amended, May 1, 2002).
Nature of the practice of law
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 a privilege
accorded only to those who measure up to certain
rigid standards of mental and moral fitness.
11. Assumpsit (2006 Bar)
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, whether made orally or in
writing. Assumpsit is the word always used in
pleadings by the plaintiff to set forth the defendant’s
undertaking or promise.
NOTE: It becomes a property right if there is a
contract for Attorney’s Fees.
PROFESSION, NOT BUSINESS
Law is a profession and not a trade
NOTE: Claims in action of assumpsit are ordinarily
divided into (a) common or indebitatus assumpsit,
brought usually on an implied promise, and (b)
special assumpsit, founded on an express promise.
The legal profession is not a business. It is not a
money-making trade similar to that of a
businessman employing a strategy for the purpose
of monetary gain. It is a sacred profession imbued
with public interest whose primary objective is
public service, as it is an essential part in the
administration of justice and a profession in pursuit
of which pecuniary reward is considered merely
incidental.
12. Pro Se
A party to a lawsuit, who represents himself, is
appearing in the case "pro se."
NOTE: When there is prohibition to practice law, it
refers to all other cases except where such person
would appear in court to defend himself (Pro Se).
QUALIFICATIONS
14. Barrister
The Supreme Court has the power to promulgate
rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and
procedure in all courts, the admission to the
practice of law, the Integrated Bar, and legal
assistance to the underprivileged (Sec. 5(5), Art. VIII,
1987 Constitution).
He is a person entitled to practice law as an advocate
or counsel in superior courts (Pineda, 2009).
Legislature is not allowed to regulate the
practice of law
---
The 1987 Constitution no longer provides for the
power of the legislature to repeal, alter and
supplement the Rules promulgated by the Supreme
Court regulating the practice of law.
13. Advocate
It is a lawyer who pleads on behalf of someone else.
He pleads the cause of another before a tribunal or
judicial court (Pineda, 2009).
Q: The Integrated Bar of the Philippines (IBP)
may intervene in a case involving a matter of
public law or professional concern as: (2014
Bar)
Who may practice law
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, Rules of Court).
A: Amicus par excellence
--Q: A person named and appointed by the court
to defend an absentee defendant in the suit in
which the appointment is made is an: (2014 Bar)
Requirements for admission to the Bar
Under Sections 2, 5 and 6 of Rule 138, the applicant
must be [C21-GRENAPOS]:
A: Attorney ad hoc
4
PRACTICE OF LAW
1.
2.
3.
4.
5.
a Citizen of the Philippines;
At least 21 years of age;
Of Good moral character;
a 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.
through Amendments to Rule 138 of the Rules of
Court, March 9, 2010).
NOTE: Being allowed to take the bar examinations,
and consequently passing the bar, does not
necessarily entail being allowed to take the lawyer’s
oath of office.
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, October 1, 1999).
--Q: Ching was born on April 1964 to a Filipino
mother and Chinese father. He was conditionally
allowed to take the bar examination because of
questions concerning his citizenship. Upon
passing the bar, he was required to present
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)?
Admission to Philippine Bar
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 Roll of
Attorney’s as prerequisites to admission.
---
The 5 Strike Rule in taking the Bar
Q: Atty. Melendrez filed a petition to disqualify
Meling from taking the bar exams and to impose
disciplinary penalty as a member of the Shari'a
Bar. He alleged that in his application to take the
bar, Meling 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 being admitted to the Bar?
The Former 5-Strike Rule was lifted by the Supreme
Court en banc in a resolution on September 3, 2013.
Thus, to this day, the taking of the bar has no limit.
Requirements for a Filipino who graduated from
a foreign law school to be admitted to the Bar
He may be admitted to the bar only upon
submission to the Supreme Court of certifications
showing:
a.
b.
c.
d.
A: YES. Meling's deliberate silence and nonrevelation 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. Further, 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 (In Re: Disqualification of Bar
Examinee Haron S. Meling, B.M. No. 1154, June 8,
2004).
Completion of all courses leading to the
degree of Bachelor of Laws or its equivalent
degree;
Recognition or accreditation of the law school
by the proper authority;
Completion of all fourth year subjects in the
Bachelor of Laws academic program in a law
school
duly
recognized
by
the
Philippine Government; and
Present proof of completing a separate
bachelor’s degree.
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 (Bar
Matter No. 1153, Re: Letter of Atty. Estelito P.
Mendoza Proposing Reforms in the Bar Examinations
---
5
LEGAL ETHICS
Q: Mike Adelantado 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
conditionally allowed to take the bar, and
subsequently placed third in the said exams. 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 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 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.
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, March 19, 1997).
--Good moral
requirement
character
is
a
continuing
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 (Grande v. Atty. De Silva, A.C. No. 4838, July
29, 2003).
A: NO. 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. Only
those who have been admitted to the Philippine Bar
can be called “Attorney." Further, 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 (Alawi v. Alauya, A.M. No. SDC97-2-P, February 4, 1997).
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).
The requirement of good moral character has
four general purposes, namely:
1.
2.
3.
4.
--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 showed that he is a devout
Catholic with a genuine concern for civic duties
and public service. Also, it has been proven that
Mr. Argosino has exerted all efforts to atone for
the death of Raul. Should Argosino be allowed to
take his lawyer's oath?
To protect the public;
To protect the public image of lawyers;
To protect prospective clients; and
To protect errant lawyers from themselves.
Each purpose is as important as the other
(Garrido v. Attys. Garrido and Valencia, A.C. No.
6593, February 4, 2010).
Practice of law by the clerk of court
GR: The practice of law by a clerk of court is not
allowed, except isolated practice.
XPNs:
1. Written permission which must be approved
by the Supreme Court; and
2. Approved leave of absence with justifiable
reasons.
A: YES. 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
--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
6
PRACTICE OF LAW
appearance of Atty. Ladaga in said case was
without the previous permission of the Court.
Did Atty. Ladaga violate the Code of Conduct and
Ethical Standards for Public Officials and
Employees by engaging in private practice?
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).
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).
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, January 26,
2001).
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).
APPEARANCE OF NON-LAWYERS
---
Appearance of non-lawyers
Q: Alex filed before the MeTC a formal Entry of
Appearance as private prosecutor in a criminal
case for Grave Threats where his father was the
complainant.
GR: Only those who are licensed to practice law can
appear and handle cases in court.
XPNs:
1. Law student practice;
2. Non-lawyers in court can appear for a party in
MTC; and
Describing himself as a third year law student,
he justified his appearance as private
prosecutor on the basis of Section 34 of Rule 138
of the Rules of Court. However, the MeTC denied
his request on the ground that Circular No. 19
governing limited law student practice in
conjunction with Rule 138-A should take
precedence over the ruling of the Court that a
non-lawyer may appear before the inferior
courts as an agent or friend of a party litigant.
Was the denial of the court proper?
NOTE: Section 34, Rule 138 of the Revised
Rules of Court expressly allows pro se practice
or the right of a non-member of the bar to
engage in limited practice of law (Antiquiera,
1992).
3.
Non-lawyers can represent parties in
administrative tribunals such as NLRC,
DARAB, and Cadastral Courts.
A: NO. In a Resolution dated June 10, 1997 in Bar
Matter No. 730, the Court En Banc clarified: “The
rule, however, is different if the law student appears
before an inferior court, where the issues and
procedure are relatively simple. In inferior courts, a
law student may appear in his personal capacity
without the supervision of a lawyer.” As provided
for in Section 34, Rule 138, “a law student may
appear before an inferior court as an agent or friend
of a party without the supervision of a member of
the bar.”
LAW STUDENT PRACTICE
Law student practice Rule
A law student who has successfully completed his
third 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).
Petitioner expressly anchored his appearance on
Section 34 of Rule 138. The court must have been
confused by the fact that petitioner referred to
himself as a law student in his entry of appearance.
Rule 138-A should not have been used by the courts
a quo in denying permission to act as private
prosecutor against petitioner for the simple reason
that Rule 138-A is not the basis for petitioner’s
appearance (Cruz v. Mina, et al, G.R. No. 154207, April
27, 2007).
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
7
LEGAL ETHICS
---
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);
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 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?
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.
3.
a.
b.
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. 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.
4.
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).
Party’s Right to Self-Representation
A party’s representation on his own behalf is not
considered to be a practice of law as "one does not
practice law by acting for himself, any more than he
practices medicine by rendering first aid to himself”
(Maderada v. Mediodea, A.M. No. MTJ-02-1459,
October 14, 2003).
Therefore, a person can conduct the litigation of the
cases personally. He is not engaged in the practice
of law if he represents himself in cases in which he
is a party. By conducting the litigation of his own
cases, he acts not as a counsel or lawyer but as a
party exercising his right to represent himself.
Certainly, he does not become a counsel or lawyer
by exercising such right (Santos v. Judge Lacurom,
A.M. No. RTJ-04-1823, August 28, 2006).
NON LAWYERS IN COURT
Non-lawyers in court
The following are the instances whereby nonlawyers may appear in court:
2.
Resident of the province; and
Of good repute for probity and ability to aid
the accused in his defense (Sec. 7, Rule 116,
RRC); and
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 a direct
or indirect interest (Sec. 33, Rule 138, RRC).
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 non- lawyer as a party
representing himself (Cruz v. Mijares, et al., G.R. No.
154464, September 11, 2008).
1.
Criminal case before the MTC in a locality
where a duly licensed member of the Bar is not
available, the judge may appoint a non- lawyer
who is a:
Party-Litigant representing himself/herself
In civil cases, an individual litigant has the right to
conduct his litigation personally.
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);
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. In light
offenses
a
party-litigant
can
represent
Before any other court, a party may conduct
8
PRACTICE OF LAW
himself/herself.
as attorney’s fees, 15% for Atty. John and 10%
for Eric, a non-lawyer. When WXT appealed to
the Court of Appeals, Atty. John questioned Eric’s
continued appearance before that court on
Luisa’s behalf, he not being a lawyer. Is Eric's
appearance before the Court of Appeals valid?
(2011 Bar)
NOTE: 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, December 21, 1999).
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.
A: NO. The practice of law is only reserved for those
qualified for the same. Eric’s appearance in court on
behalf of another is not sanctioned by the rules. A
non-lawyer may only be allowed to appear in court
if he is representing himself not that of another (Sec.
34, Rule 138, RRC).
Limits on the appearance of non-lawyers
1.
2.
3.
---
He should confine his work to non-adversary
contentions;
He should not undertake purely legal work,
such as the examination or cross- examination
of witnesses, or the presentation of evidence;
and
His services should not be habitually rendered.
He should not charge or collect attorney’s fees
(PAFLU v. Binalbagan Isabela Sugar Co., G.R. No.
L-23959, November 29, 1971).
Q: Kanlaon Construction and Reluya, et al. cases
were assigned before two labor arbiters.
Without written authority to represent Kanlaon
Construction, the engineers who were codefendants of Kanalaon, admitted the
complaints against them. Consequently, the
labor arbiters adjudicated the case in favor of
Reluya et al. Can the engineers represent their
co-defendant in the labor cases?
NON-LAWYERS IN ADMINISTRATIVE TRIBUNAL
1.
A: NO, the appearance of the engineers on behalf of
Kanlaon Construction required written proof of
authorization. It was incumbent upon the arbiters to
ascertain his 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.
Under the Labor Code, non-lawyers may appear
before the NLRC or any Labor Arbiter, if:
a.
b.
c.
They represent themselves; or
They represent their organization or
members thereof (Art. 222, PD 442, as
amended) (2002 Bar); or
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.
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, September 18, 1997).
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).
2.
Under the Cadastral Act, a non-lawyer can
represent a claimant before the Cadastral Court
(Sec. 9, Act No. 2259).
PROCEEDINGS WHERE LAWYERS ARE
PROHIBITED FROM APPEARING
---
1.
Q: Eric, a labor federation president,
represented Luisa, a dismissed WXT employee,
before the NLRC. Atty. John represented Luisa's
two co-complainants. In due course, the NLRC
reinstated the three complainants with
backwages and awarded 25% of the backwages
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).
NOTE: If the court determines that a party
9
LEGAL ETHICS
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)
2.
respondents acted as counsel for KWD without
legal authority. Are their contentions tenable?
A: YES. 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. There is no proof that the
OGCC and COA approved their engagement as legal
counsel or collaborating counsel. In the case of Atty.
I, he also appeared as counsel of KWD without
authority, after his authority as its counsel had
expired.
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 (P.D.
No. 1508, Formerly Sec. 9; Local Government
Code of 1991, R.A. 7160, Sec. 415).
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
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)
SANCTIONS FOR PRACTICE OR
APPEARANCE WITHOUT AUTHORITY
Remedies against practice of law without
authority [ICE-DA]
1.
2.
3.
4.
5.
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;
Disqualification
and
complaints
for
disbarment; or
Administrative complaint against the erring
lawyer or government official.
---
---
Q: In one civil case, AMC filed a third-party
complaint against MBC. The trial court set the
case for pre-trial on February 7, 2004, but the
same was cancelled. During the subsequent pretrial, the counsels for the parties were asked to
produce their respective authorizations to
appear at said hearing. Atty. X, counsel for the
MBC, manifested that her authority to appear for
MBC was submitted at the first pre-trial hearing
way back in 2004. The counsel was given the
chance to go over the records to look for the
Secretary’s Certificate allegedly submitted in
2004, but she failed to show any written
authority. As a result, the trial court declared
MBC in default. Was there any grave abuse of
discretion on the part of the trial court?
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 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
A: NO. MBC failed to substantiate its sole excuse for
its counsel’s apparent lack of authority to be its
representative during the pre-trial conference. To
be sure, if indeed there was such an authority
previously executed by MBC in favor of its counsel
as early as the pre-trial conferences that MBC
alleges to have taken place on February 27, 2004
10
PRACTICE OF LAW
and April 16, 2004, this fact would have been easily
proven by MBC. Such document conveying
authority – having originated from and issued by
MBC itself – would have been produced with
relative facility. It, however, failed to produce this
document before the court a quo, the appellate
court and this Court. As fairly observed by AMC, the
SPA later submitted by MBC’s counsel is dated
December 5, 2006 or "after" the pre-trial conference
on November 20, 2006. The crux of this controversy
is whether respondent's counsel had the authority
to represent respondent in her capacity as its
representative during the subject pre-trial, and not
in her capacity as its counsel. Prescinding from the
foregoing disquisitions, we agree with the court a
quo that respondent's counsel did not have the
proper
authority.
(Absolute
Management
Corporation v. Metropolitan Bank and Trust
Company, G.R. 190277, July 23, 2014)
CONTEMPT OF COURT
Power of Contempt vs. Power to Disbar
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, March
29, 1995)
Kinds of Contempt
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.
NOTE: An imputation in a pleading of gross
ignorance against a court or its judge, especially
in the absence of any evidence, is a serious
allegation, and constitutes direct contempt of
court. Derogatory, offensive or malicious
statements contained in pleadings or written
submissions presented to the same court or
judge in which the proceedings are pending are
treated as direct contempt because they are
equivalent to a misbehavior committed in the
presence of or so near a court or judge as to
interrupt the administration of justice. This is
true, even if the derogatory, offensive or
malicious statements are not read in open
court. (Habawel and Medina v. Court of Tax
Appeals, G.R. No. 174459, September 7, 2011)
--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).
PERSONS NOT LAWYERS
Remedies against unauthorized practice of law
by persons who are not lawyers [ICE]
1.
2.
3.
Petition for Injunction;
Contempt of court; or
Criminal complaint for Estafa against a person
who falsely represented himself to be an
attorney to the damage of a party.
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.
Sanctions for persons who are not lawyers
They shall 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).
3. Civil – It 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.
4. 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.
A person who has been refused admission to the bar
by order of the Supreme Court but nonetheless
attempts to practice law is guilty of indirect
contempt. (2014 Bar)
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
NOTE: A disbarred lawyer still appearing in court is
guilty of indirect contempt (Lemoine v. Atty. Balon,
Jr., A.C. No. 5829, October 28, 2003).
11
LEGAL ETHICS
deemed a judgment in criminal case.
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. 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. 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).
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.
Two-fold aspect of Contempt Power (1998 Bar)
1.
2.
The proper punishment of the guilty party for
his disrespect to the court or its order; and
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, April 30, 1985).
Q: Balajadia filed a criminal case against Tan. In
paragraph 5 of the complaint-affidavit,
Balajadia appeared to have asserted that he is a
"practicing lawyer”. However, certifications
issued by the Office of the Bar Confidant and the
IBP showed that he has never been admitted to
the Philippine Bar. Hence, Tan filed a case
against him claiming that he is liable for indirect
contempt for misrepresenting himself as a
lawyer. In defense, Balajadia 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. It was
inadvertently alleged that he was a “practicing
lawyer in Baguio City” which statement referred
to the person of Atty. Aquino and his law office
address. Is Balajadia liable for indirect
contempt?
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).
--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. No. 146783, July 29, 2002).
A: NO. Balajadia never intended to represent
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 (Tan v. Balajadia, G.R.
No. 169517, March 14, 2006).
--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?
--Q: C and D are law partners using the firm name
C and D – Attorneys-at-Law. In an administrative
case filed against C, the Supreme Court found
that C was not entitled to admission to the
practice of law in the Philippines and ordered
his name stricken-off from the Roll of Attorneys.
As a result, C and D changed their firm name to
Law Office of D – Attorney-at-Law, C - Counsellor,
12
PRACTICE OF LAW
with C handling purely counselling and office
work while D is the law practitioner. Are C and D
liable for contempt of court? Explain your
answer. (2014 Bar)
3.
A: YES, C and D are liable for indirect contempt.
Indirect contempt is committed away from the
court involving disobedience of or resistance to a
lawful order or judgment of the court. SC found C
not entitled to admission to the practice of law.
Although they changed the firm name, C continued
to practice law and D permitted it. Practice of law
includes counselling or giving of advice or rendering
any kind of service that involves legal knowledge.
4.
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.
---
PROHIBITION OR DISQUALIFICATION OF
FORMER GOVERNMENT ATTORNEYS
Q: The court ordered Atty. Z to testify as a
witness for his client in the very case he is
handling but he refused on the ground that it
would violate the rule on privileged
communication. Atty. Z is guilty of: (2014 Bar)
Prohibition or disqualification
government attorneys
former
The evil sought to be avoided by this provision is the
possibility of a lawyer who just retired, resigned or
separated from the government of using his
influence for his own private benefit (Antiquiera,
1992).
PUBLIC OFFICIALS AND THE
PRACTICE OF LAW
PUBLIC OFFICIALS WHO CANNOT PRACTICE
LAW OR WITH RESTRICTIONS
Public Officials
GR: The appointment or election of an attorney to a
government office disqualifies him from engaging in
the private practice of law.
Includes elective or 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), R.A.
No. 6713, Code of Conduct and Ethical Standards for
Public Officials and Employees).
Reason: A public office is a public trust, and a public
officer or employee is obliged not only to perform
his duties with the highest degree of responsibility,
integrity, loyalty and efficiency but also with
exclusive fidelity.
Prohibited acts or omissions of public officers
2.
of
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 (Canon 6, Rule 6.03, CPR).
A: Distinction should be made. If Atty. Z refuses to
testify on formal matters, like mailing,
authentication or custody of documents, he can be
cited for direct contempt (under Section 1, Rule 71
of the Rules of Court) for refusal to be a witness.
However, if the matter to be testified is substantial,
he cannot be guilty of contempt or any violation of
his duty to the court, based on Rule 12.08, Code of
Professional Responsibility.
1.
A lawyer shall not, after leaving a government
service, accept engagement or employment in
connection with any matter in which he had
intervened. while in said service (Rule 6.03,
CPR); and
A lawyer should not accept employment as an
advocate in any matter upon the merits which
he has previously acted in a judicial capacity
(Canon 36, CPE).
This disqualification is intended to:
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);
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);
a.
b.
c.
Preserve public trust in a public office;
Avoid conflict of interests or a possibility
thereof; and
Assure the people of impartiality in the
performance of public functions and thereby
promote the public welfare.
Public officials not allowed to engage in law
practice (Absolute Prohibition) [JOPPC2OMS]:
1.
13
Judges and other officials and employees of the
LEGAL ETHICS
2.
3.
4.
5.
6.
7.
8.
9.
Supreme Court (Sec. 35, Rule 148, RRC);
Officials and employees of the OSG (Ibid.);
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);
Civil Service Officers or employees whose
duties and responsibilities require that their
entire time be at the disposal of the government
(Ramos v. Rada, A.M. No. 202, July 22, 1975);
Ombudsman and his deputies (Sec. 8 [second
par.], Art. IX, 1987 Constitution);
All governors, city and municipal Mayors (Sec.
90, R.A. No. 7160); and
Those prohibited by Special laws.
3.
a.
b.
c.
Restrictions on the Practice of Law on Certain
individuals (Relative Prohibition)
1.
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 quasi-judicial and other
administration bodies (Sec. 14, Art. VI, 1987
Constitution).
b.
c.
d.
4.
Civil service officers and employees without
permit from their respective department heads
(Noriega v. Sison, A.M. No. 2266, October 27,
1983).
5.
A former government attorney cannot, after
leaving
government
service,
accept
engagement or employment in connection with
any matter in which he had intervened while in
the said service (Rule 6.03, CPR).
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 was 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 then 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?
Under the Local Government Code (Sec. 91, RA
7160), Sanggunian members may practice their
professions provided that if they are members
of the Bar, they shall NOT:
a.
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).
---
NOTE: What is prohibited is to “personally
appear” in court and other bodies. 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.”
2.
Under Sec. 1, R.A. 910, as amended, a retired
justice or judge receiving pension from the
government, cannot act as counsel:
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;
Appear as counsel in any criminal case
wherein an officer or employee of the
national or local government is 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; or
Use property and personnel of the
government except when the Sanggunian
member concerned is defending the
interest of the government.
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.
14
PRACTICE OF LAW
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 (Lim- Santiago v.
Sagucio, A.C. No. 6705, March 31, 2006).
made on punong barangay and the members of the
Sangguniang Barangay. Expressio unius est exclusio
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).
NOTE: Violations of R.A. 6713 – the Code of Conduct
and Ethical Standards for Public Officials and
Employees – 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.
LAWYERS AUTHORIZED TO REPRESENT THE
GOVERNMENT
Lawyers
authorized
government
to
represent
the
Solicitor General (Sol. Gen.) for the National
Government, and any person appointed to appear
for the government of the Philippines in accordance
with law (Sec. 33, Rule 138, RRC).
--Q: Atty. Eliseo represented Allan in a collection
suit against the Philippine Charity Sweepstakes
Office (PCSO). After his election as Sangguniang
Bayan member, the court rendered a decision in
PCSO’s favor. Still, Atty. Eliseo appeared for
Allan in the latter’s appeal, prompting the PCSO
to question his right to do so. In response, Atty.
Eliseo claimed that the local government code
authorizes him to practice law as long it does not
conflict with his duties. Is Atty. Eliseo correct?
(2011 Bar)
In case of Local Government Units (LGU), they are
represented by a legal officer which provides legal
assistance or support to the mayor or governor and
represents the LGU in all civil actions and special
proceedings wherein it or any of its officials are
involved in an official capacity (Sec. 481, LGC).
NOTE: In criminal cases, the Sol. Gen. steps in only
when the case has already reached the Court of
Appeals. While it is with the lower courts, it is the
public
prosecutor
which
represents
the
government.
A: NO. He cannot appear against a government
instrumentality in a civil case.
Duties of the Solicitor General
---
The Solicitor General, in his discretion, may pursue
any of the following actions:
Q: Atty. Dude is the COMELEC Officer in a very
distant municipality. He is the only lawyer in
that area. When election period is over, he has
much spare time. Many people go to him for
counseling, legal advice, preparation of
documents of Sale, Mortgage and the like. He
does not charge a fee in money, but he receives
gifts which are offered. Is there impropriety?
(2012 Bar)
1.
2.
3.
4.
A: YES, giving legal advice and preparing legal
documents, even if free, constitutes private practice
of law, which is prohibited of government
employees.
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.
Duty of the Solicitor General to represent one
party whereby two government agencies are in
conflict
---
It is incumbent upon the Solicitor General to present
to the court that which would legally uphold the
best interest of the government. The other
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.
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
15
LEGAL ETHICS
LAWYER’S OATH
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.
I, _____(name)______________, of ____(permanent
address)_____________, do solemnly swear that I will
maintain allegiance to the Republic of the
Philippines, I will support and defend 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 its commission; I
will not wittingly or willingly promote or sue any
groundless, false or unlawful suit nor give aid nor
consent to the same; I will not delay any man’s cause
for money or malice and will conduct myself as a
lawyer according to the best of my knowledge and
discretion with all good fidelity as well to the courts
as to my clients and I impose upon myself this
obligation voluntarily, without any mental
reservation or purpose of evasion. So help me God.
---
DUTIES AND RESPONSIBILITIES
OF A LAWYER
Four-fold duty of a lawyer
1. 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 a 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).
Q: An administrative complaint was filed against
Atty. Contawi for having violated his oath as a
lawyer, causing him damage and prejudice. He
had mortgaged and sold the property of his
client without the latter's knowledge or consent,
facilitated by the use of a falsified Special Power
of Attorney. Did the act of Atty. Contawi violate
his lawyer's oath?
2. 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)
A: YES. Atty. Contawi disposed of complainant's
property without the latter’s knowledge or consent,
and partook of the proceeds of the sale for his own
benefit. The established acts exhibited his unfitness
and plain inability to discharge the bounden duties
of a member of the legal profession. He failed to
prove himself worthy of the privilege to practice law
and to live up to the exacting standards demanded
of the members of the bar. It bears to stress that the
practice of law is a privilege given to lawyers who
meet the high standards of legal proficiency and
morality. Any violation of these standards exposes
the lawyer to administrative liability (Brennisen v.
Atty. Contawi, A.C. No. 7481, April 24, 2012).
3. 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).
4. 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 14- 22, CPR).
--Importance of the lawyer’s oath
Duties of attorneys under the Rules of Court
(2006 Bar)
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, April 27, 2005)
The following are the duties of an attorney under
the Rules of Court: [ADA-RECORD]
1.
2.
16
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
THE CODE OF PROFESSIONAL RESPONSIBILITY
3.
4.
5.
6.
7.
8.
9.
or interest;
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;
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 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 honorable means, regardless of
his personal opinion as to the guilt of the
accused, to present every defense that the law
permits to the end that no person may be
deprived of life, liberty, but by due process of
law. (Sec. 20, Rule 138, RRC)
THE CODE OF PROFESSIONAL
RESPONSIBILITY
1.
2.
3.
4.
5.
6.
CHAPTER 2
THE LAWYER AND THE LEGAL PROFESSION
(Canons 7-9)
7. At all times uphold integrity and dignity of the
profession and support the activities of the IBP
8. Conduct himself with courtesy, fairness and
candor toward his colleagues and avoid
harassing tactics against opposing counsel
9. Not to directly or indirectly assist in the
unauthorized practice of law
Privileges of a lawyer [PSP-IS-12]
1.
2.
3.
4.
5.
6.
7.
CHAPTER 1
LAWYER AND SOCIETY
(Canons 1-6)
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
To Practice law during good behavior before
any judicial, quasi-judicial, or administrative
agency;
First one to Sit in judgment on every case, to set
the judicial machinery in motion;
Enjoys the Presumption of regularity in the
discharge of his duty;
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;
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;
1st grade civil service eligibility for any position
in the classified service in the government the
duties of which require knowledge of law; and
2nd grade civil service eligibility for any other
governmental position, which does not
prescribe proficiency in law as a qualification.
10.
11.
12.
13.
CHAPTER 3
THE LAWYER AND THE COURTS
(Canons 10-13)
Owes candor, fairness and good faith to the
court
Observe and maintain the respect due to the
courts and judicial officers and should insist on
similar conduct by others
Duty to assist in the speedy and efficient
administration of justice
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
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
LEGAL ETHICS
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 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
A: YES. There is an ethical/professional
responsibility problem that results from the
actuation of Atty. Doblar in arguing the reverse
positions.
The signatures of Atty. Doblar on the pleadings for
Eva and for Marla constitute a certificate by him that
he has read the pleadings; that to the best of his
knowledge, information, and belief, there is good
ground to support them; and that the pleadings
were not interposed for delay (Rules of Court, Rule 7,
Sec. 3, par. 2). Atty. Doblar could not claim he has
complied with the foregoing requirement because
he could not take a stand for Eva that is contrary to
that taken for Marla. His theory for Eva clearly
contradicts his theory for Marla. He has violated his
professional responsibility mandated under the
Rules of Court.
Most important duty of a lawyer
The first and most important duty of a lawyer is his
duty to the court. The lawyer is an officer of the
court who sets the judicial machinery with the main
mission of assisting the court in the administration
of justice. His public duties take precedence over his
private duties.
He has likewise violated the ethical responsibility
that his appearance in court should be deemed
equivalent to an assertion on his honor that, in his
opinion, his client’s case in one proper for judicial
determination (Canons of Professional Ethics, Canon
30, par. 2, last sentence).
Applicability of the Canons (2014 Bar)
Although the Code of Professional Responsibility
refers to lawyers, members of the bench are lawyers
who are required to comment on the complaints
filed against them and show cause why they should
not be suspended, disbarred or otherwise
disciplinary sanctioned as a member of the bar as
provided for in A. M. 02-9-02 SC (Re: Automatic
conversion of some administrative cases against
Justices (except Supreme Court Justices who can
only be the subject if impeachment), Judges and
Court Officials who are lawyers as disciplinary
proceedings against them both in such officials and
as members of the Philippine Bar).
In counseling on the contradictory positions, Atty.
Doblar has likewise counselled or abetted activities
aimed at defiance of the law or at lessening
confidence in the legal system (Code of Professional
Responsibility, Canon 1, Rule 1.02) because
conflicting opinions may result arising from an
interpretation of the same law.
Atty. Doblar could not seek refuge under the
umbrella that what he has done was in protection of
his clients. This is so because a lawyer’s duty is not
to his client but to the administration of justice. To
that end, his client’s success is wholly subordinate.
His conduct ought to and must always be
scrupulously observant of the law and ethics
(Pineda, Legal and Judicial Ethics, 211 [1999], citing
Maglasang vs. People, G.R. No. 90083, October 4,
1990).
--Q: Atty. Doblar represents Eva in a contract suit
against Olga. He is also defending Marla in a
substantially identical contract suit filed by
Emma. In behalf of Eva, Atty. Doblar claims that
the statute of limitations runs from the time of
the breach of the contract. In the action against
Marla, Atty. Doblar now argues the reverse
position – i.e., that the statute of limitation does
not run until one year after discovery of the
breach.
Any means not honorable, fair, and honest, which is
resorted to by the lawyer, even in the pursuit of his
devotion to his client’s cause, is condemnable and
unethical. (Ibid.)
Both cases are assigned to Judge Elrey. Although
not the sole issue in the two cases, the statute of
limitations issue is critical in both.
DUTIES AND RESPONSIBILITIES OF A
LAWYER TO SOCIETY
Is there an ethical/professional responsibility
problem in this situation? If a problem exists,
what are its implications or potential
consequences? (2013 Bar)
CANON 1
A lawyer shall uphold the Constitution, obey
the laws of the land and promote respect for
law and legal processes.
18
THE CODE OF PROFESSIONAL RESPONSIBILITY
Two-fold duty under Canon 1
1.
2.
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? (2006 Bar)
Obey the laws and the legal processes; and
Inspire others to maintain respect and
obedience thereto.
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 (Funa,
2009).
Concept of “Rule of Law”
A: NO. 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, March 26, 2001). This role could not be left
to the private counsels who have been engaged to
protect the private interest of the parties.
“The supremacy of the law” 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: 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, G.R. No. L-22320,
July 29, 1968).
---
---
Rule 1.01, Canon 1,
A lawyer shall not engage in unlawful, dishonest,
immoral and deceitful conduct.
Q: Atty. Tansingco was a notary public who
prepared and notarized an Occupancy
Agreement at the request of Mr. Stier, the owner
and long-time resident of a real property located
in Cubao. Since Mr. Stier is a U.S. Citizen and
thereby disqualified to own real property in his
name, he agreed that the 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. Is Atty.
Tansingco guilty of serious misconduct?
Definitions:
1. Deceitful Conduct
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).
2. Unlawful Conduct
It is the 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.
A: YES. Atty. Tansingco is liable for violation of
Canon 1 and Rule 1.02 of the Code. 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).
3. Immoral Conduct
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.
---
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. It is willful, flagrant, or shameless
Q: Prosecutor Coronel entered his appearance
on behalf of the State before a Family Court in a
19
LEGAL ETHICS
act, which shows a moral indifference to the opinion
of respectable members of the community
(Figueroa v. Barranco, SBC Case No. 519, July 31,
1997).
1999).
Acts NOT constituting gross immorality
1. Stealing a kiss from a client (Advincula v.
Macabata, A.C. No. 7204, March 7, 2007);
2. Live-in relationship involving two unmarried
persons; or
3. Failure to pay a loan.
Instances of Gross Immorality and the resulting
consequences
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
Abandonment of wife and cohabiting with
another woman. DISBARRED (Obusan v.
Obusan, Jr., A.C. 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);
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); or
Facilitating the travel of a person to the U.S.
using spurious travel documents. DISBARRED
(Sebastian v. Calis, A.C. No. 5118, September 9,
GR: 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)
XPN: A deliberate failure to pay just debts and
the issuance of worthless checks. (Lao v. Medel,
A.C. No. 5916, July 1, 2003)
--Q: Judge A has an illicit relationship with B, his
Branch Clerk of Court. C, the wife of Judge A,
discovered the illicit affair and consulted a
lawyer to vindicate her violated marital rights. If
you were that lawyer, what would you advice C,
and if she agrees and asks you to proceed to take
action, what is the legal procedure that you
should follow? (2014 Bar)
A: File a case of immorality against Judge A and the
clerk of court for violation or Rule 1.01, CPR;
impropriety under Canon 4 of the New Code of
Judicial Conduct against Judge A; and invoke the
automatic conversion of the administrative case
against Judge A and the clerk of court as members of
the bar under A.M. No. 02-9-02-SC, with the Office of
the Court Administrator. Complaint for disbarment
against Judge A and the clerk of court may also be
filed. (This is without prejudice to the filing of
criminal and civil cases).
--Q: In a case for disbarment against Atty. Ivan M.
Solidum, Jr., the IBP-CBD found that he
committed the following acts: (1) signing drawn
checks against the account of his son as if they
were from his own account; (2) misrepresenting
to Navarro the identity of the lot he mortgaged
to her; (3) misrepresenting to Presbitero the
true value of the 263-square-meter lot he
mortgaged to her; (4) conspiring with Yulo to
obtain the loans from complainants; (5)
agreeing or promising to pay 10% interest on
his loans although he knew that it was
exorbitant; and (6) failing to pay his loans
20
THE CODE OF PROFESSIONAL RESPONSIBILITY
because the checks he issued were dishonored
as the accounts were already closed. Is Atty.
Solidum guilty of violating the Code of
Professional Responsibility?
pay their financial obligations” (Wilson Cham v. Atty.
Eva Pata-Moya, 556 SCRA 1).
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).
A: YES. It is clear that Atty. Solidum violated Rule
1.01 of the Code of Professional Responsibility. We
have ruled that conduct, as used in the Rule, is not
confined to the performance of a lawyer’s
professional duties. A lawyer may be disciplined for
misconduct committed either in his professional or
private capacity. The test is whether his conduct
shows him to be wanting in moral character,
honesty, probity, and good demeanor, or whether it
renders him unworthy to continue as an officer of
the court.
--Morality vs. Immoral Conduct
MORALITY
Morality
as
understood in law is a
human
standard
based on natural
moral law which is
embodied
in
man’s
conscience
and which guides him
to do good and avoid
evil.
Atty. Solidum is guilty of engaging in dishonest and
deceitful conduct, both in his professional capacity
with respect to his client, Presbitero, and in his
private capacity with respect to complainant
Navarro. Both Presbitero and Navarro allowed Atty.
Solidum to draft the terms of the loan agreements.
He drafted the MOAs knowing that the interest rates
were exorbitant. Later, using his knowledge of the
law, he assailed the validity of the same MOAs he
prepared. He issued checks that were drawn from
his son’s account whose name was similar to his
without informing complainants. Further, there is
nothing in the records that will show that he paid or
undertook to pay the loans he obtained from
complainants (Navarro vs Solidum, Jr., A.C. No. 9872,
January 28, 2014).
IMMORAL CONDUCT
Immoral conduct has
been defined as that
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. (Arciga
v. Maniwang, A.M. No.
1608, August 14, 1981)
---
Q: Rose Bansig filed a complaint for disbarment
against Atty. Celera. Celera was legally married
to Bansig’s sister, Rosemarie Bunagan.
However, notwithstanding the marriage with
Bunagan, Atty. Celera contracted another
marriage with a certain Ma. Cielo Paz Torres
Alba, as evidenced by a certified copy of the
certificate of marriage. Despite numerous
efforts of Rose and the court, Atty. Celera, in his
defense, repetitively stated that he had no
knowledge of the complaint since he has yet to
receive a copy of it. Is the contention of Atty.
Celera tenable?
--Q: Atty. XX rented a house of his cousin, JJ, on a
month-to-month basis. He left for a 6-month
study in Japan without paying his rentals and
electric bills while he was away despite JJ's
repeated demands. Upon his return to the
Philippines, Atty. XX still failed to settle his
rental arrearages and electric bills, drawing JJ to
file an administrative complaint against Atty.
XX. Atty. XX contended that his non-payment of
rentals and bills to his cousin is a personal
matter which has no bearing on his profession
as a lawyer and, therefore, he did not violate the
Code of Professional Responsibility. Is Atty. X's
contention in order? Explain. (2010 Bar)
A: NO. He exhibited a deplorable lack of that degree
of morality required of him as a member of the Bar.
He made a mockery of marriage, a sacred institution
demanding respect and dignity.
Also, we take notice of Atty. Celera’s defiant stance
against the Court as demonstrated by his repetitive
disregard of its Resolution requiring him to file his
comment on the complaint. This case has dragged
on since 2002. Even assuming that indeed the copies
of the complaint had not reached him, he cannot,
however, feign ignorance that there is a complaint
against him that is pending before this Court which
he could have easily obtained a copy had he wanted
to. His acts were deliberate, maneuvering the
liberality of the Court in order to delay the
A: NO. In a case involving the same facts, the
Supreme Court held that having incurred just debts,
a lawyer has the moral duty and legal responsibility
to settle them when they become due. “Verily
lawyers must at all times faithfully perform their
duties to society, to the bar, to the court and to their
clients. As part of their duties, they must promptly
21
LEGAL ETHICS
disposition of the case and to evade the
consequences of his actions. His cavalier attitude in
repeatedly ignoring the orders of the Supreme
Court constitutes utter disrespect to the judicial
institution. Respondent’s conduct indicates a high
degree of irresponsibility (Bunagan-Bansig v.
Celera, A.C. No. 5581, January 14, 2014).
sanction for such illicit behavior, it is 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 with more severely (Vitug v.
Rongcal, A.C. No. 6313, September 7, 2006).
--Q:
Maria
Victoria
Ventura
filed
an
administrative complaint against Atty. Danilo
Samson for allegedly for raping her when she
was merely 13 years old. Atty. Samson admitted
that they had a sexual relationship but
countered that such was done with mutual
agreement and in consideration of money. Did
Atty. Samson’s act constitute “grossly immoral
conduct” that would warrant his disbarment?
--Q: An administrative complaint for disbarment
was filed against Atty. Iris for allegedly carrying
an immoral relationship with Carlos, husband of
complainant Leslie. Atty. Iris contended that her
relationship with Carlos was 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: YES. Atty. Samson’s act of engaging in sex with a
young lass, the daughter of his former employee,
constitutes gross immoral conduct that warrants
sanction. He not only admitted he had sexual
intercourse with complainant but also showed no
remorse whatsoever when he asserted that he did
nothing wrong because she allegedly agreed and he
even gave her money. Indeed, his act of having
carnal knowledge of a woman other than his wife
manifests his disrespect for the laws on the sanctity
of marriage and his own marital vow of fidelity.
Moreover, the fact that he procured the act by
enticing a very young woman with money showed
his utmost moral depravity and low regard for the
dignity of the human person and the ethics of his
profession. He has violated the trust and confidence
reposed on him by complainant, then a 13-year-old
minor, who for a time was under his care. Whether
the sexual encounter between him and complainant
was or was not with the latter’s consent is of no
moment. Such conduct is a transgression of the
standards of morality required of the legal
profession and should be disciplined accordingly
(Ventura v. Samson, A.C. No. 9608, November 27,
2012).
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 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: 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.
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. Did the act of Simeon in
engaging in premarital relations with Patricia
and making promises to marry her constitute
gross immoral conduct?
--Q: 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
22
THE CODE OF PROFESSIONAL RESPONSIBILITY
A: NO, the 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
complainant and promises to marry suggests a
doubtful moral character on his part but the same
does not constitute grossly immoral conduct. 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 (Figueroa v.
Barranco, Jr., SBC Case No. 519, July 31, 1997).
--Q: Atty. Simeon persuaded Armando, Benigno
and Ciriaco to invest in business venture that
later went bankrupt. Armando, Benigno and
Ciriaco charged Atty. Simeon with estafa.
Simultaneously, they filed an administrative
complaint against the lawyer with the Supreme
Court. If Simeon is convicted of estafa, will he be
disbarred? Explain. (2009 Bar)
A: YES. One of the grounds for disbarment under
Sec. 27, Rule 138, is conviction of a crime involving
moral turpitude. Estafa is a crime involving moral
turpitude.
---
--Moral turpitude
Q: If Atty. Simeon is acquitted of the estafa
charge, will the disbarment complaint be
dismissed? Explain. (2009 Bar)
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 usually 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.
A: Not necessarily. If the acquittal is based on the
ground that no crime was committed, or that
Simeon is innocent, the administrative case may be
dismissed. But if the acquittal is based merely on
reasonable doubt, the disbarment proceeding may
still continue. The purpose of a disbarment
proceeding is to determine whether a lawyer still
deserves to remain a member of the bar. For such
determination, conduct which merely avoids the
penalty of the law is not sufficient.
Examples of acts involving moral turpitude
1.
2.
3.
4.
5.
6.
7.
8.
9.
Conviction of Estafa and/or BP 22. DISBARRED
(In the Matter of Disbarment Proceedings v.
Narciso N. Jaramillo, En Banc A.C. No. 229, April
30, 1957);
Conviction of bribery/ attempted bribery.
DISBARRED (In Re: Dalmacio De los Angeles, A.C.
No. L-350, August 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 illegal marriage before admission
to the bar. DISQUALIFIED FROM BEING
ADMITTED TO THE BAR (Villasanta v. Peralta,
101 Phil.313, April 30, 1957);
Conviction of falsification of public document.
REMOVED FROM HIS OFFICE/NAME ERASED
FROM ROLL OF ATTORNEYS (De Jesus-Paras v.
Vailoces, A.C. No. 439, April 12, 1961);
Conviction of Estafa through falsification of
public document. DISBARRED (Villanueva v.
Sta. Ana, CBD Case No. 251, July 11, 1995);
Conviction of Abduction. SUSPENDED FROM
OFFICE FOR 1 YEAR (In Re Basa, 41 Phil. 275,
December 7, 1920);
Conviction of Concubinage. SUSPENDED FROM
OFFICE FOR 1 YEAR (In re Isada, 60 Phil. 915,
November 16, 1934); or
Conviction of Smuggling. DISBARRED (In re
Rovero, A.C. No. 126, October 24, 1952)
--Rule 1.02, Canon 1
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)
Examples of activities aimed at defiance of the
law or at lessening confidence in the legal
system
1.
2.
3.
23
Advising his clients to execute another Deed of
Sale antedated to evade payment of capital
gains taxes (Chua vs. Mesina, A.C. No. 4904,
August 12, 2004).
Lawyer
who
engages
in
prohibited
campaigning, use of government resources and
solicitation of votes, in campaigning for national
positions in the IBP (Re: 1989 Elections of IBP,
B.M. No. 491, October 6, 1989).
Repeatedly disobeying orders of SEC to appear
in its hearings and repeatedly failing to
substantiate his excuse for failing to appear
(Batac et. al. v. Cruz, Jr., A.C. No. 5809, February
23, 2004).
LEGAL ETHICS
---
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).
Q: Chu retained Atty. Guico as counsel to handle
labor disputes involving his company. In one
case, Atty. Guico asked Chu to prepare a
substantial amount of money to be given to the
NLRC Commissioner handling the appeal to
insure a favorable decision. Chu was able to
raise P300,000 for the purpose. He again
advised Chu to raise another P300,000.00 to
encourage the NLRC Commissioner to issue the
decision.
But
Chu
could
only
produce P280,000.00. The NLRC’s decision was
adverse to Chu. Was the advice given by Atty.
Guico proper?
--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.
The rule is aimed against the practice of barratry,
stirring up litigation and ambulance chasing.
A: NO. Every lawyer should not render any service
or give advice to any client that would involve
defiance of the very laws that he was bound to
uphold and obey, for he or she was always bound as
an attorney to be law abiding, and thus to uphold the
integrity and dignity of the Legal Profession. Verily,
he or she must act and comport himself or herself in
such a manner that would promote public
confidence in the integrity of the Legal Profession.
Atty. Guico violated the law against bribery and
corruption. He compounded his violation by
actually using said illegality as his means of
obtaining a huge sum from the client that he soon
appropriated for his own personal interest. His acts
constituted gross dishonesty and deceit, and were a
flagrant breach of his ethical commitments under
the Lawyer’s Oath not to delay any man for money
or malice; and under Rule 1.01 of the Code of
Professional Responsibility. His deviant conduct
eroded the faith of the people in him as an individual
lawyer as well as in the Legal Profession as a whole.
In doing so, he ceased to be a servant of the law (Chu
v. Guico, Jr., A.C. No. 10573, January 13, 2015).
Crime of maintenance
Maintenance is the intermeddling of an
uninterested party to encourage a lawsuit. It is a
taking in hand, a bearing up or upholding of quarrels
or sides, to the disturbance of the common right.
(Funa, 2009) A lawyer owes to society and to the
court the duty not to stir up litigation.
Barratry vs. Ambulance chasing (1993 Bar)
BARRATRY
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.
Barratry is not a crime
under the Philippine
laws. However, it is
proscribed by the rules
of legal ethics.
--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? (1998 Bar)
AMBULANCE CHASING
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).
It has spawned a
number of recognized
evils such as [FSMD]:
1.
2.
3.
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,
4.
24
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
THE CODE OF PROFESSIONAL RESPONSIBILITY
making the proposed suit unnecessary. Is he
liable for misconduct?
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)
A: YES, the lawyer is liable for misconduct. It is clear
from the facts that the lawyer had deceitfully
defrauded the complainant. By receiving the
amount of P 5,863.00 from the complainant in order
to represent him, the lawyer violated Rule 1.01 of
Canon 1 of the CPR. He should have filed the
complaint before the CFI of Baguio. He clearly acted
in a deceitful conduct by misrepresenting to file a
complaint in order to affect the ejectment suit. Also,
the lawyer encouraged the suit which is groundless
and unfounded in order to gain a financial interest
(Munar v. Flores, A.C. No. 2112, May 30, 1983).
--Rule 1.04, Canon 1
A lawyer shall encourage his clients to avoid, end
or settle a controversy if it will admit of a fair
settlement.
Impropriety of voluntary giving of advice
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. A lawyer should be a mediator for concord
and a conciliator for compromise rather than an
initiator of controversy and a predator of conflict.
It is improper to voluntarily give legal advice when
the lawyer, in giving such, 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.
---
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, however, the final decision to settle a
claim rests upon the client.
---
Q: Atty. Melissa witnessed the car accident that
resulted in injury to Manny, a friend of hers.
While visiting him at the hospital, she advised
him about what action he needed to take
regarding the accident. Is Atty. Melissa subject
to disciplinary action if she eventually handles
the case for him? (2011 Bar)
Q: Jon de Ysasi III was employed by his father in
their farm. During the entire period of his
illness, his father took care of his medical
expenses and he continued to receive
compensation. However, without due notice, his
father ceased to pay his salary. He made oral and
written demands through Atty. Sumbingco for
an explanation for the sudden withholding, as
well as for the remittance of his salary. Both
demands were not acted upon. He filed a case in
court. Can the lawyers employed by the parties
be admonished for not trying to reconcile the
parties before the filing of the suit?
A: NO. It is unprofessional for a lawyer to volunteer
advice to bring a lawsuit, except in rare cases where
ties of blood, relationship or trust make it his duty
to do so. (Canon 28, CPE) In the case at hand, since
Atty. Melissa is a friend of the injured person, she
may not be admonished for extending some legal
advice to a friend in need.
--Q: Atty. X advised complainant that to stop the
ejectment suit against him, Atty. X would file a
complaint with the Baguio CFI. Complainant
gave the lawyer P5,863.00 for fees and
miscellaneous fees. However, the complaint was
not filed. By way of defenses, the lawyer
presented complainant’s affidavit of desistance;
claimed that upon perusal of the records of the
ejectment case, he found that complainant had
already filed a Third-Party complaint, thereby
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
25
LEGAL ETHICS
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 (De Ysasi III v. NLRC, G.R. No.
104599, March 11, 1994).
administration of justice and not a mere moneygetting trade (CPR Annotated, PhilJA).
AN ACT PROVIDING A MECHANISM FOR FREE
LEGAL ASSISTANCE AND FOR OTHER PURPOSES
(RA No. 9999)
FEBRUARY 23, 2010
Purposes of RA No. 9999 (Free Legal Assistance
Act of 2010)
1.
2.
--EFFICIENT AND CONVENIENT
LEGAL SERVICES
3.
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.
4.
5.
NOTE: It is the lawyer’s prime duty to see to it that
justice is accorded to all without discrimination.
Encourage
lawyers
and
professional
partnerships to provide free legal assistance;
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;
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 distinguished law firms
and legal practitioners of the country for free;
and
Ensure that the right of every individual to
counsel, as mandated in the Constitution, is
protected and observed.
Services available
Rule 2.01, Canon 2
A lawyer shall not reject, except for valid
reasons, the cause of the defenseless or the
oppressed.
Public Attorney's Office (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 clinics 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.
Definitions
1. Defenseless
Those who are not in a position to defend
themselves due to poverty, weakness, ignorance or
other similar reasons.
Incentives to lawyers giving free service
A lawyer or professional partnerships rendering
actual free legal services 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, RA 9999).
2. Oppressed
Those who are the victims of the cruelty, unlawful
exaction, domination or excessive use of authority.
A lawyer so appointed as counsel for an indigent
prisoner, as the Canons of Professional Ethics
demands, should always “exert his best efforts” in
the indigent’s behalf (People v. Estebia, G.R. No. L26868, December 27, 1972).
NOTE: 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
26
THE CODE OF PROFESSIONAL RESPONSIBILITY
Salient Features of RA 9999
1.
2.
3.
4.
What is Diana’s best ethical response? (2013
Bar)
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;
It will help relieve the Public Attorney’s Office
(PAO) of its numerous caseloads involving
indigent litigants who shall be referred to
lawyers or law firms in private practice; and
It should entice renowned and distinguished
firms and lawyers in the practice as their
services
shall
still
be
compensated
commensurately through the tax incentives.
A: Advise Wanda on the purely legal side of her
problem and assure her that abortion is allowed by
law if the pregnancy endangers the life of the
mother (Code of Professional Responsibility, Canon
2, Rule 2.01-2.02).
--Q: The rendition of free legal services is a
lawyer’s: (2014 Bar)
A: Moral duty is above social obligation and legal
mandate. The lawyer voluntarily imposes upon
himself higher duties and more noble obligations
enshrined in the Lawyer's Oath which goes beyond
commitment to social obligation and legal
mandates.
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, RA 9999).
--Rule 2.03, Canon 2
A lawyer shall not do or permit to be done any act
designated primarily to solicit legal business.
(1997 Bar)
Rule 2.02, Canon 2
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.
Rationale behind the rule that legal profession is
not considered as a business (2006 Bar)
It is not a business because it is a:
1.
Rendering of Legal Advice includes 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 attorneyclient 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).
2.
3.
4.
---
5.
Q: Wanda finally became pregnant in the 10th
year of her marriage to Horacio. As her
pregnancy progressed, she started having
difficulty breathing and was easily fatigued. The
doctors diagnosed that she has a heart
congestion problem due to a valve defect, and
that her chances of carrying a baby to full term
are slim. Wanda is scared and contemplates the
possibility of abortion. She thus sought legal
advice from Diana, a lawyer-friend and fellow
church member, who has been informally
advising her on legal matters.
Duty of public service, of which the emolument
is a byproduct, and in which one may attain the
highest eminence without making much
money;
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; and
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.
Advertisements
GR: No advertisement by lawyers is allowed. The
most worthy and effective advertisement possible is
the establishment of a well-merited reputation for
professional capacity and fidelity to trust.
XPNs: [LEPO-LABAN-PD]
1. Reputable Law lists, in a manner consistent
27
LEGAL ETHICS
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 where 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; and
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, August 19,
2003).
2.
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. Tabalingcos was charged with
unlawfully soliciting clients and advertising
legal services through various business entities.
He allegedly set up two financial consultancy
firms, Jesi and Jane Management, Inc. and
Christmel Business Link, Inc., and used them as
fronts to advertise his legal services and solicit
cases. However, he contended that his law firm
had an agreement with Jesi and Jane
Management, Inc., whereby the firm would
handle the legal aspect of the corporate
rehabilitation case; and that the latter would
attend to the financial aspect of the case’ such as
the preparation of the rehabilitation plans to be
presented in court. Is Atty. Tabalingcos guilty of
unlawful solicitation?
A: YES. Based on the facts of the case, he violated
Rule 2.03 of the Code, which prohibits lawyers from
soliciting cases for the purpose of profit.
A lawyer is not prohibited from engaging in
business or other lawful occupation. Impropriety
arises, though, when the business is of such a nature
or is conducted in such a manner as to be
inconsistent with the lawyer’s duties as a member
of the bar. This inconsistency arises when the
business is one that can readily lend itself to the
procurement of professional employment for the
lawyer; or that can be used as a cloak for indirect
solicitation on the lawyer’s behalf; or is of a nature
that, if handled by a lawyer, would be regarded as
the practice of law. It is clear from the documentary
evidence submitted by complainant that Jesi & Jane
Management, Inc., which purports to be a financial
and legal consultant, was indeed a vehicle used by
Atty. Tabalingcos as a means to procure
professional employment; specifically for corporate
rehabilitation cases (Villatuya v. Tabalingcos, A.C.
No. 6622, July 10, 2012).
NOTE: For solicitation to be proper, it must be
compatible with the dignity of the legal profession.
If made in a modest and decorous manner, it would
bring no injury to the lawyer or to the bar (Pineda,
2009).
Rationale for the Prohibition of Advertisements
1.
2.
3.
4.
5.
The profession is primarily for public service;
Commercializes the profession;
Involves self-praise and puffing;
Damages public confidence; and
May increase lawsuits and result in needless
litigation.
--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?
Examples of indirect solicitation
1.
Writing unsolicited articles on a legal subject.
Writing and selling for publication articles of
general nature on legal subjects; and
28
THE CODE OF PROFESSIONAL RESPONSIBILITY
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, December 29, 1983).
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, August 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).
---
--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. (2001 Bar)
NOTE: A general professional 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 (Canon 33, CPE).
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 handing 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.
--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 named partner. Would
you consider this as improper advertising?
Explain your answer.
--Rule 2.04, Canon 2
A lawyer shall not charge rates lower than those
customarily prescribed unless the circumstances
so warrant (1997, 2005 Bar)
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.
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.
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. Does the
appearance of such in a newspaper, amount to
advertising and solicitation of legal services
prohibited by the Code of Professional
Responsibility and the Rules of Court?
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).
TRUE, HONEST, FAIR, DIGNIFIED AND
OBJECTIVE INFORMATION ON LEGAL SERVICES
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
CANON 3
A lawyer in making known his legal services
shall use only true, honest, fair, dignified and
objective information or statement of facts
29
LEGAL ETHICS
Brazen commercialization of legal services is
not allowed
Q: As a new lawyer, Attorney Novato started
with a practice limited to small claims cases,
legal counseling, and notarization of documents.
He put up a solo practice law office and was
assisted by his wife who served as his
secretary/helper. He used a makeshift hut in a
vacant lot near the local courts and a local
transport regulatory agency. With this strategic
location, he enjoyed heavy patronage assisting
walk-in clients in the preparation and filing of
pleadings and in the preparation and
notarization of contracts and documents. He had
the foresight of investing in a good heavy duty
copier machine that reproduces quality
documents, and charges a reasonable fee for this
service. He draws electric power from an
extension wire connected to an adjoining small
restaurant. He put up a shingle that reads: "Atty.
Novato, Specialist in Small Claims, Fastest in
Notarization; the Best and Cheapest in Copier
Services."
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.” (Art. 1340, NCC)
--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? (1997 Bar)
Is Attorney Novato’s manner of carrying out his
professional practice – i.e., mixing business with
the practice of law, announcing his activities via
a shingle and locating his office as abovedescribed – in keeping with appropriate ethical
and professional practice? (2013 Bar)
A: YES. 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,
2002).
A: NO. Attorney Novato’s manner of carrying out his
professional practice is not in keeping with
appropriate ethical and professional practice. He
has degraded the law profession which may result
to loss of respect to lawyers as a whole.
--Q: Atty. Nelson recently passed the Bar and
wanted to specialize in marine labor law. He
gave out calling cards with his name, address
and telephone number in front, and the
following words at the back: "We provide legal
assistance to overseas seamen who are
repatriated due to accident, illness, injury, or
death. We also offer FINANCIAL ASSISTANCE."
Does this constitute ethical misconduct? (2012
Bar)
The use of a makeshift hut standing alone would
create the impression that the lawyer does not have
a permanent address which is required to be stated
in all pleadings he signs as well as required to be
shown in documents he notarizes.
His shingle shows that he has considered the law
profession as a business. He should have separate
shingle for his copier services business.
A: YES, the calling card contains advertisement in
violation of Canon 3 of CPR. The phrase “We also
offer financial assistance” was clearly used to entice
clients who already had representation to change
counsels with a promise of loans to finance their
legal actions. Money was dangled to lure clients
away from their original lawyers, thereby taking
advantage of their financial distress and emotional
vulnerability. This crass commercialism degraded
the integrity of the bar and deserves no place in the
legal profession. (Linsangan v. Atty. Tolentino, A.C.
No. 6672, September 4, 2009)
When he included in his shingle the phrases
“Specialist in Small Claims” and “Fastest in
Notarization” he has transgressed the rule that a
lawyer in making known his legal services shall use
only dignified information or statement of facts
(Code of Professional Responsibility, Canon 3). So
also the norm that a lawyer shall not use or permit
the use of any misleading, undignified, selflaudatory or unfair statement or claim regarding his
qualifications or legal services (Ibid., Canon 3, Rule
3.01).
---
The use of the phrases “Specialist in Small Claims”
and “Fastest in Notarization” is misleading
30
THE CODE OF PROFESSIONAL RESPONSIBILITY
advertisement because they are likely to create an
unjustified expectation about the results the lawyer
can achieve or implies that the lawyer can achieve
results by improper means. (ABA Model Rule 7.1.b)
---
deceased partner may still be used
All the partners have, by their joint and several
efforts over a period of years contributed to the
goodwill attached to the firm name. In the case of a
firm having widespread connections, this goodwill
is disturbed by a change in firm name every time a
partner dies, and that reflects a loss in some degree
of the goodwill to the building up of which the
surviving partners have contributed their time, skill
and labor through a period of years (CPR Annotated,
PhilJA).
Rule 3.01, Canon 3
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)
Any false, exaggerating or untrue claims about his
qualification are clearly unethical. Example of this is
when a lawyer makes representation to a
prospective client that he has never lost a single
case in his entire career. Certainly, this is impossible
for the best lawyers in the country have experienced
losing cases (Antiquiera, 1992).
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.
Self-laudation is prohibited
Certain self-laudatory information such as election
to a public office, scholastic honors and
achievements, and legal authorships may be
disseminated. What is prohibited is that which
“creates an unjustified expectation about results the
lawyer can achieve (Funa, 2009).
The use of the firm name of a foreign law firm is
unethical (Pineda, 2009).
Rule 3.03, Canon 3
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.
Examples of Advertisements considered as
deceptive
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 in selecting
a lawyer; and
Representations concerning the quality of
service, which cannot be measured or verified
(CPR Annotated, PhilJA).
Name of a partner in law firm should be dropped if
appointed as judge since he is no longer allowed to
practice law (Pineda, 2009).
The rationale of this rule is to prevent the law firm
or partners from making use of the name of the
public official to attract business and to avoid
suspicion of undue influence.
---
Rule 3.02, Canon 3
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)
Q: Samonte alleges that when she went to
Branch 220, RTC QC to inquire about the reason
for the issuance of the TRO, Atty. Rolando
Gatdula (Clerk of Court) blamed her lawyer for
writing the wrong address in the complaint for
ejectmen. He 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.
Samonte told Atty. Gatdula that she could not
A lawyer is not authorized to use a name other than
the name inscribed in the Roll of Attorneys in his
practice of law (Pangan v. Atty. Ramos, A.M. No. 1053,
September 7, 1979).
Rationale behind the rule that the name of
31
LEGAL ETHICS
decide because she was only representing her
sister. To her consternation, 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 a prior civil case.
ask questions, 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?
A: YES. Fiscal Salva should be publicly censured for
the uncalled for 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).
Samonte filed an administrative case for
misconduct. 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 the calling card
"Baligod, Gatdula, Tacardon, Dimailig and Celera
Law Offices" and that he tried to convince her to
change counsels. However, 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.
PARTICIPATION IN THE IMPROVEMENT AND
REFORMS IN THE LEGAL SYSTEM
CANON 4
A lawyer shall participate in the development
of the legal system by initiating or supporting
efforts in law reform and in the improvement
of the administration of justice.
The 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, February 26,
1999).
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).
Examples:
1.
---
2.
Rule 3.04, Canon 3
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.
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.
Endorsement by a lawyer
A lawyer may, with propriety, endorse a candidate
and seek 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
opposing candidate is better qualified (ABA Opinion
189 (1938); Funa, 2009).
The reason for this 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. He also told the press that “if you want to
PARTICIPATION IN THE LEGAL
EDUCATION PROGRAM
32
THE CODE OF PROFESSIONAL RESPONSIBILITY
Q: Provincial Prosecutor Bonifacio refused to
represent the Municipality of San Vicente in a
case for collection of taxes. He explained that he
cannot handle the case with sincerity and
industry because he does not believe in the
position taken by the municipality. Can
Prosecutor
Bonifacio
be
sanctioned
administratively? (2006 Bar)
CANON 5
A lawyer shall keep abreast of legal
developments, participate in continuing legal
education programs, support efforts to
achieve high standards in law schools as well
as in the practical training of law students and
assist in disseminating information regarding
the law and jurisprudence.
A: NO. A lawyer may refuse a case which he believes
to be unmeritorious, because it is “his duty to
counsel or maintain such actions or proceedings
only as appear to him to be just and such defenses
only as he believes to be honestly debatable under
the law (Sec. 20(c), Rule 138). The Canons of Code of
Professional Responsibility are applicable to
government lawyers in the performance of their
official tasks. (Canon 6, CPR)
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 the 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
(Dulalia Jr. v. Cruz, A.C. No. 6854, April 25, 2007,
citing Santiago v. Rafanan, A.C. No. 6252, October 5,
2004).
--Rule 6.01, Canon 6
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.
The latest circular of the Supreme Court provides
for the mandatory attendance of all lawyers in the
so-called “Mandatory Continuing Legal Education
Program” of the IBP. For law practitioners, they
have to comply with the 36 hours of mandatory
legal education as a pre-condition to the nonrevocation of license to practice law (Antiquiera,
1992).
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? (2001 Bar)
Three-fold obligation of a lawyer
1.
2.
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; and
He owes it to the lay public to make the law a
part of their social consciousness (Pineda,
2009).
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.
LAWYERS IN THE GOVERNMENT AND
DISCHARGE OF OFFICIAL TASKS
CANON 6
These canons shall apply to lawyers in
government service in the discharge of their
official tasks.
--Instance where a private prosecutor may
appear in behalf of the State even without the
presence or supervision of a public prosecutor
Lawyers in the employ of the government should be
more sensitive in the performance of their
professional obligations as their conduct is subject
to constant scrutiny of the public.
All criminal actions either commenced by complaint
or by information shall be prosecuted under the
direction and control of a public prosecutor. In case
of heavy work schedule of the public prosecutor or
in the event of lack of public prosecutors, the private
---
33
LEGAL ETHICS
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 end of the trial even in the absence of a public
prosecutor, unless the authority is revoked or
otherwise withdrawn (Sec. 5, Rule 110, RRC as
amended by A.M. No. 02-2-07-SC effective May 1,
2002).
intervened while in said service. (1992, 1993,
2001 Bar)
Rule 6.02, Canon 6
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.
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 matter before the
office he used to be with.
Restriction on lawyers who are also public
officials
and
employees
during
their
incumbency [PERU]
---
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).
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 the alleged ill-gotten wealth of
former President Marcos, his family 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.,
alleging that 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?
They must NOT:
1.
2.
3.
4.
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;
and
Use or divulge confidential or classified
information officially known to them by reason
of their office and not available to the public.
Rule 6.01 vs. Rule 6.02
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.
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).
ABA Formal Opinion No. 342 is clear in stressing
that the “drafting, enforcing or interpreting
government or agency procedures, regulations or
laws, or briefing abstract principles of law” are acts
which do not fall within the scope of the
term “matter”. 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 from the
subject matter of the civil case about the
sequestration of the shares of Tan et al. in Allied
Bank. Consequently, the danger that confidential
Rule 6.03, Canon 6
A lawyer shall not, after leaving government
service, accept engagement or employment in
connection with any matter in which he had
34
THE CODE OF PROFESSIONAL RESPONSIBILITY
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).
Therefor). The Supreme Court may adopt rules of
court to effect the Integration of the Philippine Bar
under such conditions as it shall see fit in order to
raise the standards of the legal profession, improve
the administration of justice and enable the bar to
discharge its public responsibility more effectively.
NOTE: The Integrated Bar is a state-organized bar,
to which every lawyer must belong, as distinguished
from bar associations organized by lawyers
themselves, where membership is voluntary. It is a
national organization of lawyers created on 16
January 1973 under Rule 139-A of the Rules of
Court, and constituted on 4 May 1973 into a body
corporate by PD No. 181.
--Adverse-interest Conflict vs. Congruent-interest
Conflict
ADVERSE-INTEREST
CONFLICTS
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
In
congruent-interest
representation
conflict,
the disqualification does
not really involve a
conflict at all, because it
prohibits the lawyer from
representing a private
practice client even if the
interests of the former
government client and the
new client are entirely
parallel.
Integration of the Bar
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).
Fundamental purposes of the IBP
1.
2.
3.
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 139A, RRC).
NOTE: The Philippines is divided into 9 Regions of
the Integrated Bar, with a Chapter organized in
every province. 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 SC (Secs. 3 and 4, Rule 139-A, RRC).
NOTE:
“Congruent-interest
representation
conflict,” unlike the “adverse-interest conflict,” is
unique to former government lawyers.
DUTIES AND RESPONSIBILITIES OF A LAWYER
TO THE LEGAL PROFESSION
Constitutionality of the IBP integration
The practice of law is not a vested right but a
privilege clothed with public interest. Hence, it is
fair 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, January 9, 1973).
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
Integrated Bar of the Philippines
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).
Structure of the IBP Board
Statutory Basis
Nine Governors shall be elected by the House of
Delegates from the nine Regions on the
representation basis of one Governor from each
R.A. 6397 (An Act Providing for the Integration of
the Philippine Bar, and Appropriating Funds
35
LEGAL ETHICS
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, shall ipso facto become members of the
Board (Sec. 6, Rule 139-A, RRC).
to serve as Governor at any time is once again open
to all chapters, unless, of course, a chapter has
already served in the new cycle. While predictability
is not altogether avoided, as in the case where only
one chapter remains in the cycle, still, as previously
noted by the Court “the rotation rule should be
applied in harmony with, and not in derogation of,
the sovereign will of the electorate as expressed
through the ballot.” (In The Matter of the Brewing
Controversies in the Elections of the Integrated Bar of
the Philippines, A.M. No. 09-5-2-SC, December 04,
2012).
Term of members of the IBP Board
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 (Sec. 38, Art. VI, IBP By-Laws).
Transferring to another IBP Chapter is not a
ground for disqualification to run as IBP
Governor
Transferring to another IBP Chapter is not a ground
for disqualification for the post of IBP Governor as
the same is allowed under Section 19 of the IBP ByLaws with the qualification only that the transfer be
made not less than three months immediately
preceding any chapter election (Velez v. De Vera, A.C.
No. 6697, July 25, 2006).
Principle of Rotation
Pursuant to the principle of rotation, the
governorship of a region shall rotate once in as
many terms as the number of chapters there are in
the region, to give every chapter a chance to
represent the region in the Board of Governors.
Thus, in a region composed of 5 chapters, each
chapter is entitled to the governorship once in every
5 terms, or once every ten (10) years, since a term is
two (2) years (Atty. Magsino et al. v. Atty. Vinluan,
A.M. No. 09-5-2-SC, December 14, 2010).
Board meetings
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: The principle on rotation shall be strictly
implemented so that all prior elections for governor
in the region shall be reckoned with or considered
in determining who should be the governor to be
selected from the different chapters to represent
the region in the Board of Governors (Bar Matter No.
586 dated May 16, 1991).
IBP officers
The Integrated Bar shall have a/an:
Kinds of rotation
1.
2.
1.
2.
Rotation by pre-ordained sequence - effected by
the observance of the sequence of the service of
the chapters in the first cycle, which is very
predictable.
Rotation by exclusion - effected by the exclusion
of a chapter who had previously served until all
chapters have taken their turns to serve. It is
not predictable as each chapter will have the
chance to vie for the right to serve, but will have
no right to a re-election as it is debarred from
serving again until the full cycle is completed (In
The Matter of the Brewing Controversies in the
Elections of the Integrated Bar of the Philippines,
A.M. No. 09-5-2-SC, December 04, 2012).
3.
4.
5.
NOTE: In one case, the Supreme Court held that
rotation by exclusion shall be adopted since the
elections would be more genuine as the opportunity
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; and
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 need not be members of
the Integrated Bar (Sec. 7, Rule 139-A, RRC).
Term of officers
36
THE CODE OF PROFESSIONAL RESPONSIBILITY
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. In the event the
President is absent or unable to act, his functions
and duties shall be performed by the Executive Vice
President, and in the event of the death, resignation,
or removal of the President, the Executive Vice
President shall serve as Acting President for the
unexpired portion of the term. 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 for the unexpired portion of the term
or during the period of disability. Unless otherwise
provided in these By-Laws, all other officers and
employees appointed by the President with the
consent of the Board shall hold office at the pleasure
of the Board or for such term as the Board may fix
(Sec. 49, Article VII, IBP By-Laws).
IBP must be apolitical
Qualifications of a Regional IBP Governor
2.
1.
2.
3.
4.
No lawyer holding an elective, judicial, quasijudicial 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, quasijudicial, or prosecutory office in the Government or
any political subdivision or instrumentality thereof
(Sec. 13, Rule 139-A, RRC).
Prohibited acts and practices relative to the
elections of IBP officers
1.
He is a member in good standing in 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 ByLaws 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; and
He is not in the government service (In Re:
Petition to disqualify Atty. De Vera, A.C. No. 6052,
December 11, 2003).
3.
4.
5.
NOTE: Moral fitness is not an explicit qualification
in the IBP by-laws.
Vacancy occurring in the IBP presidency
1.
2.
3.
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, quasi-judicial 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.
In the event the President is absent or unable to
act, his duties shall be performed by the
Executive Vice President.
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.
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 139A, RRC).
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;
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 SC received reports of electioneering and
extravagance that characterized the campaign
of the 3 candidates for President of the IBP. It is
NOTE: Serves only the unexpired term.
37
LEGAL ETHICS
alleged that they used government planes, gave
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 SC to suspend the oath taking of
the officials?
Bar. He has the discretion to choose the IBP Chapter
he wants to join. (Garcia v. De Vera, A.C. 6052,
December 11, 2003)
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 is 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).
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 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, October 6, 1989).
Procedure for
membership
voluntary
termination
of
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).
MEMBERSHIP AND DUES
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
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
infringes on his constitutional right of freedom
to associate (and not to associate)?
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
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.
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)
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
group of which every lawyer is already a member.
NOTE: Membership dues are not prohibited by the
Constitution. The fee is imposed as a regulatory
measure, designed to raise funds for carrying out
the purposes and objectives of the integration (In
the Matter of IBP Membership dues delinquency of
Atty. Marcial Edillon, A.M. No. 1928, August 3, 1978).
Effect of non-payment of dues
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)
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)
--NOTE: 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
--Q: Atty. Llamas, for a number of years, has not
38
THE CODE OF PROFESSIONAL RESPONSIBILITY
indicated the proper PTR and IBP O.R. Nos. and
data in his pleadings. He only indicated “IBP
Rizal 259060” but he has been using this for at
least 3 years. 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 exempt from
payment of income taxes, including the payment
of membership dues. Is Atty. Llamas correct?
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).
---
A: NO. Rule 139-A requires that every member of
the Integrated Bar shall pay annual dues and default
thereof shall warrant the appropriate penalties. 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, January 20, 2000).
No retirement in the IBP
There is no such thing as retirement in the IBP as
understood in labor law. A lawyer, however, may
terminate his bar membership after filing the
required verified notice of termination with the
Secretary of the Integrated Bar (In Re: Atty. Jose
Principe, Bar Matter No. 543, September 20, 1990).
NOTE: R.A. 7432 providing 20% discount to Senior
Citizens DOES NOT apply to IBP Dues.
UPHOLDING THE DIGNITY AND INTEGRITY OF
THE PROFESSION
---
Academic requirements for bar candidates
Q: Atty. Arevalo sought exemption from
payment of IBP dues for the alleged unpaid
accountability for the years 1977-2005. He
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 from December 1986 until
his retirement in 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?
1. Pre-Law – Pursued and satisfactorily
completed in an authorized and recognized
university or college, requiring for admission
thereto the completion of a four-year high
school course, the course of study prescribed
therein for a bachelor’s degree in arts or
sciences. (Sec. 6, Rule 138, RRC)
2. Law proper - satisfactorily completed the
following courses in a law school or university
duly recognized by the government:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
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.
civil law;
commercial law;
remedial law;
criminal law;
public and private international law;
political law;
labor and social legislation;
medical jurisprudence;
taxation; and
legal ethics (Sec. 5, Rule 138, RRC)
Rule 7.01, Canon 7
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.
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
(even if the lawyer is staying abroad). At most, as
correctly observed by the IBP, he could have
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
(In re: Victorino Lanuevo, A.M. No. 1162, August 29,
39
LEGAL ETHICS
1975).
for admission (CPR Annotated, PhilJA).
Honest mistake as excuse in making false
statement
Rule 7.03, Canon 7
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)
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).
False statements in
admission to the Bar
1.
2.
3.
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 Helen along to social functions and
introduce her as his second wife. Is such act
unethical?
the
application
for
A: YES, it violates Rule 7.03 of CPR. The fact that he
shamelessly flaunts his mistress constitutes an act
which embarrasses and discredits 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.
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.
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
the sanctity of marriage and the marital vows
protected by the Constitution and affirmed by our
laws (Vitug v. Roncal, A.C. No. 6313, September 7,
2006).
Effect concealment of a crime which does not
involve moral turpitude
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 (In re: Victorino Lanuevo, A.M. No. 1162,
August 29, 1975).
--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. (2005 Bar)
Rule 7.02, Canon 7
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.
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
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
40
THE CODE OF PROFESSIONAL RESPONSIBILITY
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.”
CANON 8
A lawyer shall conduct himself with courtesy,
fairness and candor towards his professional
colleagues, and shall avoid harassing tactics
against opposing counsel.
--Q: Explain whether Atty. Kuripot should be held
administratively liable for his refusal to settle
his credit card bill. (2005 Bar)
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).
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, December 7, 1993; Lao v.
Medel, A.C. No. 5916, July 1, 2003), there is no
obstinacy shown in this case.
A lawyer’s language should be forceful but dignified,
emphatic but respectful as befitting an advocate and
in keeping with the dignity of the legal profession
(In Re: Climaco, A.C. No. 134-J, January 21, 1974).
--Q: In one civil case, Atty. Ferrer filed a reply with
opposition to motion to dismiss that contained
abusive, offensive, and improper language
which insinuated that Atty. Barandon presented
a falsified document in court. He also filed a
fabricated charge against Atty. Barandon in
another case for alleged falsification of public
document. Furthermore, at the courtroom
of MTC Daet before the start of hearing,
Atty. Ferrer, evidently drunk, threatened
Atty. Barandon. Is he guilty of violation of the
Code of Professional Responsibility?
--Q: Atty. Capito was supposed to represent
Milagros in a claim for support against her
husband but no legal action was taken. He then
borrowed 4,000 from Milagros. He was also
permitted to stay in the house of Milagros for 2
weeks but he prolonged his stay to a month and
even reneged on his promise to pay. Atty. Capito
continued to borrow money from her and the
debt grew to P16,000. When Milagros finally met
him to collect the debt, Atty. Capito, in the
presence of several others, told her “Eh kung
sabihin ko na sugar mommy kita”. Rule on the
conduct of Atty. Capito.
A: YES. Canon 8 of the Code of Professional
Responsibility commands all lawyers to conduct
themselves with courtesy, fairness and candor
towards their fellow lawyers and avoid harassing
tactics
against
opposing
counsel.
Atty. Ferrer’s actions do not measure up to this
Canon. Moreover, Atty. Ferrer could have aired his
charge of falsification in a proper forum and without
using offensive and abusive language against a
fellow lawyer. The Court has constantly reminded
lawyers to use dignified language in their pleadings
despite the adversarial nature of our legal system.
Atty. Ferrer had likewise violated Canon 7 of the
Code of Professional Responsibility which enjoins
lawyers to uphold the dignity and integrity of the
legal profession at all times. Several disinterested
persons confirmed Atty. Ferrer’s drunken
invectives at Atty. Barandon shortly before the start
of a court hearing (Barandon v. Ferrer, Sr., A.C.5768,
March 26, 2010).
A: The respondent is guilty of gross discourtesy
amounting to conduct unbecoming of a court
employee. By such violation, respondent failed to
live up to his oath of office as member of the
Integrated Bar of the Philippines and violated Rule
7.03 of the Code of Professional Responsibility. He
should not use abusive, offensive, scandalous,
menacing and improper language. Their every act or
word should be marked by prudence, restraint,
courtesy and dignity. Aside from violating Rule 7.03
of the Code of Professional Responsibility,
respondent appears to have also violated Rule 8.01
of the same Code (Re: Complaints of Mrs. Milagros
Lee & Samantha Lee against Atty. Gil Luisito R.
Capito, A.M. No. 2008-19-SC, August 18, 2010).
--Q: Atty. Y, in his motion for reconsideration of
the Decision rendered by the NLRC, alleged that
there
was
connivance
of
the
NLRC
Commissioners with Atty. X for monetary
COURTESY, FAIRNESS AND CANDOR TOWARDS
PROFESSIONAL COLLEAGUES
41
LEGAL ETHICS
considerations in arriving at the questioned
decision. He insulted the Commissioner for their
ineptness in appreciating the fact as borne by
the evidence presented. Atty. X files an
administrative complaint against Atty. Y for
using abusive language. Atty. Y posits that as a
lawyer for the down-trodden laborers, he is
entitled to express his righteous anger against
the Commissioners for having cheated them;
that his allegations in the motion for
reconsideration are absolutely privileged; and
that proscription against the use of abusive
language does not cover pleadings filed with the
NLRC, as it is not a court, nor are any of its
Commissioners Justices or Judges. Is Atty. Y
administratively liable under the Code of
Professional Responsibility? Explain. (2010
Bar)
4.
Introducing into an argument, addressed to the
court, remarks or statements intended to
influence the bystanders (Pineda, 2009).
Rule 8.01, Canon 8
A lawyer shall not, in his professional
dealings, use language which is abusive,
offensive or otherwise improper.
Instances of disrespectful language
1.
2.
3.
A: YES. Atty. Y has clearly violated Canons 8 and 11
of the Code of Professional Responsibility and is
administratively liable. A lawyer shall not in his
professional dealings, use language which is
abusive, offensive or otherwise improper (Rule 8.01,
Code of Professional Responsibility). In the case of
Johnny Ng v. Atty. Alar (507 SCRA 465), it was held
that the argument that the NLRC is not a court, is
unavailing. The lawyer remains a member of the
Bar, an “oath-bound servant of the law, whose first
duty is not to his client but to the administration of
justice and whose conduct ought to be and must be
scrupulously observant of the law and ethics.”
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, March 23, 1950);
Stating that “justice is blind and also deaf and
dumb.” (In Re: Almacen, G.R. No. L-27654,
February 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, February 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, February 1984); and
Any other analogous cases.
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).
The argument that labor practitioners are entitled
to some latitude of righteous anger is unavailing. It
does not deter the Court from exercising its
supervisory authority over lawyers who misbehave
or fail to live up to that standard expected of them
as members of the Bar.
-----
Q: A complaint was filed against Atty. Zaide for
use of intemperate, offensive and abusive
language. Atty. Zaide referred to the
complainant as a “notorious extortionist” and to
his opposing counsel as someone suffering from
"serious mental incompetence" in one of his
pleadings. Did the act of Atty. Zaide violate the
Code of Professional Responsibility?
Instances of Lack of Candor (honesty)
1.
2.
3.
Misquoting the contents of paper, testimony of
a witness, the language or the argument of
opposing counsel; or the language of the
decision or a textbook;
With knowledge of its invalidity, to cite as
authority a decision that has been overruled or
a statute that has been repealed, or in the
argument to assert as a fact that which has not
been proved, or in those jurisdictions where the
side has the opening and closing arguments to
mislead his opponent by concealing or
withholding positions in his opening argument
upon which his side then intends to rely;
Offering evidence which he knows the court
should reject; or
A: YES. More specifically, Canon 8.01 of the CPR. The
act shows Atty. Zaide's lack of restraint in the use
and choice of his words - a conduct unbecoming of
an officer of the court. While a lawyer is entitled to
present his case with vigor and courage, such
enthusiasm does not justify the use of offensive and
abusive language. Language abounds with countless
possibilities for one to be emphatic but respectful,
convincing but not derogatory, and illuminating but
42
THE CODE OF PROFESSIONAL RESPONSIBILITY
not offensive (Gimeno v. Zaide, A.C. No. 10303, April
22, 2015).
negotiate or compromise the matter with him, but
should deal with his counsel.
---
Any act which is aimed to ease out a previous lawyer
with the intention to grab the case is highly
unethical and should be avoided (Antiquiera, 1992).
Q: In 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 Atty.
Deguma, as a lawyer in the PAO, is using the PAO
as a marriage bureau for her benefit. Is the
language employed by Tiongco improper and
unethical?
Exceptions
1.
2.
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, August 1,
2000).
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; and
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?
(2006 Bar)
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).
--Rule 8.02, Canon 8
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)
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 (Canon 8, CPR).
---
A person without a retained lawyer is a legitimate
prospective client for any lawyer whom he
approaches for legal services. But, as soon as he had
retained one and had not dismissed the retained
counsel, efforts on the part of another lawyer to take
him as client constitutes an act of encroaching upon
the employment of another lawyer.
Q: What should Atty. Mendoza do about the
information relayed to him by Myrna that Atty.
Khan approached her husband with an indecent
proposal? (2006 Bar)
A: He can advise 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
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
43
LEGAL ETHICS
assistance to those seeking relief against unfaithful
or neglectful counsel (Rule 8.02, CPR).
Q: Will your answer be the same if it was the
plaintiff who was interviewed by Atty. Manuel
without the consent of plaintiff's counsel?
Explain. (2009 Bar)
--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? (1997 Bar)
A: My answer will not be the same. Canon 9 of the
Canons of Professional Ethics provides that “a
lawyer should not in any way communicate upon a
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
only with his counsel.” If he communicates with the
adverse party directly, he will be encroaching into
the employment of the adverse party's lawyer.
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.”
CANON 9
A lawyer shall not, directly or indirectly, assist
Unauthorized
Practice
of Lawof law.
in the unauthorized
practice
NO ASSISTANCE IN UNAUTHORIZED PRACTICE
OF LAW
Unauthorized practice of law is committed when a
person, not a lawyer, performs acts which are
exclusive to members of the bar. (Pineda, 2009)
The rationale of this canon 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.
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.
There is no violation of this canon if a lawyer
employs a paralegal graduate to assist him in the
practice of law since the job of a paralegal is limited
to drafting of documents, case management, etc
(Antiquiera, 1992).
--Q: Atty. Manuel is counsel for the defendant in a
civil case pending before the RTC. After
receiving the plaintiff's Pre-Trial Brief
containing the list of witnesses, Atty. Manuel
interviewed some of the witnesses for the
plaintiff without the consent of plaintiff's
counsel. Did Atty. Manuel violate any ethical
standard for lawyers? Explain. (2009 Bar)
--Q: Will a lawyer violate the Code of Professional
Responsibility if he forms a partnership with
professionals of other disciplines like doctors,
engineers, architects or accountants? (2014
Bar)
A: NO, because Canon 39 of the Canons of
Professional Ethics provides that “a lawyer may
interview any witness or prospective witness from
the opposing side in any civil or criminal action
without the consent of opposing counsel or party.”
This is because a witness is supposed to be a neutral
person whose role is to tell the truth when called
upon to testify.
A: YES, the Code of Professional Responsibility
prohibits unauthorized practice of law so that
lawyers cannot directly or indirectly assist said
practice, or delegate its practice to one who is not
qualified to do so. In partnership, the act of a
partner is the act of the partnership; hence, a nonlawyer cannot perform an act that has a legal effect
and in the name of the partnership.
---
--Q: Sanchez alleged that the complaint against
44
THE CODE OF PROFESSIONAL RESPONSIBILITY
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?
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).
---
A: YES. The term "clerk of courts" in 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 MTCs, 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, March 1, 2004).
Q: Lorenzo is a lawyer but was suspended from
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 an easy case. Did Atty.
Berenguer violate any rule?
A: YES, because he delegated the 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.
--Q: The Supreme Court suspended indefinitely
Atty. Fernandez from the practice of law for
gross immorality. He asked the MCTC Judge of
his town if he can be appointed counsel de officio
for Tony, a childhood friend who is accused of
theft. The judge refused because Atty.
Fernandez' name appears in the SC's list of
suspended lawyers. Atty. Fernandez then
inquired if he can appear as a friend for Tony to
defend him. xxx Supposing Tony is a defendant
in a civil case for collection of sum of money
before the same court, can Atty. Fernandez
appear for him to conduct his litigation? (2006
Bar)
--Q: Atty. Monica Santos-Cruz registered the firm
name "Santos-Cruz Law Office" with the DTI as a
single proprietorship. In her stationery, she
printed the names of her husband and a friend
who are both non-lawyers as her senior
partners in light of their investments in the firm.
She allowed her husband to give out calling
cards bearing his name as senior partner of the
firm and to appear in courts to move for
postponements, Did Atty. Santos-Cruz violate
the CPR? (2010 Bar)
A: Even if Tony is a defendant in a civil case, Atty.
Fernandez cannot be allowed to appear for him to
conduct his litigation; otherwise, the judge will be
violating Canon 9 of the CPR which provides that a
“lawyer shall not, directly or indirectly, assist in the
unauthorized practice of law.”
A: YES, she violated Rule 9.01, Canon 9 of the CPR.
By allowing her husband to appear in courts to
move for the postponements of the cases of the firm,
she delegated her duty to appear, which a member
of the bar can only perform, to an unqualified
person.
--Rule 9.01, Canon 9
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.
The lawyer’s duty to prevent, or at the very least not
to assist in, the unauthorized practice of law is
founded on public interest and policy. 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
(Cambaliza v. Cristal-Tenorio, A.C. No. 6290, July 14,
2004).
---
The qualifications to be a lawyer are personal and
the Bar is an exclusive group of professionals who
possess the requisite qualifications and for 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.
Q: C and D are law partners using the firm name
C and D – Attorneys –at –Law. In an
Although the authority of a lawyer to represent a
45
LEGAL ETHICS
administrative case filed against C, the Supreme
Court (SC) found that C was not entitled to
admission to the practice of law in the
Philippines and ordered his name stricken-off
from the Roll of Attorneys. As a result C and D
changed their firm name to Law Office of D –
Attorney – at – Law, C – Counselor, with C
handling purely counseling and office work
while D is the law practitioner. Are C and D liable
for contempt of the court? (2014 Bar)
partners. The legal fees in this case, no longer
represent past compensation.
3.
NOTE: This is not a division of legal fees but a
pension representing deferred wages for the
employees’ past services.
A: C and D are liable for contempt of court. C and D
formed a professional partnership wherein they
contributed money, property and industry. C
assumes to be an attorney without any authority. D
not only assist in the illegal practice of law but
conspired with C. Canon 9 of the CPR clearly states
that a lawyer shall not, directly or indirectly, assist
in the unauthorized practice of law. As counseling is
considered practice of law, D delegated the
performance of a legal task to C, an unqualified
person.
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).
--Q: Engr. Rufino referred a case for partition of
the estate of the late Benjamin Yap to Atty.
Pefianco. It was agreed in writing that Rufino
would receive ten percent of the attorney’s fees
to be received by Atty. Pefianco. However, when
the fees were already paid, Pefianco refused to
pay, stating in a letter that the spouses will be
the one to shoulder his commission. Rufino filed
a disbarment case against Pefianco. Should Atty.
Pefianco be disciplined?
--Rule 9.02, Canon 9
A lawyer shall not divide or stipulate to divide
a fee for legal services with persons not
licensed to practice law.
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)
A: YES, it is clear that Atty. Pefianco violated Rule
9.02, Canon 9. By stipulating that Rufino will be
entitled to a commission from his attorney’s fees,
Atty. Pefianco entered into an agreement to divide
the fee with a person not licensed to practice law.
Exceptions to Rule 9.02
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
--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
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 therefrom. Will you
agree to the arrangement? Explain. (2005 Bar)
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 or law firm includes a nonlawyer employee 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).
Where a lawyer undertakes to complete
unfinished legal business of a deceased lawyer
(Rule 9.02, third par., Canon 9, CPR); or
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
NOTE: The estate or the heir cannot be made a
member of the partnership with the surviving
46
THE CODE OF PROFESSIONAL RESPONSIBILITY
not entitled to a share of the fees for notarizing
affidavits, which is a legal service.
The time that will have to be devoted just to the task
of verification of allegations submitted could easily
be imagined (Hueysuwan-Florido v. Atty. Florido, A.C.
No. 5624, January 20, 2004).
DUTIES AND RESPONSIBILITIES OF A LAWYER
TO THE COURTS
--CANON 10
A lawyer owes candor, fairness and good faith
to the court
Rule 10.01, Canon 10
A lawyer shall not do any falsehood, nor
consent to the doing of any in court; nor shall
he mislead, or allow the court to be misled by
any artifice.
The burden cast on the judiciary would be
intolerable if it could not take at face value what is
asserted by counsel.
A lawyer must be a disciple 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 a correct conclusion.
As officers of the court, lawyers have the primary
obligation towards the administration of justice. To
mislead the court is contumacious and clearly a
ground for disciplinary action (Antiquiera, CPR).
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).
Requirements of candor
1.
2.
3.
4.
A lawyer shall not suppress material and vital
facts which bear on the merit or lack of merit of
a 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; and
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.
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).
Presenting false evidence is not justifiable. It is a
clear violation of Canon 10 and Rule 10.01 of the
CPR. 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: Atty. Florido demanded from his wife that the
custody of their children be surrendered to him.
He showed her a photocopy of an alleged
Resolution issued by the CA supposedly granting
his motion for temporary child custody. His wife
refused. 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 Resolution. His wife, however,
obtained a certification from the CA stating that
no such resolution had been issued. May Atty.
Florido be held administratively liable for his
reliance on and attempt to enforce a spurious
Resolution of the CA?
Examples of falsehood
1.
2.
3.
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.
4.
47
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).
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).
Lawyer encashing a check payable to a
deceased cousin by signing the latter’s name
on the check (In re: Samaniego, A.C. No. 74,
November 20, 1959).
Lawyer falsified a power of attorney and used
it in collecting the money due to the principal
LEGAL ETHICS
and appropriated 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 owners of the same property
where there are false allegations in the
pleadings (Chavez v. Viola, G.R. No. 2152, April
19, 1991).
6. Lawyer uttering falsehood in a Motion to
Dismiss. (Martin v. Moreno, A.C. No. 1432, May
21, 1984).
7. 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).
8. Lawyer presenting falsified documents in
court which he knows to be false (Berenguer v.
Carranza, A.C. No. 716, January 30, 1969).
9. Lawyer filing false charges or groundless suits
(Retuya v. Gorduiz, A.C. No. 1388, March 28,
1980).
10. Making untruthful and false statements before
the court (Molina v. Magat, A.C. No. 1900, June
13, 2012).
Q: De Jesus (complainant) alleged that Atty.
Sanchez-Malit (respondent) drafted and
notarized a Real Estate Mortgage of a public
market stall that falsely named the former as its
absolute and registered owner despite the latter
being the consultant of the local government
unit, and was therefore aware that the market
stall was government-owned. Prior thereto,
Atty. Sanchez-Malit also notarized two contracts
that caused De Jesus legal and financial
problems. One contract was a lease agreement
that was notarized without the signature of the
lessees. The other contract was a sale agreement
which Atty. Sanchez-Malit also drafted and
notarized, but did not advise De Jesus that the
property was still covered by the period within
which it could not be alienated. De Jesus also
submitted other documents that were notarized
by Sanchez-Malit but were not signed by the
principals named therein. Did Atty. SanchezMalit violate Rule 10.01 of the Code of
Professional Responsibility?
A: YES. In this case, respondent fully knew that
complainant was not the owner of the mortgaged
market stall. That complainant comprehended the
provisions of the real estate mortgage contract does
not make respondent any less guilty. If at all, it only
heightens the latter’s liability for tolerating a
wrongful act. A notary public should not notarize a
document unless the persons who signed it are the
very same ones who executed it and who personally
appeared before the said notary public to attest to
the contents and truth of what are stated therein.
Thus, in acknowledging that the parties personally
came and appeared before her, respondent also
violated Rule 10.01 of the Code of Professional
Responsibility and her oath as a lawyer that she
shall do no falsehood (De Jesus v. Sanchez-Malit, A.C.
No. 6470, July 08, 2014).
--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,
Atty. Doronilla alleged 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
such agreement. Atty. Doronillo then admitted
that there was 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?
--Rule 10.02, Canon 10
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.
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,
September 15, 2006)
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.
---
Rule 10.03, Canon 10, CPR
48
THE CODE OF PROFESSIONAL RESPONSIBILITY
A lawyer shall observe the rules of procedure
and shall not misuse them to defeat the ends
of justice.
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).
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).
In case of conflict between his duty to the court and
his duty to the society and his client, the other must
yield since it is his duty to the court that should take
precedence.
NOTE: 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 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, February 1, 1989).
Instances when lawyers can be disciplined
based on the pleadings they filed
When a counsel deliberately:
1.
2.
3.
Files an unsigned pleading in violation of the
rules;
Alleges scandalous matters therein;
Fails to promptly report to the court a change
of his address (Sec. 3, Rule 7, RRC).
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.
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, March 30,
1993).
--Q: Atty. Paguia asserts that the inhibition of the
members of the SC 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 violated the said rule by
attending the 'EDSA 2 Rally' and by authorizing
the assumption of Vice- President MacapagalArroyo to the Presidency. The subsequent
decision of the Court in Estrada v. Arroyo (G.R.
Nos. 146710-15, March 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.
Rule 10.04, Canon 10
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.
RESPECT FOR COURTS AND JUDICIAL OFFICERS
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.
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.
Further, he asserted that the decision in Estrada
v. Arroyo being patently unlawful in view of the
49
LEGAL ETHICS
Code of Judicial Conduct, is not the act of the SC
but is merely the wrong of those individual
Justices who falsely spoke and acted in the name
of the SC. Are Atty. Paguia’s comments within the
bounds of “fair and well-founded criticisms”
regarding decisions of the SC?
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. Was the
criticism proper?
A: NO. 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.”
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 MacapagalArroyo 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 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 Allegations of Plagiarism and
Misrepresentation in the Supreme Court”, A.M. No.
10-10-4-SC, October 19, 2010).
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, November 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 allegedly contemptuous
statements in relation to the then pending case
involving the constitutionality of the Plunder
Law. Atty. De Vera admitted the report in the
November 6, 2002 issue of the Philippine Daily
Inquirer where 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
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 in
said case. The insult to the members of the Court
was aggravated by imputations of deliberately
delaying the resolution of the case, its dismissal
on the basis of “polluted sources,” the Court’s
50
THE CODE OF PROFESSIONAL RESPONSIBILITY
Plunder Law to protect the credibility of the
Court”. Is the statement of Atty. De Vera
disrespectful to the courts?
--Rule 11.01, Canon 11
A lawyer shall appear in court properly
attired.
A: YES. 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.
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.
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).
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
A lawyer shall punctually appear at court
hearings.
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).
--Q: Jimmy and his siblings filed a case for
disciplinary action against Atty. Cefra for
notarizing a falsified Deed of Absolute Sale over
a parcel of land, where their signatures were
forged. The Supreme Court required him to
comment
on
the
administrative
complaint. However, Atty. Cefra did not comply
with the Court’s order. His continued refusal to
file his Comment caused the court to order his
arrest and commitment. Is Atty. Cefra guilty of
violating the Code of Professional Responsibility
in ignoring the court’s order directing him to
comment on the complaint against him?
Rule 11.03, Canon 11
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 CA 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 plaintiff-appellant Uy had, in
fact, confessed to bribing judges. Consequently,
Uy filed a verified complaint against respondent
lawyers for gross misconduct. Should they 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. The act of disobeying a court order
constitutes violation of Canon 11 of the Code of
Professional Responsibility, which requires a
lawyer to “observe and maintain the respect due to
the courts[.]” He contumaciously delayed
compliance with this court’s order to file a
Comment. As early as September 19, 2001, the
Court already required Atty. Cefra to comment on
the Complaint lodged against him. Atty. Cefra did
not comply with this order until he was arrested by
the National Bureau of Investigation. Atty. Cefra
only filed his Comment on January 15, 2008, more
than seven years after the Court’s order. Atty.
Cefra’s actions show utter disrespect for legal
processes (Anudon v. Cefra, A.C. No. 5482, February
10, 2015).
A: YES. The lawyers 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 conversationsboth 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;
51
LEGAL ETHICS
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).
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, August 25,
2009).
--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,
September 21, 1993)
--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. 79690707, October 7, 1988).
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.
Rule 11.04, Canon 11
A lawyer shall not attribute to a judge motives
not supported by the record or have no
materiality to the case.
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.
--Q: An administrative case for disbarment was
filed against MDS, a Lady Senator, for uttering
offensive remarks in her privilege speech
delivered in the Senate floor. 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?
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.
A: YES. Her statements, being part of her privilege
speech as a member of Congress, were covered by
the constitutional provision on parliamentary
immunity. 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 MDS used in her speech and its
effect on the administration of justice. To the Court,
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
52
THE CODE OF PROFESSIONAL RESPONSIBILITY
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,
February 18, 1970).
--Q: When is public comment and criticism of a
court decision permissible and when would it be
improper? (1997 Bar)
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 the record or have no materiality in
the case (Rule 11.04, CPR).
--Q: Atty. Romeo Roxas was charged for contempt.
In a letter addressed to Associate Justice ChicoNazario, he wrote 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 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."
--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).
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?
If the court official or employee or a lawyer is to be
disciplined, the evidence against him should be
substantial, competent and 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).
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.
--Q: Atty. Juan S. Dealca entered his appearance in
a criminal case presided by Judge Jose L. Madrid.
Atty. Dealca moved that such case be re-raffled
to another branch of the RTC. Consequently,
Judge Madrid filed a letter complaint in the
Office of the Bar Confidant citing Atty. Dealca’s
unethical practice of entering his appearance
and then moving for the inhibition of the
presiding judge on the pretext of previous
adverse incidents between them. Is Atty. Dealca
guilty of unethical practice in seeking the
inhibition of Judge Madrid in the criminal case?
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).
A: YES, Atty. Dealca violated Canon 11 and Rule
11.04 of the Code of Professional Responsibility.
While it is the Court’s duty to investigate and
uncover the truth behind charges against judges and
53
LEGAL ETHICS
lawyers, it is equally its duty to shield them from
unfounded suits that are intended to vex and harass
them, among other things. All lawyers are bound to
uphold the dignity and authority of the courts, and
to promote confidence in the fair administration of
justice. It is the respect for the courts that
guarantees the stability of the judicial institution;
elsewise, the institution would be resting on a very
shaky foundation. Atty. Dealca’s averment that
Judge Madrid did not hear cases being handled by
him directly insinuated that judges could choose the
cases they heard, and could refuse to hear the cases
in which hostility existed between the judges and
the litigants or their counsel. Such averment, if true
at all, should have been assiduously substantiated
by him because it put in bad light not only Judge
Madrid but all judges in general. Yet, he did not even
include any particulars that could have validated
the averment. Nor did he attach any document to
support it (Madrid v. Dealca, A.C. No. 7474,
September 9, 2014).
ASSISTANCE IN THE SPEEDY AND EFFICIENT
ADMINISTRATION OF JUSTICE
CANON 12
A lawyer shall exert every effort and consider
it his duty to assist in the speedy and efficient
administration of justice.
A lawyer is bound by his oath to serve his client with
utmost zeal and dedication and shall conduct
himself according to the best of his knowledge and
discretion (Antiquiera, CPR).
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).
--Q: Jardin engaged the services of Atty. Villar Jr.
to represent him in a collection case. Despite
several extensions of time given by the trial
court, Atty. Villar Jr. failed to file his formal offer
of exhibits. The case was dismissed and this
prompted Jardin to file a complaint for
disbarment against Atty. Villar, Jr. Was Atty.
Villar, Jr. remiss in his duties as counsel when he
failed to file his formal offer of exhibits?
--Rule 11.05, Canon 11
A lawyer shall submit grievances against a
Judge to the proper authorities only.
Proper venue/forum for the filing of the
following cases
NATURE OF THE
CASE
If administrative in
nature
If criminal and not
purely administrative
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.
WHERE TO FILE
It shall be filed with the
Office of the Court
Administrator of the
Supreme Court.
It shall be filed with the
Office
of
the
Ombudsman, also with
the OCP.
Evidently, Atty. Villar Jr. has fallen short of the
competence and diligence required of every
member of the Bar. 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 fault (Jardin v. Atty.
Villar, Jr., A.C. No. 5474, August 28, 2003).
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.
Source: (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: 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
54
THE CODE OF PROFESSIONAL RESPONSIBILITY
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
filed. Did the lawyers violate Canon 12 of the
CPR?
successively, for the purpose of obtaining a
favorable judgment (Foronda v. Atty. Guerrero, A.C.
No. 5469, August 10, 2004).
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, August 5, 1998).
---
Q: The CA affirmed the trial court’s decision
declaring PDC as the rightful owner of the lot.
Top Rate sought to have the said resolution set
aside and thereafter filed with the SC 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 non-forum
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 CA and SC.
NOTE: If same evidence supports both actions,
there is also forum shopping.
---
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 counsels be found guilty
of forum shopping?
Rule 12.01, Canon 12
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 profference. He
should also be ready with the original
documents for comparison with the copies.
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. 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.
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. L- 36874-76,
September 30, 1974).
Rule 12.02, Canon 12
A lawyer shall not file multiple actions arising
from the same cause. (1991, 1997, 1998, 2002
Bar)
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, January 31, 1996).
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
The essence of forum shopping is the filing of
multiple suits involving the same parties for the
same cause of action, either simultaneously or
55
LEGAL ETHICS
Construction and General Services v. Paxton Devt.
Corp., G.R. No. 151081, September 11, 2003).
disposing justiciable controversies with finality
(Aguilar v. Manila Banking Corporation, G.R. No.
157911, September 19, 2006).
---
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 executor
(Cobb-Perez v. Lantin, G.R. No. L-22320, May 22,
1968).
Possible consequences of forum shopping
1.
2.
3.
4.
Summary dismissal without prejudice unless
there is a willful or deliberate forum-shopping.
(Sec. 5, Rule 7, RRC)
Penalty for direct contempt of court on the party
and his lawyer in case of willful and deliberate
forum-shopping. (Sec. 5, Rule 7, RRC)
Criminal action for a false certification of nonforum shopping and indirect contempt.
Disciplinary proceedings for the lawyer
concerned. (Sec. 5, Rule 7, RRC)
The writs of amparo and habeas data are
extraordinary remedies which cannot be used as
tools to stall the execution of a final and executory
decision in a property dispute (Castillo v. Cruz, G.R.
No. 182165, November 25, 2009).
Rule 12.05, Canon 12
A lawyer shall refrain from talking to his
witness during a break or recess in the trial,
while the witness is still under examination.
Rule 12.03, Canon 12
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)
The rule is designed 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.
The court censures the practice of counsels who
secure 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).
Guidelines in interviewing witnesses (2001,
2005 Bar Questions)
1.
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).
2.
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, September 6, 2000).
3.
Rule 12.04, Canon 12
A lawyer shall not unduly delay a case, impede
the execution of a judgment or misuse court
processes.
4.
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.
5.
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 of a
judgment sets at naught the role of the courts in
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
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.
---
56
THE CODE OF PROFESSIONAL RESPONSIBILITY
Q: May an attorney talk to his witnesses before
and during the trial? (2014 Bar)
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
grueling 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.
A: An attorney can talk with his witnesses before the
trial but it is unethical to do so if the client is already
on the witness stand during the trial.
--NOTE: Although the law does not forbid an attorney
to be a witness and at the same time an attorney in
a case, 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,
October 21, 1932).
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, December 22,
2000).
Rule 12.06, Canon 12
A lawyer shall not knowingly assist a witness
to misrepresent himself or to impersonate
another.
Sanctions to a lawyer who instructs a witness to
perpetuate misrepresentation
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.”
--Rule 12.08, Canon 12
A lawyer shall avoid testifying in behalf of his
client, except:
NOTE: The lawyer who is guilty of the above is both
criminally and administratively liable.
a. On formal matters, such as the mailing,
authentication or custody of an instrument,
and the like; or
b. On substantial matters, in cases where his
testimony is essential to the ends of justice, in
which event he must, during his testimony,
entrust the trial of the case to another counsel.
Criminal liability of witness who commits
misrepresentation
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.
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.
Rule 12.07, Canon 12
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
Matters to which a lawyer CANNOT testify on
[TARCC]
1.
2.
3.
4.
5.
57
When, as an attorney, he is to Testify on the
theory of the case;
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; and
When he is to violate the Confidence of his
LEGAL ETHICS
client.
consents to them is unworthy of his high office.
Matters to which a lawyer CAN testify on
[FETAD]
1.
2.
3.
4.
5.
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).
On Formal matters, such as the mailing,
authentication or custody of instrument and the
like;
Acting as an Expert on his fee;
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;
Acting as an Arbitrator; and
Deposition.
--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? (2000 Bar)
RELIANCE ON MERITS OF CASE AND
AVOIDANCE FROM ANY IMPROPRIETY WHICH
TENDS TO INFLUENCE OR GIVES THE
APPEARANCE OF INFLUENCE UPON THE
COURTS
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.
CANON 13
A lawyer shall rely upon the merits of his
cause and refrain from any impropriety which
tends to influence, or gives the appearance of
influencing the court
It is unethical for a lawyer to give an appearance as
if he is capable of influencing judges and court
personnel. Giving of gifts to the judges are
discouraged as it tend to give an appearance of
influencing the conduct of judicial function or
breeding familiarity with judges (Antiquiera, 1992).
It is reprehensible for a lawyer to wrongfully use the
name of the law office for the purpose of “giving
more weight and credit to the pleading.” Motions
and pleadings filed in courts are acted upon in
accordance with their merits or lack of it, and not on
the reputation of the law firm or the lawyer filing
the same (Rodica v. Atty. Lazaro, et al. A.C. No. 9259,
August 23, 2012).
--Rule 13.02, Canon 13
A lawyer shall not make public statements in
the media regarding a pending case tending
to arouse public opinion for or against a party.
Prejudicial Publicity
Rule 13.01, Canon 13
A lawyer shall not extend extraordinary
attention or hospitality to, nor seek
opportunity for cultivating familiarity with
judges.
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).
The rule is designed to protect the good name and
reputation of the judge and the lawyer.
NOTE: The restriction does not prohibit issuances
of statements by public officials charged with the
duty of prosecuting or defending actions in court.
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
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,
58
THE CODE OF PROFESSIONAL RESPONSIBILITY
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).
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, November 29, 1976).
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 that 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. (2008 Bar)
DUTIES AND RESPONSIBILITIES OF A
LAWYER TO THE CLIENTS
Characteristics of attorney-client relationship
A: YES, 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.
1. Strictly personal – Prohibits the delegation of
work without the client’s consent
2. Highly confidential
a. Communication made in the course of
lawyers professional employment; and
b. Communication
intended
to
be
confidential.
---
3. Fiduciary
a. Hold in trust all moneys and properties of
his client that may come into his
possession;
b. When a lawyer enforces a charging lien
against his client, the relationship is
terminated; and
c. An attorney cannot represent adverse
interest unless the parties consent to the
representation after full disclosure of facts.
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. (2008 Bar)
A: He may not be sanctioned by the Supreme Court.
Once a case 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.
Necessity of a contract between lawyer and
client
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.
---
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
(Hirach Bros. and Co. v. R. E. Kennington Co., 88 A. L.
R., 1. cited in Hilado v. David, G.R. No. L-961,
September 21, 1949).
Rule 13.03, Canon 13
A lawyer shall not brook or invite interference
by another branch or agency of the
government in the normal course of judicial
proceedings.
The reason for this rule is that such action will be
contrary to the principle of separation of powers.
NOTE: If a person, in respect to his business affairs
59
LEGAL ETHICS
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, August 24,
1989).
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
discussed 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 letter- complaint
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
“falsification of public documents” against his
client using facts connected with the latter’s
petition?
Formation of the lawyer-client relationship
The lawyer-client relationship is formed through
the following:
1. Oral – When the counsel is employed without a
written agreement, but the conditions and
amount of attorney’s fees are agreed upon.
2. 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.
3. 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.
Rules
protecting
relationship
1.
2.
3.
4.
5.
the
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.
attorney-client
Best effort 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.
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
Three principal types of professional activity of
a lawyer [LAP]
1.
2.
3.
Legal advice and instructions to clients to
inform them of their rights and obligations;
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
Preparation for clients of documents requiring
60
THE CODE OF PROFESSIONAL RESPONSIBILITY
incidental to their personal transaction (Uy v. Atty.
Gonzales, A.C. No. 5280, March 30, 2004).
CANON 14
A lawyer shall not refuse his services to the
needy
--Q: Atty. Marie consulted Atty. Hernandez
whether she can successfully prosecute her case
for declaration of nullity of marriage that she
intends to file against her husband. Atty.
Hernandez advised her in writing that the case
will not prosper for the reasons stated therein.
The poor and indigent should not be further
disadvantaged by lack of access to the Philippine
legal system.
Lawyer’s right to decline employment
GR: A lawyer is not obliged to act as legal counsel for
any person who may wish to become his client. He
has the right to decline employment.
Is Atty. Hernandez' subsequent acquiescence to
be Noel's counsel ethical? (2006 Bar)
A: NO, Atty. Hernandez' acquiescence to be Noel's
counsel will not be ethical. It will constitute a
conflict of interests. When Atty. Marie consulted
Atty. Hernandez' for advice on whether she can
successfully prosecute her case for declaration of
nullity of her marriage to Noel, and he advised her
that it will not prosper, a lawyer-client relationship
was created between them, although his advice was
unfavorable to her. From that moment, Atty.
Hernandez is barred from accepting employment
from the adverse party concerning the same matter
about which she had consulted him (Hilado v. David,
84 Phil. 569, 1949).
XPNs:
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 in life or because of his own opinion
regarding the guilt of said person (Rule 14.01);
3. He shall not decline, except for serious and
efficient cause like:
a. If he is not in a position to carryout
effectively or competently; and
b. If he labors under a conflict of interest
between him and the prospective client
(Rule 14.03).
--Q: In the course of a drinking spree with Atty.
Holgado, who has always been his counsel in
business deals, Simon bragged about his recent
sexual adventures with socialites known for
their expensive tastes. When Atty. Holgado
asked Simon how he manages to finance his
escapades, the latter answered that he has been
using the bank deposits of rich clients of Banco
Filipino where he works as manager.
Legal aid cases
Is Simon's revelation to Atty. Holgado covered
by the attorney-client privilege? (2006 Bar)
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 the 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 of the IBP Guidelines on Legal Aid).
Legal aid cases are those actions, disputes and
controversies that are criminal, civil and
administrative in nature in whatever stage, wherein
an indigent and pauper litigants need legal
representation (Sec. 4(c), B.M. No. 2012).
Rationale for establishing legal aid services
A: NO, Simon's revelation to Atty. Holgado is not
covered by the lawyer-client privilege. In the first
place, it was not made on account of a lawyer-client
relationship, that is, it was not made for the purpose
of seeking legal advice. In the second place, it was
not made in confidence (Mercado v. Vitriolo, 459
SCRA 1). In the third place, the attorney-client
privileged does not cover information concerning a
crime or fraud being committed or proposed to be
committed.
---
AVAILABILITY OF SERVICE WITHOUT
DISCRIMINATION
Q: Are there instances where a lawyer has the
duty to decline employment? (1993 Bar)
A: A lawyer should decline no matter how attractive
61
LEGAL ETHICS
the fee offered may be if its acceptance will involve:
[RACCAA]
1.
2.
3.
4.
5.
6.
b.
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
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.
A lawyer may also accept a losing civil case,
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 to the extent of
representing indigents, defenseless and the
oppressed.
SERVICES REGARDLESS OF PERSON’S STATUS
Rule 14.01, Canon 14
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.
---
---
Reasons why a lawyer may not accept a “losing
case”
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. (2004 Bar)
1.
2.
3.
4.
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;
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”;
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.
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.
--Q: A is accused of robbery in a complaint filed by
B. A sought free legal assistance from the Public
Attorney’s Office (PAO) and Atty. C was assigned
to handle his case. After reviewing the facts as
stated in the complaint and as narrated by A,
Atty. C is convinced that A is guilty. May Atty. C
refuse to handle the defense of A and ask to be
relieved? Explain fully. (2014 Bar)
--Q: Is there an instance when a lawyer may accept
losing case? (1996, 2001, 2002, 2005 Bar)
A: Rule 14.01 of the Code of Professional
Responsibility provides that a lawyer shall not
decline to represent a person solely on account of
his own opinion regarding the guilt of the said
person. It is not the duty of the lawyer to determine
whether the accused is guilty or not, but the judge’s.
Besides, in a criminal case, the accused is presumed
innocent, and he is entitled to an acquittal unless his
guilt is proven beyond reasonable doubt. The role of
the lawyer is to see to it that his constitutional right
to due process is observed.
a. In criminal case?
b. In civil case?
A:
a. A lawyer may accept a “losing” criminal case
since an accused is presumed to be innocent
until his guilt is proven beyond reasonable
doubt. Furthermore, CPR provides that a lawyer
shall not decline to represent a person because
of his opinion regarding the guilt of said person.
Otherwise innocent persons might be denied
proper defense. (CPR, Rule 14.01)
62
THE CODE OF PROFESSIONAL RESPONSIBILITY
SERVICES AS COUNSEL DE OFFICIO
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.
Rule 14.02, Canon 14
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.
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).
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.
Counsel de oficio
1.
2.
A counsel de officio is expected to act with utmost
diligence. A mere pro-forma appointment of de
officio 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.
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
Considerations in appointing a counsel de oficio
1.
2.
3.
Gravity of offense
Difficulty of questions that may arise; and
Experience and ability of appointee
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
officio 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).
--Q: A criminal complaint was filed against
Bermas for rape. The Prosecutor issued a
certification that the accused has waived his
right to preliminary investigation. On
arraignment, the accused was brought before
the trial court without counsel. The court
assigned a PAO attorney to be the counsel de
oficio who, during trial also made a request that
she be relieved from the case. Another counsel
was thereafter assigned as the new counsel de
oficio. When said new counsel for the accused
failed to appear before the court for their
presentation of evidence, the Court appointed
another counsel de oficio but, again, said counsel
asked to be relieved from the case. The newly
appointed counsel also failed to appear before
the court.
VALID GROUNDS FOR REFUSAL
Rule 14.03, Canon 14
A lawyer may not refuse to accept
representation of an indigent client unless:
a. He is in no position to carry out the work
effectively or competently;
b. He labors under a conflict of interest
between him and the prospective client or
between a present client and a prospective
client.
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, is he correct?
Grounds of refusal of appointment to be a
Counsel de Oficio
1.
63
Too many de officio cases assigned to the lawyer
(People v. Daeng, G.R. No. L-34091, January 30,
LEGAL ETHICS
2.
3.
4.
5.
6.
7.
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;
Lawyer is preoccupied with too many cases
which will spell prejudice to the new clients;
Health reasons; and
Extensive travel abroad.
--Q: Ferrer was accused of raping his 11-year-old
stepdaughter. Ferrer’s counsel of record was
PAO's Atty. Macabanding. During the pre-trial,
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
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?
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.
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: Judge Climaco issued an order denying Atty.
Ledesma’s motion 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 the Judge of such
plea, notwithstanding the conformity of the
defendants, was due to “its principal effect of
delaying the case." Is the denial of Judge Climaco
correct?
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).
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. L23815, June 28, 1974).
Q: May a lawyer decline a request for free legal
aid to an indigent accused made by a chapter of
the IBP? Explain. (2002 Bar)
---
A: NO. Rule 14.02 of the CPR provides that “a lawyer
shall not decline, except for serious and sufficient
cause, an appointment as counsel de officio or as
amicus curiae or a request from the IBP or any of
its chapter for rendition of free legal aid.” He
may, decline such appointment only for
“serious and sufficient cause”.
--Q: Will your answer be different if the legal aid
is requested in a civil case? (2002 Bar)
A: The 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
64
THE CODE OF PROFESSIONAL RESPONSIBILITY
proceedings which appear to him to be just and only
such defenses which he believes to be honestly
debatable under the law.
CANDOR, FAIRNESS AND LOYALTY TO CLIENTS
CANON 15
A lawyer shall observe candor, fairness and
loyalty in all his dealings and transactions with
his clients
--Rule 14.04, Canon 14
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)
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.
It demands of an attorney an undivided allegiance, a
conspicuous and high degree of good faith,
disinterestedness, candor, fairness, loyalty, 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).
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?
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).
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.
--Q: Baens engaged the services of Atty. Sempio to
file a case for Declaration of Nullity of Marriage
against his wife. Despite receipt of P250,000 for
legal expenses, Atty. Sempio failed to file the
petition, and it was Baens’ wife who filed the
same. Atty. Sempio filed an Answer only after
the 15-day period stated in the Summons. Atty.
Sempio also failed to make an objection on the
petition on the ground of improper venue as
neither Baens nor his wife were and are
residents of Dasmariñas, Cavite. He never
bothered to check the status of the case and thus
failed to discover and attend all the hearings set
for the case. As a result, the civil case was
decided without Baens being able to present his
evidence. Did Atty. Sempio violate the Code of
Professional Responsibility?
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.
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,
February 28, 2002).
A: YES. The excuse proffered by Atty. Sempio that he
did not receive any orders or notices from the trial
court is highly intolerable. In the first place, securing
a copy of such notices, orders and case records was
within his control and is a task that a lawyer
undertakes. The preparation and the filing of the
answer is a matter of procedure that fully fell within
the exclusive control and responsibility of the
lawyer. It was incumbent upon him to execute all
acts and procedures necessary and incidental to the
advancement of his client’s cause of action.
--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).
65
LEGAL ETHICS
Records further disclose that he omitted to update
himself of the progress of his client’s case with the
trial court, and neither did he resort to available
legal remedies that might have protected his client’s
interest. Although a lawyer has complete discretion
on what legal strategy to employ in a case entrusted
to him, he must present every remedy or defense
within the authority of law to support his client’s
interest. When a lawyer agrees to take up a client’s
cause, he covenants that he will exercise due
diligence in protecting the latter’s rights.
disclosed to him by a prospective client. (2008
Bar)
Two-fold purpose of the rule
1.
2.
To encourage a client to make a full disclosure
of the facts of the case to his counsel without
fear, and
To allow the lawyer freedom to obtain full
information from his client (Pineda, 2009).
Disclosure of a prospective client
Evidently, the acts of the Atty. Sempio plainly
demonstrated his lack of candor, fairness, and
loyalty to his client as embodied in Canon 15 of the
Code. A lawyer who performs his duty with
diligence and candor not only protects the interest
of his client; he also serves the ends of justice, does
honor to the bar, and helps maintain the respect of
the community to the legal profession (Baens v.
Sempio, A.C. No. 10378, June 9, 2014).
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. It
covers crimes and offenses already committed by
the client.
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).
CONFIDENTIALITY RULE
Confidentiality
It 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).
Requisites of privileged communication
1.
A lawyer shall preserve the confidences and secrets
of his client even after the attorney-client relation is
terminated (Canon 21, CPR).
2.
It is one of the duties of a lawyer, as provided for in
the Rules of Court, to maintain inviolate the
confidence, and at every peril to himself, to preserve
the secrets of his client (Sec. 20(e), Rule 138, RRC).
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; and
The communication must be intended to be
confidential.
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, G.R. No.
22783, December 3, 1924; Lapena Jr., 2009).
PRIVILEGED COMMUNICATIONS
Privileged communication
A privileged communication is one that refers to
information transmitted by voluntary act of
disclosure between attorney and client in
confidence and by means of which, in 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.
Client identity
Client identity is privileged where a strong
probability exists that revealing the client’s name
would implicate that client in the very activity for
which he sought the lawyer’s advice (Regala v.
Sandiganbayan, G.R. No. 105938, September 20,
1996).
Rule 15.02, Canon 15
A lawyer shall be bound by the rule on
privilege communication in respect of matters
Characteristics of privileged communication
66
THE CODE OF PROFESSIONAL RESPONSIBILITY
1.
Attorney-client privilege where legal advice is
professionally sought from an attorney.
2. The client must intend the above
communication to be confidential.
3. Attorney-client privilege embraces all forms of
communication and action.
4. As a 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.
5. The
above
duty
is
perpetual
and
communication is absolutely privileged from
disclosure.
6. Persons entitled to claim privileges
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).
--Q: Atty. Vitriolo represented Rose Mercado in an
annulment case filed by her husband.
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?
Coverage of the attorney-client privilege
1.
2.
3.
Lawyer;
Client; and
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)
A: NO. The 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 attorney-client
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).
---
Duration of privileged communication
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).
Instances when communication is not privileged
A communication made by a client to a lawyer is not
privileged in the following instances:
1.
2.
3.
4.
5.
6.
7.
Q: Atty. Serafin Roto is the Corporate Secretary
of a construction corporation that has secured a
multi-million infrastructure project from the
government. In the course of his duties as
corporate secretary, he learned from the
company president that the corporation had
resorted to bribery to secure the project and had
falsified records to cut implementing costs after
the award of the project. The government filed a
civil action to annul the infrastructure contract
and has subpoenaed Atty. Roto to testify against
the company president and the corporation
regarding the bribery. Atty. Roto moved to
quash the subpoena, asserting that lawyerclient privilege prevents him from testifying
After pleading has been filed because such
becomes part of public records.
When communication was intended by the
client to be sent to a third person through his
counsel.
When the communication sought by client is
intended to aid future crime or perpetration of
fraud.
When communication between attorney and
client is heard by a third party.
When there is consent or waiver of the client.
When the law requires disclosure.
When disclosure is made to protect the lawyer’s
rights.
67
LEGAL ETHICS
against the president and the corporation.
Resolve the motion to quash. (2013 Bar)
clients whose objectives are adverse to each
other, no matter how slight or remote such
adverse interest may be.
A: The motion to quash should be granted. While it
is true that being a corporate secretary does not
necessarily constitute a lawyer-client relation, Atty.
Roto may nevertheless be considered in the practice
of law if part of his duties as a corporate secretary is
to give legal advice to or prepare legal documents
for the corporation. Thus, it is his duty as an
attorney “to maintain inviolate the confidence, and
at every peril to himself, to preserve the secrets of
his client (Rule 138, Sec. 20, par.(e), Rules of Court).
The tests for concurrent
representations are:
a.
b.
---
c.
CONFLICT OF INTEREST
(1991, 1992, 1993, 1994, 1997, 1999, 2000,
2001, 2002, 2003, 2004, 2005, 2006, 2008 Bar)
Rule 15.01, Canon 15
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.
d.
or
multiple
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;
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
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.
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).
Purpose of “conflict search”
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).
NOTE: What is material in determining whether
there is a conflict of interest in the representation is
probability, not certainty of conflict (see discussion
on disqualification or limitation of public officials in
practicing law, congruent-interest representation
conflict and adverse-interest conflict).
Three tests to determine existence of conflict of
interest
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.
There is no conflict of interest in a situation where a
lawyer represents his present client against his
former client, so long as no confidential information
acquired during the previous employment was used
against the former client by the lawyer. The
prohibition does not cover a situation where the
subject matter of the present engagement is totally
unrelated to the previous engagement of the
attorney. Moreover, a mere allegation of the
professional misconduct would not suffice to
establish the charge, because accusation is not
synonymous with guilt (Seares, Jr. v. Atty. GonzalesAlzate, Admin. Case. No. 9058, November 14, 2012).
Types of conflict of interest
1.
Illustration: Existence of conflict of Interest
A v. B
A and B are present clients.
1. Concurrent or multiple representations –
Generally occurs when a lawyer represents
2.
68
C v. D; E v. D
THE CODE OF PROFESSIONAL RESPONSIBILITY
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
O, P, Q. (People v. Davis)
reportedly contracted for P100,000. It was
found that the debt was actually incurred by
Ramon Sy, with Mr. X's brother merely signing
for the chits. Atty. Y was able to free Mr. X's
brother from his indebtedness. Having thus
settled the account of Mr. X's brother, Atty. Y
sent several demand letters to Mr. X demanding
the balance of P50,000.00 as attorney's fees. Mr.
X refused to pay and claimed, that at the time
Atty. Y was rendering services to Mr. X, 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, Atty.
Y is not justified in claiming that he rendered
legal services to Mr. X in view of the conflicting
interests involved. Did Atty. Y violate the conflict
of interest rule?
joins
Other instances of conflict of interest
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.
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).
Being a counsel-of-record of the other party is
not a requisite to be guilty of representing
conflicting interests
To be guilty of representing conflicting interests, a
counsel-of-record of one party need not also be
counsel-of-record of the adverse party. He does not
have to publicly hold himself as the counsel of the
adverse party, nor make his efforts to advance the
adverse party's conflicting interests of record --although these circumstances are the most obvious
and satisfactory proof of the charge. It is enough that
the counsel of one party had a hand in the
preparation of the pleading of the other party,
claiming adverse and conflicting interests with that
of his original client. To require that he also be
counsel-of-record of the adverse party would
punish only the most obvious form of deceit and
reward, with impunity, the highest form of
disloyalty (Artueza v. Atty. Maderazo, A.C. No. 4354,
April 22, 2002).
--Rule when the lawyer of the corporation and the
board of directors of such corporation is the
same
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: Mr. X engaged the services of Atty. Y regarding
his brother’s indebtedness to Caesar’s Palace, a
casino in Las Vegas. His services were
--Q: Six months ago, Atty. Z was consulted by A,
69
LEGAL ETHICS
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?
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.
A lawyer who represented those who were victims
of a pyramid scam against a corporation and then
later on enters his appearance as counsel for the
officers of such corporation for the criminal cases
involving the same pyramid scam is guilty of
misconduct. The lawyer's highest and most
unquestioned duty is to protect the client at all
hazards and costs even to himself. The protection
given to the client is perpetual and does not cease
with the termination of the litigation, nor is it
affected by the client's ceasing to employ the
attorney and retaining another, or by any other
change of relation between them. It even survives
the death of the client (Samson v. Atty. Era, A.C. No.
6664, July 16, 2013).
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? (2002 Bar)
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.
Instances when lawyers cannot represent
conflicting interest even if the consent of both
clients were secured
Where the conflict is:
1.
--2.
Rule 15.03, Canon 15
A lawyer shall not represent conflicting
interests except by written consent of all
concerned given after a full disclosure of the
facts.
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.
Effects of representing adverse interests [DJFAC]
1.
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.
2.
3.
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, March 4, 1998).
4.
NOTE: A lawyer may at a certain stage of the
controversy and before it reaches the court
Disqualification as counsel of new client on
petition of former client;
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;
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;
A lawyer can be held Administratively liable
through disciplinary action and may be held
Criminally liable for betrayal of trust.
---
70
THE CODE OF PROFESSIONAL RESPONSIBILITY
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:
Atty. Funk betray the trust and confidence of a
former client?
A: YES. An attorney owes his client undivided
allegiance. An attorney may not, without being
guilty of professional misconduct, act as counsel for
a person whose interest conflicts with that of his
present or former client. This rule is so absolute that
good faith and honest intention on the erring
lawyer’s part does not make it inoperative. The
reason for this is that a lawyer acquires knowledge
of his former client’s doings, whether documented
or not, that he would ordinarily not have acquired
were it not for the trust and confidence that his
client placed on him in the light of their relationship.
It would simply be impossible for the lawyer to
identify and erase such entrusted knowledge with
faultless precision or lock the same into an iron box
when suing the former client on behalf of a new one
(Santos Ventura Hocorma Foundation, Inc.,
represented by Gabriel H. Abad v. Atty. Richard V.
Funk. A.C. No. 9094, August 15, 2012).
The options available to Atty. Anama are:
1.
2.
To decline 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: R is a retained counsel of ABC Bank-Ermita
Branch. One day, his Balikbayan compadre B,
consulted him about his unclaimed deposits
with the said branch of ABC Bank, which the
bank had refused to give to him claiming that the
account had become dormant. R agreed to file a
case against the bank with the Regional Trial
Court (RTC) of Manila. B lost the case, but upon
the advice of R, he no longer appealed the
decision. B later discovered that R was the
retained counsel of ABC Bank-Ermita Branch.
Does B have any remedy? Discuss the legal and
ethical implications of the problem. (2014 Bar)
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.
A: Atty. R clearly violated the rule against
representing conflicting interests (Rule 15.03, Code
of Professional Responsibility). B may file an action
to set aside the judgment on the theory that if a
lawyer is disqualified from appearing as counsel for
a party on account of conflict of interests, he is
presumed to have improperly and prejudicially
advised and represented the party in the conduct of
the litigation from beginning to end. He may also file
an action for damages against Atty. R, aside from an
administrative complaint due to his misconduct. He
was prejudiced by the adverse decision against him,
which he no longer appealed upon the advice of
Atty. R.
--Q: Hocorma Foundation filed a complaint for
disbarment against Atty. Funk who used to work
as corporate secretary, counsel, chief executive
officer, and trustee of the foundation. He also
served as its counsel in several criminal and civil
cases. Complainant alleged that Atty. Funk filed
an action for quieting of title and damages
against Hocorma on behalf of Mabalacat
Institute using information he acquired while
with the foundation. As a defense, Atty. Funk
contended that he was hired by Don Santos to
serve as director and legal counsel. He
emphasized that, in all these, the attorney-client
relationship was always between Santos and
him. He was more of Santos’ personal lawyer
than the lawyer of Hocorma Foundation. Did
--Q: Wilfredo Anglo availed the services of the law
firm Valencia Ciocon Dabao Valencia De La Paz
Dionela Pandan Rubica Law Office for two
71
LEGAL ETHICS
consolidated labor cases where he was a
respondent. Atty. Dionela, a partner of the law
firm, was assigned to represent Anglo.
Eventually, the labor cases were terminated
upon the agreement of both parties.
Subsequently, a criminal case for qualified theft
was filed against Anglo and his wife by FEVE
Farms acting through a certain Michael
Villacorta. However, Villacorta was represented
by the Valencia et al. law firm, the same law
office which handled Anglo’s labor cases. Anglo
filed a disbarment case against the partners of
the law firm, alleging that they violated Rule
15.03, Canon 15 of the CPR. Are they guilty of
representing conflicting interests?
was secured by a Real Estate Mortgage over the
properties of the complainant. 3 years after, RBP
moved to foreclose the Real Estate Mortgage.
Complainant filed a complaint for Annulment of
Mortgage with a Prayer for Preliminary
Injunction against RBP. Respondent entered his
appearance as counsel for RBP. Is Atty. Pajarillo
guilty of representing conflicting interests when
he entered his appearance as counsel for RBP?
A: YES. Indeed, respondent represented conflicting
interests in violation of Canon 15, Rule 15.03 of the
Code of Professional Responsibility which provides
that "[a] lawyer shall not represent conflicting
interests except by written consent of all concerned
given after a full disclosure of the facts." Clearly,
complainant was respondent's former client. And
respondent appeared as counsel of RBP in a case
filed by his former client against RBP. This makes
respondent guilty of representing conflicting
interests since respondent failed to show any
written consent of all concerned (particularly the
complainant) given after a full disclosure of the facts
representing conflicting interests. Respondent also
acted for the complainant's interest on the loan
transaction between RBP and the complainant
when he sent a letter to RBP to assure the latter of
the financial capacity of the complainant to pay the
loan. But as counsel for RBP in the case for
annulment of mortgage, he clearly acted against the
interest of the complainant, his former client
(Mabini Colleges, Inc. v. Atty. Pajarillo, A.C. No. 10687,
July 22, 2015).
A: YES. The law firm's unethical acceptance of the
criminal case arose from its failure to organize and
implement a system by which it would have been
able to keep track of all cases assigned to its
handling lawyers to the end of, among others,
ensuring that every engagement it accepts stands
clear of any potential conflict of interest. As an
organization of individual lawyers which, albeit
engaged as a collective, assigns legal work to a
corresponding handling lawyer, it behooves the law
firm to value coordination in deference to the
conflict of interest rule. This lack of coordination
intolerably renders its clients' secrets vulnerable to
undue and even adverse exposure, eroding in the
balance the lawyer-client relationship's primordial
ideal of unimpaired trust and confidence.
The partners’ pronounced liability is not altered by
the fact that the labor cases against Anglo had long
been terminated. Verily, the termination of
attorney-client relation provides no justification for
a lawyer to represent an interest adverse to or in
conflict with that of the former client. The client's
confidence once reposed should not be divested by
mere expiration of professional employment (Anglo
v. Valencia, A.C. No. 10567, February 25, 2015).
--Rule 15.04, Canon 15
A lawyer may, with the written consent of all
concerned, act as mediator, conciliator or
arbitrator in setting the disputes.
CANDID AND HONEST ADVICE TO CLIENTS
--Rule 15.05, Canon 15
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.
Q: Mabini Colleges, Inc. (complainant), had a
Board of Trustees which was divided into two
opposing factions (Adeva Group and Lukban
Group). The Adeva Group issued an
unnumbered
Board
Resolution
which
authorized its members to apply for a loan with
the Rural Bank of Paracale (RBP) in favor of the
complainant. The Lukban Group opposed this.
However, Atty. Pajarillo (respondent), acting as
complainant’s corporate secretary, sent a letter
to RBP to assure the RBP of complainant's
financial capacity to pay the loan. RBP
eventually granted the loan application which
Q: Consorcia Rollon engaged the services of Atty.
Naraval in a case for collection of sum of money
filed against her. 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
72
THE CODE OF PROFESSIONAL RESPONSIBILITY
civil suit has been decided against her and which
judgment has long become final and executory.
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?
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. 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.
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.
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.
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, March 4, 2005).
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, April 4, 2003).
---
COMPLIANCE WITH LAWS
Rule 15.07, Canon 15
A lawyer shall impress upon his client
compliance with the laws and the principles of
fairness.
Rule 15.06, Canon 15
A lawyer shall not state or imply that he is able
to influence any public official, tribunal or
legislative body.
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
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
73
LEGAL ETHICS
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?
Money collected by the lawyer on a judgment
favorable to his client constitutes 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.
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, September 30, 2005).
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).
CONCURRENT PRACTICE OF
ANOTHER PROFESSION
--Q: An adverse judgment was rendered in a civil
case against Luis de Guzman. His counsel was
Atty. Emmanuel Basa and he wanted 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?
Rule 15.08, Canon 15
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.
This rule is intended to avoid confusion; it is for the
benefit of both the client and the lawyer (Funa,
2009).
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).
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
such counsel is made clear to the client (New
Sampaguita Builder Construction, Inc. v. Philippine
National Bank, G.R. No. 148753, July 30, 2004).
A: YES, he is guilty of gross misconduct. Where a
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).
CLIENT’S MONEYS AND PROPERTIES
CANON 16
A lawyer shall hold in trust all moneys and
properties of his client that may come into his
possession
--Prohibition of a Lawyer acquiring client’s
property
74
THE CODE OF PROFESSIONAL RESPONSIBILITY
Pursuant to Canon 16 of the Code of Professional
Responsibility.
Rule 16.01, Canon 1
A lawyer shall account for all money or
property collected or received for or from the
client.
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
(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.” (see NCC)
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 faith
expected on his part (Medina v. Bautista, A.C. No.
190, September 26, 1964).
Lawyer’s inexcusable act of withholding the
property of client and imposing unwarranted fees in
exchange for release of documents deserve the
imposition of disciplinary action (Miranda v. Carpio,
A.C. No. 6281, September 26, 2011).
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, December
9, 2004)
--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?
--Q: In an action to prevent the condominium
developer from building beyond ten (10) floors,
Judge Cerdo rendered judgment in favor of the
defendant developer. The judgment became
final after the plaintiffs failed to appeal on time.
Judge Cerdo and Atty. Cocodrilo, counsel for the
developer, thereafter separately purchased a
condominium unit each from the developer.
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 (Espiritu v. Ulep, A.C. No. 5808, May 4, 2005).
Did Judge Cerdo and Atty. Cocodrilo commit any
act of impropriety or violate any law for which
they should be held liable or sanctioned? (2013
Bar)
A: NO, Judge Cerdo and Atty. Cocodrilo did not
commit any act of impropriety nor did they violate
any law.
--The prohibition imposed by the Civil Code, Art. 1491
(3), prohibiting judges and attorneys, and that
contained in the Canons of Professional Ethics,
Canon 10, with regard to purchase of any interest in
the subject matter of litigation both refer only to
instances where the property is still the subject of
the litigation.
Q: C engaged the services of attorney D
concerning various mortgage contracts entered
into by her husband from whom she is separated
fearful that her real estate properties will be
foreclosed and of impending suits for sums of
money against her. Attorney D advised C to give
him her land titles covering her lots so he could
sell them to enable her to pay her creditors. He
then persuaded her to execute deeds of sale in
his favor without any monetary or valuable
consideration, to which C agreed on condition
that he would sell the lots and from the proceeds
pay her creditors. Later on, C came to know that
attorney D did not sell her lots but instead paid
her creditors with his own funds and had her
The prohibition does not apply to instances, such as
in the problem, where the conveyance takes place
after the judgment because the property can no
longer be said to be the “subject of litigation”
(Director of Lands v. Abba, 88 SCRA 513).
FIDUCIARY RELATIONSHIP
75
LEGAL ETHICS
land titles registered in his name. Did attorney D
violate the CPR? (2007 Bar)
thereon.
Exemption from liability
A: The decision of the Supreme Court in the case of
Hernandez v. Go (450 SCRA 1), is squarely applicable
to this problem. Under the same set of facts, the
Supreme Court held the lawyer to have violated
Canons 16 of the CPR, which provides as follows:
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.
Canon 16: A lawyer shall hold in
trust all moneys and properties of
his client that may come into his
possession.
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.
And Canon 17 of the same Code, which provides as
follows:
Canon 17: A lawyer owes fidelity to
the cause of his client and he shall
be mindful of the trust and
confidence reposed in him.
Criminal liability of lawyers
A lawyer may be held criminally liable if he commits
any of the following:
The Supreme Court further held that the lawyer
concerned has engaged in deceitful, dishonest,
unlawful and grossly immoral acts, which might
lessen the trust and confidence reposed by the
public in the fidelity, honesty, and integrity of the
legal profession. Consequently, the Court disbarred
him.
1.
2.
3.
--Fiduciary duty
The principle that an attorney derives no undue
advantage that may operate to the prejudice or
cause an occasion for loss of a client refers to
fiduciary duty. The relationship between the lawyer
and the client is one of mutual trust and confidence
of the highest degree.
4.
Instances when civil liability arises
1.
2.
3.
4.
5.
6.
5.
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
Causes prejudice to the client thru malicious
breach of professional duty or thru inexcusable
negligence or ignorance;
Reveals 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);
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 therefore (Art. 172,
RPC); and
A lawyer who appropriates 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).
Costs of Suit
Remedy of the client
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.
Recover property from lawyer, together with its
fruits, subject to client’s returning to his lawyer the
purchase price thereof and the legal interests
76
THE CODE OF PROFESSIONAL RESPONSIBILITY
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.
provided for in the Rules of Court.
Counsel cannot unilaterally retain client’s
property for his attorney’s lien
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, 57 Phil. 20).
CO-MINGLING OF FUNDS
Rule 16.02, Canon 16
A lawyer shall keep the funds of each client
separate and apart from his own and those of
others kept by him.
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 duty bound 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).
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 prosecution 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, 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 P51,161.00 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. Caredo commit a breach of trust?
--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. 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 IV, A.C. No. 5831, January
13, 2003).
DELIVERY OF FUNDS
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.
Rule 16.03, Canon 16
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
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 must at all times
be kept beyond reproach and above suspicion. The
77
LEGAL ETHICS
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,
December 11, 2003).
profession (Hernandez, Jr. v. Go A.C. No. 1526,
January 31, 2005).
Prohibition from BORROWING money from
client
GR: A lawyer is not allowed to borrow money from
his client.
--Q: Soliman engaged the services of Atty. Amboy
in connection with a partition case. No case was
filed as the other co-owners were amenable to
the partition. Instead, Atty. Amboy just
facilitated the issuance of the titles to the said
property. Atty. Amboy then told Soliman that
someone from the Register of Deeds can help
expedite the issuance of the titles for a fee of
P50,000.00 which Soliman deposited to Atty.
Amboy’s bank account as payment for the
latter’s contact. However, Atty. Amboy failed to
deliver the respective certificates of title.
Soliman claimed that Atty. Amboy thereafter
refused to release the pertinent documents she
gave to her for the processing of the titles to the
property or give back the P50,000.00 that was
already paid to her. Did Atty. Amboy violate the
Code of Professional Responsibility?
XPN: The client’s interests are fully protected by the
nature of the case or by independent advice.
Prohibition of LENDING money to client
GR: A lawyer is not allowed to lend money to his
client.
XPN: When in the interest of justice, he has to
advance necessary expenses in a legal matter he is
handling for the client (Rule 16.04, CPR).
NOTE: The 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.
---
A: YES, Atty. Amboy violated the Code. Upon
inquiry, the supposed contact denied having
received any amount from Atty. Amboy. In not
returning the money to Soliman after a demand
therefor was made following her failure to procure
the issuance of the certificates of title, Atty. Amboy
violated Canon 16, particularly Rule 16.03 thereof,
which requires that a lawyer shall deliver the funds
and property of his client upon demand. A lawyer’s
failure to return upon demand the funds held by him
on behalf of his client gives rise to the presumption
that he has appropriated the same for his own use in
violation of the trust reposed in him by his client
(Soliman v. Amboy, A.C. No. 10568 January 13, 2015).
Q: Atty. Lozada was the retained counsel and
legal adviser of Frias. Atty. Lozada persuaded
Frias to sell her house, the former acting as
broker since she was in need of money. The
prospective buyer paid 3 million where Atty.
Lozada took 1 million as her commission
without Frias’ consent. The buyer backed out
from the sale and filed a case against Frias for
the return of the purchase price. 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
favorable decision, Atty. Lozada refused to
return the money.
BORROWING OR LENDING
Rule 16.04, Canon 16
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.
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. She denied that Frias
previously demanded the return of 1 million
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
commit a violation of the Code of Professional
Responsibility in asking for a loan from her
client?
A lawyer who takes advantage of his client’s
financial plight to acquire the latter’s properties for
his own benefit is of the confidence of the public in
the fidelity, honesty and integrity of the legal
A: YES. Her act of borrowing money from a client
78
THE CODE OF PROFESSIONAL RESPONSIBILITY
was a violation of Canon 16.04 of the Code of
Professional Responsibility.
Concepcion v. Dela Rosa, A.C. No. 10681, February 03,
2015).
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 maneuverings 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.
FIDELITY TO CLIENT’S CAUSE
---
CANON 17
A lawyer owes fidelity to the cause of his client
and he shall be mindful of the trust and
confidence reposed in him.
Q: Sps. Concepcion (complainants) alleged that
Atty. Dela Rosa (respondent) served as their
retained lawyer and counsel. Respondent
borrowed
P2,500,000.00
from
the
complainants, which he promised to return,
with interest, within 5 days. On the day
respondent promised to return the money, he
failed to pay complainants. They began
demanding payment but respondent merely
made repeated promises to pay soon.
Thereafter, complainants, through their new
counsel, sent a demand letter. In his Reply, the
respondent denied borrowing any money from
the complainants. Did Atty. Dela Rosa violate the
Code
of
Professional
Responsibility?
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 sets of information 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: YES. Under Rule 16.04, Canon 16 of the CPR, a
lawyer is prohibited from borrowing money from
his client unless the client’s interests are fully
protected. The Court has repeatedly emphasized
that the relationship between a lawyer and his client
is one imbued with trust and confidence. And as true
as any natural tendency goes, this “trust and
confidence” is prone to abuse. The rule against
borrowing of money by a lawyer from his client is
intended to prevent the lawyer from taking
advantage of his influence over his client. The rule
presumes that the client is disadvantaged by the
lawyer’s ability to use all the legal maneuverings to
renege on his obligation. 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 maneuverings to renege on
her obligation. Respondent borrowed money from
complainants who were his clients and whose
interests, by the lack of any security on the loan,
were not fully protected. Owing to their trust and
confidence in respondent, complainants relied
solely on the former’s word that he will return the
money plus interest within five (5) days. However,
respondent abused the same and reneged on his
obligation, giving his previous clients the runaround
up to this day. Accordingly, there is no quibble that
respondent violated Rule 16.04 of the CPR (Sps.
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, August 29,
2002).
--Q: Complainants engaged the services of Atty.
Guaren for the titling of a residential lot they
acquired in Bonbon, Nueva Caseres. They
alleged that Atty. Guaren took all the pertinent
documents relative to the titling of their lot; that
they always reminded Atty. Guaren about the
79
LEGAL ETHICS
case and each time he would say that the titling
was in progress; that they became bothered by
the slow progress of the case so they demanded
the return of the money they paid. Despite the
acceptance of P7,000, Atty. Guaren failed to
perform his obligation and allowing 5 years to
elapse without any progress in the titling of
complainants’ lot. Did Atty. Guaren violate the
Code of Professional Responsibility?
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. The Supreme Court reiterated 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. In this case, Atty. Guaren
admitted that he accepted the amount of P7,000 as
partial payment of his acceptance fee. He, however,
failed to perform his obligation to file the case for
the titling of complainants’ lot despite the lapse of 5
years. Atty. Guaren breached his duty to serve his
client with competence and diligence when he
neglected a legal matter entrusted to him. Thus,
Atty. Guaren violated Canons 17 and 18 of the Code
of Professional Responsibility and was suspended
from the practice of law for six months (Brunet v.
Guaren, A.C. No. 10164, March 10, 2014).
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 officio 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, March 29,
1999).
--NOTE: In one case, respondent lawyer admitted
that he deliberate failed to timely file a formal offer
of exhibits because he believes that the exhibits
were fabricated and was hoping that the same
would be refused admission by the RTC. If
respondent truly believes that the exhibits to be
presented in evidence by his clients were fabricated,
then he has the option to withdraw from the case.
Canon 22 allows a lawyer to withdraw his services
for good cause such as when the client pursues an
illegal or immoral course of conduct with the matter
he is handling or when the client insists that the
lawyer pursue conduct violative of these canons and
rules. (Sps. Warriner v. Atty. Dublin, A.C. No. 5239,
November 18, 2013)
COMPETENCE AND DILIGENCE
CANON 18
A lawyer shall serve his client
competence and diligence.
with
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,
February 3, 2005).
Degree of diligence required in the profession
---
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 3, 2005).
Q: Sanchez (complainant) charged Atty. Aguilos
(respondent) with misconduct for the latter's
refusal to return the amount of P70,000.00 she
had paid for his professional services despite his
not having performed the contemplated
professional services. She avers that she sought
the legal services of Aguilos to represent her in
the annulment of her marriage with her
estranged husband; that Aguilos accepted the
--Q: In a criminal case for rape with homicide, the
80
THE CODE OF PROFESSIONAL RESPONSIBILITY
engagement, fixing his fee at P150,000.00, plus
the appearance fee of P5,000.00/hearing; that
she then gave to him the initial amount of
P90,000.00; that she had gone to his residence
to inquire on the developments in her case, but
he told her that he would only start working on
the case upon her full payment of the acceptance
fee; that she had only learned then that what he
had contemplated to file for her was a petition
for legal separation, not one for the annulment
of her marriage; that he further told her that she
would have to pay a higher acceptance fee for
the annulment of her marriage; that she
subsequently withdrew the case from him, and
requested the refund of the amounts already
paid, but he refused to do the same as he had
already started working on the case; that she
had sent him a letter to demand the return of her
payment less whatever amount corresponded to
the legal services he had already performed;
that the respondent did not heed her demand
letter despite his not having rendered any
appreciable legal services to her. Is Atty. Aguilos
liable for misconduct?
Rule 18.01, Canon 18
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.
The lawyer’s acceptance, whether for a fee or not, is
an implied representation that he possesses the
requisite degree of academic learning, skill and
ability to handle the case.
He is therefore directed not to take legal services,
which he knows or should know he is not qualified
or competent to render except if his client consents,
the lawyer can take as collaborating counsel
another lawyer who is competent on the matter.
--Q: When is professional incompetence a ground
for disbarment under the Rules of Court?
Explain. (2010 Bar)
A: YES. Aguilos was liable for misconduct, and he
should be ordered to return the entire amount
received from the client. Clearly, he misrepresented
his professional competence and skill to the
complainant. As the foregoing findings reveal, he did
not know the distinction between the grounds for
legal separation and for annulment of marriage.
Such knowledge would have been basic and
expected of him as a lawyer accepting a professional
engagement for either causes of action. His
explanation that the client initially intended to
pursue the action for legal separation should be
disbelieved. The case unquestionably contemplated
by the parties and for which his services was
engaged, was no other than an action for annulment
of the complainant's marriage with her husband
with the intention of marrying her British fiancee.
They did not contemplate legal separation at all, for
legal separation would still render her incapacitated
to re-marry. That the respondent was insisting in
his answer that he had prepared a petition for legal
separation, and that she had to pay more as
attorney's fees if she desired to have the action for
annulment was, therefore, beyond comprehension
other than to serve as a hallow afterthought to
justify his claim for services rendered. Aguilos failed
to live up to the standards imposed on him as an
attorney. He thus transgressed Canon 18, and Rules
18.01, 18.02 and 18.03 of the Code of Professional
Responsibility. (Sanchez v. Aguilos, A.C. No. 10543,
March 16, 2016)
A: Professional incompetence of a lawyer may be a
special ground for disbarment if his incompetence
is so total, gross and serious that he cannot be
entrusted with the duty to protect the rights of his
clients. “A lawyer shall not undertake a legal service
where he knows or should know that he is not
qualified to render” (Rule 18.01, CPR). If he does so,
it constitutes malpractice or gross misconduct in
office which are grounds for suspension or
disbarment under Section 27, Rule 138 of the Rules
of Court.
COLLABORATING COUNSEL
A lawyer should prepare his pleadings with great
care and circumspection. He should refrain from
--Collaborating Counsel
One who is subsequently engaged to assist a lawyer
already handling a particular case for a client
(Pineda, 2009).
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.
ADEQUATE PREPARATION
Rule 18.02, Canon 18
A lawyer shall not handle any legal matter
without adequate preparation.
81
LEGAL ETHICS
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, December 2, 2002).
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
knowledge and consent (Abay v. Atty. Montesino, A.C.
No. 5718, December 4, 2003).
--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.
The counsel must constantly keep in mind that his
actions 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
2, 2002).
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).
NEGLIGENCE
Rule 18.03, Canon 18
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)
A lawyer is enjoined not to neglect a legal matter
entrusted to him, and his negligence in connection
therewith shall render him liable. It is the duty of the
lawyer to serve his client with competence and
diligence and he should exert his best efforts to
protect within the bounds of the law, the interest of
his client (Vda. De Enriquez v. San Jose, 516 SCRA
486).
--Q: Are the mistakes or negligence of a lawyer
binding upon the client? (1998, 2000, 2002 Bar)
GR: Client is bound by attorney’s conduct,
negligence and mistake in handling a case or in the
management of litigation and in procedural
technique, and he cannot complain that the result
might have been different had his lawyer proceeded
differently.
Diligence required
Prone to err like any other human being, he is not
answerable for every error or mistake, and will be
protected as long as he acts honestly and in good
faith to the best of skill and knowledge. An attorney
is not expected to know all the laws. He is not liable
for disbarment for an honest mistake or error. He is
not an insurer of the result in a case where he is
engaged in as counsel. Only ordinary care and
diligence are required of him (Pineda, 2009).
XPNs: [LIPIG]
1.
2.
NOTE: 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.
3.
4.
Instances of negligence by attorneys
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, February 18, 2005).
5.
Lack of acquaintance with technical aspect of
procedure;
When
adherence
thereto
results
in
outright deprivation of client’s liberty or
property or where Interest of justice so
requires;
Where error by counsel is Purely technical
which does not substantially affect client’s
cause;
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; and
Gross negligence of lawyer.
---
82
THE CODE OF PROFESSIONAL RESPONSIBILITY
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.
withdraw, but attorney M refused. Complainant
N further alleged that attorney M abused his
client's trust and confidence and violated his
oath of office in failing to defend his client's
cause to the very end.
Attorney M replied that N did not give him his
full cooperation; that the voluminous records
turned over to him were in disarray, and that
when he appeared for N, he had only half of the
information and background of the case; that he
was assured by N's friends that they had
approached the judge; that they requested him
(M) to prepare a motion for reconsideration
which he did and gave them; however, these
friends did not return the copy of the motion.
--Q: Atty. Macalalad was introduced to Atty.
Solidon by a mutual acquaintance. Solidon
asked Atty. Macalalad to handle the judicial
titling of a parcel of land located in Samar and
owned by Atty. Solidon’s relatives. For a
consideration of P80,000.00, Atty. Macalalad
accepted the task to be completed within a
period of eight months. Atty. Macalalad received
P50,000.00 as initial payment; the remaining
balance of P30,000.00 was to be paid when Atty.
Solidon received the certificate of title to the
property. Atty. Macalalad has not filed any
petition for registration over the property
sought to be titled up to the present time. Is he
guilty of violating the CPR?
Will the administrative case prosper? Give
reasons for your answer (2007 Bar).
A: The administrative case will prosper. In failing to
file an opposition to the Demurrer to Evidence and
to appear at the hearing thereof, and more so, in
failing to file a motion for reconsideration of the
order granting the demurrer, thereby causing the
same to become final and executory, Attorney M
violated Canon 18 of the CPR, which provides that a
lawyer shall serve his client with competence and
diligence, and Rule 18.03 which provides that a
lawyer shall not neglect a legal matter entrusted to
him and his negligence in connection therewith
shall make him liable.
A: YES. Rule 18.03, Canon 18 of the Code of
Professional Responsibility. The mere failure of the
lawyer to perform the obligations due to the client
is considered per se a violation. A lawyer so engaged
to represent a client bears the responsibility of
protecting the latter’s interest with utmost
diligence. Accordingly, competence, not only in the
knowledge of law, but also in the management of the
cases by giving these cases appropriate attention and
due preparation, is expected from a lawyer. Atty.
Macalalad failed to act as he committed when he
failed to file the required petition (Solidon v.
Macalalad, A.C. No. 8158, February 24, 2010).
In refusing to comply with N's request to withdraw
from the case, Atty. M violated the rule that a client
has the absolute right to terminate the lawyer client
relationship at any time with or without cause.
Atty. M's defense that the voluminous records
turned over to him were in disarray and when he
appeared for B, he had only half of the information
and background of the case, is not meritorious. Rule
18.02 provides that he shall not handle any legal
matter without adequate preparation. He should
have been competent and diligent enough to
organize the records given to him, and not to go to
trial with only half of the information and
knowledge of the case. It is his duty to go to trial
adequately prepared (Rule 12.01, CPR).
--Q: Attorney M accepted a civil case for the
recovery of title and possession of land in behalf
of N. Subsequently, after the RTC had issued a
decision adverse to N, the latter filed an
administrative case against attorney M for
disbarment. He alleged that attorney M caused
the adverse ruling against him; that attorney M
did not file an opposition to the Demurrer to
Evidence filed in the case, neither did he appear
at the formal hearing on the demurrer, leading
the trial court to assume that plaintiff's counsel
(attorney M) appeared convinced of the validity
of the demurrer filed; that attorney M did not
even file a motion for reconsideration, causing
the order to become final and executory; and
that even prior to the above elements and in
view of attorney M's apparent loss of interest in
the case, he verbally requested attorney M to
His defense that friends of N assured him that they
had approached the judge, and asked him to prepare
a motion for reconsideration, which he allegedly did
and gave them, is incredible. Even if true, Atty. M
violated Canon 13 of the CPR which 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.”
83
LEGAL ETHICS
his interest is defended or why certain steps are
taken or omitted.
--Q: Spouses Santander filed a civil suit for
damages
against
Congressional
Village
Homeowner’s Association and Ely Mabanag.
Atty. Jimenez was the counsel of record and
handling lawyer for the association. The RTC
rendered a decision in favor of the Sps.
Santander. The CA dismissed the appeal on the
ground that the original period to file the
appellant’s brief had expired 95 days before the
first motion for extension of time to file said
brief was filed. Some members of the association
filed a Complaint for Disbarment against Atty.
Jimenez. In his defense, Atty. Jimenez alleged
that the members have no personality to file the
disbarment complaint as they were not his
clients. Is Atty. Jimenez liable for violating Rule
18.03 and Canon 18 of the Code of Professional
Responsibility?
--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?
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, the 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, November 25, 2005)
A: YES, Atty. Jimenez is liable. His failure to file the
appellant’s brief within the period provided by law
violates Canon 18 of the CPR. Atty. Jimenez had filed
with the CA an Urgent Motion for Extension stating
that a previous motion had been filed but “due to the
health condition of the undersigned counsel…he
was not able to finish said Appellant’s Brief within
the fifteen day period earlier requested by him.” It is
clear that Atty. Jimenez was indeed in charge of the
case. A lawyer representing a client bears the
responsibility of protecting the client’s interest with
utmost diligence.
--Q: Sps. Ramiscals engaged the legal services of
Atty. Edgar S. Orro to handle a case in which they
were the defendants seeking the declaration of
the nullity of title to a parcel of land. Upon
receiving the P10,000.00 acceptance fee from
them, Orro handled the trial of the case until
RTC decided it in their favor. When the case
reached CA, Orro requested from the spouses an
additional amount of P30,000.00 for the
preparation and submission of their appellees’
brief. Later on, the CA reversed the decision of
the RTC. Orro did not inform the Ramiscals of
the adverse decision of the CA which they only
learned about from their neighbors. They
endeavored to communicate with Orro but their
efforts were initially in vain. When they finally
reached him, he asked an additional P7,000.00
from them as his fee in filing a motion for
reconsideration in their behalf, albeit telling
them that such motion would already be
belated. To their dismay, they later discovered
that he did not file the motion for
reconsideration; hence, the decision attained
finality, eventually resulting in the loss of their
Any person, or the court, motu proprio, may initiate
disciplinary proceedings. The right to institute
disbarment proceedings is not confined to clients
nor is it necessary that the person complaining
suffered injury from the alleged wrongdoing.
Disbarment proceedings are matters of public
interest (Figueras v. Jimenez, A.C. No. 9116, March 12,
2014).
DUTY TO APPRISE CLIENT
Rule 18.04, Canon 18
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.
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
84
THE CODE OF PROFESSIONAL RESPONSIBILITY
property. Did Atty. Orro competently and
diligently discharge his duties as a lawyer?
upon his attorney. Notice sent to a party who has
appeared by counsel is not notice in law, it being
immaterial that the client actually received the
notice or volunteered to get a copy thereof.
A: NO. Every lawyer, upon becoming a member of
the Philippine Bar, solemnly takes the Lawyer’s
Oath, by which he vows, among others, that: "I will
delay no man for money or malice, and will conduct
myself as a lawyer according to the best of my
knowledge and discretion, with all good fidelity as
well to the courts as to my clients." If he should
violate the vow, he contravenes the Code of
Professional Responsibility, particularly its Canon
17, and Rules 18.03 and 18.04 of Canon 18. As an
essential part of their highly fiduciary relationship,
the client is entitled to the periodic and full updates
from the lawyer on the developments of the case.
Updating the clients could have prevented their
substantial prejudice by enabling them to engage
another competent lawyer to handle their case. As it
happened, his neglect in that respect lost for them
whatever legal remedies were then available. His
various omissions manifested his utter lack of
professionalism towards them. (Ramiscal v. Orro,
A.C. No. 10945, February 23, 2016)
XPNs:
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; and
In appeal from the lower court to the RTC, upon
docketing of appeal.
REPRESENTATION WITH ZEAL
WITHIN LEGAL BOUNDS
CANON 19
A lawyer shall represent his client with zeal
within the bounds of the law
When a lawyer accepts a case, whether for a fee or
not, his acceptance is an implied representation that
he: [CASE]
--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, November 4, 2004).
1.
2.
3.
4.
Doctrine of imputed knowledge
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, December 29,
1924).
Authority to appear in court is presumed
The knowledge acquired by an attorney during the
time that he is 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 the
same to his principal in the course of professional
dealings.
GR: A lawyer is presumed to be properly authorized
to represent any cause in which he appears.
XPN: On motion of either party and on reasonable
grounds, the presiding judge may require an
attorney to prove the authority under which he
appears (Sec. 21, Rule 138, RRC).
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.
Voluntary
authority
appearance
of
lawyer
without
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
Notice to counsel is notice to client, but not vice
versa if the latter appeared by attorney
GR: The law requires that service of any notice upon
a party who has appeared by attorney shall be made
85
LEGAL ETHICS
transactions (Sec. 26, Rule 138).
A: YES, a lawyer may be held liable for damages by
his client for failure to represent his client with zeal
(Canon 19, CPR) and for not serving his client with
competence and diligence (Canon 18, CPR).
Effects of unauthorized appearance
1.
2.
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.
USE OF FAIR AND HONEST MEANS
Rule 19.01, Canon 9
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)
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, December 4, 2009).
Ratification of unauthorized appearance
1. Express – Categorized assertion by client that
he has authorized a lawyer or that he confirms
his authorization to represent him in the case.
2. 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.
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 designed
to secure a leverage to compel the adversaries to
yield or withdraw their own cases against the
lawyer’s client.
Requisites of implied ratification by silence
1.
2.
3.
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;
The party or his guardian, as the case may be, is
aware of the attorney’s representation; and
He fails to promptly repudiate assumed
authority.
CLIENT’S FRAUD
Rule 19.02, Canon 19
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)
Extent of lawyer’s authority in litigation
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.
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).
--Q: May a lawyer be held liable for damages by his
clients for the lawyer’s failure to file the
necessary pleadings to prosecute the client’s
case and as a result of which the client suffered
damages? (2014 Bar)
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
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THE CODE OF PROFESSIONAL RESPONSIBILITY
(CPR Annotated, PhilJA).
a.
---
Q: Atty. Bravo represents Carlos Negar (an
insurance agent for Dormir Insurance Co.) in a
suit filed by insurance claimant Andy Limot who
also sued Dormir Insurance. Limot testified
during the trial that he had mailed the notice of
the loss to the insurance agent, but admitted
that he lost the registry receipt so that he did not
have any documentary evidence of the fact of
mailing and of its timeliness. Dormir Insurance
denied liability contending that the timely
notice had not been given either to the company
or its agent.
b.
A few days after Negar testified, he admitted to
Atty. Bravo that he had lied when he denied
receipt of Limot's notice; he did receive the
notice by mail but immediately shredded it to
defeat Limot's claim.
Atty. RS has the obligation to disclose such facts
to authorities. The announced intention of a
client to commit a crime is not included within
the confidences which his attorney is bound to
respect. The attorney cannot reveal to anybody
the facts stated by the client as regards the case
proceedings. However this is not an absolute
rule. The privilege is limited or has reference
only to communications which are within the
ambit of lawful employment and does not
extend to those transmitted in contemplation of
future crimes or fraud.
YES, Atty. RS has the obligation to disclose such
information to the authorities. As provided for
by Rule 19.02 of Canon 19, a lawyer shall not
allow his client to perpetrate fraud. He shall
promptly advise the client to rectify the same,
and if the client refuses to heed the lawyer's
advice for rectification, the lawyer must
withdraw from the case (People v.
Sandiganbayan, 275 SCRA 505).
---
If your were Atty. Bravo, what would you do in
light of your client's disclosure that he perjured
himself when he testified? (2013 Bar)
Q: If the lawyer is counsel de parte for the
accused and he learns later after accepting the
case and while trial is ongoing that his client was
indeed the perpetrator of the crime, may the
lawyer withdraw his appearance from the case?
Why or Why not? (2014 Bar)
A: I shall promptly call upon Carlos Negar, my client,
to rectify his perjured testimony by recanting the
same before the court. Should he refuse or fail to do
so I shall then terminate my relationship with him
(Canon, 19, Rule 19.02) stating that with his having
committed perjury he persuaded an illegal conduct
in connection with the case (Ibid., Canon 22, Rule
22.01).
A: He may withdraw his appearance but in
accordance with procedure in Section 26, Rule 138
of the Rules of Court. Moreover, Rule 19.02 of the
CPR provides that “a lawyer who has received
information that his client has, in the course of the
representation, perpetuated 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.”
--Q: In a prosecution for a murder against a
ranking army officer, the latter engaged the
services of RS, a well-known trial lawyer, to
whom the officer in one of their conferences
disclosed a plan to eliminate or salvage—i.e., kill
or otherwise cause to disappear—the only
witness, a fellow military officer, through a
contrived traffic or highway vehicular accident.
PROCEDURE IN HANDLING THE CASE
Rule 19.03, Canon 19
A lawyer shall not allow his client to dictate
the procedure in handling the case.
a.
What are the legal and moral obligations of
Atty. RS to his client and to the authorities,
under the given circumstances?
b. Should the planned accident take place, and
the witness to the prosecution be killed, as a
result, is Atty. RS under any obligation to
disclose to the authorities the plan that his
client had mentioned to him, as above
mentioned?
Who has control over the case
1.
As to matters of procedure - it is the client who
yields to the lawyer and not the lawyer yielding
to the client. (Lapena 2009)
NOTE: The basis of this rule is that the lawyer
is better trained and skilled in law.
A:
2.
87
As to subject matter - the client is in
LEGAL ETHICS
control.
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: 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.
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.
Authority of counsel to compromise
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.
Entry of appearance v. Appearance of counsel
Entry of appearance is the written manifestation
submitted by the counsel of record to inform the
court that he will act as the counsel of a party made
before the date of the hearing while appearance of
counsel is the verbal manifestation of the counsel in
order for the court to recognize his presence during
the hearing of the case (Sec. 21, Rule 138, Rules of
Court).
XPNs:
1. 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.
2. Settlement of monetary obligation to client is
full payment in cash.
ATTORNEY’S FEES
(1990, 1991, 1992, 1994, 1995, 1997, 1998,
2005, 2006, 2007 Bar)
NOTE: Compromise is a contract whereby the
parties, by making reciprocal concessions, avoid
litigation or put an end to one already commenced
(Art. 2028, NCC).
CANON 20
A lawyer shall charge only
reasonable fees
Duty of the lawyer in gathering information
regarding the case
The lawyer cannot entirely depend on the
information his client gave or the time his client
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).
fair
and
GR: Only lawyers are entitled to attorney’s fees. The
same cannot be shared with a non-lawyer. It is
unethical.
XPNs: A lawyer may divide a fee for legal services
with persons not licensed to practice law: [CPR]
1.
2.
Appearance
It is the coming into court as a party either as a
plaintiff or as a defendant and asking relief
therefrom.
3.
Kinds of appearance
A lawyer undertakes to Complete the
unfinished legal business of a deceased lawyer;
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;
A lawyer or law firm includes non-lawyer
employees in Retirement plan, even if the plan
is based, in whole or in part, on a profit-sharing
agreement. (Rule 9.02, CPR)
NOTE: Entitlement to lawyer’s fees is presumed
(Funa, 2009).
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.
Unless otherwise expressly stipulated, rendition of
professional services by a lawyer is for a fee or
compensation and is not gratuitous (Research and
88
THE CODE OF PROFESSIONAL RESPONSIBILITY
Services Realty, Inc. v. CA, G.R. No. 124074, January
27, 1997).
2.
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,
February 26, 1981)
Rule 20.01, Canon 20
A lawyer shall be guided by the following
factors in determining his fees:
a. The time spent and the extent of the
service rendered or required;
b. The novelty and difficulty of the
questions involved;
c. The importance of the subject matter;
d. The skill demanded;
e. The probability of losing other
employment as a result of acceptance of
the proffered case;
f.
The customary charges for similar
services and the schedule of fees of the
IBP chapter to which he belongs;
g. The amount involved in the controversy
and the benefits resulting to the client
from the service;
h. The contingency or certainty of
compensation;
i.
The character of the employment,
whether occasional or established; and
j.
The professional standing of the lawyer.
Factors in determining the attorney’s fees (1994
Bar)
In determining what is fair and reasonable, a lawyer
shall be guided by the following factors: [STIPSNACCC]
1.
2.
Skill demanded;
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)
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)
NOTE: Imposition of interest in the payment of
attorney’s fees is not justified. (Funa, 2009)
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)
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, G.R. No. L-22973, January 30, 1968)
Kinds of payment
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)
1. 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
2. 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.
Factors to consider in determining the amount
of attorney’s fees in the absence of any fee
arrangement [TINS]
1.
Requisites for the accrual of attorney’s fees
1.
Rendition by the lawyer of services to the client.
Existence of attorney-client relationship; and
89
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.
LEGAL ETHICS
2.
3.
4.
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.
Supreme Court. Rosario filed a Motion to
Determine Attorney's Fees. He alleged that he
had a verbal agreement with the Spouses and
that he would get 25% of the market value of the
subject land if the complaint filed against them
would be dismissed. Despite the fact that he had
successfully represented them, the spouses
refused his written demand for payment of the
contracted attorney’s fees. Is Rosario entitled to
recover his attorney’s fees?
A: YES. In the case at bench, the attorney’s fees
being claimed by the petitioner refers to the
compensation for professional services rendered,
and not as indemnity for damages. The award of
P10,000, made in its extraordinary concept as
indemnity for damages, forms part of the judgment
recoverable against the losing party and is to be
paid directly to Spouses de Guzman and not to Atty.
Rosario. Thus, to grant petitioner’s motion to
determine attorney’s fees would not result in a
double award of attorney’s fees. The amount of
attorney’s fees must be based in quantum meruit.
Atty. Rosario served as defense counsel for Spouses
de Guzman for almost seventeen (17) years. Given
the considerable amount of the time spent, the
diligent effort exerted by Rosario, and the quality of
work shown by him in ensuring the successful
defense of his clients, he clearly deserves to be
awarded reasonable attorney’s fees for services
rendered. Justice and equity dictate that petitioner
be paid his professional fee based on quantum
meruit. (Rosario v. de Guzman, G.R. No. 191247, July
10, 2013)
Different types of fee arrangements
1.
2.
3.
4.
5.
6.
Retainer’s fee where the lawyer is paid for
services for an agreed amount for the case.
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 officio. 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: 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?
NOTE: When the claim for entitlement to attorney's
fees is contingent, but no written agreement has
been executed bearing the supposed contingent
fees, the only way to determine the same is to apply
the principle of quantum meruit. The recovery of
attorney's fees on the basis of quantum meruit is a
device that prevents an unscrupulous client from
running away with the fruits of the legal services of
counsel without paying for it and it also avoids
unjust enrichment on the part of the attorney
himself. (National Power Corporation v. Heirs of
Sangkay, G.R. No. 165828, August 24, 2011)
--Q: Spouses de Guzman engaged the legal
services of Atty. Rosario, Jr. as defense counsel
in a complaint filed against them. As
represented by Rosario, Spouses de Guzman
won their case at all levels, from RTC to the
A: YES. The expiration of the retainer contract
between the parties during the pendency of the
labor case does not extinguish the respondent’s
90
THE CODE OF PROFESSIONAL RESPONSIBILITY
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)
a law firm is equivalent to the retainer of the firm
itself. Thus, if the said member dealt with dies or is
incapacitated to render service, the law firm is
bound to provide a substitute. Hence, Atty. P may
file the required brief for C.
On the other hand, if Atty. M was retained alone,
without the knowledge that he belonged to a law
firm, P may not file the required brief for C without
the consent of the latter. There is no statement in
the problem that C knew M to be a member of the
law firm OMP & Associates at the time that C
engaged his services.
Retainer
1.
2.
This is the act of the client by which he employs
a lawyer to manage for him a cause to which he
is a party, or otherwise to advise him as counsel;
It also refers to a fee which the client pays his
attorney whom he retains. (Pineda, 2009)
--Q: Atty. Francisco’s retainer agreement with
RXU said that his attorney's fees in its case
against CRP “shall be 15% of the amounts
collected.” Atty. Francisco asked the trial court
to issue a temporary restraining order against
CRP but this was denied, prompting him to file a
petition for certiorari with the Court of Appeals
to question the order of denial. At this point,
RXU terminated Atty. Francisco’s services. When
the parties later settled their dispute amicably,
CRP paid RXU P100 million. Because of this, Atty.
Francisco came around and claimed a 15%
share in the amount. What should be his
attorney’s fees? (2011 Bar)
Retaining fee
A retaining fee is a preliminary fee given to an
attorney or counsel to insure and secure his future
services, and induce him to act for the client.
(Pineda, 2009)
Kinds of Retainer Agreements on Attorney’s
Fees
1. 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;
2. Special retainer – It is a fee for a specific or
particular case or service rendered by the
lawyer for a client. (Pineda, 2009)
A: A reasonable amount that the court shall fix upon
proof of quantum meruit which means “as much as
he deserves”.
--Instances when the measure of quantum meruit
may be resorted to (2007 Bar)
1.
--2.
Q: Atty. M is a partner in the law firm OMP &
Associates. C, a former classmate of Atty. M
engaged the legal services of Atty. M to handle
his appeal to the Court of Appeals (CA) from an
adverse decision of the Regional Trial Court
(RTC) in his annulment case. After the notice to
file brief was issued by the CA, Atty. M met an
accident which incapacitated him from further
engaging law practice. May Atty. P, his partner in
the law firm, file the required appeal brief for C?
Explain your answer. (2014 Bar)
3.
4.
5.
6.
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;
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.
---
A: It depends on whether or not C knew Atty. M to
be a partner of the OMP & Associates law firm when
he hired him. Generally, the retainer of a member of
Q: A client refuses to pay Atty. A his contracted
attorney's fees on the ground that counsel did
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LEGAL ETHICS
not wish to intervene in the process of effecting
a fair settlement of the case. Decide. (2001 Bar)
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, January 7,
1987)
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.
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, G.R. No. L-14277, April 30, 1960)
ACCEPTANCE FEES
Q: B hired Atty. Z to file a replevin case against C
for an agreed acceptance fee of P30,000.00
which was evidence by a written contract. After
the complaint was filed by Atty. Z, B terminated
his services and hired a new lawyer for the same
amount of attorney’s fees. How much attorney’s
fees is Atty. Z entitled to? (2014 Bar)
--Instances when counsel cannot recover the full
amount
despite
written
contract
for
attorneys’ fees (2006 Bar)
1.
2.
3.
4.
5.
6.
7.
8.
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;
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.
A: Atty. Z is entitled to the entire amount of the
attorney’s fees agreed upon because his services
were terminated by the client without just cause.
(Sec. 26, Rule 138, Rules of Court)
--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. Rose issued two checks amounting
to 51,716.54 in favor 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?
Rationale behind the rule that the court may
reduce unconscionable attorney’s fees
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,
January 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
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 Atty. Jack. Rose still
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THE CODE OF PROFESSIONAL RESPONSIBILITY
owes payment of acceptance fee because she only
paid 51, 716.54.
Limitation of the stipulation
contingent fee contract
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)
It must be reasonable based on the circumstance of
the case. Contingent fee contracts are under the
supervision and close scrutiny of the court in order
that clients may be protected from just charges. Its
validity depends on the measure of reasonableness
of the stipulated fees under the circumstances of the
case. Stipulated attorney’s fees must not be
unconscionable wherein the amount is by far so
disproportionate compared to the value of the
services rendered as to amount to fraud
perpetrated to the client. (Sesbreno v. CA, G.R. No.
117438, June 8, 1995)
--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,
March 30, 2004)
regarding
--Q: The stipulation between the lawyer and
counsel is as follows, “the attorney’s fees of the
Atty. X will be ½ of whatever the client might
recover from his share in the property subject of
the litigation.” Is the stipulation valid?
CONTINGENCY FEE ARRANGEMENTS
Contingency fee contract
One which stipulates that the lawyer will be paid for
his legal services only if the suit or litigation ends
favorably to the client. (Taganas v. NLRC, G.R. No.
118746, September 7, 1995)
A: YES. The stipulation made is one of a contingent
fee which is allowed by the CPE and the CPR. It does
not violate the prohibition of acquisition of property
subject of the litigation by the lawyer provided for
in the Civil Code since the prohibition applies only
to a sale or assignment to the lawyer by his client
during the pendency of the litigation. The transfer
actually takes effect after the finality of the
judgment and not during the pendency of the case.
As such it is valid stipulation between the lawyer
and client.
It is like a contract subject to a suspensive condition
wherein the obligation to pay the counsel is based
upon the outcome of the case.
Contingent fees are sanctioned by the CPE and by
the CPR subject to certain limitations. (Licudan v. CA,
G.R. No. 91958, January 24, 1991)
---
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)
Acceptance of an initial fee before or during the
progress of the litigation detract from the
contingent nature of the fees
The acceptance of an initial fee before or during the
progress of the litigation does not detract from the
contingent nature of the fees, as long as the bulk
thereof is made dependent upon the successful
outcome of the action. (Francisco v. Matias, G.R. No.
L-16349, January 31, 1964)
Rationale for contingent fee contracts
Contracts of this nature (contingent fee contract)
are permitted because they redound to the benefit
of the poor client and the lawyer especially in cases
where the client has meritorious cause of action, but
no means with which to pay for the legal services
unless he can, with the sanction of law, make a
contract for a contingent fee to be paid out of the
proceeds of the litigation. (Francisco, 1949)
--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
93
LEGAL ETHICS
compromise settlement. Chester signed the
contingent fee agreement. Assuming that 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.
(2008 Bar)
(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: 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 in 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.
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.
--Q: Assuming that 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. (2008 Bar)
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 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.
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,
G.R. No. L-26096, February 27, 1979); (Macariola v.
Asuncion, A.C. No. 133-J, May 31, 1982)
--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. The Labor
Arbiter granted the monetary claims of
Alexander. Eventually, after several appeals, the
decision being favorable to Evangelina
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, February 13, 2009)
94
THE CODE OF PROFESSIONAL RESPONSIBILITY
Champertous contract
thing in dispute. (Conchita Baltazar et. al. v. Atty.
Bañez, Jr., A.C. No. 9091, December 11, 2013)
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).
--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
assume payment of all expenses of the litigation.
May Atty. Quintos and Susan increase the
amount of the contingent fee to 80%? (2006
Bar)
NOTE: A champertous contract 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, February 12, 1990)
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.
Contingent vs. Champertous contract
CONTINGENT
CONTRACT
Payable in cash –
dependent on the
success of the litigation
CHAMPERTOUS
CONTRACT
Payable in kind - a
portion of the thing or
property recovered as
compensation
Lawyers
do
not
undertake to pay all
expenses of litigation
Lawyers undertake to
pay all expenses of
litigation
Valid
Void
--Q: A inherited parcel of land situated in Batasan
Hills which is occupied by informal settlers. He
wanted to eject the occupants, but he has no
financial means to pursue the ejectment case. He
contracted the services of Atty. B, who agreed to
defray all the expenses of the suit on the
condition that he will be paid one-half of the
property to be recovered as his compensation.
What is this kind of attorney’s fees? Can Atty. B
enforce this contract against A?
--Q: Complainants engaged the legal services of
Atty. Bañez, Jr. in connection with the recovery
of their properties from Fevidal. Complainants
signed a contract of legal services, where it was
agreed that they would not pay acceptance and
appearance fees to Atty. Bañez, Jr., but that the
docket fees would instead be shared by the
parties. Under the contract, complainants would
pay respondent 50% of whatever would be
recovered of the properties. Did Atty. Bañez, Jr
violate any canon of the Code of Professional
Responsibility?
What are the respective remedies relative to the
collection of attorney’s fees, if any, of A and Atty.
B against each other? (2014 Bar)
A: This is a champertous contract and not a
contingent contract. In the problem, Atty. B defrays
all the expenses for litigation and gets 50% of the
property to be recovered as his compensation. This
has the characteristics of a champertous contract.
Hence, void for being contrary to public policy. The
legal profession exists to serve the ends of justice
and is not to be conducted as a business enterprise.
Since the contract is void, Atty. B cannot enforce it
against A but A has a cause of action against Atty. B
for unethical conduct.
A: YES. He violated Canon 16.04 of the Code of
Professional Responsibility, which states that
lawyers shall not lend money to a client, except
when in the interest of justice, they have to advance
necessary expenses in a legal matter they are
handling for the client. He violated such canon
because the contract for legal services he has
executed with complainants is in the nature of a
champertous contract – an agreement whereby an
attorney undertakes to pay the expenses of the
proceedings to enforce the client’s rights in
exchange for some bargain to have a part of the
ATTORNEY’S LIENS
Attorney’s retaining lien
95
LEGAL ETHICS
A retaining lien is the right of an attorney to retain
the funds, documents and papers of his client who
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.
RETAINING Lien vs. CHARGING Lien
1.
Retaining Lien - right of the attorney to retain
the funds, documents, and papers of his client
which have lawfully come into his possession
until his lawful fees and disbursements have
been paid and to apply such funds to the
satisfaction thereof.
2. Charging Lien - right which the attorney has
upon all judgments for the payment of money,
and executions issued in pursuance of said
judgments, which he has secured in litigation of
his client.
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, G.R. No. 169079, February
12, 2007)
Requisites in order for an attorney to be able to
exercise his retaining lien [ALU]
1.
2.
3.
Under this rule, this lien, whether retaining or
charging, takes legal effect only from and after,
but not before, notice of said lien has been
entered in the record and served on the adverse
party (Elena De Caiña, et al. v. Hon. Victoriano, et
al., G.R. No. L-12905, February 26, 1959).
Attorney-client relationship;
Lawful possession by the lawyer of the client’s
funds, documents and papers in his
professional capacity; and
Unsatisfied claim for attorney’s fees or
disbursements.
Attorney’s charging lien
RETAINING
LIEN
Passive lien. It
cannot be
actively
enforced. It is a
general lien.
Lawful
possession of
papers,
documents,
property
belonging to
the client.
CHARGING
LIEN
Active lien. It
can be
enforced by
execution. It is
a special lien.
Securing of a
favorable
money
judgment for
client.
As to Coverage
Covers papers,
documents,
and properties
in the lawful
possession of
the attorney by
reason of his
professional
employment.
Covers all
judgments for
the payment of
money and
execution
issued in
pursuance of
such judgment.
As to Effect
As soon as the
attorney gets
possession of
papers,
documents, or
property.
As soon as the
claim for
attorney’s fees
had been
entered into
the records of
the case.
As to
Applicability
May be
exercised
before
judgment or
Generally,
exercised only
when the
attorney had
As to Nature
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
disbursements. (Sec. 37, Rule 138, RRC)
As to Basis
Requisites in order for an attorney to be able to
exercise his charging lien
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.
96
THE CODE OF PROFESSIONAL RESPONSIBILITY
As to
Extinguishme
nt
execution or
regardless
thereof.
already
secured a
favorable
judgment for
his client.
When
possession
lawfully ends
as when
lawyer
voluntarily
parts with
funds,
documents,
and papers of
client or offers
them as
evidence.
When client
loses action as
lien may only
be enforced
against
judgment
awarded in
favor of client,
proceeds
thereof/execut
ed thereon.
Atty. D collect his fees from M? Discuss fully.
(2014 Bar)
A: D can exercise the remedy of retaining lien over
the documents and other pieces of evidence which
have lawfully come to his possession, under Sec. 37,
Rule 138 of the Revised Rules of Court. The payment
of attorney's fee is based on the services rendered
and not dependent on the success or failure of the
case.
--FEES AND CONTROVERSIES WITH CLIENTS
Rule 20.02, Canon 20
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: 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. (1996 Bar)
Lawyer-referral system
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)
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, RRC; Rule 16.03,
CPR). He is also 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.
Rule 20.03, Canon 20
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)
It is intended to secure the fidelity of the lawyer to
his client’s cause and to prevent a situation in which
the receipt by 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).
--Q: M engaged the services of Atty. D to prosecute
his annulment of marriage case in the Regional
Trial Court. After a long-drawn trial, Atty. D was
able to secure a favorable judgment from the
court. Unfortunately, M has failed to pay in full
the stipulated attorney’s fees of Atty. D. How can
GR: Fees shall be received from the client only.
XPN: A lawyer may receive compensation from a
person other than his client when the latter has full
97
LEGAL ETHICS
knowledge and approval thereof [Sec. 20 (e), Rule
138].
XPNs:
1. To prevent imposition
2. To prevent injustice
3. To prevent fraud (Rule 20.04, CPR)
--Q: Atty. X, lawyer of a labor union of rank and file
employees succeeded in the negotiation of a
collective bargaining agreement for the rank
and file employees by virtue of which salary
increase was received by the rank and file
employees. At the same time the employer
granted salary increase to supervisory
employees who were not members of the union.
Atty. X now seeks to collect from the nonsupervisory employees’ attorney’s fees for this
increase in salaries. Is he entitled to such fees?
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, February 26, 2010).
A: NO. Atty. X is not entitled to collect attorney’s fees
from the non-union supervisory employees. A
lawyer who rendered services to a party, who did
not employ him nor authorize his employment,
cannot recover compensation even if his services
have redounded to the benefit of such party.
Otherwise, anyone might impose obligations upon
another without the latter’s knowledge or consent,
and even against his protest as what happened in
the present case. In labor cases such as this one,
where the company grants the same salary increase
to non-union supervisory employees similar to the
rank and file employees who were the clients of the
lawyer, it is not because of the special efforts of the
latter’s lawyer that the non-union supervisory
employees benefited but because of the company’s
policy of non-discrimination. The lawyer is not
entitled to claim attorney’s fees from the
supervisors for the benefits they received (Orosco v.
Hernaez, G.R. No. L-541&9, December 2, 1901).
Ways on how lawyers claim attorney's fees
1.
2.
Same action in which the services of a lawyer
had been rendered; or
In a separate action.
With respect to the first situation, the remedy for
recovering attorney’s fees as an incident of the main
action may be availed of only when something is due
to the client. Attorney’s fees cannot be determined
until after the main litigation has been decided and
the subject of the recovery is at the disposition of
the court. The issue over attorney’s fees only arises
when something has been recovered from which the
fee is to be paid.
While a claim for attorney’s fees may be filed before
the judgment is rendered, 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 to be made by the courts will be
premature. Of course, 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 (Rosario, Jr. vs. De Guzman et. al., G.R. No.
191247, July 10, 2013).
--Rule 20.04, Canon 20
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)
GR: A lawyer should avoid the filing of any case
against a client for the enforcement of attorney’s
fees.
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.
1.
2.
3.
4.
98
Main action is dismissed or nothing is awarded;
Court has decided that it has no jurisdiction
over the action or has already lost it;
Person liable for attorney’s fees is not a party to
the main action;
Court reserved to the lawyer the right to file a
separate civil suit for recovery of attorney’s
THE CODE OF PROFESSIONAL RESPONSIBILITY
5.
6.
7.
fees;
Services for which the lawyer seeks payment
are not connected with the subject litigation;
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; and
Failure to exercise charging Lien.
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 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 payments as 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. Is their claim justified?
Effects of the nullity of contract on the right to
attorney’s fees
If the nullification is due to:
1.
2.
Illegality of its object - the lawyer is precluded
from recovering; or
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.
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 payment for settlement
should have discharged Vinson's obligation to them.
Kinds of lawyer according to services rendered
and the compensation they are entitled to
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 officio – 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 Curiae – not entitled to attorney’s fees.
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).
CONCEPTS OF ATTORNEY’S FEES
Two concepts of attorney’s fees
1.
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.
2.
EXTRAORDINARY CONCEPT OF ATTORNEY’S
FEES
Rules on extraordinary concept of attorney’s
fees
Extraordinary attorney's fee – An indemnity
for damages ordered by the court to be paid by
the losing party in litigation.
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.
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 to the client,
NOT to the lawyer unless they have agreed that
the award shall pertain to the lawyer as
additional compensation or as part thereof.
XPNs: Attorney’s fees in the concept of damages
may be awarded in any of the following
circumstances:
1.
99
When there is an agreement;
LEGAL ETHICS
2.
3.
When exemplary damages are awarded;
When defendant’s action or omission
compelled plaintiff to litigate;
In criminal cases of malicious prosecution
4.
a.
b.
5.
6.
7.
8.
9.
10.
11.
12.
13.
Rule 21.01, Canon 21
A lawyer shall not reveal the confidences or
secrets of his client except:
a. When authorized by the client after
acquainting him of the consequences of the
disclosure;
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;
b. When required by law;
c. When necessary to collect his fees or to defend
himself, his employees or associates or by judicial
action.
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)
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].
Rationale behind the rule that the Court shall
state the reason for attorney’s fees in in its
decision
XPNs:
1. When authorized by his client after acquainting
him of the consequences of the disclosure;
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 v. CA, G.R. No. 84751,
June 6, 1990.
NOTE: 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 of the attorney is likewise
necessary.
NOTE: Attorney’s fees must be specifically prayed
for and proven and justified in the decision itself
(Trans-Asia Shipping Lines, Inc. v. CA, G.R. No.
118126, March 4, 1996).
2.
3.
PRESERVATION OF CLIENT’S CONFIDENCES
CANON 21
A lawyer shall preserve the confidence and
secrets of his client even after the attorneyclient relation is terminated.
When required by law; or
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.
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.
Instances when a lawyer may testify as a witness
in a case which he is handling for a client
1.
PROHIBITED DISCLOSURES AND USE
2.
3.
100
On formal matters, such as the mailing,
authentication or custody of an instrument and
the like;
Acting as an expert on his fee;
Acting as an arbitrator;
THE CODE OF PROFESSIONAL RESPONSIBILITY
4.
5.
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.
to him in his professional 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.
Rule 21.02, Canon 21
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.
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, March 30, 2006).
---
Rule 21.05, Canon 21
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.
Acts punished under Art. 209 of the Revised
Penal Code (betrayal of trust by attorney)
1.
Rule 21.06, Canon 21
A lawyer shall avoid indiscreet conversation
about a client’s affairs even with members of his
family.
2.
3.
Rule 21.07, Canon 21
A lawyer shall not reveal that he has been
consulted about a particular case except to
avoid possible conflict of interest.
By causing damage to his client, either: a) by
any malicious breach of professional duty, or b)
by inexcusable negligence or ignorance;
By revealing any of the secrets of his clients
learned by him in his professional capacity; or
By having undertaken the defense of a client or
having received confidential information from
said client in a case, shall undertake the defense
of the opposing party in the same case, without
the consent of his first client.
--Rule 21.03, Canon 21
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: 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, 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?
--Q: Certain government officers, armed with a
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).
A: YES. The long-established rule is that an attorney
is not permitted to disclose communications made
101
LEGAL ETHICS
---
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, September 21, 1949).
NOTE: Confidential information obtains even
against government agencies and instrumentalities
(Funa, 2009).
--DISCLOSURE, WHEN ALLOWED
Privileged communication rule with regard to
the identity of his client
Rule 21.04, Canon 21
A lawyer may disclose the affairs of a client of
the firm to partners or associates thereof
unless prohibited by the client.
GR: A lawyer may not invoke privileged
communication to refuse revealing a client’s
identity.
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.
XPNs:
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; or
3. When the 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: In need of legal services, Niko secured an
appointment to meet with Atty. Henry of Henry
& 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. (2008 Bar)
Reasons why a lawyer may not invoke privileged
communication to refuse revealing a client’s
identity
1.
2.
3.
4.
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).
Due process considerations require that the
opposing party should know their adversary;
The privilege pertains to the subject matter of
the relationship;
The privilege begins to exist only after attorneyclient 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.
---
Q: Atty. X was charged of violating Code of
Responsibility for representing conflicting
interests by accepting the responsibility of
representing Mr. A in the cases similar to those
in which he had undertaken to represent Mr. D
and his group, notwithstanding that Mr. A was
the very same person whom Mr. D and his group
had accused, with Atty. X’s legal assistance. He
drafted the demand letters and the complaintaffidavit that became the bases for the filing of
the estafa charges against Mr. A. Atty. X
contends that his lawyer-client relationship
with Mr. D ended when he and his group entered
into the compromise settlement.
Is his
contention correct?
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
102
THE CODE OF PROFESSIONAL RESPONSIBILITY
A: NO. Atty. X’s contention is not correct. The
lawyer-client relationship did not terminate as of
the date of the compromise agreement, for the fact
remained that he still needed to oversee the
implementation of the settlement as well as to
proceed with the criminal cases until they were
dismissed or otherwise concluded by the trial court.
It is also relevant to indicate that the execution of a
compromise settlement in the criminal cases did
not ipso facto cause the termination of the cases not
only because the approval of the compromise by the
trial court was still required, but also because the
compromise would have applied only to the civil
aspect, and excluded the criminal aspect pursuant
to Article 2034 of the Civil Code (Samson v. Era, A.C.
No. 6664, July 16, 2013).
6. When his Inability to work with co-counsel will
not promote the best interest of the client;
7. When the lawyer is Elected or appointed to a
public office; and
(Rule 22.01, CPR)
8. When there is a Conflict of interest.
Procedure to follow when withdrawal is without
client’s consent
1. File a petition for withdrawal in court.
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.
--WITHDRAWAL OF SERVICES
If the application is filed under circumstances that
do not afford a substitute counsel sufficient time to
prepare for trial or that it will work prejudice to the
client’s cause, the court may deny his application
and require him to conduct the trial.
CANON 22
A lawyer shall withdraw his services only for
good cause and upon notice appropriate in the
circumstances.
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.
Right to withdraw
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 its conclusion. This is
especially true when such withdrawal will work
injustice to a client or frustrate the ends of justice.
--Q: Can a client discharge the services of his
lawyer without a cause? (1994, 1997, 1998 Bar)
XPNs: The right of a lawyer to retire from the case
before its final adjudication, which arises only from:
1.
2.
A: YES. A client has the right to discharge his
attorney at any time with or without a cause or even
against his consent.
The client’s written consent; or
By permission of the court after due notice and
hearing.
1.
Instances when a lawyer may withdraw his
services without the consent of his client
[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 Mental or physical condition of the
lawyer renders it difficult for him to carry out the
employment effectively;
4. Other similar cases;
5. When the client insists that the lawyer pursue
conduct in Violation of these canons and rules;
103
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.
LEGAL ETHICS
NOTE: A lawyer should question his discharge
otherwise he will only be allowed to recover on
quantum meruit basis.
fees for the services or fails to comply with the
retainer agreement
f. When the lawyer is elected or appointed to
public office; and
Limitations on client’s right to discharge the
services of his lawyer
1.
2.
3.
g. Other similar cases.
When made with justifiable cause, it shall
negate the attorney’s right to full payment of
compensation.
The attorney may, in the discretion of the court,
intervene in the case to protect his right to fees.
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.
NOTE: In cases a-e (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.
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).
Conditions for substitution of counsel
1.
2.
3.
Written application
Written consent of the client
Written consent of the attorney to be
substituted, or in the absence thereof, proof of
service of notice of said motion to the attorney
to be substituted in the manner prescribed by
the rules.
--Q: If the client insists on hiring an additional
counsel as collaborating counsel over and above
the objection of the original counsel, may the
original counsel withdraw from the case, and
how? (2014 Bar)
Heavy workload as excuse for withdrawal as
counsel
A: If the client insists on retaining a collaborating
counsel over and above the objection of the original
counsel, the latter may withdraw his services when
his inability to work with co-counsel will not
redound to the best interest of the client (Rule 22.01,
Code of Professional Responsibility).
Standing alone, heavy workload is not sufficient
reason for the withdrawal of a counsel. When a
lawyer accepts to handle a case, whether for a fee or
gratis et amore, he undertakes to give his utmost
attention, skill and competence to it regardless of its
significance. Failure to fulfill his duties will subject
him to grave administrative liability as a member of
the Bar (Ceniza v. Atty. Rubia, A.C. No. 6166, October
2, 2009).
--Hot Potato Rule
GR: A lawyer may not unreasonably withdraw from
representing a client.
Rule 22.01, Canon 22
A lawyer may withdraw his services in any of
the following case:
a. When the client pursues an illegal or
immoral course of conduct in connection with
the matter he is handling;
XPN: Withdrawal may be allowed if there is a
conflict of interest arising from circumstances
beyond the control of the lawyer or the law firm
(Black’s Law Dictionary, 9th edition).
---
b. When the client insists that the lawyer
pursue conduct violative of these canons and
rules;
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
c. When the inability to work with co- counsel
will not promote the best interest of the client;
d. When the mental or physical condition of
the lawyer renders it difficult for him to carry
out the employment effectively;
e. When the client deliberately fails to pay the
104
SUSPENSION, DISBARMENT AND DISCIPLINE OF LAWYERS
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.
(2004 Bar)
his fees. It is his right to refuse as that is part of his
freedom of contract.
--Rule 22.02, Canon 22
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.
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 canons 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.
Duties of a discharged lawyer or one who
withdraws
1. Immediately turn-over all papers and property
to which the client is entitled; and
2. To cooperate with his successor in the orderly
transfer of the case.
--Q: Was the motion for relief as counsel made by
the defense lawyer in full accord with the
procedural requirements for a lawyer’s wi
thdrawal from a court case? Explain briefly.
(2004 Bar)
SUSPENSION, DISBARMENT AND DISCIPLINE OF
LAWYERS (RULE 139-B, RULES OF COURT)
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.
NATURE AND CHARACTERISTICS OF
DISCIPLINARY ACTION AGAINST LAWYERS
Rationale of disciplining errant lawyers
Practice of law is in the nature of a privilege. Hence,
the same may be suspended or removed from the
lawyer for reasons provided in the rules, law and
jurisprudence.
NOTE: A lawyer may be disciplined or suspended
for any misconduct professionally or privately (Cruz
v. Atty. Jacinto, Adm. Case No. 5235, March 22, 2000).
--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. (2000
Bar)
Nature of the power to discipline
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.
NOTE: The power to disbar and to reinstate is an
inherently judicial function (Andres v. Cabrera, SBC585, February 29, 1984).
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 for an increase in
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
105
LEGAL ETHICS
proof (Vitug v. Rongcal, A.C. No. 6313, September 7,
2006).
3. Limitation upon practice;
4. Appointment of a receiver;
5. Requirement that a lawyer take the bar
examination or professional responsibility
examination;
6. Requirement that a lawyer attend continuing
education courses; and
7. Other requirements that the highest court or
disciplinary board deems consistent with the
purposes of the sanctions.
Powers of the Supreme Court in disciplining
lawyers [WARD-SIP]
1. Warn;
2. Admonish;
3. Reprimand;
4. Disbar;
5. Suspend a lawyer (Sec. 27, Rule 138, RRC);
6. Interim suspension; and
7. Probation (IBP Guidelines)
Forms of disciplinary measures [WARCS-DIP]
Powers of the Court of Appeals and the Regional
Trial Courts [SWARP]
1.
They are also empowered to:
2.
1. Suspend an attorney from practice for any of
the causes named in Sec 27, Rule 138 until
further action of the Supreme Court in the case
(Sec. 16, Rule 139-B);
2. Warn;
3. Admonish;
4. Reprimand; and
5. Probation (IBP Guidelines)
3.
4.
5.
NOTE: The CA and RTC cannot disbar a lawyer.
Warning – an act of putting one on his guard
against an impending danger, evil, consequence
or penalty;
Admonition – a gentle or friendly reproof, mild
rebuke, warning, reminder, or counseling on a
fault, error or oversight; an expression of
authoritative advice;
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;
Censure – official reprimand;
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.
b.
Q: Atty. D was required by Judge H of the
Regional Trial Court (RTC) of Manila to show
cause why he should not be punished for
contempt of court for shouting invectives at the
opposing counsel and harassing his witness.
Assuming that there was sufficient cause or
ground may Judge H suspend Atty. D from the
practice of law? If Judge H finds that the
actuations of Atty. D are grossly unethical and
unbecoming of a member of the bar, may Judge
H disbar Atty. D instead? (2014 Bar)
Definite;
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.
NOTE: Indefinite suspension is not cruel.
Indefinite suspension puts in his hands the key
for the restoration of his rights and privileges as
a lawyer (Dumadag v. Atty. Lumaya, A.C. No.
2614, June 29, 2000).
6.
A: Under Section 28, Rule 138 of the Rules of Court,
a Regional Trial Court may suspend a lawyer from
the practice of law for any of the causes provided in
Section 27, until further action from the Supreme
Court. But it may not disbar him, for only the
Supreme Court can disbar a lawyer pursuant to its
constitutional power to admit persons to the
practice of law.
Disbarment – it is the act of the Supreme Court
of withdrawing from an attorney the right to
practice law. The name of the lawyer is stricken
out from the Roll of Attorneys;
NOTE: A disbarred lawyer cannot be disbarred
again (Yuhico v. Atty. Gutierrez, A.C. No. 8391,
November 23, 2010).
7.
---
Interim Suspension – it is the temporary
suspension of a lawyer from the practice of law
pending imposition of final discipline;
Other sanctions and remedies
Includes:
a. Suspension upon conviction of a “serious
crime”;
1. Restitution;
2. Assessment of costs;
106
SUSPENSION, DISBARMENT AND DISCIPLINE OF LAWYERS
b.
8.
Suspension when the lawyer’s continuing
conduct is or is likely to cause immediate
and serious injury to a client or public.
P that P is in pari delicto material or a ground for
exoneration? Explain. (2010 Bar)
A: The defense of in pari delicto is immaterial in an
administrative case which is sui generis. The
administrative case is about the lawyer's conduct,
not the woman's. (Mortel v. Aspiras, 100 Phil. 586,
1956)
Probation – it is a sanction that allows a lawyer
to practice law under specified conditions.
SUI GENERIS
Sui generis in nature (2002 Bar)
---
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). It is:
a.
b.
c.
Q: Arabella filed a complaint for disbarment
against her estranged husband, Atty. P, on the
ground of immorality and use of illegal drugs.
After Arabella presented evidence and rested
her case before the Investigating Commissioner
of the IBP Committee on Bar Discipline, she filed
an Affidavit of Desistance and motion to dismiss
the complaint, she and her husband having
reconciled for the sake of their children. You are
the Investigating Commissioner of the IBP.
Bearing in mind that the family is a social
institution which the State is duty-bound to
preserve, what will be your action on Arabella's
motion to dismiss the complaint? (2010 Bar)
Neither purely civil nor purely criminal, they
are investigations by the Court into the conduct
of one of its officers.
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.
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.
A: I would still deny the motion to dismiss. The
general rule is that “no investigation shall be
interrupted or terminated by reason of the
desistance, settlement, compromise, restitution,
withdrawal of the charges or failure of the
complainant to prosecute the same unless the
Supreme Court motu proprio or upon
recommendation of the IBP Board of Governors
determines that there is no compelling reason to
continue with the proceedings. An administrative
investigation of a lawyer is sui generis, neither a civil
nor criminal proceeding. An affidavit of desistance
has no place in it.
Main objectives of disbarment and suspension
1.
2.
3.
4.
5.
6.
Compel the attorney to deal fairly and honestly
with his clients;
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;
Punish the lawyer;
Set an example or a warning for the other
members of the bar;
Safeguard the administration of justice from
incompetent and dishonest lawyers;
Protect the public.
--Q: Atty. Hyde, a bachelor, practices law in the
Philippines. On long weekends, he dates
beautiful actresses in Hong Kong. Kristine, a
neighbor in the Philippines, filed with the
Supreme Court an administrative complaint
against the lawyer because of sex videos
uploaded through the internet showing Atty.
Hyde's sordid dalliance with the actresses in
Hong Kong. In his answer, Atty. Hyde (a.)
questions the legal personality and interest of
Kristine to institute the complaint and (b.)
insists that he is a bachelor and the sex videos
relate to his private life which is outside public
scrutiny and have nothing to do with the law
practice. Rule on the validity of Atty. Hyde's
defenses. (2009 Bar)
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 the defense of Atty. R in a disbarment
complaint for immorality filed by his paramour
107
LEGAL ETHICS
A:
a. The legal personality and interest of Kristine to
initiate the complaint for disbarment is
immaterial. A disbarment proceeding is sui
generis, neither civil nor a criminal proceeding.
Its sole purpose is to determine whether or not
a lawyer is still deserving to be a member of the
bar. In a real sense, Kristine is not a plaintiff;
hence, interest on her part is not required.
b. Atty. Hyde's second defense is untenable. His
duty not to engage in unlawful, dishonest,
immoral and deceitful conduct under Rule 1.01
of the CPR, as well as his duty not to engage in
scandalous conduct to the discredit of the legal
profession under Rule 7.03, is applicable to his
private as well as to his professional life.
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).
GROUNDS
QUANTUM OF EVIDENCE REQUIRED
Specific grounds for suspension or disbarment
of a lawyer
The Supreme Court has consistently held that a
clear preponderant evidence is necessary to justify
the imposition of administrative penalty
considering the serious consequence of disbarment
or suspension of a member of the Bar (Rose
Bunagan-Bansig v. Atty. Rogelio Celera, A.C. No. 5581,
January 14, 2014; Atty. Clodualdo De Jesus v. Atty.
Risos-Vidal, A.C. No. 7961, March 19, 2014).
1.
2.
3.
4.
5.
6.
PRESCRIPTION
7.
There is NO prescriptive period for the filing of
a complaint against an erring lawyer
8.
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, March 7, 2008).
Deceit;
Malpractice;
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);
Non-payment of IBP membership dues (Santos,
Jr. v. Atty. Llamas, Adm. Case No. 4749, January
20, 2000).
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, February
28, 1967). HENCE, the grounds enumerated are
NOT exclusive.
--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 again asked 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 IBP-CBD for non-payment of just debts. It
turned out that Atty. Gutierrez was previously
NOTE: Lending money by a justice of Supreme
Court is not a ground for disbarment and helping a
person apply for sale application on a lot is not an
offense and not also a ground for disbarment (Olazo
v. Justice Tinga (Ret.), A.M. No. 10-5-7-SC, December
7, 2010).
Lawyer’s misconduct committed prior and after
admission to the bar and its effects
1.
108
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.
SUSPENSION, DISBARMENT AND DISCIPLINE OF LAWYERS
2.
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.
disbarment or disciplinary action against the man
as a member of the bar (Arciga v. Maniwang, A.C. No.
1608, August 14, 1981).
Moral turpitude
NOTE: 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, December 4,
2009).
It is defined as “everything that is done contrary to
justice, honesty, modesty, or good morals; an act of
baseness, vileness, or depravity in the private and
social duties which a man owes his fellowmen, or to
society in general, 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, January 25, 2006).
Malpractice
It 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).
Legal Malpractice
Other statutory grounds for suspension and
disbarment of members of the bar
It 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, December 29, 1983).
1. Acquisition of interest in the subject matter of
the litigation, either through purchase or
assignment (Art. 1491, NCC);
2. Breach of professional duty, inexcusable
negligence, or ignorance, or for the revelation of
the client’s secrets (Art. 208, RPC);
3. Representing conflicting interests (Art. 209,
RPC).
Gross Misconduct
It 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
premeditated, obstinate or intentional purpose
(Yumol Jr. v. Ferrer, Sr., A.C. No. 6585, April 21, 2005).
Any errant behavior on the part of a lawyer, be it in
his public or private activities, which tends to show
him deficient in moral character, honesty, probity or
good demeanor, is sufficient to warrant his
suspension or disbarment (Tiong vs. Atty. Florendo,
A.C. No. 4428, December 12, 2011).
Other grounds for discipline
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. As a lawyer, respondent is
deemed to know the law, especially B. P. Blg. 22. By
issuing checks in violation of the provisions of this
law, respondent is guilty of serious misconduct
(PACG v. Atty. Carandang, A.C. No. 5700, January 30,
2006).
1.
Non-professional misconduct
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)
Grossly immoral conduct
It 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, September 7, 2006);
2.
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
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, September 10, 1979).
NOTE: Cohabitation per se is not grossly
immoral. It depends on circumstances and is
109
LEGAL ETHICS
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.
3.
4.
5.
found out that the Order was spurious, he filed a
disbarment case against Atty. Lada. Will the case
prosper?
A: YES. Atty. Lada already knew of the dismissal of
complainant’s partition case before the RTC.
Moreover, Atty. Lada was inexcusably negligent in
filing complainant’s appeal only on September 12,
2007, or way beyond the reglementary period
therefor, thus resulting in its outright dismissal.
Clearly, Atty. Lada failed to exercise such skill, care,
and diligence as men of the legal profession
commonly possess and exercise in such matters of
professional employment. Worse, Atty. Lada
attempted to conceal the dismissal of complainant’s
appeal by fabricating the Order which purportedly
required a DNA testing to make it appear that
complainant’s appeal had been given due course,
when in truth, the same had long been denied. In so
doing, he engaged in an unlawful, dishonest, and
deceitful conduct that caused undue prejudice and
unnecessary expenses on the part of complainant.
For gross misconduct, Atty. Lada should be
disbarred (Tan v. Diamante, A.C. No. 7766, August 5,
2014).
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.
Promoting to violate or violating penal laws
Misconduct in discharge of official duties – A
lawyer who holds a government office may not
be disciplined as a member of the bar for
misconduct in the discharge of his duties as
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, August 16, 1991).
PROCEEDINGS
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.
7.
Initiation of disbarment
Any interested person or the court motu proprio
may initiate disciplinary proceedings. There can be
no doubt as to the right of a citizen to bring to the
attention of the proper authority acts and doings of
public officers which citizens feel are incompatible
with the duties of the office and from which conduct
the citizen or the public might or does suffer
undesirable consequences. (2000 Bar Question)
Commission of fraud or falsehood; and
Misconduct as notary public
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.
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.
--Q: Jose secured the services of Atty. Lada to
pursue a case for partition of property. After
accepting the engagement, Atty. Lada filed the
corresponding complaint eventually dismissed
by the RTC for lack of cause of action and
insufficiency of evidence. Atty. Lada allegedly
asked for the amount of P10,000.00 for the
payment of appeal fees and other costs. Upon
payment, notice of appeal was filed but was also
dismissed for being filed out of time. Atty. Lada
however, did not disclose such fact and, instead,
showed to Jose an Order purportedly issued by
the RTC directing the submission of the results
of a DNA testing to prove his filiation. When Jose
Characteristics of disbarment proceedings
1.
2.
3.
4.
5.
6.
7.
110
Sui Generis
The defense of “double jeopardy” cannot be
availed of in a disbarment proceeding;
It can be initiated motu proprio by the SC or IBP.
It can be initiated without a complaint;
It is imprescriptible;
Conducted confidentially;
It can proceed regardless of the interest or the
lack thereof on the part of the complainant; and
It in itself constitutes due process of law.
SUSPENSION, DISBARMENT AND DISCIPLINE OF LAWYERS
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 lawyerclient relationship.
Three-fold purpose of
disbarment proceedings
confidentiality
Quantum of proof
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 or clearly preponderant
evidence (Aquino v. Mangaoang, A.C. No. 4934,
March 17, 2004).
--Q: Atty. Sesbreño was found guilty of murder
and was sentenced to suffer the penalty of
reclusion perpetua by the Cebu City RTC. On
appeal,
however,
the
Supreme
Court
downgraded the crime to homicide. On July 27,
2001, Sesbreño was released from confinement
following his acceptance of the conditions of his
parole. The order of commutation provides that
his original sentence is commuted to an
indeterminate prison term of from 7 years and 6
months to 10 years imprisonment and to pay an
indemnity of P50,000.00. Dr. Garcia filed a
disbarment case against Sesbreño alleging that
he is practicing law despite his previous
conviction for homicide and continuing to
engage in the practice of law despite his
conviction of a crime involving moral turpitude.
Sesbreño argued that the executive clemency
granted to him restored his full civil and
political rights. Decide.
of
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, October 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.
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, September 24, 1986).
A: There was no mention that the executive
clemency was absolute and unconditional and
restored Sesbreño to his full civil and political
rights. The executive clemency merely “commuted
to an indeterminate prison term of 7 years and 6
months to 10 years imprisonment”, the penalty
imposed on Sesbreño. Commutation is a mere
reduction of penalty and it only partially
extinguished criminal liability. The penalty for
Sesbreño’s crime was never wiped out. For
unauthorized practice of law, Sesbreño is disbarred
(Garcia v. Atty. Sesbreño, A.C. No. 7973 and A.C. No.
10457, February 3, 2015).
Offices authorized to investigate disbarment
proceedings
1. Supreme Court (Sec. 13, Rule 139-B, RRC)
2. IBP through its Commission on Bar Discipline
or authorized investigator (Sec. 2, Rule 139-B,
RRC)
3. Office of the Solicitor General (Sec. 13, Rule 139B, RRC)
--Purposes of disbarment
Q: After passing the Philippine Bar in 1986,
Richards practiced law until 1996 when he
migrated to Australia where he subsequently
became an Australian citizen in 2000. As he kept
himself abreast of the legal developments,
petitioner learned about the citizenship
retention and re-acquisition act of 2003 (RA
9225), pursuant to which he reacquired his
Philippine citizenship in 2006. He took his oath
of allegiance as a Filipino citizen at the
Disbarment is not meant as a punishment to deprive
an attorney of a means of livelihood but rather
intended to:
1. To protect the public
2. To protect and preserve the legal profession
3. To compel the lawyer to comply with his duties
and obligations under the CPR.
111
LEGAL ETHICS
Philippine embassy in Canberra, Australia.
Jaded by the laid back life in the outback, he
returned to the Philippines in December of
2008. After the holidays, he established his own
law office and resumed his practice of law.
Months later a concerned woman who had
secured copies of Atty. Richard's naturalization
papers with the consular authentication, filed
with the SC an anonymous complaint against
him for illegal practice of law. May the Supreme
Court Act upon the complaint filed by an
anonymous person?
PROCEDURAL STEPS FOR
DISBARMENT IN THE IBP
1.
2.
3.
A: YES. The Supreme Court may act upon the
complaint filed by an anonymous complainant,
because the basis of the complaint consists of
documents with consular authentications which can
be verified being public records. There is no need to
identify the complainant when the evidence is
documented and verifiable (In re: Echiverri 67 SCRA
467, 1975). Besides, the Supreme Court or the IBP
may initiate disbarment proceedings motu proprio.
4.
PROCEDURE FOR DISBARMENT
BAR MATTER NO. 1960 (MAY 1, 2000)
AMANEDMENT OF SEC. 1, RULE 139-B OF THE
ROC
Proceedings for disbarment, suspension
discipline of attorneys may be taken by the:
1.
2.
or
5.
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.
6.
7.
DISBARMENT PROCEEDINGS BEFORE THE IBP
The IBP Board of Governors may 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.
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 requiring him to
answer within 15 days from service.
The respondent shall file a verified answer
containing the original and five (5) legible
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
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 unless extended
for good cause by the Board of Governors upon
prior application.
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.
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.
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.
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
(RE: RULES OF PROCEDURE OF THE
112
SUSPENSION, DISBARMENT AND DISCIPLINE OF LAWYERS
COMMISSION
ON BAR DISCIPLINE)
1.
Propriety of a motion for reconsideration
1.
2.
3.
4.
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.
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.
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 to the Supreme
Court.
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.
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. 79590-707;
Zaldivar v. Gonzales, G.R. No. 80578, October 7,
1988).
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
shall submit to 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 wife filed a petition for
disbarment because he 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 as his actions were of public
knowledge. Is Atty. Narag’s disbarment
appropriate?
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
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).
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
DISBARMENT PROCEEDINGS BEFORE THE
SUPREME COURT
113
LEGAL ETHICS
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).
filing of the disbarment case as legitimate news. It
would have been different if the disbarment case
against petitioner was about a private matter as the
media would then be bound to respect the
confidentiality provision of disbarment proceedings
under Section 18, Rule 139-B of the Rules of Court
(Fortun v. Quinsayas, G.R. No. 194578, February 13,
2013).
DISCIPLINE OF FILIPINO LAWYERS
PRACTICING ABROAD
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).
--Effect of lawyer’s death in an administrative
proceeding against him
1.
2.
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
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).
CONFIDENTIALITY OF DISBARMENT
PROCEEDINGS
Q: Atty. Fortun is the counsel for Ampatuan, Jr.,
the principal accused in the murder cases in the
Maguindanao Massacare. Atty. Quinsayas, et al.
filed a disbarment complaint against Atty.
Fortun on the ground that he used and abused
the different legal remedies available and
allowed under the rules; and muddled the issues
and diverted the attention away from the main
subject matter of the cases. Atty. Fortun alleged
that Atty. Quinsayas, et al. actively disseminated
the details to the media of the disbarment
complaint against him in violation of Rule 139-B
of the Rules of Court on the confidential nature
of disbarment proceedings Is Atty. Fortun
correct?
Judgment of suspension of a Filipino lawyer in a
foreign court
The judgment of suspension against a Filipino
lawyer in a foreign jurisdiction does not
automatically result in his suspension or
disbarment in the Philippines as the acts giving rise
to his suspension are not grounds for disbarment
and suspension in this jurisdiction. Judgment of
suspension against a Filipino lawyer may transmute
into a similar judgment of suspension in the
Philippines only if the basis of the foreign court's
action includes any of the grounds for disbarment or
suspension in this jurisdiction. Such judgment
merely constitutes prima facie evidence of unethical
acts as lawyer (Velez v. De Vera, A.C. No. 6697, July
25, 2006).
A: NO. As a general rule, disbarment proceedings
are confidential in nature until their final resolution
and the final decision of this Court. In this case,
however, the filing of a disbarment complaint
against Atty. Fortun is a matter of public concern
considering that it arose from the Maguindanao
Massacre case. The interest of the public is not on
Atty. Fortun but primarily on his involvement and
participation as defense counsel in the
Maguindanao Massacre case.
--Q: Atty. Forma is a member of the Philippine Bar.
He went to New York City, took the New York
State Bar, and passed the same. He then
practiced in New York City. One of his American
clients filed a case for disbarment against him
for pocketing the money which was entrusted to
him as payment for the filing fee and other
incidental expenses of his damage suit. Atty
Forma came back to the Philippines and
practiced as a lawyer.
Will his disbarment in New York be used against
him for purposes of disbarment proceedings
The Maguindanao Massacre is a very high-profile
case. It is understandable that any matter related to
the Maguindanao Massacre is considered a matter
of public interest and that the personalities
involved, including Atty. Fortun, are considered as
public figure. Thus, media has the right to report the
114
SUSPENSION, DISBARMENT AND DISCIPLINE OF LAWYERS
here in the Philippines? (2014 Bar Question)
attorney, such disbarment can be a ground for
disbarment in the Philippines provided that the
cause for disbarment is included in Section 27, Rule
138 of RRC. In this case, conviction of estafa
constitutes conviction of a crime involving moral
turpitude which is a ground for disbarment here in
the Philippines.
A: Atty. Forma may be disbarred in the Philippines
if the ground for his disbarment in New York is also
a ground for disbarment in this country. But he is
still entitled to due process of law, and the foreign
court’s judgment against him only constitutes prima
facie evidence of unethical conduct as a lawyer. He
is entitled to be given an opportunity to defend
himself in an investigation to be conducted in
accordance with Rule 139 of the Revised Rules of
Court (In Re: Suspension from the Practice of Law in
the Territory of Guam of Atty. Leon Maquera, B.M.
793, July 30, 2004; Velez v. De Vera, A.C. No. 6697, July
25, 2006).
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? (2002
Bar Question)
Q: Atty. Perez was admitted as a member of the
the New York Bar. While in Manhattan, he was
convicted of estafa and was disbarred. Does his
disbarment in New York a ground for his
automatic disbarment in the Philippines? (2006
Bar)
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.
A: YES. If the Filipino lawyer is disbarred from the
practice of law by a competent court in a foreign
jurisdiction where he has been admitted as an
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. Solicitor General,
2. Any officer of the SC, or
3. Any judge of a lower court
e
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. Findings of fact
2. Recommendations
115
SUPREME COURT FOR
FINAL ACTION AND IF
WARRANTED THE
IMPOSITION OF
PENALTY
LEGAL ETHICS
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)
VERIFIED COMPLAINT TO THE IBP BY ANY
PERSON
Complaint must be:
1. In writing;
2. State facts complained of; and
3. Supported by affidavits / documents
Shall appoint an investigator / panel of 3
investigators and notify respondent
RECOMMEND DISMISSAL IF NOT
MERITORIOUS
IF MERITORIOUS, RESPONDENT TO
FILE VERIFIED ANSWER
(Must be filed within 15 days from
service)
INVESTIGATION (terminate within 3 months)
1. Investigator may issue subpoenas and
administer oaths,
2. Provide respondent with opportunity to be
heard,
3. May proceed with investigation ex parte should
respondent fail to appear.
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)
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.)
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 is filed with the Supreme
Court within fifteen (15) days from notice of
the Board's resolution, unless the Supreme
Court orders otherwise
ISSUE DECISION IF:
Exonerated
Sanction is less than suspension
/ disbarment (admonition,
reprimand, or fine)
EFFECT OF DESISTANCE OR WITHDRAWAL OF
COMPLAINT OR NON-APPEARANCE IN
DISBARMENT PROCEEDINGS
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
116
SUSPENSION, DISBARMENT AND DISCIPLINE OF LAWYERS
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. Full and free disclosure to disciplinary board or
cooperative attitude toward the proceedings;
11. Character or reputation;
12. Physical or mental disability or impairment;
13. Delay in disciplinary proceedings;
14. Interim rehabilitation;
15. Imposition of other penalties or sanctions;
16. Remorse;
17. Remoteness of prior offenses (IBP Guidelines
9.32).
The affidavit of withdrawal of the disbarment case
executed by a complainant does not, in any way,
exonerate the respondent-lawyer. A case of
suspension or disbarment may proceed regardless
of interest or lack of interest of the complainant. The
complainant in a disbarment case is not a direct
party to the case, but a witness who brought the
matter to the attention of the Court (Quiachon v.
Atty. Ramos, A.C. No. 9317, June 4, 2014).
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, February. 7, 2005).
DOCTRINE OF RES IPSA LOQUITUR
APPLICABLE TO JUDGES AND LAWYERS
Aggravating circumstances in disbarment
The doctrine of res ipsa loquitur is applicable in
cases of dismissal of judges or disbarment of
lawyers (1996, 2003 Bar Questions)
1.
2.
3.
4.
5.
Prior disciplinary offenses;
Dishonest or selfish motives;
A pattern of misconduct;
Multiple offenses;
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).
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, September 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).
Guidelines to be observed in the lifting of an
order suspending a lawyer from the practice of
law
Mitigating circumstances in disbarment
1.
2.
3.
4.
5.
6.
7.
8.
9.
1. 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;
2. 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
3. The Sworn Statement shall be considered as
proof of respondent’s compliance with the
order of suspension;
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, September 28, 1973);
Age (Santos v. Tan, A.C. No. 2697, April 19, 1991);
Apology (Munoz v. People, G.R. No. L- 33672,
September 28, 1973);
Lack of Intention to slight or offend the Court
(Rheem of the Philippines, Inc. v. Ferrer, G.R. No.
L-22979, January 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;
---
117
LEGAL ETHICS
Q: Maniago filed a criminal case against Hiroshi
Miyata who was represented by Atty. De Dios.
Complainant then learned from a staff of the RTC
that Atty. De Dios had an outstanding
suspension order from the Supreme Court since
2001, and was, therefore, prohibited from
appearing in court. Atty. De Dios denied that she
was under suspension when she appeared as
counsel in the cases. She explained that an
administrative case was indeed filed against her
where she was meted the penalty of 6-month
suspension. She served the suspension
immediately upon receipt of the Court’s
Resolution. In a Manifestation, she formally
informed the Court that she was resuming her
practice of law, which she actually did. Is the
mere filing of a Manifestation sufficient to lift
her suspension?
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.).
A: NO. According to the OBC, a suspended lawyer
must first present proofs 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.
De Dios, A.C. No. 7472, March 30, 2010).
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:
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).
Guidelines to be observed in lifting an order of
suspension of a lawyer
1.
2.
READMISSION TO THE BAR
3.
Reinstatement and its requirements
Reinstatement is the restoration of the privilege to
practice law after a lawyer has been disbarred. The
applicant must satisfy the Court that he is a person
of good moral character – a fit and proper person to
practice law.
4.
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).
5.
6.
LAWYERS WHO HAVE BEEN SUSPENDED
Lifting of suspension is not automatic upon the
end of the period stated in the Court’s decision
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
118
After a finding that respondent lawyer must be
suspended from the practice of law, the Court
shall render a decision imposing the penalty;
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;
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;
The Sworn Statement shall be considered as
proof of respondent’s compliance with the
order of suspension;
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.
READMISSION TO THE BAR
4. There must be a showing of promise (such as
intellectual aptitude, learning or legal acumen
or contribution to the legal scholarship and the
development of the legal system), as well as
potential for public service.
5. There must be other relevant factors and
circumstances that may justify clemency.
--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?
SUPREME COURT’S GUIDELINES IN
REINSTATEMENT
1.
2.
3.
4.
5.
A: YES. 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.
79690- 707, April 7, 1993).
6.
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,
December 18, 1990).
LAWYERS WHO HAVE BEEN DISBARRED
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, March 20, 1974).
Effect of reinstatement: Wipes out the restrictions
and disabilities resulting from a previous
disbarment (Cui v. Cui, G.R. No. L-18727, August 31,
1964).
Other effects of reinstatement
Prior to actual reinstatement, the lawyer will be
required to take anew the lawyer’s oath and sign
once again the roll of attorneys after paying the
requisite fees (Funa, 2009).
1.
Requirements for judicial
disbarred lawyers and judges
3.
clemency
The applicant’s character and standing pr
ior 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, December 18, 1990);
His efficient government service (In re:
Adriatico, G.R. No. L-2532, November 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, February 24, 1989).
2.
for
1. There must be proof of remorse and
reformation.
2. Sufficient time must have elapsed from the
imposition of the penalty to ensure a period of
reform.
3. The age of the person asking for clemency must
show that he still has productive years ahead of
him that can be put to good use by giving him a
chance to redeem himself.
Recognition of moral rehabilitation and mental
fitness to practice law;
Lawyer shall be subject to the same law, rules
and regulations as those applicable to any other
lawyer; and
Lawyer must comply with the conditions
imposed on his readmission.
EFFECT OF EXECUTIVE PARDON GRANTED BY
THE PRESIDENT
If during the pendency of 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.
119
LEGAL ETHICS
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.
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 thus he may not be
disbarred from the practice of law anymore. Is
X’s contention tenable? (1999 Bar)
NOTE: 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, December 29,
1980).
--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?
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).
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, February. 18,
1976).
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, inasmuch as
the criminal acts may nevertheless constitute proof
that the attorney does not possess good moral
character (In re: Lontok, 43 Phil. 293, April 7, 1922).
LAWYERS WHO HAVE BEEN REPATRIATED
Q: Dacanay practiced law until he migrated to
Canada to seek medical attention for 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?
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, 2006).
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.
--Q: X, a member of the Bar, was charged with and
found guilty of estafa, for which he was
The exception is when Filipino citizenship is lost by
120
READMISSION TO THE BAR
reason of naturalization as a citizen of another
country but subsequently reacquired pursuant to
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.
No. 9225 provides that a person who intends to
practice his profession in the Philippines must apply
with the proper authority for a license or permit to
engage in such practice. It cannot be overstressed
that the practice of law is a privilege burdened with
conditions. It is so delicately affected with public
interest that it is both the power and duty of the
state (through the Supreme Court) to control and
regulate it in order to protect and promote the
public welfare.
Adherence to rigid standards of mental fitness,
maintenance of the highest degree of morality,
faithful observance of the legal profession,
compliance with the mandatory continuing legal
education requirement, and payment of
membership fees to the Integrated Bar of the
Philippines (IBP) are the conditions required for
membership in good standing in the bar and for
enjoying the privilege to practice law. Any breach by
a lawyer of any of these conditions makes him
unworthy of the trust and confidence which the
courts and clients repose in him for the continued
exercise of his professional privilege (In re: petition
to re-acquire the privilege to practice law in the
Philippines, Epifanio B. Muneses, B.M. No. 2112, July
24, 2011).
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.
4.
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
especially
significant
to
refresh
the
applicant/petitioner’s knowledge of Philipp
ine 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, December 17,
2007).
He should file the petition with the Supreme Court,
through the Bar Confidant, accompanied by the
original or certified copies of the following
documents:
1.
--Q: Atty. Repatriar, a law school classmate,
approached you on your 25th Class Reunion,
with questions on how he can resume the
practice of law in the Philippines. He left the
country in 1977 after two (2) years of initial law
practice, and migrated to the United States
where he was admitted to the practice of law in
the State of New York. He asks that you give him
a formal legal opinion on his query.
Showing that he is still a Filipino citizen. “The
Court reiterates that Filipino citizenship is a
requirement for admission to the bar and is, in
fact, a continuing requirement for the practice
of law.” (Ibid.) Having retained Philippine
citizenship could be evidenced by the
Philippine passport, the U.S. Green Card
showing Philippine citizenship and U.S.
residency, or other authentic documents which
the Supreme Court may require.
On the other hand, if Atty. Repatriar has lost his
Philippine citizenship, he must submit the
following:
Outline briefly the steps and the supporting
legal reasons you would state in your legal
opinion on what Atty. Repatriar should do to
resume his Philippine practice. (2013 Bar)
(a) Petition for Re-Acquisition of Philippine
Citizenship;
(b) Order (for Re-Acquisition of Philippine
Citizenship);
(c) Oath of Allegiance to the Republic of the
Philippines;
(d) Identification Certificate (IC) issued by the
Bureau of Immigration.
A: Atty. Repatriar must prepare a sworn petition to
re-acquire the privilege to practice law in the
Philippines. He should manifest in his petition his
desire to resume his law practice in the Philippines,
and he is not disqualified to practice law. The “right
to resume the practice of law” is not automatic. R.A.
The loss of Filipino citizenship means
termination of Atty. Repatriar’s membership in
121
LEGAL ETHICS
the bar; ipso jure the privilege to engage in the
practice of law. “Under R.A. No. 9225, naturalborn citizens who have lost their Philippine
citizenship by reason of their naturalization as
citizens of a foreign country are deemed to have
re-acquired their Philippine citizenship upon
taking the oath of allegiance to the Republic.
Thus, a Filipino lawyer who becomes a citizen
of another country and later re-acquires his
Philippine citizenship under R.A. No. 9225
remains to be a member of the Philippine bar.”
(Ibid.)
2.
3.
4.
5.
6.
c.
2.
3.
4.
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
REQUIREMENTS
Requirements of completion of MCLE
Certification from the IBP indicating updated
payments of annual membership dues;
Proof of payment of professional tax; and
Certificate of compliance issued by the MCLE
Office. (Ibid.)
A certificate of good moral character attested to
by at least three (3) members of the bar; and
A certification from the State Bar of New York
that Atty. Repatriar does not have any previous
or pending disciplinary action filed against him
before that body.
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.
MANDATORY CONTINUING LEGAL EDUCATION
(MCLE)
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
Purpose of MCLE
MCLE for a newly admitted member of the bar
MCLE ensures that members of the IBP are kept
abreast with law and jurisprudence throughout
their career, maintain the ethics of the profession
and enhance the standards of the practice of law.
Starts on the first day of the month of his admission
(Bar Matter No. 850, Sec. 3, Rule 3).
Classes of credits
1.
--Q: Describe briefly the Mandatory Continuing
Legal Education (MCLE) for a member of the
Integrated Bar of the Philippines and the
purpose of the same. (2015 Bar)
2.
A: MCLE ensures that members of the IBP are kept
abreast with law and jurisprudence throughout
their career, maintain the ethics of the profession
and enhance the standards of the practice of law.
Committee on Mandatory Continuing Legal
Education
1.
NON-COMPLIANCE OF THE MCLE
Composition:
a.
b.
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.
Non-participatory – Preparing, as author or coauthor, 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.
1.
Retired Justice of the SC – to act as Chairman,
who is nominated by the SC
IBP National President – acts as the ViceChairman
2.
122
Failure to complete education requirement
within the compliance period;
Failure to provide attestation of compliance or
exemption;
MANDATORY CONTINUING LEGAL EDUCATION
3.
4.
5.
6.
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.
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 quasijudicial 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 because they are
prohibited from practicing their profession
NOTE: Members failing to comply will receive a
Non-Compliance Notice stating the specific
deficiency and will be given 60 days from date of
notification to file a response.
--Q: In order to comply with the MCLE
requirements, Atty. Ausente enrolled in a
seminar given by an MCLE provider. Whenever
he
has
court or other professional
commitments, he would send his messenger or a
member of his legal staff to register his
attendance at the MCLE sessions so he could be
credited with the required qualifying
attendance. He would also ask them to secure
the printed handouts and the lecturers’ CDs, all
of which he studied in his free time. Was the
action of Atty. Ausente proper? (2013 Bar
Question)
Other parties exempted:
1.
2.
Request for
circumstance
EXEMPTIONS
Persons exempted from the MCLE
2.
3.
4.
exemption
under
special
If there is a good cause for exemption from or
modification of requirement, member may file a
verified request setting forth good cause for
exemption (such as physical disability, illness, postgraduate 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 accordance with procedure to be
established by the Committee on MCLE.
A: NO. Atty. Ausente should be sanctioned because
he circumvented or evaded full compliance with the
MCLE requirements.(Mandatory Continuing Legal
Education, Rule 12, Section I(e))
1.
Those who are not in law practice, private or
public;
Those who have retired from law practice with
the approval of the IBP Board of Governors.
The President, Vice-President and the
Secretaries and Undersecretaries of Executive
Departments;
Senators and Members of the House of
Representatives;
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);
The Chief State Counsel, Chief State Prosecutor
and Assistant Secretaries of the Dept. of Justice;
NOTE: Applications for exemption from or
modification of the MCLE requirement shall be
under oath and supported by documents.
--Q: Atty. Mike started teaching Agrarian Reform
and Taxation in June 2001 at the Arts and
Sciences Department of the Far Eastern
University. In 2005, he moved to San Sebastian
Institute of Law where he taught Political Law. Is
Atty. Mike exempt from complying with the
MCLE for the 4th compliance period in April
2013? (2011 Bar)
A: NO, since he has yet to complete the required
teaching experience to be exempt.
123
LEGAL ETHICS
SANCTIONS
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).
Consequences of non-compliance
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 an
administrative in nature but it 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 quasijudicial 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.
Scope
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).
Practicing lawyers are members of the Philippine
Bar who appear for and in behalf of parties in courts
of law and quasi-judicial agencies.
--Q: Can a lawyer who lacks the number of units
required by the MCLE Board continue to practice
the profession? (2014 Bar)
The term “practicing lawyers” shall EXCLUDE:
A: YES. A lawyer, not being exempted from MCLE,
who fails to comply with the required legal
education activities shall receive a Non-Compliance
Notice and shall be required to explain the
deficiency or otherwise show compliance with the
requirements. A member who fails to satisfactory
comply therewith shall be listed as a delinquent
member by the IBP, wherein he shall be included in
the inactive status (Rule 12 and Rule 13, B.M. 850).
2.
He may still practice the profession but his all
pleadings submitted to court may be expunged from
the records since it is required that 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 (Bar Matter No. 1922, June 3, 2008).
4.
1.
3.
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 nongovernmental 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 quasijudicial agencies (Sec. 4[a], B.M. 1. 2012).
Legal aid cases
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).
BAR MATTER NO. 2012
RULE ON MANDATORY LEGAL AID SERVICE
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.
REQUIREMENTS FOR MANDATORY
LEGAL AID SERVICE
Purpose
Under the Rule, a practicing lawyer, among others,
shall coordinate with the Clerk of Court or the Legal
The rule seeks to enhance the duty of lawyers to the
124
MANDATORY CONTINUING LEGAL EDUCATION
Aid Chairperson of one’s Integrated Bar of the
Philippines (IBP) Chapter for cases where the
lawyer may render free legal aid service:
1.
2.
3.
4.
5.
6.
hour of service (Sec 5[b], B.M. 2012).
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)
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).
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).
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).
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).
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 quasi-judicial bodies
the number and date of issue of their certificate
of compliance for the immediately preceding
compliance period (Sec 5[e], B.M. 2012).
CREDITS TO LAWYERS WHO RENDER FREE
LEGAL AID SERVICE
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 compliance period
under the Rules on MCLE shall be credited the
following:
1. Two (2) credit units for legal ethics
2. Two (2) credit units for trial and pretrial skills
3. Two (2) credit units for alternative dispute
resolution
4. Four (4) credit units for legal writing and oral
advocacy
5. Four (4) credit units for substantive and
procedural laws and jurisprudence
6. 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
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:
1. One (1) credit unit for legal ethics
2. One (1) credit unit for trial and pretrial skills
3. One (1) credit unit for alternative dispute
resolution
4. Two (2) credit units for legal writing and oral
advocacy
5. Two (2) credit units for substantive and
procedural laws and jurisprudence
6. 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).
Contents of a certificate from the Clerk of Court
attesting the number of hours spent in
rendering free legal services
1.
2.
3.
4.
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
The number of hours actually spent
The number of hours actually spent attending
mediation, conciliation or any other mode of
ADR on a particular case
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)
PENALTIES FOR NON-COMPLIANCE WITH THE
RULE ON MANDATORY LEGAL AID SERVICE
1.
125
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.
LEGAL ETHICS
2.
3.
4.
5.
6.
7.
8.
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.
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 fund 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 years
shall be the subject of disciplinary proceedings
to be instituted motu proprio by the Committee
on Bar Discipline (Sec. 7, B.M. 2012).
a public document (Sec. 19, Rule 132, RRC) and may
be presented in evidence without further proof, the
certificate of acknowledgment being prima facie
evidence of the execution of the instrument or
document involved (Sec. 30, Rule 132, RRC).
QUALIFICATIONS OF NOTARY PUBLIC
Notary public
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).
Qualifications of a notary public [C21-RMC]
To be eligible for commissioning as notary public,
the petitioner must be:
1. A citizen of the Philippines;
2. Over 21 years of age;
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;
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. NO. 2012).
NOTE: This is to prohibit the practice of some
notaries who maintain makeshift “offices” in
sidewalks and street corners of government
offices (Tirol, 2010).
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
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).
NOTARIAL PRACTICE
LAWYERS AS NOTARY PUBLIC
Purpose of the Notarial Law
1.
2.
3.
GR: Only those admitted to the practice of law are
qualified to be notaries public.
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)
XPNs: When there are no persons with the
necessary qualifications or where there are
qualified persons but they refuse appointment. In
which case, the following persons may be appointed
as notaries:
Effect of notarized document
A document acknowledged before a notary public is
126
NOTARIAL PRACTICE
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.
The rights, duties, privileges and functions of the
office of an attorney-at-law are so inherently
incompatible with the official functions, duties,
powers, discretions and privileges of a judge of the
Regional Trial Court.
Non-Lawyers as Notaries
Authority of MTC judges to notarize and its
limitation
The Rules now requires that notaries must be
members of the Philippine Bar. The Supreme Court
no longer approves requests from non-lawyers for
appointment or reappointment as notaries.
MTC and MCTC judges may act as notaries public exofficio 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.
Government Lawyers as Notaries
Acts of notarization are within the ambit of the term
“practice of law”. Pursuant to Memorandum
Circular No. 17, “No Government officer or
employee shall engage directly in any private
business, vocation, or profession or be connected
with any commercial, credit, agricultural, or
industrial undertaking without a written
permission from the head of Department”. The law
now allows government lawyers to serve as
notaries provided there is written permission from
the head of Department.
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.
NOTE: In a case, a lawyer was reprimanded for
engaging in notarial practice without the authority
from the Secretary of Justice. The Registry of Deeds
with whom he obtained authority is not the head of
the Department (Abella v. Atty. Cruzabra, A.C. No.
5688, June 4, 2009).
2.
All notarial fees charged be for the account of
the Government and turned over to the
municipal treasurer
Certification be made in the notarized
documents attesting to the lack of any lawyer or
notary public in such municipality or circuit.
Their authority to notarize is limited to their sala.
Hence, they cannot notarize documents filed in
another town because it will be considered as
practice of law.
Clerk of Court as Notary Public
Clerk of court may act as notary public, 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: 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, 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?
NOTE: Clerks of Court of RTCs are authorized to
notarize not only documents relating to the exercise
of official functions but also private documents,
subject to conditions that: (a) all notarial fees
charged shall be for the account of the Judiciary; and
(b) they certify in the notarized documents that
there are no notaries public within the territorial
jurisdiction of the RTC.
Prohibition against the RTC judges to notarize
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.
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
127
LEGAL ETHICS
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).
3.
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)
COMMISSION
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).
Two kinds of duties
1.
2.
Issuance of notarial commission
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 (Sec. 1, first par., Rule III, A.M. No.
02-8-13-SC).
1.
2.
Form of the petition and supporting documents
for a notarial commission
3.
Every petition for a notarial commission shall be in
writing, verified, and shall include the following:
4.
1.
2.
3.
4.
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
DUTIES OF A NOTARY PUBLIC
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).
5.
6.
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).
FEES OF NOTARY PUBLIC
1.
2.
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).
3.
Requirements before the executive judge
conduct a summary hearing on the petition
1.
2.
The petitioner establishes to the satisfaction of
the Executive Judge that he has read and fully
understood the Rules on Notarial Practice.
4.
The petition is sufficient in form and substance;
The petitioner proves the allegations contained
in the petition; and
5.
128
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. 02-8-13SC);
A notary public may charge travel fees and
expenses separate from the notarial fees when
traveling to perform a notarial act if the notary
public and the person requesting the notarial
act agree prior to the travel (Sec. 2, Rule, A. M.
02-813-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 prior to the performance of a
notarial act unless otherwise agreed upon (Sec.
4, first par.,, 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
NOTARIAL PRACTICE
are not subject to refund if the notary public
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 (Sec.
4, second par., Rule V, A. M. 02-813-SC).
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?
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. 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).
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 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.
---
EXPIRED COMMISSION
Q: Ms. Seller and Mr. Buyer presented to a
commissioned notary public a deed of sale for
notarization. The notary public explained to
them the transaction the deed embodies and
asked them if they were freely entering the
transaction. After the document was signed by
all the parties, the notary public collected the
notarial fee but did not issue any BIR-registered
receipt. Is the notarization of the deed proper?
(2013 Bar)
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
(Sec. 13, first par., Rule III, A.M. No. 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.
A: The notarization of the deed is proper because
any irregularity in the payment of the notarial fees
does not affect the validity of the notarization made
(Ocampo v. Land Bank of the Philippines, G.R. No.
164968, July 3, 2009).
Failure of the notary public to file an application
for the renewal of his commission
Failure to file said application will result in the
deletion of the name of the notary public in the
register of notaries public and may only be
reinstated therein after he is issued a new
commission (Sec. 13, second and third pars., Rule III,
A.M. No. 02-8-13-SC).
TERM OF OFFICE OF A NOTARY PUBLIC
Term of office of a notary public (1995 Bar)
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 until the last day of December of the
succeeding year regardless of the actual date when
the application was renewed, 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).
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).
POWERS AND LIMITATIONS
NOTE: The period of 2 years of a notarial
commission will commence at January first
regardless of when it was really granted and will
end at exactly 2 years from said date of
commencement up to December of the 2nd year. Ex.
Atty. Antonio applied for and was given notarial
commission on 12 November 2010, such term will
expire on 31 December 2011 (2011 Bar).
A notary public is empowered to perform the
following notarial acts: [JAO-CAS]
1.
2.
3.
4.
5.
6.
---
129
Acknowledgements;
Oaths and affirmations;
Jurats;
Signature witnessing;
Copy certifications; and
Any other act authorized by these rules (Section
1(a), Rule IV, A.M. No. 02-8-13-SC)
LEGAL ETHICS
NOTARIZATION OF A PRIVATE DOCUMENT
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).
Notarization converts a private document to a
public instrument, making it admissible in evidence
without the necessity of preliminary proof of its
authenticity and due execution. A notarized
document is by law entitled to full credit upon its
face and it is for this reason that notaries public
must observe the basic requirements in notarizing
documents (Dolores dela cruz, et al. v. Atty. Jose
Dimaano, Jr., September 12, 2008, A.C. No. 7781).
--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 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 him to attest to the contents and
truth of what are stated therein. The presence of the
parties to the deed will enable the notary public to
verify the genuineness of the signature of the affiant.
Absence of notarization in a deed of sale
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. CristalTenorio, A.C. No. 6139, November 11, 2003).
The absence of notarization of the Deed of Sale
would not necessarily invalidate the transaction
evidenced therein. Article 1358 of the Civil Code
requires that the form of a contract that transmits
or extinguishes real rights over immovable
property should be in a public document, yet it is
also an accepted rule that the failure to observe the
proper form does not render the transaction invalid.
Thus, it has been uniformly held that the form
required in Article 1358 is not essential to the
validity or enforceability of the transaction, but
required merely for convenience (Leonor Camcam v.
CA; Tigno v. Aquino).
ACKNOWLEDGEMENT
Refers to an act in which an individual on a single
occasion:
1.
Appears in person before the notary public and
presents an integrally complete instrument or
document;
---
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.
2.
3.
Q: “Before me personally appeared this 30 th of
August 2010 Milagros A. Ramirez, who proved
her identity to me through witnesses: 1. Rosauro
S.
Balana,
Passport
UU123456;
1-52010/Baguio City; and 2. Elvira N. Buela,
Passport VV200345; 1-17-2009/Manila. “Both
witnesses, of legal ages, under oath declare that:
Milagros A. Ramirez is personally known to
them; she is the same seller in the foregoing
deed of sale; she does not have any current
identification document nor can she obtain one
within a reasonable time; and they are not privy
to or are interested in the deed he signed.” What
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
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
130
NOTARIAL PRACTICE
is
the
status
of
such
a
notarial
acknowledgement? (2011 Bar Question)
NOTE: P.A.O. Lawyers now have the authority to
administer oaths, provided it is in connection with
the performance of their duties.
A: Valid, since it is a manner of establishing the
identity of the person executing the document.
The fiscal or the state prosecutor has the authority
to administer oaths (RA No. 5180, as amended by P.D.
911).
AFFIRMATION OR OATH
Refers to act in which an individual on a single
occasion:
1.
2.
3.
JURAT
Refers to an act in which an individual on a single
occasion:
Appears in person before the notary public;
Is personally known to the public or identified
by the notary through competent evidence of
identity as defined by the Rules; and
Avows under penalty of law, to the whole truth
of the contents of the instrument or document.
1.
2.
Officers allowed to administer oaths (Republic
Act No. 9406):
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
3.
4.
President;
Vice-President;
Members and Secretaries of both Houses of the
Congress;
Members of the Judiciary;
Secretaries of Departments;
Provincial governors and lieutenant-governors;
City mayors;
Municipal mayors;
Bureau directors;
Regional directors;
Clerk of courts;
Registrars of deeds;
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;
All other constitutional officers;
PAO lawyers in connection with the
performance of duty; and
Ombudsman (Sec. 15(8), RA 6770)
Notaries public (Sec. 41, Chapter I, Book I,
E.O.292)
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;
Signs the instrument or document in the
presence of the notary; and
Takes an oath or affirmation before the notary
public as to such instrument or document (Sec.
6, Rule II, A.M. 02-8-13-SC).
NOTE: A jurat is not a part of a pleading but merely
evidences the fact that the affidavit was properly
made. The claim or belief 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, March 1, 1995).
Acknowledgment v. Jurat
Duty to administer oaths
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, Chapter I, Book I, E.O. No. 292).
131
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
JURAT
That part of an
affidavit in which
the notary public or
officer certifies that
the instrument was
sworn to before him.
The notary public or officer
taking
the
acknowledgment
shall
certify that the person
acknowledging
the
instrument or document is
known to him and he is the
It is not part of a
pleading but merely
evidences the fact
that the affidavit was
properly made.
LEGAL ETHICS
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 acknowledgment
in a deed of lease of land.
2.
3.
Purpose: Gives the
document a legal
character.
4.
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.
--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?
(1995 Bar Question)
A: YES. It likewise falls within the powers of a
notary public, provided:
1.
2.
NOTE: In notarial wills, acknowledgment is
required, not merely a jurat.
3.
4.
SIGNATURE WITNESSING
Refers to a notarial act in which an individual on a
single occasion:
1.
2.
3.
5.
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).
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).
COPY CERTIFICATION
Refers to a notarial act in which a notary public:
1.
2.
---
3.
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? (1995 Bar)
4.
Is presented with an instrument or document
that is neither a vital record, a public record, nor
publicly recordable;
Copies or supervises the copying of the
instrument or document;
Compares the instrument or document with the
copy; and
Determines that the copy is accurate and
complete (Sec. 4, Rule II, A.M. 02-8-13-SC).
NOTE: The document copied must be an original
document. It cannot be a copy itself.
A: YES. It is also within the powers of a notary
public, provided:
1.
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)
NOTARIAL CERTIFICATE
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;
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
132
NOTARIAL PRACTICE
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. 02-8-13).
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, February 6,
2004).
NOTE: “Loose notarial certificate” refers to a
notarial certificate that is attached to a notarized
instrument or document.
LIMITATIONS TO THE PERFORMANCE OF A
NOTARIAL ACT
---
NOTARY WHO IS SIGNATORY TO AN
INSTRUMENT OR DOCUMENT
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 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 person shall not perform a notarial act if the
person involved as signatory to the instrument or
document is:
a.
b.
c.
d.
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 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. 02-8-13-SC).
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, January 22, 2007).
--Q: Cynthia 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. 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?
--NOTE: If the notary public admitted that he has
personal knowledge of a false statement contained
in the instrument to be notarized yet proceeded 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
A: YES. It is the duty of the notarial officer to
133
LEGAL ETHICS
notarization process may be undermined and public
confidence on notarial documents diminished
(Ibid.).
A notary public shall keep, maintain, protect and
provide for lawful inspection as provided in these
Rules, a chronological official notarial register of
notarial acts consisting of a permanently bound
book with numbered pages.
DISQUALIFICATION OF A NOTARY PUBLIC TO
PERFORM A NOTARIAL ACT
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 (Sec. 1(a), Rule VI,
A.M. No. 02-8-13-SC).
A notary public is disqualified to perform notarial
act when he:
1.
Is a party to the instrument or document that is
to be notarized;
NOTE: The 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, February 9,
2000).
2.
3.
NOTE: Failure of the notary to make the proper
entry or entries in his notarial register touching his
notarial acts in the manner required by law is a
ground for revocation of his commission (Father
Ranhilio C. Aquino Et. Al., v. Atty. Edwin Pascua, A.C.
No. 5095, November 28, 2007, En Banc).
Notary public is personally accountable for all
entries in his notarial register. They cannot be
relieved of responsibility for the violation of the
aforesaid sections by passing the buck to their
secretaries (Lingan v. Atty. Calibaquib, A.C. No. 5377,
June 15, 2006).
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
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).
Effect of failure to submit Report
Notary’s negligence in failing to submit his notarial
report will not affect the admissibility as evidence of
an instrument he notarized (Tirol, 2010). Parties
who appear before a notary public to have their
documents notarized should not be expected to
follow up on the submission of the notarial
reports. They should not be made to suffer the
consequences of the negligence of the Notary Public
in following the procedures prescribed by the
Notarial Law (Destreza v. Atty. Riñoza-Plazo, G.R. No.
176863, October 30, 2009).
INSTANCES WHEN NOTARY PUBLIC MAY
REFUSE TO NOTARIZE
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.
Signing or affixing a thumbmark in the notarial
register
At the time of notarization, the notary's notarial
register shall be signed or a thumb or other mark
affixed by each:
1.
2.
3.
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).
Principal;
Credible witness swearing or affirming to the
identity of a principal; and
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).
Inspection of a notarial register by private
persons
NOTARIAL REGISTER
134
NOTARIAL PRACTICE
1.
2.
3.
4.
5.
6.
The inspection is made in the notary’s presence;
During regular business hours;
The person's identity is personally known to
the notary public or proven through competent
evidence of identity as defined in these Rules;
The person affixes a signature and thumb or
other mark or other recognized identifier, in the
notarial register in a separate, dated entry;
The person specifies the month, year, type of
instrument or document, and name of the
principal in the notarial act or acts sought; and
The person is shown only the entry or entries
specified by him (Sec.4 (a), Rule VI, A.M. No. 028-13-SC).
Examination of notarial
enforcement officer
register
by
commissioning court. Outside the place of his
commission, a notary public is bereft of power to
perform any notarial act.
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 public in
the city of Manila, the jurisdiction is co-extensive
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.
“Regular place of work or business” of a notary
public meaning
law
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).
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).
Jurisdiction of Notary Public
LOSS, DESTRUCTION and DAMAGE OF
NOTARIAL REGISTER
1.
2.
GR: A notary public shall not perform a notarial act
outside his jurisdiction and his regular place of
work or business.
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.
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. 02-813-SC).
XPNs: 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.
Public offices, convention halls, and similar
places where oaths of office may be
administered;
Public function areas in hotels and similar
places for the signing of instruments or
documents requiring notarization;
Hospitals and other medical institutions where
a party to an instrument or document is
confined for treatment
Any place where a party to an instrument or
document requiring notarization is under
detention (Sec. 2, Rule IV, A.M. No. 02-8-13-SC).
Such other places as may be dictated because of
emergency.
The notary public may refuse the request of
inspection for register of deeds
5.
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).
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.
JURISDICTION OF NOTARY PUBLIC AND PLACE
OF NOTARIZATION
---
A notary public may perform notarial acts in any
place within the territorial jurisdiction of the
Q: Atty. Sabungero obtained a notarial
commission. One Sunday, while he was at the
135
LEGAL ETHICS
cockpit, a person approached him with an
affidavit that needed to be notarized. Atty.
Sabungero immediately pulled out from his
pocket his small notarial seal, and notarized the
document. Was the affidavit validly notarized?
(2009 Bar)
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, 2004 Rules on Notarial Practice).
A: Section 2, Rule IV of the 2004 Rules on Notarial
Practice provides that a Notary Public shall not
perform a notarial act outside his regular place of
work, except in few exceptional occasions or
situations, at the request of the parties. Notarizing
in a cockpit is not one of such exceptions. The
prohibition is aimed to eliminate the practice of
ambulatory notarization. However, assuming that
the cockpit is within his notarial jurisdiction, the
notarization may be valid but the notary public
should be disciplined.
NOTE: Functions of notary public – violations:
suspension as notary not for the practice of law
(Villarin v. Sabate, A.C. No. 3224, February 9, 2000).
COMPETENT EVIDENCE OF IDENTITY
REVOCATION OF COMMISSION
Who may revoke the notarial commission
Competent evidence of identity refers to the
identification of an individual based on the
following:
1.
1.
2.
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. 02-8-13-SC); or
By the Supreme Court itself in the exercise of its
general supervisory powers over lawyer.
a.
b.
c.
d.
e.
f.
g.
h.
GROUNDS FOR REVOCATION
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.
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:
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;
2.
Passport
Driver's license
PRC
NBI clearance
Police clearance
Postal ID
Voter's ID
Any other government issued ID (Sec 12 of
Rule 2, 2004 Rules on Notarial Practice, as
amended by A.M. No.02-8-13-SC dated
February 19, 2008).
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, February 19, 2008).
NOTE: Competent evidence of identity is not
required in cases where the affiant is personally
known to the Notary Public (Amora, Jr. v. Comelec,
G.R. No.192280, January 25, 2011).
NOTE: "Principal" refers to a person appearing
before the notary public whose act is the
subject of notarization.
---
136
CANONS OF PROFESSIONAL ETHICS
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?
CANONS OF PROFESSIONAL ETHICS
The Canons of Professional Ethics (CPE) was framed
by the American Bar Association in 1908 and were
adopted in the Philippines in 1917 and
subsequently revised in 1946. It is one of the
sources or the main basis of our legal ethics at the
present which is the Code of Professional
Responsibility (CPR). While the CPE is superseded
by the CPR, the CPE continues to be an invaluable
source of knowledge and understanding of legal
ethics.
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,
February 12, 2008).
NOTE: Most of the provisions of the Code of
Professional Ethics are incorporated in the Code of
Professional Responsibility. Only those topics not
considered incorporated are included to prevent
redundancy.
Duty of the bar in the selection of judges
It is the duty of the bar to endeavor to prevent
political considerations from outweighing judicial
fitness in the selection of judges. It should strive to
have elevated thereto only those willing to forego
other employments whether of a business, political
or other character, which may embarrass their free
and fair consideration of questions before them for
decision (Canon 2, CPE).
Q: Can a lawyer stipulate with the client that a
portion of the latter’s interest in the property
subject of the litigation be conveyed to the
former as payment for his services?
SANCTIONS
Punishable acts under the 2004 Rules on
Notarial Practice
A: NO. The same is prohibited both by the CPE and
the Civil Code. The CPE provides that a lawyer
should not purchase any interest in the subject
matter of the litigation which he is conducting.
Likewise, the Civil Code provides that prosecuting
attorneys connected with the administration of
justice cannot acquire by purchase properties in
litigation to which they exercise their respective
functions (Canon 10, CPE; Art. 1491, NCC).
The Executive Judge shall cause the prosecution of
any person who knowingly:
1.
2.
3.
Acts or otherwise impersonates a notary public;
Obtains, conceals, defaces, or destroys the seal,
notarial register, or official records of a notary
public; and
Solicits, coerces, or in any way influences a
notary public to commit official misconduct
(Sec. 1, Rule XII, Rule on Notarial Practice).
--Q: Is it proper for a lawyer to write articles in a
newspaper and the like for publication?
NOTE: Notarizing documents without the requisite
commission therefore constitutes malpractice, if not
the crime of falsification of public documents (St.
Louis Laboratory High School Faculty And Staff V.
Dela Cruz, A.C. No. 6010. August 28, 2006).
A: A lawyer may with propriety write articles for
publications in which he gives information upon the
law; but he could not accept employment from such
publication to advice inquiries in respect to their
individual rights (Canon 40, CPE).
137
LEGAL ETHICS
---
NOTE: This refers to persons only. There may be a
judge without a court.
Q: May a lawyer interview any witness or
prospective witness for the opposing side in any
civil or criminal action without the consent of
opposing counsel or party?
De jure judge v. De facto judge
De Jure judge
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. L13744, November 29,
1918).
A: YES. In doing so, however, he should
scrupulously avoid any suggestion calculated to
induce the witness to suppress or deviate from the
truth, or in any degree to affect his free and
untrammeled conduct when appearing at the trial
or on the witness stand (Canon 39, CPE).
--Q: Mr. A disclosed to his lawyer that he had been
bribing one of the court officials to destroy the
evidence of the other party to tilt the disposition
of the case in his favor. If you are Mr. A’s lawyer,
what will you do?
A: When a lawyer discovers that some fraud or
deception has been practiced, upon the court or
party, he should endeavor to rectify it; at first by
advising his client, and should endeavor to rectify it
and if his client refuses to forego the advantage thus
unjustly gained, he should promptly inform the
injured person or his counsel, so that they may take
appropriate steps (Canon 41, CPE). Furthermore, if
the client failed or refuses to rectify the same, he
shall terminate the relationship with such client in
accordance with the Rules of Court (Canon 19.02,
CPR).
De Facto judge
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, November 29,
1918).
NOTE: There cannot be a de facto judge when there
is a de jure judge in the actual performance of the
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
(Luna v. Rodriguez and De Los Angeles, G.R. No. L13744, November 29, 1918).
Proper judicial deportment
JUDICIAL ETHICS
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
correct unprofessional conduct of a lawyer
but not in an insulting manner.
2.
Attitude toward litigants and witnesses –
He must be considerate, courteous and civil,
must not utter intemperate language during
the hearing of a case.
Judicial ethics
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 and 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 who is the visible representation of the
law.
Judge
Proper judicial conduct
A judge is a public officer who, by virtue of his office,
is clothed with judicial authority and is lawfully
appointed to decide litigated questions in
accordance with law (People v. Manantan, G.R. No. L14129, August 30, 1962).
Judges and justices must conduct themselves as
to be beyond reproach and suspicion and free
from appearance of impropriety in their
personal behavior, not only in the discharge of
official duties but also in their everyday lives.
138
JUDICIAL ETHICS
SOURCES
ethics adopted for the Philippines, and also to stress
the Philippines’ solidarity with the universal clamor
for a universal code of judicial ethics (See
aforementioned "four Ins" and "four ACID" problems
by Chief Justice Artemio V. Panganiban).
The two sources of judicial ethics
a.
b.
New Code of Judicial Conduct for the Philippine
Judiciary (NCJC);
Code of Judicial Conduct (CJC)
NOTE: The New Code contains 6 Canons and 44
Rules.
New Code of Judicial Conduct for the Philippine
Judiciary v. Code of Judicial Conduct
NCJC
Focuses
on
the
institutional
and
personal independence
of judicial officers
Contains eight norms of
conduct that judges
“shall follow”
--The six (6) canons under the New Code of
Judicial Conduct for the Philippine Judiciary
CJC
Concerned
primarily
with the institutional
independence of the
judiciary.
Contained
three
guidelines explaining
what judges “should do”
* Canon 1 of the 1989
Code created a weaker
mandate.
1.
2.
3.
4.
5.
6.
Independence
Integrity
Impartiality
Propriety
Equality
Competence and Diligence
Duties of a magistrate that will bolster the
public’s confidence in the judicial system
THE NEW CODE OF JUDICIAL CONDUCT
FOR THE PHILIPPINE JUDICIARY
(BANGALORE DRAFT)
(A.M. NO. 03-05-01)
1.
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, 2009
Bar).
4.
2.
3.
5.
6.
Duty to be above reproach and to appear above
reproach (NCJC, Sec.1, Canon 2)
Duty to be impartial (NCJC, Canon 3)
Duty to avoid improprieties and appearance of
improprieties (NCJC, Sec. 1, Canon 4)
Duty of financial transparency and duty to
avoid financial conflicts of interest (NCJC, Sec. 7,
Canon 4)
Duty to be efficient, fair and prompt (NCJC, Sec.
5, Canon 6)
Duty to be free from favor, bias, or prejudice
(NCJC, Sec. 1, Canon 3).
CODE OF JUDICIAL CONDUCT
(1989)
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.
Applicability
This code applies suppletorily to the Bangalore
Draft.
It is founded upon a universal recognition that a
competent, independent and impartial judiciary is
essential if the courts are to fulfill their role in
upholding constitutionalism and the rule of law;
that public confidence in the judicial system and in
the moral authority and integrity of the judiciary is
of utmost importance in a modern democratic
society; and that it is essential that judges,
individually and collectively, respect and honor
judicial office as a public trust and strive to enhance
and maintain confidence in the judicial system.
CANON 1
A JUDGE SHOULD UPHOLD THE INTEGRITY
AND INDEPENDENCE OF THE JUDICIARY.
Rule 1.01, Canon 1
A judge should be the embodiment of
competence, integrity and independence.
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
139
LEGAL ETHICS
Q: A complaint was filed against Judge Grageda
for the delay in the resolution of motions
relative a civil case. 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?
CANON 2
A JUDGE SHOULD AVOID IMPROPRIETY AND
THE APPEARANCE OF IMPROPRIETY IN ALL
ACTIVITES.
Rule 2.01, Canon 2
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 (CJC, Canon 2) 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 Supreme Court rules, directives and
circulars under Sec. 9, Rule 140, RRC (as
amended by A.M. No. 01-8-10-SC)?
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. 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.
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. 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-11-2262, February 9, 2011).
---
Judges must decide cases and resolve matters with
dispatch because any delay in the administration of
justice deprives litigants of their 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).
Rule 1.02, Canon 1
A judge should administer
impartially and without delay.
justice
Rule 1.03, Canon 1
A judge should be vigilant against any
attempt to subvert the independence of the
judiciary and resist any pressure from
whatever source.
Rule 2.02, Canon 2
A judge should not seek publicity for
personal vainglory.
140
JUDICIAL ETHICS
Rule 2.03, Canon 2
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 or permit others to convey the
impression that they are in special position
to influence the judge.
Rule 2.04, Canon 2
A judge should refrain from influencing in
any manner the outcome of litigation or
dispute pending before another court or
administrative agency.
CANON 3
A JUDGE SHOULD PERFOM OFFICIAL
DUTIES
HONESTLY,
AND
WITH
IMPARTIALITY AND DILIGENCE.
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 stationery 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?
ADJUDICATIVE RESPONSIBILITIES
Rule 3.01, Canon 3
A judge shall be faithful to the law and
maintain professional competence.
Q: Conquilla was charged with 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.
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. 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).
It was, therefore, incumbent upon respondent judge
to forward the records of the case to the Office of the
Provincial Prosecutor for preliminary 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
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.
---
141
LEGAL ETHICS
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). )
Prompt disposition of cases is attained basically
through the efficiency and dedication to duty of
judges. If judges do not possess those traits, delay in
the disposition of cases is inevitable to the prejudice
of the litigants. Accordingly, judges should be
imbued with a high sense of duty and responsibility
in the discharge of their obligation to administer
justice promptly (Garado v. Gutierrez-Torres, A.M.
No. MTJ-11-1778, June 5, 2013).
Rule 3.03, Canon 3
A judge shall maintain order and proper
decorum in the court.
Justice delayed is often justice denied, and delay in
the disposition of the cases erodes the faith and
confidence of the people in the judiciary, lowers its
standard and brings it into disrepute.
Rule 3.04, Canon 3
A judge should be patient, attentive, and
courteous to lawyers, especially the
inexperienced, to litigants, witnesses, and
others appearing before the court.
Rule 3.06, Canon 3
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.
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.
--Q: How would you characterize the relationship
between the judge and a lawyer? Explain. (1996
Bar)
Rule 3.07, Canon 3
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.
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.
---
ADMINISTRATIVE RESPONSIBILITIES
Rule 3.08, Canon 3
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
A judge shall dispose of the court’s business
promptly and decide cases within the
required periods.
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 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
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.
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JUDICIAL ETHICS
Rule 3.10, Canon 3
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.
Rule 3.12, Canon 3
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
controversy or in a party to the
proceeding,
f. Any other interest that could be
substantially affected by the outcome of
the proceeding.
Rule 3.11, Canon 3
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 personnel. Where the payment of
compensation is allowed, it should be
reasonable and commensurate with the
fair value of services rendered.
DISQUALIFICATION
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. (1996 Bar)
In every instance, the judge shall indicate
the legal reason for inhibition.
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.
REMITTAL OF DISQUALIFICATION
Rule 3.13, Canon 3
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.
A judge’s close friendship with a person who is a
party to his case does not render him/her guilty
of violating any canon of judicial ethics as long as
his friendly relations did not influence his official
conduct as a judge. However, it would have been
more prudent if the judge concerned avoided
hearing the cases where his friend was a party
because their close friendship could reasonably
tend to raise suspicion the former’s social
relationship would be an element in his
determination of the case.
The agreement, signed by the parties, shall
be incorporated in the record of the
proceeding.
143
LEGAL ETHICS
A judge should regulate his extra-judicial activities
so as to minimize the risk of conflict with his judicial
duties.
CANON 4
A JUDGE MAY, WITH DUE REGARD TO
OFFICIAL DUTIES, ENGAGE IN ACTIVITIES
TO IMPROVE THE LAW, THE LEGAL SYSTEM
AND THE ADMINISTRATION OF JUSTICE.
ADVOCATIONAL, CIVIL AND CHARITABLE
ACTIVITIES
Rule 5.01, Canon 5
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:
1. Write, teach and speak on non-legal
subjects;
2. Engage in the arts, sports, and other
special recreational activities;
3. Participate in civic and charitable
activities;
4. Serve as an officer, director, trustee, or
non-legal advisor of non-profit or nonpolitical, educational, religious, charitable,
fraternal, or civic organization.
Rule 4.01, Canon 4
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.
FINANCIAL ACTIVITIES
Rule 5.02, Canon 5
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.
Q: Judge Cristina has many law-related
activities. She teaches law and delivers lectures
on law. Some people in the government consult
her on their legal problems. She also serves as
director of a stock corporation devoted to penal
reform, where she participates in both fund
raising and fund management. Which of the
aforesaid activities is she allowed to do? (2011
Bar)
A judge should so manage investments and
other financial interests as to minimize the
number of cases giving grounds for
disqualifications.
A: She can teach and deliver lectures on law (Sec.
10(a) Canon 4 New Code of Judicial Conduct) but she
cannot give legal advice since it is considered as
practice of law to which judges are prohibited to do
(Sec. 11 Canon 4, New Code of Judicial Conduct). Also,
she cannot serve as director of a stock corporation
since the same is incompatible with the diligent
discharge of judicial duties. (Sec. 7 Canon 6, New
Code of Judicial Conduct) She can be a director of her
Family Corporation but not part of the management.
Rule regarding financial activities
A judge shall refrain from financial and business
dealings that tend to:
1.
2.
---
3.
CANON 5,
A JUDGE SHOULD REGULATE
EXTRAJUDICIAL ACTIVITIES TO
MINIMIZE THE RISK OF CONFLICT WITH
JUDICIAL DUTIES.
(1995, 1997, 1999, 2000, 2002 Bar)
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.
By allowing himself to act as agent in the sale of the
subject property, respondent judge has increased
the possibility of his disqualification to act as an
impartial judge in the event that a dispute involving
the said contract of sale arises. Also, the possibility
that the parties to the sale might plead before his
144
JUDICIAL ETHICS
court is not remote and his business dealings with
them might not only create suspicion as to his
fairness but also to his ability to render it in a
manner that is free from any suspicion as to its
fairness and impartiality, and also as to the judge’s
integrity (Alloro vs. Judge Barte, A.M. No. MTJ-021443, July 31, 2002).
An independent Judiciary is one free from
inappropriate outside influence.
Individual Judicial Independence focuses on each
particular case and seeks to insure the ability of the
judge to decide cases with autonomy and within the
constraints of the law while Institutional Judicial
Independence focuses on the independence of the
judiciary as a branch of the 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).
Rule 5.03, Canon 5
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.
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.
Rule on judges having investments
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.
GR: A judge may hold and manage investments but
should not serve as:
1.
2.
3.
4.
5.
An officer
Director
Manager
Advisor
Employee of any business
XPN: As director of a family business of the judge
(Rule 5.03).
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.
Rule 5.04, Canon 5
A judge or any immediate member of the
family shall not accept a gift, bequest,
factor or loan from anyone except as
may be allowed by law.
Judges must reject pressure by maintaining
independence from, but not limited to the following:
QUALITIES
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 – avoid sitting 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 – the
only guide of the official is the mandate of law.
(NEW CODE OF JUDICIAL CONDUCT)
INDEPENDENCE
CANON 1
JUDICIAL INDEPENDENCE IS A PREREQUISITE 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.
Judicial Independence
145
LEGAL ETHICS
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: In a civil case submitted for a decision, Judge
Corpuz-Macandog acted 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?
Degree of independence
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-351-RTJ, September 26, 1986).
Every judge must decide independently, even in
collegial court. While there may be discussions and
exchange of ideas among judges, the judge must
decide on the basis of his own, sole, judgment (Funa,
2009).
The highest degree of independence is required of
judges. He must be independent in decision-making.
He cannot consult with staff and court officials.
However, he can ask colleagues 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.
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?
Principle of Subjudice
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)
This section affirms that a judge’s restraint from
exerting influence over other judicial or quasijudicial bodies is required for more than just
propriety.
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, RRC). 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).
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: A Judge of the RTC wrote a letter to the judge
of the lower court, seeking to influence him to
hear the case and even intimating that he issue
an order of acquittal. Is it proper?
---
A: NO. The Supreme Court ruled that a judge who
tries to influence the outcome of a case pending
146
JUDICIAL ETHICS
before another court not only subverts the
independence of the judiciary but also undermines
the people’s faith in its integrity and impartiality.
The interference in this decision-making process of
another judge is a breach of conduct so serious as to
justify dismissal from service based only on
preponderance of evidence (Sabitsana Jr. vs.
Villamor, A.M. No. 90-474, October 4, 1991).
---
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.
This section affirms the independence of the
judiciary from the two other branches of
government.
Sec. 4, Canon 1, NCJC
Judges shall not allow family, social, or other
relationships to influence judicial conduct or
judgment.
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).
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.
--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 was already overstaffed. The judge
also requested the QC Mayor to re-employ the
laid off employees. Did the judge commit any
improper conduct?
Purpose of Sec. 4, Canon 1 of NCJC
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.
The term “judge’s family” includes:
1.
2.
3.
4.
5.
6.
7.
Judge’s spouse
Son/s
Daughter/s
Son/s-in-law
Daughter/s-in-law
Other relatives by consanguinity or affinity
within the sixth civil degree, or
Any person who is a companion or employee of
the judge and who lives in the judge’s
household. (NCJC of the Philippine JudiciaryAnnotated, February 2007)
A: YES. An executive judge has no authority to cause
the transfer of court employees as the jurisdiction to
do so is lodged 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,
September 5, 2002).
When the judge is related to one of the parties
within the sixth degree of consanguinity or affinity,
a judge’s disqualification to sit in a case is
mandatory.
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: Judges of the first and second level courts are
allowed to receive assistance from the local
government units where they are stationed.
This assistance could be in the form of
equipment or allowance. Justices at the Court of
Appeals in the regional stations in the Visayas
and Mindanao are not necessarily residents
thereof, hence, they incur additional expenses
147
LEGAL ETHICS
for their accommodations. Pass on the propriety
of the justices' receipt of assistance/allowance
from the local governments. (2010 Bar)
There can be no sure guarantee of judicial
independence than the character of those appointed
to the Bench.
A: Section 5, Cannon 1 of the New Code of Judicial
Conduct for the Philippine judiciary provides that
Judges shall be free from inappropriate connections
with, and influence by, the executive branch, and
must appear to be free therefrom to a reasonable
extent. It is a common perception that the receipt of
allowances or assistance from a local government
unit may affect the judge's ability to rule
independently in cases involving the said unit.
---
Judges must remain conscious of their character and
reputation as judges and should avoid anything
which will not dignify their public positions and
demean the institution to which they belong, in
whatever atmosphere or environment they may
happen to be.
INTEGRITY
CANON 2
INTEGRITY IS ESSENTIAL NOT ONLY TO THE
PROPER DISCHARGE OF THE JUDICIAL
OFFICE, BUT ALSO TO THE PERSONAL
DEMEANOR OF JUDGES.
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.
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.
The act of a judge in 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. Judge Rosete, A.M.
No. MTJ-04-1563, September 8, 2004).
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. TJ06-1972, June 21, 2006).
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 (Ibid.).
By the very nature of the bench, judges, more than
the average man, are required to observe an
exacting standard of morality and decency. The
character of a judge is perceived by the people not
only through his official acts but also through his
private morals as reflected in his external behavior.
It is therefore paramount that a judge’s personal
behavior both in the performance of his duties and
his daily life, be free from the appearance of
impropriety as to be beyond reproach. (De la Cruz v.
Judge Bersamira, A.M. No. RTJ-00-1567. January 19,
2001)
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.
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.
Sec. 8, Canon 1, 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.
Presumption regarding judges
Judges are presumed honest and men of integrity,
unless proven otherwise.
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.
148
JUDICIAL ETHICS
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 judg (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).
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.
The maintenance of the court’s integrity is not the
sole duty of the judge. It is also the duty of court
personnel to see to it that its integrity is
unblemished.
--Judges must always wear their robes at hearings
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.
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).
--Q: Justice B of the CA was a former RTC Judge. A
case which he heard as a trial judge was raffled
off to him. The appellant sought his
disqualification from the case but he refused on
the ground that he was not the judge who
decided the case as he was already promoted to
the appellate court before he could decide the
case. Was the refusal of Justice B to recuse from
the
case
proper?
(2014
Bar)
--Q: After being diagnosed with stress dermatitis,
Judge Rosalind, without seeking permission
from the Supreme Court, refused to wear her
robe during court proceedings. When her
attention was called, she explained that
whenever she wears her robe she is reminded of
her heavy caseload, thus making her tense. This,
in turn, triggers the outbreak of skin rashes. Is
Judge Rosalind justified in not wearing her
judicial robe? Explain. (2009 Bar)
A: Justice B's refusal to recuse is not proper. After
hearing the evidence during the trial when he was
still a judge, he has personal knowledge of the
disputed evidentiary facts concerning the
proceedings. The standard under the New Code of
Judicial Conduct on the inability of Justice B to
decide the matter impartially is not in him but the
appearance of the disqualification of Justice D to a
reasonable observer that he is unable to decide the
matter impartially. The conduct of a judge/justice
should not only be above reproach but it should be
also perceived to be so in the view of a reasonable
observer (Canon 2, Integrity, New Code of Judicial
Conduct).
A: Judge Rosalind is not justified. In Chan v.
Majaducon, the Supreme Court emphasized that the
wearing of robes of judges as required by Admin.
Circular No. 25, dated June 9, 1989, serves the dual
purpose of heightening public consciousness on the
solemnity of judicial proceedings and in impressing
upon the judge the exacting obligations of his office.
The robe is part of the judge’s appearance and is as
important as a gavel. The Supreme Court added
while circumstances, such as medical condition
claimed by the respondent judge, may exempt one
from complying with AC No. 25, the judge must first
secure the Court’s permission for such exemption.
--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?
--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: 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
A judge has the duty to not only render a just and
impartial decision, but also render it in such a
149
LEGAL ETHICS
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-00-1601, November 13, 2001).
near a court or a judge as to obstruct or interrupt
the proceedings before the same (Rule 71, RRC).
In pending or prospective litigations before them,
judges should be scrupulously careful to avoid
anything that may tend to awaken the suspicion that
their personal, social or sundry relations could
influence their objectivity.
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 (Buenaventura v. Benedicto, A.C. No. 137-5,
March 27, 1971).
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.
Judge’s duty with respect to court employees
--A judge cannot dismiss court personnel. 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, December 19, 1981).
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 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?
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, September 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 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,
December 16, 2009).
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.
--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?
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.
A judge may summarily punish any person including
lawyers and court personnel, for direct contempt for
misbehavior committed in the presence of or so
A: NO. The act committed by the two lawyers was
indirect contempt violative of the rule punishing
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JUDICIAL ETHICS
“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.
moreover inspire that belief. (Rosauro v. Judge
Villanueva Jr., A.M. No. RTJ-99-1433, June 26, 2000)
NOTE: A judge has both duties: the duty of
rendering a just decision; and, 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.
Q: A complaint against Judge Melo was filed for
violating the NCJC and for gross ignorance of the
law. It was alleged that he solemnized marriages
without the required marriage license. He
instead notarized affidavits of cohabitation and
issued them to the contracting parties. He
notarized these affidavits on the day of the
parties’ marriage. It was argued that affidavits of
cohabitation are not connected with a judge’s
official functions and duties as solemnizing
officer. Will the complaint prosper?
It is the duty of all judges not only to be impartial
but also to appear impartial. A judge must exercise
prudence and restraint and should reserve personal
views and predilections to himself so as not to stir
up suspicions of bias and unfairness.
Degree of proof required to prove bias on the
part of the judge
A: YES. Judge Melo notarized affidavits of
cohabitation, which were documents not connected
with the exercise of his official functions and duties
as solemnizing officer. He also notarized affidavits
of cohabitation without certifying that lawyers or
notaries public were lacking in his court’s territorial
jurisdiction, thus he violated Circular No. 1–90.
Further, Judge Melo violated NCJC provisions on
integrity since it is well-settled that if the law
involved is basic, ignorance constitutes “lack of
integrity.” Violating basic legal principles and
procedure nine times is gross ignorance of the law.
(Tupal vs. Judge Rojo, A.M. No. MTJ–14–1842,
February 24, 2014)
---
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. Bias and prejudice
cannot be presumed and mere suspicion of
partiality is not enough.
--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 Corporation and the Judge of MTC
and enjoining the latter from proceeding with
the case. X Corporation 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?
IMPARTIALITY
CANON 3
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.
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, March 11, 2004)
Principle of cold neutrality of an impartial judge
While a judge should possess proficiency in law in
order that he can competently construe and enforce
the law, it is more important that he should act and
behave in such a manner that the parties before him
should have confidence in his impartiality. Thus, it
is not enough that he decides cases without bias and
favoritism. Nor is it sufficient that he in fact rids
himself of prepossessions. His actuations should
151
LEGAL ETHICS
---
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. (Ty v.
Banco Filipino Savings and Mortgage Bank, CA and
Hon. Tac-an G.R. Nos. 149797-98, February 13, 2004)
Extra-judicial source rule
It means that the decision is based on some
influence other than the facts and law presented in
the courtroom.
---
---
Q: Banco Filipino filed a complaint for
reconveyance of property against Ty and Tala
Realty Services Corp. which 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?
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,
February 27, 2003)
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 as 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 is that 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
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, February
13, 2004).
--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.
Rationale
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, March 28, 2001)
--A trial judge can ask questions from witnesses. In
every examination of a witness, the court shall take
active part in examining him to determine his
credibility as well as the truth of his testimony and
to elicit the answers that it needs for resolving the
issues. (Sec. 7, Judicial Affidavit Rule).
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JUDICIAL ETHICS
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, March 12, 2004)
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.”
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)
--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: After the pre-trial of a civil case for replevin,
Judge D advised B’s counsel to settle the case
because according to Judge D, his initial
assessment of the case shows that B’s evidence
is weak.
Meaning of “duty to sit”
a.
Did Judge D commit an act of impropriety?
Explain
b. What remedy or remedies may be taken by
B’s lawyer against Judge D? Discuss Fully.
(2014 Bar)
It means that a judge must ensure that he will not
be unnecessarily disqualified from a case.
A judge cannot inhibit himself as he pleases. 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:
a. YES, Judge D violated Canon 3, Impartiality,
New Code of Judicial Conduct for the Philippine
Judiciary. He should not make any comment
that might reasonably be expected the effect the
outcome of the proceedings or impair the
manifest fairness of the process.
b. B's lawyer can file a motion for the
disqualification of the judge under Canon 3 for
bias or prejudice based on the appearance of
the comment to a reasonable observer. A pretrial is not yet the complete and exhaustive
presentation of evidence of the parties.
Rule of necessity
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 vs. Meneses, G.R. No. 112684, April 26,
1994)
--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 written in his column in Manila
Times a statement to the effect that the law
required public bidding of reclaimed projects
and that the PEA-Amari contract was flawed for
it was not bid by the PEA. Decide on the motion.
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.
Reason for the rule
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LEGAL ETHICS
A: The motion to inhibit must be denied for three
reasons:
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;
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
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)
1.
2.
3.
2.
3.
4.
5.
6.
--No absolute prohibition against judges from
making comments
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.
7.
However, 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 or ideas, and, therefore, should refrain from
making any comment on a pending case. There is
danger not only of being misquoted, but also of
compromising the rights of the litigants in the case.
8.
9.
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, August 1, 1996)
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.
The phrase “any proceeding” includes, but is not
limited to instances where:
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);
1.
must have been obtained extra-judicially like
out-of-court observations. This prohibition also
disallows extra-judicial research on the
internet.
The judge previously served as a lawyer or was
a material witness in the matter in controversy
(Sec. 5(b), Canon 3, CJC);
A judge may be disqualified if he was formerly
associated with one of the parties or their
counsel.
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.
The judge, or a member of his or her family, has
an economic interest in the outcome of the
matter in controversy (NCJC, Sec. 5 (c), Canon 3);
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 serious misconduct and
ordered dismissed from the bench before he
was able to rescue himself. (Oktubre v. Velasco
A.M. No. MTJ-02-02-1444, July 20, 2004)
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);
The restriction extends to judges who served as
lawyers in closely related cases.
The judge’s ruling in a lower court is the subject
of review (Sec. 5(e), Canon 3, NCJC);
10. 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);
The rule also requires disqualification if a judge
has outside knowledge of disputed facts. To be
a ground for disqualification, the knowledge
154
JUDICIAL ETHICS
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)
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 did not apply to
special proceedings which are not controversial
in nature and that she does not have any
pecuniary interest in the case. Is the contention
correct?
11. No judge should preside in a case in which he is
not wholly free, disinterested, impartial and
independent. (Garcia v. De La Pena. A.M.No.MTJ92-637, February 9, 1994)
12. 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).
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
was improper. (Villaluz v. Mijares, A.M. No. RTJ -981402 288, April 3, 1998)
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.
---
---
Degree of compliance required by the rule
under Canon 3, Section 5 of NCJC
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
said that the counsels did not object and he
never held “full-blown” hearings anyway.
Should Judge Rojas be reprimanded?
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,
August 31, 1981) The grounds for disqualification of
a judge enumerated under Sec. 5 of Canon 3 are not
exclusive. The provision provides that it is not
limited to the grounds therein provided.
A: YES. The Rules of Court prevents 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, October 30, 1998)
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: 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
Types of disqualification
155
LEGAL ETHICS
1.
2.
Mandatory or compulsory disqualification
Voluntary disqualification or inhibition
participating in any proceedings 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. Such
proceedings include, but are not limited to instances
where: “xx 6. The judge is related by consanguinity or
affinity to a party litigant within the 6th civil degree
or to counsel within the fourth civil degree.” This is
considered as a MANDATORY INHIBITION. Strict
compliance with the rules on disqualification is
required.
Disqualification v. Inhibition
DISQUALIFICATION
There are specific
grounds enumerated
under the rules of
court
for
disqualification.
INHIBITION
The rule only provides
broad
basis
for
inhibition.
The judge has no
discretion; mandatory
The rule leaves the
matter to the judge’s
sound discretion
--Inhibition
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.
The right of a party to seek the inhibition or
disqualification of a judge who does not appear to
be wholly free, disinterested, impartial and
independent in handling the case must be balanced
with the latter’s sacred duty to decide cases without
fear of repression. Thus, it was incumbent upon a
lawyer to establish by clear and convincing
evidence the ground of bias and prejudice in order
to disqualify a Judge from participating in a
particular trial. (Presiding Judge Madrid v. Atty.
Dealca, A.C. No. 7474, September 09, 2014)
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:
Grounds for mandatory disqualification
1.
2.
3.
4.
1.
When he, or his wife, or child is pecuniarily
interested as heir, legatee, creditor, or
otherwise;
When he is related to either party within the 6th
degree of consanguinity or affinity or to
counsel within the 4th civil degree;
When he has been an executor, guardian,
administrator, trustee, or counsel; or
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)
2.
General consideration – whether the 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
Voluntary inhibition of a judge
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.
---
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.
Q: In a verified complaint, Kathy said that Judge
Florante decided a petition for correction of
entry involving the birth record of her grandson,
Joshua, who happened to be child of Judge
Florante’s daughter, Pilita. Judge Florante
insisted that he committed no wrong since the
proceeding was non-adversarial and since it
merely sought to correct an erroneous entry in
the child’s birth certificate. Is Judge Florante
liable? (2011 Bar)
A decision to disqualify himself is not conclusive and
his competency may be determined on application
for mandamus to compel him to act. A judge’s
decision to continue hearing a case in which he is
not legally prohibited from trying notwithstanding
A: YES, because Florante breached the rule on
mandatory disqualification. Sec. 5, Canon 3 provides
that: “Judges shall disqualify themselves from
156
JUDICIAL ETHICS
challenge to his objectivity may not constitute
reversible error.
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?
The filing of an administrative case against a judge
does not automatically disqualify him from sitting in
a case. It must be shown that there are other acts or
conducts by the judge which constitute a ground for
his disqualification.
A judge may by mandamus be compelled to act on
questions regarding his disqualification from sitting
in a case.
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: Judge Clint Braso is hearing a case between
Mr. Timothy and Khristopher Company, a
company where his wife used to work as one of
its Junior Executives for several years. Doubting
the impartiality of the Judge, Mr. Timothy filed a
motion to inhibit Judge Clint Braso. Judge Clint
Braso refused on the ground that his wife has
long resigned from the company. Decide. (2014
Bar)
A: The matter of inhibition is addressed to the
judicious discretion of the judge; hence, only he can
examine is his conscience if he can answer to the call
of cold neutrality.
--Time to file the petition to disqualify a judge
---
It 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.
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?
--Q: Judge Nacy personally witnessed a vehicular
accident near his house. Later, the Reckless
Imprudence case was raffled to his sala. Is there
a valid ground for his inhibition? (2012 Bar)
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. Dela Fuente, G.R. No. 152328, March 23, 2004)
A: YES, under Canon 3, Sec. 5 (a), a judge should
decide a case on the basis of the evidence presented
before him and not on extraneous matters. This
tendency will be for him to decide the case based on
his personal knowledge and not necessarily on the
basis of the evidence that will be presented. The
judge, however, is not precluded from testifying
about his personal knowledge of the case. After,
disqualifying himself, he can be a presented as a
witness in the case before the substitute judge.
--Remittal of disqualification
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
---
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LEGAL ETHICS
the reason for the inhibition 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)
they made her cry. One question forced Sheila to
admit that her mother was living with another
man, a fact that weighed against the accused.
This prompted the latter’s counsel to move to
move to expunge the judge’s questions for
building on the prosecution’s case. Judge Pedro
denied the motion, insisting that bolstering a
party’s case is incidental to the court’s desire to
be clarified. Did Judge Pedro commit an
impropriety? (2011 Bar)
Requirements for a judge to continue hearing a
case despite the existence of reasons for
disqualifications
1.
2.
The bona fide disclosure to the parties in
litigation; and
The express acceptance by all the parties of the
cited reason as not material or substantial.
A: YES, because he effectively deprived the defense
of its right to due process when he acted both as
prosecutor and judge.
PROPRIETY
---
CANON 4
PROPRIETY AND THE APPEARANCE OF
PROPRIETY ARE ESSENTIAL TO THE
PERFORMANCE OF ALL THE ACTIVITIES OF
A JUDGE.
Q: Judge A accepted a gift consisting of assorted
canned goods other grocery items from his
compadre whose friend has a pending case with
him. He accepted the gift just so as not to
embarrass his compadre. When his compadre
left his chambers, he asked his secretary to
donate the gift he received to the victims of
Typhoon Yolanda. Did the judge cross the ethical
line? Explain your answer. (2014 Bar)
The judge’s own perception of motives is not
relevant when considering appearance of
impropriety.
A: YES, Judge A crossed the ethical line. He violated
the canon of Propriety. As a subject of public
scrutiny, judges must accept personal restrictions
that might be viewed as burdensome by ordinary
citizens and should do so freely and voluntarily (Sec.
1, Canon 4, NCJC).
Sec. 1, Canon 4, NCJC
Judges shall avoid impropriety and the
appearance of impropriety in all of their
activities.
The public holds judges to higher standards of
integrity and ethical conduct than lawyers and other
persons not invested with public trust.
--Examples of acts of a judge which are not illegal
but will constitute a violation of this rule
Prohibition provided by the Code
1.
It prohibits not only actual impropriety but even the
mere appearance of impropriety.
Appearance of impropriety
2.
Impropriety occurs when the conduct of a judge
creates in reasonable minds a perception that the
judge’s ability to carry out judicial responsibilities
with integrity, impartiality and competence is
impaired.
3.
NOTE: Acts done by a judge which are not illegal
may still constitute a violation of this rule.
---
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 Edmund
Acuña, A.M. No. RTJ-04-1891, July 28, 2005).
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, April 21 1999).
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, March 14, 2005).
---
Q: After the prosecution cross-examined Sheila,
a witness for the accused, Judge Pedro asked her
ten additional questions that were so intense,
Q: During the hearing of an election protest filed
by the brother of Judge Dojillo, the latter sat
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JUDICIAL ETHICS
beside the counsel of his brother allegedly to
give moral support. Did the judge commit any
improper conduct?
and free herself. Judge Duque raised her skirt,
opened her blouse and sucked her breasts. He
touched her private parts and attempted to have
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?
A: YES. The judge violated the rule on impropriety
under Sec 1, Canon 4, NCJC for even if he did not
intend to use his position as a judge to 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).
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.
--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).
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).
--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. 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
where Judge Duque demanded the money from
her.
--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.
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
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
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LEGAL ETHICS
individual. His conduct must be able to withstand
the most searching public scrutiny, for the ethical
principles and sense of propriety of a judge 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,
January 29, 2009).
A: Judge Austria disregarded the propriety and
appearance of propriety required of her when she
posted photos of herself wearing an "offshouldered" suggestive dress and made this
available for public viewing. When she made this
picture available for public consumption, she placed
herself in a situation where she, and the status she
holds as a judge, may be the object of the public’s
criticism and ridicule. The act of posting her photos
would seem harmless and inoffensive had this act
been done by an ordinary member of the public. As
the visible personification of law and justice,
however, judges are held to higher standards of
conduct and, thus, must accordingly comport
themselves (Lorenzana vs. Judge Austria, A.M. No.
RTJ-09-2200, April 2, 2014).
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 value. This 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).
--NOTE: NCJC does not prohibit a judge from joining
or maintaining an account in a social networking
sites. Section 6, Canon 4 of the New Code of Judicial
Conduct recognizes that judges, like any other
citizen, are entitled to freedom of expression.
However, the same provision also imposes a
correlative restriction on judges: in the exercise of
their freedom of expression, they should always
conduct themselves in a manner that preserves the
dignity of the judicial office and the impartiality and
independence of the Judiciary (Ibid.).
Dignified conduct
It is best described as conduct befitting men and
women possessed of temperance and respect for
the law and for others.
--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?
--Q: An anonymous letter called on the Court to
look into the morality of respondent Judge
Achas and alleged that: (1) it is of public
knowledge in the city that Judge Achas is living
scandalously with a woman who is not his wife;
(2) he lives beyond his means; (3) he is involved
with illegal activities ( 4) he comes to court very
untidy and dirty; (5) he decides his cases
unfairly in exchange for material and monetary
consideration; and (6) he is involved with
cockfighting/gambling. Judge Achas denied all
the charges but admitted that he was married
and only separated de facto from his legal wife
for 26 years, and that he reared game cocks for
leisure and extra income, having inherited such
from his forefathers. Should Judge Achas be
disciplined?
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).
--Q: A complaint was filed against Judge Austria
alleging that the judge committed an act of
impropriety
when
she
displayed
her
photographs in a social networking website
“Friendster”, some of which showed her wearing
an "off-shouldered" attire. Judge Maranan
contended that an "off-shouldered" attire is an
acceptable social outfit under contemporary
standards and is not forbidden. Decide.
A: YES. The investigation revealed that the
respondent judge found for himself a suitable young
lass whom he occasionally goes out with in public
and such a fact is not a secret around town. It is not
commendable, proper or moral for a judge to be
perceived as going out with a woman not his wife.
Such is a blemish to his integrity and propriety, as
well as to that of the judiciary. While rearing fighting
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JUDICIAL ETHICS
cocks is not illegal, Judge Achas should avoid
mingling with a crowd of cockfighting enthusiasts
and bettors as it undoubtedly impairs the respect
due him. As a judge, he must impose upon himself
personal restrictions that might be viewed as
burdensome by the ordinary citizen and should do
so freely and willingly (Anonymous v.Achas, A.M. No.
MTJ-11-1801, February 27, 2013).
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”. 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?
--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.
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 (JamsaniRodriguez v. Ong, A.M. No. 08-19-SB-J, August 24,
2010).
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 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, October 23,
1994).
--Q:
Complainant
Prosecutor
filed
an
administrative
complaint
against
the
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
--Q: Complainant, a former court stenographer,
accused Judge Agabas of oppression, conduct
unbecoming of a judge and abuse of authority.
Complainant contended that her appointment
was not renewed because the judge refused to
sign the requirements for the change of her
161
LEGAL ETHICS
employment status from temporary to
permanent despite her two-year service
Complainant states that many of her officemates
have questioned the “satisfactory” rating given
to her by the judge considering their nonperforming utility clerk received a higher rating
despite respondent judge’s knowledge of the
latter’s misdeeds. Worse, she claims that the
judge even recommended the utility clerk for a
position in the court of her “kumare,” Is the
judge guilty of favoritism?
Judge
Cerdo
thereafter
purchased
a
condominium unit from the developer. Did
Judge Cerdo commit any act of impropriety?
(2013 Bar Question)
A: YES, Judge Cerdo is guilty of an act of
impropriety. It is desirable that he should, so far as
reasonably possible, refrain from all relations which
would normally tend to arouse the suspicion that
such relations warp or bias his judgment, or prevent
his impartial attitude of mind in the administration
of his judicial duties.
A: NO. Complainant’s appointment was under
temporary status in view of her lack of two years
relevant experience which was required for the
position. Respondent judge, who is the immediate
supervisor of complainant, is in the best position to
observe the fitness, propriety and efficiency of the
employee for the position. It should be impressed
upon complainant that her appointment in the
judiciary is not a vested right. It is not an entitlement
that she can claim simply for the reason that she had
been in the service for almost two years.
--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.
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.
Since there is no proof that respondent judge
abused her position, the case against her should be
dismissed. Respondent judge should, however, be
reminded to be circumspect in her actuations so as
not to give the impression that she is guilty of
favoritism (Magtagñob v. Judge Gapas Agbada. OCA
IPI No. 11-3631-RTJ, January 16, 2013).
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.
--The reason is that judges are required to always
exhibit cold neutrality of an impartial judge.
Q: A Court Administrator’s auditing team found
that Judge Ruby used business cards which
stated, in addition to her official title as
presiding judge of her court, that she is a bar
topnotcher,
her
law
school’s
“class
valedictorian,” and “one of the most sought after
private law practitioners” before she joined the
judiciary, all of which are true. Asked to explain
this seeming impropriety, Ruby pointed out that
business cards can include the person’s “title”
which is broad enough to include in her case her
standing in the bar and all the honors she
earned. Did Ruby commit an impropriety?
(2011 Bar Question)
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).
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.
A: YES, because she showed a hunger for publicity
and recognition that debases her judicial post.
---
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
Q: In an action to prevent the condominium
developer from building beyond ten (10) floors,
Judge Cerdo rendered judgment in favor of the
defendant developer. The judgment became
final after the plaintiffs failed to appeal on time.
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JUDICIAL ETHICS
upholding the judiciary and its values places upon
them certain implied restraints to their freedom.
--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.
--Q: Judge Acuña was charged with improper
conduct for allegedly making humiliating
statements such as “putris,” and “putang-ina”.
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?
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.
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 ”putangina” 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, 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).
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.
---
Prohibited acts by the rule
Q: An administrative complaint was filed against
Judge Amila because he used derogatory and
irreverent
language
towards
the
complainant. The former in effect maliciously
besmirched the character of complainant by
calling her as “only a live-in partner of Belot” and
presenting her as an opportunist and a mistress
in an illegitimate relationship. The judge also
called her a prostitute. Likewise, the judge
accused the complainant that the complaint was
motivated by insatiable greed. Will the case
prosper?
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 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. RTJ-89-380, December 19,
1990).
A: YES. The court holds that Judge Amila should
have been more circumspect in his language. It is
reprehensible for a judge to humiliate a lawyer,
litigant or witness. The act betrays lack of patience,
prudence and restraint. Thus, a judge must at all
times be temperate in his language. He must choose
his words, written or spoken, with utmost care and
sufficient control. The wise and just man is
esteemed for his discernment. Pleasing speech
increases his persuasiveness (Benancillo v. Judge
Amila, A.M. No. RTJ-08-2149, March 9, 2011).
2.
163
Judge’s act of giving impression that he can be
influenced to use the judicial office to advance
the private interests of others.
LEGAL ETHICS
NOTE: Another common violation of this rule is
using judicial power to exact personal
vengeance.
Rationale: 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.
---
--Q: Judge Escano was charged with allegedly
using court facilities (bulletin board) in
advertising for attractive waitresses and cooks
for employment in their restaurant business. He
also allowed the use of the court address to
receive applications as well as his office in
screening the applicants. 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?
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. 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, February 1, 1999).
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 charge 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 is the one
who can influence the judge’s official function
(Gordon v. Lilagam, A.M. No. RTJ-00-1564, July 26,
2001).
---
---
Ticket fixing
Violation of the rule which constitutes criminal
offense
It is misconduct in which judges impermissibly take
advantage of their public position to avoid
punishment for traffic violations.
The following, under Sec. 3[k] of R.A. 3019, and
under Art. 229 and 230 of the RPC, are violations of
the rule which also constitute criminal offense:
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.
1.
Court records or judicial records
2.
Court records do not only refer to the orders,
judgments, or verdict of courts but comprise the
official collection of all papers, exhibits, pleadings
filed by the parties, all processes issued and returns
made thereon, appearances, and word-for-word
testimony which took place during the trial and
which are in the possession, custody, or control of
the judiciary or the courts (Hilado v. Judge Reyes, G.R.
No. 163155, July 21, 2006).
3.
164
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 (R.A.
3019, Sec. 3[k]).
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).
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).
JUDICIAL ETHICS
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.
Sec. 11, Canon 4, NCJC
Judges shall not practice law whilst a holder
of judicial office.
The prohibition is based on sound reasons of public
policy, considering that the rights, duties, privileges
and functions of the office of an attorney are
inherently incompatible with the high official
functions, duties, powers, discretion and privileges
of a sitting judge. It also aims to ensure that judges
give their full time and attention to their judicial
duties, prevent them from extending favors to their
own private interests, and assure the public of their
impartiality in the performance of their functions.
These objectives are dictated by a sense of moral
decency and desire to promote the public interest
(Decena v. Malanyaon, A.M. No. RTJ-10-2217, April 8,
2013).
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.
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.
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 (DiaAnonuevo v. Bercacio, A.M. No. 177-MTJ, November
27, 1975).
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”.
Judge cannot be a member of Provincial
Committee on Justice
Such membership would violate the constitutional
provision on the discharge by members of the
judiciary of administrative functions in quasijudicial 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, October 5, 1988).
--Q: Judge Malanyaon was present in the hearing
of her daughter to advise her on what to do and
say during the hearing, to the point of coaching
her. Was the act of the judge considered
contrary to Section 11, Canon 4 of the NCJC,
prohibiting judges from engaging in the private
practice of law or giving professional advice to
clients?
A: YES. The Court held that the judge engaged in the
private practice of law by assisting his daughter at
his wife’s administrative case, coaching his
daughter in making manifestations or posing
motions to the hearing officer, and preparing the
questions that he prompted to his daughter. The
term practice of law is not limited to the conduct of
cases in court or to participation in court
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, October 17, 1980).
165
LEGAL ETHICS
proceedings, but extends to the preparation of
pleadings or papers in anticipation of a litigation,
the giving of legal advice to clients or persons
needing the same, the preparation of legal
instruments and contracts by which legal rights are
secured, and the preparation of papers incident to
actions and special proceedings (Decena v.
Malanyaon, A.M. No. RTJ-10-2217, April 8, 2013).
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 witness and not as a legal counsel.
Besides, his act was an isolated act.
--Q: 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?
--Sec. 12, Canon 4, NCJC
Judges may form or join associations of
judges or participate in other organizations
representing the interests of judges.
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.
Rules relating to prohibition against accepting
gifts, bequests, or loans
GR: Sections 13 and 14 of Canon 4 of the NCJC.
XPN: Section 15 of Canon 4 of the NCJC.
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 do 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, was still bound under
the prohibition (Binalay v. Lelina Jr, A.M. No. RTJ-082132, July 31, 2009).
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.
--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? (2002 Bar)
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.
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
NOTE: Section 13 should be read in conjunction
with Section 7(d) of R.A. 6713 (Code of Conduct and
166
JUDICIAL ETHICS
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.
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.
--Q: Judge Ganay received law books worth fifty
thousand pesos, cellular phones and monthly
cellular phone prepaid cards from the property
guardians of the late Rev. Fr. Aspiras, who was
then the ward of the court. Further, he issued
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. Is Judge Ganay guilty of
impropriety?
Judges are allowed to accept token gifts, awards, or
benefits when given as a consequence of a special
occasion.
Gifts and grants allowed from foreign countries
1.
2.
A: YES. Respondent Judge Ganay clearly fell short of
the exacting standards set by the New Code of
Judicial Conduct for the Philippine Judiciary. His
acts constitute impropriety which the Court cannot
allow. Respondent Judge Ganay’s act of issuing
Orders to draw checks 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 Aspirasv.JudgeGanay,
A.M. No. RTJ-07-2055, December 17, 2009).
3.
--Q: X was charged with grave threats 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?
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).
Indirect and direct bribery of judges
Acceptance of gifts given by reason of the office of
the judge is indirect bribery (Art. 211, RPC) Acts
punishable in direct bribery are as follows:
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-99-1516, July 14, 2005).
a) By agreeing to perform an act which constitutes
a crime in connection with his official duties for
a consideration;
b) By accepting a gift in consideration of the
execution of an act which does not constitute a
crime in consideration with the performance of
his official duty; and
c) By refraining, from doing something which it is
his official duty to do, in consideration of gift or
promise (Art. 210, RPC).
---
Anti-Graft and Corrupt Practices Act: Judges
receiving gifts or other material benefits
GR: The judge is liable criminally for directly or
indirectly receiving gifts, presents or other
pecuniary or material benefit for himself or for
167
LEGAL ETHICS
another under conditions provided in Section 2,
pars. b and c of the law.
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.
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: 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
institution to members of the Supreme Court during
their tenure.
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 nondiscrimination without distinction as to race, sex,
language, or religion. 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.
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).
Sec. 2, Canon 5, NCJC
Judges shall not, in the performance of
judicial duties, by words or conduct,
manifests bias or prejudice towards any
person or group on irrelevant grounds.
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.
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.
EQUALITY
CANON 5
ENSURING EQUALITY OF TREATMENT TO
ALL BEFORE THE COURTS IS ESSENTIAL TO
THE DUE PERFORMANCE OF THE JUDICIAL
OFFICE.
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.
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).
As arbiters of the law, judges should be
conscientious, studious, courteous, patient and
punctual in the discharge of their judicial duties,
recognizing that the time of litigants, witnesses and
counsel is of value. Judges should act with decorum
toward jurors, parties, court staff, spectators, and
alike.
---
168
JUDICIAL ETHICS
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 and told the staff that
their judge did not know her law. Judge Tormis
then retaliated by saying that to her, the office of
Judge Navarro did not exist. Are the judges guilty
of conduct unbecoming of a judge?
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.
Duties of judges under this section
1.
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 disciplined as their
fight has impaired the image of the judiciary
(Navarro v. Tormis, A.M. No. MTJ-00-1337, April 27,
2004).
2.
---
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 whether such information came
from authorized or unauthorized sources; and
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, October 13, 2004).
Q: Atty. Quinto was the defense counsel in a
criminal case. He alleged that during the
hearing, he manifested that he was waiving the
presentation of evidence for the accused and
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 oficio. May Judge Vios be
held administratively liable for compelling the
lawyer to withdraw as counsel for the accused?
Sec. 5, Canon 5, NCIC
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.
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).
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-04-1551, May 21, 2004).
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 was asking the 6-yearold victim to relate exactly and step by step the
sexual intercourse between her and the
169
LEGAL ETHICS
accused. The lawyer was 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?
However, Judge Ramos subsequently issued a
warrant of arrest and commitment on final
sentence
which
led
to
complainant’s
incarceration for 20 days. 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: NO. The judge shall require lawyers to refrain
from making abusive and uncalled for queries. Here,
considering 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 are excessive
(People v. Boras, G.R. No. 127495, December 22,
2000).
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-071676, January 29, 2009).
--COMPETENCE AND DILIGENCE
CANON 6
COMPETENCE AND DILIGENCE ARE PREREQUISITES TO THE DUE PERFORMANCE OF
JUDICIAL OFFICE.
---
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.
Sec.1, Canon 6, NCJC
The judicial duties of a judge take
precedence over all activities.
Duties of a judge under this section
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. MTJ-02-1391, June
7, 2004).
1.
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, December 16, 2009).
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
hypertension which 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?
2.
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
A judge shall not inhibit himself simply to avoid
sitting on difficult or controversial cases.
---
--Q: Bayaca was convicted 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.
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
170
JUDICIAL ETHICS
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. 98-8-105MTC, January 26, 1999).
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 the Court’s 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).
--Q: Judge Limsiaco admitted that he decided an
ejectment case two (2) years after it was
declared submitted for resolution. He was found
guilty of gross ignorance of law and procedure.
He moved for an extension of time to file a
motion for reconsideration. Despite the
extension of time given, 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 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?
--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.
Violations of this section often involve a failure to
keep records or handle funds in compliance with
court rules.
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.
A judge is to be reprimanded for agreeing to serve
as one of the Corporation’s alternate bank
signatories even if he may not have performed such
service for the corporation. He has no business
agreeing to the performance of such service. His
offense constitutes a violation of Administrative
Circular 5 which in essence prohibits public officials
from performing or agreeing to perform functions
or services outside of their official functions for the
reason that the entire time of the officials and
employees of the judiciary shall be devoted to their
official work to ensure the efficient and speedy
administration of justice (Luarca v. Judge
Molato, A.M. No.MTJ-08-1711, April 23, 2012).
--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. The judge explained that his failure
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 of loss as they were
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
171
LEGAL ETHICS
already out of the country. Should the judge be
disciplined?
A: YES. Mr. Teves is negligent in serving copies of
the decision to the accused without the judgment
having been promulgated first and at the time when
the judge who rendered the decision was serving
her suspension. This negligence on the part of Mr.
Teves, does not, however, wholly exempt Judge
Tormis from administrative liability even if the
same took place at the time when she was
prohibited access to her court. The Court cannot
fathom how she failed to find out Mr. Teves’
negligence. When she resumed her position, it was
incumbent upon her to check the status of the cases
she left prior to her suspension. A judge cannot
simply take refuge behind the inefficiency or
mismanagement of her court personnel, for the
latter are not the guardians of the former’s
responsibility. Unless the reins of control and
supervision over the administrative aspect of the
adjudicatory process are tightened, the swift and
efficient delivery of justice will be impeded and
rendered
illusory
(Office
of
the
Court
Administrator v. Hon. Rosabella M. Tormis, A.M. No.
MTJ-12-1817, March 12, 2013).
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,
January 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?
--Judges should return records upon retirement
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, February 18, 2008).
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,
August 20, 2003).
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.
--Q: Judge Tormis was accused of nonpromulgation of her decisions. She denied the
alleged practice of her court of not promulgating
judgments in criminal cases. She specifically
cited the Datan case and explained that she
rendered the decision prior to her preventive
suspension and she filed it with Mr. Teves, clerk
of court, for the latter to calendar it for
promulgation, but instead of following her
directive, Mr. Teves sent copies of the decision
to the parties of the case. Should Judge Tormis
be held liable?
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.
The maxim “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 do not apply
where the issues are so simple and the applicable
legal principles evident and basic as to be beyond
172
JUDICIAL ETHICS
possible margin of error (Corpus v. Ochotoresa, A.M.
No. RTJ 04-1861, July 30, 2004).
protestant. Enojas charged him with gross
ignorance of the law. Is Judge Gacott Jr. guilty of
gross ignorance of the law?
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-082131, November 22, 2010).
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,
January 19, 2000).
--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 before him.
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?
--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.
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 merely 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 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).
Norms of international law have 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.
---
A judge’s foremost consideration is the
administration of justice. Thus, he should follow the
time limit set for deciding cases. The Constitution
mandates that all cases or matters filed before all
lower courts shall be decided or resolved within 90
days from the time the case is submitted for
decision. Judges are enjoined to dispose of the
court’s business promptly and expeditiously and
decide cases within the period fixed by law. Failure
to comply within the mandated period constitutes a
serious violation of the constitutional right of the
parties to a speedy disposition of their cases. It also
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
173
LEGAL ETHICS
undermines the people’s faith and confidence in the
judiciary, lowers its standards and brings it to
disrepute. Decision making, among other duties, is
the most important duty of a member of the bench
(Salvador v. Judge Limsiaco, A.M. No. MTJ-08-1695,
April 16, 2008).
Flag lawyer
Refers to a lawyer of non-governmental
organizations (NGOs) and people’s organizations
(POs) who by the nature of his work already renders
free legal aid to indigent and pauper litigants (Bar
Matter No. 2012, February 10, 2009, Section 4a(iii)).
The honor and integrity of the judicial system is
measured not only by the fairness and correctness
of decisions rendered, but also by the efficiency with
which disputes are resolved. The mandate to
promptly dispose of cases or matters also applies to
motions or interlocutory matters or incidents
pending before the magistrate. Unreasonable delay
of a judge in resolving a pending incident is a
violation of the norms of judicial conduct and
constitutes gross inefficiency that warrants the
imposition of an administrative sanction against the
defaulting magistrate (Office of the Court
Administrator v. Hon. Rosabella M. Tormis, A.M. No.
MTJ-12-1817, March 12, 2013).
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.
Besides possessing the requisite learning in the law,
a magistrate must exhibit that hallmark judicial
temperament of utmost sobriety and self-restraint
which are indispensable qualities of every judge
(Rodriguez v. Bonifacio, A.M. No. RTJ-99-1510,
November. 6, 2000). A magistrate should not
descend to the level of a sharp-tongued, illmannered petty tyrant by uttering harsh words,
snide remarks and sarcastic comments (Dela Cruz v.
Judge Carretas, A.M. No. RTJ-07-2043, September 5,
2007). Judges are required to always be temperate,
patient and courteous, both in conduct and in
language.
--Q: Cabasares filed a complaint for Malicious
Mischief against a certain Rodolfo Hebaya. The
case was subsequently assigned to Judge
Tandingco. As early as February 27, 2002, the
case had been submitted for decision, but the
judge did not pen a decision. He was charged
with violation of Section 15 (1), Article VIII of the
Constitution and Canon 3, Rule 3.05 of the Code
of Judicial Conduct. Is the judge guilty?
---
A: YES. Judges should meticulously observe the
periods prescribed by the Constitution for deciding
cases because failure to comply with the said period
transgresses the parties’ constitutional right to
speedy disposition of their cases. Thus, failure to
decide cases within the ninety (90)-day
reglementary period may warrant the imposition of
administrative
sanctions
on
the
erring
judge. However, the Court is not unmindful of
circumstances that justify the delay in the
disposition of the cases assigned to judges. When a
judge sees such circumstances before the
reglementary period ends, all that is needed is to
simply ask the Court, with the appropriate
justification, for an extension of time within which
to decide the case. Evidently, respondent Judge
failed to do any of these options. Since the judge
retired from service he was only fined (Antonio Y.
Cabasares v. Judge Filemon A. Tandinco, Jr. Municipal
Trial Court in Cities, 8th Judicial Region, Calbayog
City, Western Samar, A.M. No. MTJ-11-1793, October
19, 2011).
Q: Judge Belen was charged with conduct
unbecoming of a judge for humiliating,
demeaning and berating a young lawyer who
appeared in his sala. 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 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
---
174
DISCIPLINE OF MEMBERS OF THE JUDICIARY
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
argumentum ad 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).
DISCIPLINE OF THE MEMBERS OF THE
JUDICIARY
Power to discipline members of the bench
The Supreme Court shall have the administrative
supervision over all courts and the personnel
(Section 6, Art. VIII, 1987 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).
Q: Judge Ante Jr. was charged with grave
misconduct and acts 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 a 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?
Disbarment of judges and justices
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.
Condition before Justices of the Supreme Court
may be disbarred
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, April
11, 2002).
Justices of the Supreme Court in order to be
disbarred must first be impeached in accordance
with the Constitution.
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
rather than promote the orderly administration of
justice (Ocenar v. Judge Mabutin, A.M. No. MTJ 051582, February 28, 2005).
--Sec. 7, Canon 6, NCJC
Judges shall not engage in conduct
incompatible with the diligent discharge of
judicial duties.
A judge shall not accept duties that will interfere
with his devotion to the expeditious and proper
administration of his official functions
A judge may be disciplined for acts committed
before his appointment to the judiciary
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, April 6, 2005).
It is settled that a judge may be disciplined for acts
committed prior to his appointment to the judiciary.
In fact, even the new Rule itself recognizes this, as it
provides for the immediate forwarding to the
Supreme Court for disposition and adjudication of
charges against justices and judges before the IBP,
including those filed prior to their appointment to
the judiciary (Heinz Heck vs. Judge Anthony E. Santos,
regional trial court, branch 19, Cagayan De Oro City
A.M. No. Rtj-01-1657, 23 February 2004, en banc).
175
LEGAL ETHICS
DISCIPLINE OF THE MEMBERS OF THE
SUPREME COURT
1.
2.
Impeachment
3.
It is a constitutional process of removing public
servants from office as an assurance against abusive
officials in the country (Impeachment Primer,
Official Gazette, 2012).
4.
5.
6.
Object of impeachment
7.
8.
The object of impeachment is solely to determine
whether the official is worthy of the trust conferred
upon him/her. It is not a determination of criminal
guilt or innocence as in criminal case (Ibid.).
9.
10.
11.
12.
13.
14.
The nature of impeachment proceedings against SC
justices is “sui generis” or “a class of its own”.
Grounds for impeachment
1.
2.
3.
4.
5.
15.
16.
Treason;
Bribery;
Other High Crimes;
Graft and Corruption; and
Betrayal of Public Trust (Sec. 2 Art. XI, 1987
Constitution)
Fast track procedure for impeachment
If an impeachment complaint or resolution is filed
by at least one-third (1/3) of all members of the
House, the Articles of Impeachment shall be sent to
Senate for trial.
Impeachable officers
1.
2.
3.
4.
5.
The President;
Vice-President;
Members of the Supreme Court;
Members of the Constitutional Commissions;
and
Ombudsman
Determination for conviction or acquittal
Senators are expected to vote according to their
conscience. The standard of proof required is NOT
“proof beyond reasonable doubt” because it is not a
criminal trial. Rather, it is a political process
(Impeachment Primer, Official Gazette, 2012).
All other public officers and employees may be
removed from office as provided by law, but not by
impeachment (Sec. 2 Art. XI, 1987 Constitution).
Votes needed for conviction
A vote of at least two-thirds (2/3) of all members of
the Senate for any one article of impeachment.
The Philippine Congress holds the sole power in
impeachment process.
1.
2.
NOTE: 16 votes are required to convict on any
article while 8 negative votes can prevent
conviction on any article.
House of Representatives - initiates all cases of
impeachment.
Senate – tries and decides on all the cases.
Effect of conviction
Who can file an impeachment complaint
1.
2.
Initiate impeachment through filing of a
verified complaint
Complaint is included in Order of Business
within 10 session days
Complaint is referred to the proper committee
within 3 session days
Committee conducts hearing
Committee votes
If YES, the matter will be referred to the Plenary
within 60 days.
Plenary votes – at least 1/3 vote is required
If at least 1/3 vote is attained, Resolution and
Articles of Impeachment are referred to Senate
House elects its prosecutors
Senate as plenary body adopts its rules on
impeachment
Senate convenes as impeachment court
Senate issues summons to respondent
Respondent appears and files answer
Senate receives testimonial and documentary
evidence
Senator-judges interpose questions
Submission for voting (To convict or to acquit)
Removal from office. The Senate can additionally
impose penalty of disqualification from holding any
office in the Philippine government.
Any member of the House of Representatives
Any citizen with an endorsement of any
member of the House of Representatives.
However, the party convicted shall nevertheless be
subject to prosecution, trial, and punishment
according to law. Criminal liability must be
Procedure of impeachment
176
DISCIPLINE OF MEMBERS OF THE JUDICIARY
established by criminal trial (Impeachment Primer,
Official Gazette, 2012).
ETHICAL LESSONS FROM THE FORMER CHIEF
JUSTICE CORONA’S IMPEACHMENT
Grounds for impeachment against former Chief
Justice Renato Corona
1.
Betrayal of public trust through:
a.
b.
c.
d.
e.
2.
c.
Track record marked by partiality and
subservience in cases involving the Arroyo
administration from the time of his
appointment as Supreme Court justice and
until his dubious appointment as a midnight
chief justice to the present (Article I).
Wanton arbitrariness and partiality in
consistently disregarding the principle of
res judicata in the cases involving the 16
newly-created cities, and the promotion of
Dinagat Island into a province (Article V).
Arrogating unto himself, and to a committee
he created, the authority and jurisdiction to
improperly investigate a justice of the
Supreme Court for the purpose of
exculpating him. Such authority and
jurisdiction is properly reposed by the
Constitution
in
the
House
of
Representatives via impeachment (Article
VI).
Partiality in granting a temporary
restraining order (TRO) in favor of former
president Gloria Macapagal-Arroyo and her
husband Jose Miguel Arroyo in order to give
them an opportunity to escape prosecution
and to frustrate the ends of justice, and in
distorting the Supreme Court decision on
the effectivity of the TRO in view of a clear
failure to comply with the conditions of the
Supreme Court own TRO (Article VII).
Commission of graft and corruption when
he failed and refused to account for the
judiciary development fund (JDF) and
special allowance for the judiciary (SAJ)
collections (Article VIII).
Reason for CJ Corona’s Impeachment
He was convicted under Article II of the Articles of
impeachment, which is the failure to disclose to the
public his statement of assets, liabilities, and net
worth as required under sec. 17, Art. XI of the 1987
Constitution, by a vote of 20-3.
NOTE: It is the "obligation" of an employee to
submit a sworn statement, as the "public has a right
to know" the employee's assets, liabilities, net
worth and financial and business interests. Hence, a
court interpreter who failed to include in her SALN
rental payments she received from a market stall
was dismissed from service (Rabe v. Flores, A.M. No.
P-97-1247, May 14, 1997). The Senator-judges ruled
that the law applies to all, including the Chief Justice
of the Philippines, thus, his failure to include his
dollar accounts in his SALN warrants his
impeachment from office.
--Q: Is the Law on Secrecy of Foreign Currency
Deposit Account (FCDA) a defense in failing to
include a dollar deposit in a SALN?
A: NO. The issue is not the conflict between the
FCDA requiring secrecy of foreign currency deposits
and the disclosure required by the SALN law, but the
Constitution which requires public officials to
declare their assets and does not distinguish
between peso and foreign accounts (Senator Judge
Pangilinan).
Culpable violation of the Constitution through:
a.
b.
and independence• in allowing the
Supreme court to act on mere letters filed
by a counsel which caused the issuance of
flip-flopping decisions in final and
executory cases; in creating an excessive
entanglement with Mrs. Arroyo through
her appointment of his wife to office; and
in discussing with litigants regarding cases
pending before the Supreme Court (Article
III).
Blatant disregard of the principle of
separation of powers by issuing a status
quo ante order against the House of
Representatives in the case concerning the
impeachment of then Ombudsman
Merceditas Navarro-Gutierrez (Article IV).
Failure to disclose to the public his
statement of assets, liabilities, and net
worth as required under Sec. 17, Art. XI of
the 1987 Constitution (Article II).
Failure to meet and observe the stringent
standards under Art. VIII, Section 7 (3) of
the Constitution that provides that [a]
member of the judiciary must be a person
of proven competence, integrity, probity,
The Supreme Court in one case said that the FCDA
cannot be used as a haven for the corrupt and the
criminals. To interpret it in the manner that the
Chief Justice would want … is to say that the law
could be used as a haven to hide proceeds of
criminal acts (Senator Judge Drilon).
177
LEGAL ETHICS
---
such information of public concern is denied.
Mandate of the Chief Justice to disclose his
statement of assets and liabilities
The right to information (Section 7, Article III of
Constitution) goes hand-in-hand with the
constitutional policies of full public disclosure and
honesty in the public service. It is meant to enhance
the widening role of the citizenry in governmental
decision-making as well as in checking abuse in
government (Valmonte v. Belmonte, Jr., 252 Phil. 264,
February 13 1989).
1.
2.
1987 Constitution - Section 17. A public officer
or employee shall, upon assumption of office
and as often thereafter as may be required by
law, submit a declaration under oath of his
assets, liabilities, and net worth. In the case of
the President, the Vice-President, the Members
of the Cabinet, the Congress, the Supreme Court,
the Constitutional Commissions and other
constitutional offices, and officers of the armed
forces with general or flag rank, the declaration
shall be disclosed to the public in the manner
provided by law.
R.A. 6713 - Section 8. Statements and
Disclosure. Public officials and employees have
an obligation to accomplish and submit
declarations under oath of, and the public has
the right to know, their assets, liabilities, net
worth and financial and business interests
including those of their spouses and of
unmarried children under eighteen (18) years
of age living in their households.
Established limitations to the right to
information, with its companion right of access
to official records
1.
2.
3.
4.
Statements of Assets and Liabilities and
Financial Disclosure. - All public officials and
employees, except those who serve in an
honorary capacity, laborers and casual or
temporary workers, shall file under oath their
Statement of Assets, Liabilities and Net Worth
and a Disclosure of Business Interests and
Financial Connections and those of their
spouses and unmarried children under
eighteen (18) years of age living in their
households.
National security matters and intelligence
information
Trade secrets and banking transactions
Criminal matters
Other confidential information such as
confidential or classified information officially
known to public officers and employees by
reason of their office and not made available to
the
public
as
well
as
diplomatic
correspondence, closed door cabinet meetings
and executive sessions of either house of
Congress, and the internal deliberations of the
Supreme Court.
Probity
It is the uncompromising adherence to the highest
principles and ideals or impeachable integrity
(Webster's 3rd New International Dictionary).
Importance of probity as a quality of a
magistrate
Canons 3 and 4 of the new Code of Judicial Conduct
mandate, respectively, that “judges shall ensure that
not only is their conduct above reproach, but that it
is perceived to be so in the view of the reasonable
observer” and that “judges shall avoid improprieties
and the appearance of impropriety in all of their
activities.” These very stringent standards of
decorum are demanded of all magistrates and
employees of the courts. As such, those who serve in
the judiciary, particularly justices and judges, must
not only know the law but must also possess the
highest degree of integrity and probity, and an
unquestionable moral uprightness both in their
public and private lives (Veloso v. Caminade, A.M.
No. RTJ- 01-1655, July 8, 2004).
The Statements of Assets, Liabilities and Net
Worth and the Disclosure of Business Interests
and Financial Connections shall be filed by:
x xx
(2) Senators and Congressmen, with the
Secretaries of the Senate and the House of
Representatives, respectively; Justices, with the
Clerk of Court of the Supreme Court; Judges,
with the Court Administrator; and all national
executive officials with the Office of the
President.
Basis for the public’s right to inquire upon the
statement of assets and liabilities of public
officers
Integrity
The postulate of public office is a public trust,
institutionalized in the Constitution to protect the
people from abuse of governmental power. This
would certainly be mere empty words if access to
It is a steadfast adherence to a strict moral or ethical
code. It is honesty and honorableness put into one.
178
DISCIPLINE OF MEMBERS OF THE JUDICIARY
Observance of integrity in the judiciary
L. Ongjoco, Chairman of the Board/CEO etc. against
Hon. Juan Q. Enriquez, Jr., et al. A.M. No. 11-184-CA-J.
January 31, 2012).
In the judiciary, moral integrity is more than a
cardinal virtue, it is a necessity. The exacting
standards of conduct demanded from judges are
designed to promote public confidence in the
integrity and impartiality of the judiciary. When the
judge himself becomes the transgressor of the law
which he is sworn to apply, he places his office in
disrepute, encourages disrespect for the law and
impairs public confidence in the integrity of the
judiciary itself (Lachica vs. Tormis, A.M. No. MTJ-051609, September 20, 2005).
Administrative complaint is NOT an appropriate
remedy where judicial recourse is still available
Judicial recourse such as a motion for
reconsideration, an appeal, a petition for certiorari,
or an administrative complaint is not appropriate,
unless the assailed order or decision is tainted with
fraud, malice, or dishonesty. As an established rule,
an administrative, civil or criminal action against a
judge cannot be a substitute for an appeal
(Fernandez et. al. v. Court of Appeals Assoc. Justices
Ramon M. Bato, Jr., Isaias P. Dicdican, A.M. OCA IPI
No. 12-201-CA-J. February 19, 2013).
Importance of maintaining the confidence of the
people upon the judiciary
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 the people who run the system have
administered justice. In order to create such
confidence, the people who run the judiciary,
particularly judges and justices, must not only be
proficient in both the substantive and procedural
aspects of the law, but more importantly, they must
possess the highest integrity, probity, and
unquestionable moral uprightness, both in their
public and in their private lives. Only then can the
people be reassured that the wheels of justice in this
country run with fairness and equity, thus creating
confidence in the judicial system (Tan v. Pacuribot,
A.M. No. RTJ-06-1982, December 14, 2007).
Institution of proceedings for the discipline of
judges
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.
Motu proprio by the Supreme Court;
Upon a verified complaint filed before the
Supreme Court supported by:
a. Affidavit of persons who have personal
knowledge of the facts alleged therein; or
b. Documents which may substantiate said
allegations.
DISCIPLINE OF LOWER COURT JUDGES AND
JUSTICES OF THE COURT OF APPEALS AND
SANDIGANBAYAN
3.
Anonymous complaint supported by public
records of indubitable integrity filed with the
Supreme Court.
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).
Form and content of the complaint
Administrative sanction and criminal liability
should be imposed only when the error is so gross,
deliberate and malicious, or is committed with
1.
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.
GROUNDS
Grounds for discipline of judges
evident bad faith, or only in clear cases of violations
by him of the standards and norms of propriety and
good behavior prescribed by law and the rules of
procedure, or fixed and defined by pertinent
jurisprudence (Re: Verified complaint of Engr. Oscar
Serious Misconduct – implies malice or
wrongful intent, not mere error of judgment.
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.
179
LEGAL ETHICS
A judge was found guilty of gross misconduct for
failure to heed the Court’s pronouncements. He
did not file the required comment to the Court’s
show-cause
resolutions
despite
several
opportunities granted him. His willful
disobedience and disregard to the show-cause
resolutions constitutes grave and serious
misconduct affecting his fitness and worthiness of
the honor and integrity attached to his office. It is
noteworthy that the judge was afforded several
opportunities to explain his failure to decide the
subject cases long pending before his court and to
comply with the directives of this Court, but he
has failed, and continuously refuses to heed the
same. This continued refusal to abide by lawful
directives issued by this Court is glaring proof
that he has become disinterested to remain with
the judicial system to which he purports to
belong (Office of the Court Administrator v. Judge
Go, et al. A.M. No. MTJ-07-1667, April 10, 2012).
2.
Possession. In fact, the title over the subject
property had already been consolidated in PNB’s
name. Thus, it was ministerial upon Judge Venadas,
Sr. to issue the Writ of Possession in favor of PNB,
the registered owner of the subject property.
Though there are instances when the issuance of the
Writ of Possession may be deferred, we find none of
these recognized exceptions present in the instant
case. Spouses Sombilon claim that the sale between
PNB and Atty. Garay was invalid as it was done in
violation of paragraph 5, Article 1491 of the Civil
Code. However, the alleged invalidity of the sale is
not a ground to oppose or defer the issuance of the
Writ of Possession as this does not affect PNB’s right
to possess the subject property. Thus, there was no
reason for Judge Venadas, Sr. to hold in abeyance
the implementation of the Writ of Possession.
Clearly, he committed grave abuse of discretion in
issuing the assailed Order holding in abeyance the
implementation of the Writ of Possession because
PNB, as the registered owner, is entitled to the
possession of the subject property as a matter of
right (Sps Sombilon v. Garay and Philippine National
Bank, G.R. No. 179914, June 16, 2014).
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?
--Q: Spouses Sombilon were the owners of a
property located in South Poblacion, Maramag,
Bukidnon which they mortgaged to the PNB. It
was later foreclosed and sold at a public auction
when they spouses were unable to pay their
loan, with PNB as the highest bidder. 1 year
lapsed without the spouses redeeming the
subject property.
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, February 2, 2004).
The spouses sought the help of Atty. Garay to
redeem the property but subsequently, they
learned that Atty. Garay went to PNB to
purchase the property for himself. A Final Deed
of Conveyance and a Transfer Certificate Title
were issued in favor of PNB and PNB decided to
approve the purchase of Atty. Garay. PNB,
thereafter, filed an Ex-Parte Petition for
Issuance of a Writ of Possession before the RTC.
Judge Venadas, Sr., who was the presiding judge
in the case, granted the petition but when the
spouses moved for a reconsideration, he issued
an
order
holding
in
abeyance
the
implementation of the writ. Should Judge
Venadas, Sr. be held guilty of grave abuse of
discretion and gross ignorance of the law?
--Q: Judge Abul failed to cause the raffle of an
injunction case and failed to follow the
procedural requirements in issuing a TRO and a
writ of preliminary injunction as he issued them
without prior notice to the defendant and
A: YES. The redemption period had long lapsed
when PNB applied for the issuance of the Writ of
180
DISCIPLINE OF MEMBERS OF THE JUDICIARY
without a hearing. Is he liable for gross
ignorance of the law?
Q: A disciplinary action was filed against Judge
Abul for assuming jurisdiction over a civil case
without the mandated raffle and notification
and service of summons to the adverse party
and issuing TRO; setting the case for summary
hearing beyond the 72-hour required by the law
in order to determine whether the TRO could be
extended; and issuing a writ of preliminary
injunction without prior notice to the
complainants and without hearing. Judge Abul
argued that he was not physically present in the
RTC, Branch 43, Gingoog City, from the required
date of issuance of TRO and that he was
conducting hearings in his permanent station,
RTC, Branch 4, Butuan City. He further argued
that the issuance of the TRO was simply not
possible because the law office of the plaintiff’s
counsel was 144 kilometers away from Gingoog
City and under that situation, the service of the
notice could only be made on the following day.
Should Judge Abul be liable for gross ignorance
of the law?
A: YES. Though not every judicial error bespeaks
ignorance of the law or of the rules, and that, when
committed in good faith, does not warrant
administrative sanction, the rule applies only in
cases within the parameters of tolerable
misjudgment. When the law or the rule is so
elementary, not to be aware of it or to act as if one
does not know it constitutes gross ignorance of the
law. A judge is expected to keep abreast of the
developments and amendments thereto, as well as
of prevailing jurisprudence. Ignorance of the law by
a judge can easily be the mainspring of injustice. In
the absence of fraud, dishonesty or corruption, the
acts of a judge in his judicial capacity are not subject
to disciplinary action. However, the assailed judicial
acts must not be in gross violation of clearly
established law or procedure, which every judge
must be familiar with (Sps. Lago v. Judge Abul, Jr.,
A.M. No. RTJ-10-2255, January 17, 2011).
---
A: NO. To constitute gross ignorance of the law, it is
not enough that the subject decision, order or
actuation of the respondent judge in the
performance of his official duties is contrary to
existing law and jurisprudence but, most
importantly, he must be moved by bad faith, fraud,
dishonesty or corruption. Complainants failed to
adduce proof to show that respondent judge was
motivated by bad faith, ill will or malicious motive
when he granted the TRO and preliminary
injunction. In addition, respondent judge should not
be penalized for failing to conduct the required
summary hearing within 72 hours from the
issuance of the original TRO. Though the Rules
require the presiding judge to conduct a summary
hearing before the expiration of the 72 hours, it
could not be complied with because of the
remoteness and inaccessibility of the trial court
from the parties’ addresses (Sps. Democrito and
Olivia Lago v. Judge Abul, Jr., A.M. No. RTJ-102255, February 8, 2012).
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
Justice
AlinoHormachuelos, before whom the motions were
filed, subsequently denied all of them.
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, 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 Alino- Hormachuelos et. al., A.M. No.
CA-04-38, March 31, 2004).
--Disciplinary and criminal actions NOT a
substitute for judicial remedies
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
---
181
LEGAL ETHICS
tribunals have 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,
February 11, 2005).
NOTE: Administrative penalties imposed on judges
are both punitive and corrective (2011 Bar).
Serious charges
For serious misconduct to exist, the judicial act
complained of should be corrupt or inspired by an
intention to violate the law or a persistent disregard
of well-known legal rules
--Q: Santiago’s Petition for Reconstitution of
Lost/Destroyed Original Certificate of Title was
granted by the Quezon City RTC. Upon appeal to
the CA, the decision was reversed by the special
division
where
Justice
Enriquez
was
Chairperson. His MR having been denied,
complainant filed a complaint before the SC.
Pending the decision of the SC, an administrative
charge of Gross Ignorance of the law/Gross
Incompetence was filed against Associate
Justice Enriquez. Is the filing of the
administrative complaint against him proper?
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
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.
NOTE: While reference to a debt necessarily implies
a transaction that is private and outside of official
transactions, the rules do not thereby intrude into
public officials’ private lives; they simply look at
their actions from the prism of public service and
consider these acts unbecoming of a public official
(Grio Lending Services v. Sermonia, A.M. No. P-031757, December 10, 2003).
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).
Less serious charges
1.
2.
3.
4.
5.
6.
7.
Light charges
Classifications of administrative charges
1.
2.
3.
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
1.
2.
3.
Serious
Less serious
Light
4.
182
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
DISCIPLINE OF MEMBERS OF THE JUDICIARY
Confidentiality of proceedings
administrative charges against him (Re: 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, April 22,
2008).
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).
Resignation
or
administrative case
retirement
Quantum of evidence required
pending
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.
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).
--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, in what circumstances? What is the
rationale behind this power of the Supreme
Court? (1996 Bar)
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
officially 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).
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, A.M. No. 3086, May 3, 1989).
--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?
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
merely dispenses with the procedure laid down in
Rule 140, RRC (Rule 140: Discipline of Judges of
Regular and Special Courts and Justices of the Court
of Appeals and the Sandiganbayan).
A: YES. Upon the demise of a judge, any
administrative complaint filed by the OCA against
him or her has 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”.
--Q: In Administrative Circular No. 1 addressed to
all lower courts dated January 28, 1988, the
Supreme Court stressed that 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.
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
183
LEGAL ETHICS
Romillo, G.R. No. 64276, 12 August 1986). 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.
Grievance procedure in the Rules of Court is not
applicable to justices and judges
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 of
the 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. VII,
1987 Constitution).
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.
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.
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, and 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).
Rules on the liability of judges
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.
2. Second view- According to the Supreme Court the
lawyer or a judge can be suspended or dismissed
based on his activities or decision, as long as he has
been given an opportunity to explain his side. No
investigation is necessary.
NOTE: The reason behind such rule is to free the
judge from apprehension of personal consequences
to himself and to preserve the integrity and
independence of the judiciary.
--Suspension pendente lite not applicable to
judges
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.
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 not a penalty, the
rules on preventive suspension of judges, not having
been expressly included in the Rules of Court, are
amorphous at best.
Promotion as Judge does not exculpate liability
Promotion as a judge during the pendency of
administrative case committed while still a Clerk of
Court cannot be considered either as a mitigating or
an exculpatory circumstance to excuse him from
any administrative liability. A judge is still bound by
the same principle enshrined in Section 1, Article XI
of the Constitution, which states that a public office
is a public trust, and all public officers and
employees must at all times be accountable to the
people, serve them with utmost responsibility,
integrity, loyalty, and efficiency, act with patriotism
and justice, and lead modest lives (OCA v. Atty. Mario
Melchor, Jr., A.M. No. P-06-2227, August 19, 2014).
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. 069-545-RTC, January 31, 2008).
184
DISCIPLINE OF MEMBERS OF THE JUDICIARY
Civil liabilities under the New Civil Code
1.
2.
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).
Article 27 – refusal or neglect without just
cause by a public servant to perform his official
duty
Article 32 – directly or indirectly obstructing,
defeating, violating or in any manner impeding
or impairing civil liberties guaranteed by the
Constitution
2.
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.
NOTE: Negligence and ignorance are
inexcusable if they imply a manifest injustice,
which cannot be explained by reasonable
interpretation (In Re: Climaco, A.C. No. 134-J,
January 21, 1974).
Disabilities/restrictions under the New Civil
Code
1.
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.
Article 206– Knowingly rendering an unjust
interlocutory order; and
4.
Maliciously delaying the administration of
justice.
IMPEACHMENT
ETHICAL ASPECTS
Constitutional provisions on the accountability
of public officers
Public officers and employees must at all times be
accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency, act
with patriotism and justice, and lead modest lives
(Sec. 1, Article XI, 1987 Constitution).
Article 739 – Donations made to a judge, his
wife, descendants and ascendants by reason of
his office are void.
Nature of public office
A public office is a public trust. It is not to be
understood as a position of honor, prestige and
power but a position of rendering service to the
public.
Criminal Liabilities under the RPC and the AntiGraft and Corrupt Practices Act
1.
3.
NOTE: The act must be committed maliciously
or with deliberate intent to prejudice a party in
a case.
This prohibition includes the act of acquiring by
assignment and shall apply to lawyers with
respect to the property and rights that may be
the objects of any litigation in which they may
take part by virtue of their profession (1996
Bar).
2.
Article 205 – Judgment rendered through
negligence – committed by reason of
inexcusable negligence or ignorance.
Article 204 - Knowingly rendering unjust
judgment.
a. 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.
Principle of accountability
It sets down the mandate that all government
officials and employees, whether they be the highest
in the land or the lowliest public servants, shall at all
times be answerable for their misconduct to the
people from whom the government derives its
powers.
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).
Purpose of impeachment in relation to the
accountability of public officers
Its purpose is to protect the people from official
delinquencies or malfeasances. It is therefore
185
LEGAL ETHICS
primarily intended for the protection of the State,
not for the punishment of the offender.
Propriety of reinstatement
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.
Importance of maintaining public trust in public
offices
It is essential that responsible and competent public
officers be chosen for public office to maintain the
faith and confidence of the people to the
government, otherwise it becomes ineffective. No
popular government can survive without the
confidence of the people. It is the lone guarantee and
justification of its existence.
Factors to be considered in reinstatement
1.
2.
3.
SANCTIONS IMPOSED BY THE SUPREME COURT
ON ERRING MEMBERS OF THE JUDICIARY
4.
Sanctions for a judge found guilty of a SERIOUS
charge
Any of the following sanctions may be imposed:
1.
2.
3.
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
government-owned or controlled corporations.
Provided, however, that the forfeiture of
benefits shall in no case include accrued leave
credits;
Suspension from office without salary and
other benefits for more than three (3) but not
exceeding six (6) months; or
A fine of more than P20,000.00 but not
exceeding P40,000.00.
Sanctions for a judge found guilty of a LESS
serious charge
1.
2.
Suspension from office without salary and
other benefits for not less than one (1) nor more
than three (3) months; or
A fine of more than P10,000.00 but not
exceeding P20,000.00.
Sanctions for a judge found guilty of a LIGHT
charge
Any of the following sanctions shall be imposed:
1.
A fine of not less than P1,000.00 but not
exceeding P10,000.00; and/or
2. Censure;
3. Reprimand; or
4. Admonition with warning
REINSTATEMENT OF A JUDGE PREVIOUSLY
DISCIPLINED
186
Unsullied name and service of record prior to
dismissal
Commitment to avoid situations that spur
suspicion of arbitrary conditions
Complainant mellowed down in pushing from
his removal
Length of time separated from service.
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)
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:
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.
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
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 justice of the Court of Appeals,
if the respondent is a judge of a Regional
Trial Court or of a special court of
equivalent rank
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, August 5, 2009).
187
LEGAL ETHICS
DISQUALIFICATION OF JUSTICES AND JUDGES
(RULE 137)
A judge may not be legally prohibited from sitting in
a litigation, but when circumstances appear that will
induce doubt as to his honest actuations and probity
in favor of either party, or incite such state of mind,
he should conduct a careful examination. He should
exercise his discretion in a way that people’s faith in
the Courts of Justice is not impaired. The better
course for the judge under such circumstances is to
disqualify himself (Borromeo Herrera v. Borromeo,
G.R. No. L-41171, July 23, 1987).
COMPULSORY
Disqualification of justices and judges
GR: Section 1 of Rule 137 provides that a judge is
mandated by law to be disqualified under any of the
following instances:
1.
The judge, or his wife, or child is pecuniarily
interested as heir, legatee, or creditor
The judge is related to either party of the case
within the sixth degree of consanguinity or
affinity, or to the counsel within the fourth
degree (computed according to the rule of civil
law)
The judge has been an executor, administrator,
guardian, trustee or counsel
The judge has presided in any inferior court
when his ruling or decision is the subject of
review
Neither is the mere filing of an administrative case
against a judge a ground for disqualifying him from
hearing the case, ‘for if on every occasion the party
apparently aggrieved would be allowed to either
stop the proceedings in order to await the final
decision on the desired disqualification, or demand
the immediate inhibition of the judge on the basis
alone of his being so charged, many cases would
have to be kept pending or perhaps there would not
be enough judges to handle all the cases pending in
all the court (Wenceslao Cruz Jr. v. Judge Joven, A.M.
No. MTJ-00-1270, January 23, 2001).
XPN: The same rule also provides that the judge
may hear and decide the case despite the presence
of a disqualification provided the interested parties
both give their written consent, signed by them and
entered upon the record. It has been decided by the
Supreme Court that oral consent is not valid, even
though both parties have agreed (Lazo v. Judge
Tiong, A.M. No. MTJ-98-1173, December 15, 1998).
Intimacy or friendship between a judge and an
attorney of record of one of the parties to a suit
2.
3.
4.
It is NOT a ground for disqualification. That one of
the counsels in a case was a classmate of the trial
judge is not a legal ground for the disqualification of
the said judge. To allow it would unnecessarily
burden other trial judges to whom the case would
be transferred. But if the relationship between the
judge and an attorney for a party is such that there
would be a natural inclination to prejudice the case,
the judge should be disqualified in order to guaranty
a fair trial (Query of Executive Judge Estrada, 1987).
VOLUNTARY
Voluntary Inhibition according to the Rules of
Court states that a judge through the exercise of
sound discretion, disqualify himself from sitting in a
case, for just or valid reasons other than those
mentioned above.
It is well-established that inhibition is not allowed
at every instance that a schoolmate or classmate
appears before the judge as counsel for one of the
parties. A judge, too, is not expected to automatically
inhibit himself from acting in a case involving a
member of his fraternity (Jimenez, Jr. v. People, G.R.
No. 209195, September 17, 2014).
NOTE: A presiding judge must maintain and
preserve the trust and faith of the parties-litigants.
He must hold himself above reproach and suspicion.
At the very sign of lack of faith and trust in his
actions, whether well-grounded or not, the judge
has no other alternative but to inhibit himself from
the case (Gutang v. Court of Appeals, G.R. No. 124760
July 8, 1998).
Rationale
The intendment of Rule 137 is incontestably that a
judge, sitting in a case, must at all times be wholly
free, disinterested, impartial and independent.
The self-examination of the judge is necessary. He
should exercise his discretion in a way that people’s
faith in the courts of justice will not be impaired. His
decision, as to whether to hear the case or not
should be based and dependent on giving
importance to the public confidence in the
impartiality of a judge.
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 its fairness and
as to his integrity. The law conclusively presumes
that a judge cannot objectively or impartially sit in
such a case and, for that reason, prohibits him and
188
DISCIPLINE OF MEMBERS OF THE JUDICIARY
strikes at his authority to hear and decide it (Garcia
v. de la Pena, A.M. No. MTJ-92-687, February 9, 1994).
Judicial Conduct specifically warned the judges
against seeking publicity for personal vainglory.
Vainglory, in its ordinary meaning, refers to an
individual’s excessive or ostentatious pride
especially in one’s own achievements. Even when no
longer explicitly stated in the New Code of Judicial
Conduct, judges are still proscribed from engaging
in self-promotion and indulging their vanity and
pride by Canons 1 (on Integrity) and 2 (on
Propriety) of the New Code (Gerlie M. Uy and Ma.
Consolacion T. Bascug v. Judge Erwin B. Javellana,
A.M. No. MTJ-07- 1666, September 5, 2012).
--Q: An information was filed charging Manuel
Jimenez and several others of the crime of
murder. One of the alleged co-conspirators,
Montero, filed a Mation for his discharge as a
state witness for the prosecution. Judge Docena
acted upon the said motion and ruled that
Montero is qualified to be a state witness.
Jimenez then filed a motion for inhibition,
praying that Judge Docena inihibit himself from
further acting upon the case on the ground of
bias, Jimenez being the judge’s fraternity
brother and State Prosecutor Villanueva was his
classmate. Should Judge Docena inhibit himself
from hearing the case?
Courts always open; justice to be promptly and
impartially administered.
GR: Courts of justice shall always be open for:
1.
2.
3.
4.
A: NO. The second paragraph of Section 1 of Rule
137 does not give judges the unlimited discretion to
decide whether or not to desist from hearing a case.
The inhibition must be for just and valid causes. The
mere imputation of bias or partiality is likewise not
enough ground for their inhibition, especially when
the charge is without basis. It is well-established
that inhibition is not allowed at every instance that
a schoolmate or classmate appears before the judge
as counsel for one of the parties. In attributing bias
and prejudice to Judge Docena, Jimenez must prove
that the judge acted or conducted himself in a
manner clearly indicative of arbitrariness or
prejudice so as to defeat the attributes of the cold
neutrality that an impartial judge must possess.
Unjustified assumptions and mere misgivings that
the judge acted with prejudice, passion, pride and
pettiness in the performance of his functions cannot
overcome the presumption that a judge shall decide
on the merits of a case with an unclouded vision of
its facts (Jimenez, Jr. v. People, G.R. No. 209195,
September 17, 2014).
filing of any pleading, motion or other papers;
the trial of cases;
hearing of motions; and
the issuance of orders or rendition of judgments
XPN: Legal holidays
NOTE: Upon the request of the local government
unit concerned, the Executive Judges of the MeTCs
or the MTCCs of the cities and municipalities
comprising Metro Manila and of the cities of Baguio,
Bacolod, Cagayan de Oro, Cebu, Davao and Iloilo
may assign all judges to hold night court sessions
daily from Monday to Friday and on official holidays
and special days, from four-thirty o’clock in the
afternoon to eleven o’clock in the evening, on
rotation basis, and in pairs of two (Sec. 15, A.M. No.
03-8-02-SC).
Exclusion of the public from the proceedings
GR: The sitting of every court of justice shall be
public
XPN: But any court may, in its discretion, exclude
the public when the evidence to be adduced is of
such nature as to require their exclusion in the
interest of morality or decency.
POWERS AND DUTIES OF COURTS AND
JUDICIAL OFFICERS (RULE 135)
Nature of the office of the Judge
Records of a court of justice are NOT always
public
Justices and judges must ever realize that they have
no constituency, serve no majority or minority but
serve only the public interest as they see it in
accordance with their oath of office, guided only by
the Constitution and their own conscience and
honor (Galman v. Sandiganbayan, G.R. No. 72670,
September 12, 1986).
GR: The records of every court of justice shall be
considered public records and shall be available for
the inspection of any interested person, at all proper
business hours, under the supervision of the clerk
having custody of such records.
A judge must not be moved by a desire to cater to
public opinion to the detriment of the
administration of justice. The previous Code of
XPN: Unless the court shall, in any special case, have
forbidden their publicity, in the interest of morality
or decency.
189
LEGAL ETHICS
Instances in which Superior Court processes are
enforceable in any part of the Philippines
1.
2.
3.
b.
A case is pending to bring in a defendant
For the arrest of an accused person
Execution of any order or judgment of the court
c.
Enforceability of the processes in inferior courts
d.
GR: Within the province where the municipality or
city lies.
e.
XPN: Outside its boundaries, provided the
enforcement is made with the approval of judge of
first instance of said province.
f.
Cases where the judge of the first instance of a
particular province can approve the service of
process of inferior courts outside the
boundaries of province in which they are
comprised
1.
2.
3.
4.
g.
h.
When an order for the delivery of personal
property lying outside the province is to be
complied with;
When an attachment of real or personal
property lying outside the province is to be
made;
When the action is against two or more
defendants residing in different provinces; and
When the place where the case has been
brought is that specified in a contract in writing
between the parties, or is the place of the
execution of such contract as appears
therefrom
To enforce order in proceedings before it, or
before a person or persons empowered to
conduct a judicial investigation under its
authority;
To compel obedience to its judgments, orders
and processes, and to the lawful orders of a
judge out of court, in a case pending therein;
To control, in furtherance of justice, the conduct
of its ministerial officers, and of all other
persons in any manner connected with a case
before it, in every manner appertaining thereto;
To compel the attendance of persons to testify
in a case pending therein;
To administer or cause to be administered
oaths in a case pending therein, and in all other
cases where it may be necessary in the exercise
of its powers;
To amend and control its process and orders so
as to make them comfortable to law and justice;
To authorize a copy of a lost or destroyed
pleading or other paper to be filed and used
instead of the original, and to restore, and
supply deficiencies in its records and
proceedings.
Carrying jurisdiction into effect
When by law jurisdiction is conferred on a court or
judicial officer, all auxiliary writs, processes and
other means necessary to carry it into effect may
be employed by such court or officer.
Procedure to be followed in the exercise of such
jurisdiction not specifically pointed out by law
or rules
Criminal processes served outside judge’s
jurisdiction is allowed
Any suitable process or mode of proceeding may be
adopted which appears conformable to the spirit of
said law or rules.
When the district judge, or in his absence the
provincial fiscal, shall certify that in his opinion the
interests of justice require such service.
Trials upon merits, where conducted
Writs of execution by inferior courts
All trials upon the merits shall be conducted in open
court and so far as convenient in a regular court
room.
Writs of execution issued by inferior courts may be
enforced in any part of the Philippines without any
previous approval of the judge of first instance.
Orders in chambers
All other acts or proceedings, excluding trial upon
the merits, may be done or conducted by a judge in
chambers, without the attendance of the clerk or
other court officials.
Inherent powers of the courts
Section 5, Rule 135 of Rules of Court provides:
Inherent powers of courts-- Every court shall have
power:
a.
Instances where the hearings may be had at any
place in the judicial district which the judge shall
deem convenient
To preserve and enforce order in its immediate
presence;
1.
190
On the filing of a petition for the writ of habeas
corpus
DISCIPLINE OF MEMBERS OF THE JUDICIARY
2.
For release upon bail or reduction of bail in any
Court of First Instance (Section 8, Rule 135 of
Rules of Court).
speedily and with dispatch on their assigned tasks
to avoid the clogging of the court’s docket, and
thereby assist in the sound and speedy
administration of justice. Clerks of court must be
assiduous in performing their official duties and in
supervising and managing court dockets and record
(Office of the Court Administrator v. Sheriff IV Julius
Cabe, A.M. No. P-96-1185, June 26, 2000).
Signing judgments outside of province
When a judge who is appointed or assigned in any
province or branch of a Court of First Instance in a
province shall leave the province by transfer or
assignment to another court of equal jurisdiction or
by expiration of his temporary assignment without
having decided a case totally heard by him and
which was argued or an opportunity given for
argument to the parties or their counsel, it shall be
lawful for him to prepare and sign his decision in the
said case anywhere in the Philippines.
Time and again, the Court has emphasized the heavy
burden and responsibility which court personnel
are saddled with in view of their exalted positions as
keepers of public faith. They must be constantly
reminded that any impression of impropriety,
misdeed or negligence in the performance of official
functions must be avoided. In the case of Mendoza v.
Mabutas, the Court held that it condemns and would
never countenance any conduct, act or omission on
the part of all those involved in the administration
of justice which would violate the norm of public
accountability and diminish or even just tend to
diminish the faith of the people in the Judiciary
(Ibid.).
Instances when Supreme Court can authorize
the judge to continue hearing and to decide said
case
notwithstanding
his
transfer
or
appointment to another court of equal
jurisdiction
1.
2.
3.
Upon petition of any of the parties to the case
and the recommendation of the respective
district judge;
If a case has been heard only in part; and
If no other judge had heard the case in part.
--Q: A complaint that was initiated by the Court
Administrator was filed against Branch Clerk of
Court Rogelio M. Linatoc for grave misconduct. It
was based on a sworn letter-complaint involving
the acts of "Sheriff" Tria in the implementation
of a writ of execution in a civil case for support
which was assigned under Judge Veneracion.
Atty. Linatoc followed the orders of Judge
Veneracion regarding Mr. Rogelio A. Tria’s
assignment as "Deputy Sheriff" of the Regional
Trial Court, Branch 47, Manila without the
authority of the Supreme Court. It is alleged that
Sheriff Tria was not an employee of the judiciary
at the time that he acted as "sheriff" in Civil Case
No. 97-84356. Is he liable for misconduct?
COURT RECORDS AND GENERAL DUTIES OF
CLERKS AND STENOGRAPHERS
(RULE 136)
Style of process
Processes shall be under the seal of the court from
which it issues, styled under Republic of the
Philippines, Province or City of, signed by the clerk
and shall bear the date on which it was actually
issued.
Clerk’s office
A: YES, he is guilty of misconduct in having allowed
the assignment of a non-judicial employee to the
staff of the Regional Trial Court, Branch 47, Manila.
As branch clerk of court, Atty. Linatoc has
administrative supervision over all other employees
of the court and ought to know that a non-judicial
person has no place in the judicial service. His
admission that he did not find any reason to report
to the Supreme Court the presence of "Sheriff"
Rogelio A. Tria in Branch 47 since the orders for his
assignment came from Judge Veneracion showed
gross ignorance of his role as branch clerk of court.
He has the obligation to report to the Supreme Court
anyone in his staff without proper appointment
from the Supreme Court. As branch clerk of court,
Atty. Linatoc has control of the employment records
of the court’s staff (Office of the Court Administrator
The clerk’s office, with the clerk or his deputy in
attendance, shall be open during business hours on
all days except on Sundays and legal holidays. The
clerk of the Supreme Court and that of the Court of
Appeals shall keep office at Manila and all papers
authorized or required to be filed therein shall be
filed at Manila.
Duty of a clerk of court
The Branch Clerk of Court, being the administrative
assistant of the Presiding Judge, has the duty of
assisting in the management of the calendar of the
court and in other matters not involving the exercise
of judicial discretion or judgment of the judge. He
should be a model for his co-employees to act
191
LEGAL ETHICS
v. Judge Veneracion and Branch Clerk of Court
Linatoc, A.M. No. RTJ-99-1432, June 21, 2000).
each paper filed or issued, of each order or judgment
entered, and of each other step taken in the case so
that by reference to a single page the history of the
case may be seen.
--Issuance by clerk of process
---
The clerk of a superior court shall issue under the
seal of the court all ordinary writs and process
incident to pending cases, the issuance of which
does not involve the exercise of functions
appertaining to the court or judge only; and may,
under the direction of the court or judge, make out
and sign letters of administration, appointments of
guardians, trustees, and receivers, and all writs and
process issuing from the court.
Q: Judge Tormis was accused of mismanagement
of the court and case records. The report
revealed that Branch 4 failed to maintain a
docket book or any similar system of recordkeeping and monitoring and to keep a General
Docket Book pursuant to Section 8, Rule 136 of
the Rules of Court. Judge Tormis claimed that
she faithfully conducted semestral physical
inventories of case records except during the
period which comprised her three suspensions
as she was then denied access to her courtroom
and case records. On the other hand, the Clerk of
Court, Mr. Teves, explained that the alleged
error in his reports can be attributed to the
discrepancy in procedure or appreciation in the
preparation of the reports. He claimed that their
court indeed did not maintain a general docket
book, because they have not been provided by
the Court with the needed supplies. Is Judge
Tormis guilty of violation of Supreme Court
rules, directives, and circulars?
Duties of the clerk in the absence or by direction
of the judge
In the absence of the judge, the clerk may perform
all the duties of the judge in receiving applications,
petitions, inventories, reports, and the issuance of
all orders and notices that follow as a matter of
course under these rules, and may also, when
directed so to do by the judge, receive the accounts
of executors, administrators, guardians, trustees,
and receivers, and all evidence relating to them, or
to the settlement of the estates of deceased persons,
or to guardianships, trusteeships, or receiverships,
and forthwith transmit such reports, accounts, and
evidence to the judge, together with his findings in
relation to the same, if the judge shall direct him to
make findings and include the same in his report.
A: YES, for her failure to comply with her duty of
providing an efficient court management system in
her court which includes the preparation and use of
docket inventory and monthly report of cases as
tools. Although the duty is vested with Mr. Teves, it
is the duty of Judge Tormis to make sure that the
members of her staff perform their duties. This
failure contributed to their inability to keep track of
the number of cases assigned as well as to account
for all the cases and records assigned to the court.
The OCA likewise found that Mr. Teves repeatedly
submitted inaccurate reports as to the actual
number of cases pending with their court. This is
brought about by their failure to adopt an efficient
system of monitoring their cases. Again, this is the
primary responsibility of Judge Tormis. Finally, the
OCA noted that Judge Tormis failed to conduct an
actual physical inventory of cases to keep abreast of
the status of the pending cases and to be informed
that every case is in proper order. If the same was
conducted, she would have discovered that Mr.
Teves had been committing a mistake in the
inventory of cases. Likewise, Mr. Teves is liable for
simple neglect of duty (Office of the Court
Administrator v. Hon. Rosabella M. Tormis, A.M. No.
MTJ-12-1817, March 12, 2013).
Clerk shall receive papers and prepare minutes
The clerk of each superior court shall receive and
file all pleadings and other papers properly
presented, endorsing on each such paper the time
when it was filed, and shall attend all of the sessions
of the court and enter its proceedings for each day
in a minute book to be kept by him.
Safekeeping of property
The clerk shall safely keep all records, papers, files,
exhibits and public property committed to his
charge, including the library of the court, and the
seals and furniture belonging to his office.
General Docket
The clerk shall keep a general docket, each page of
which shall be numbered and prepared for receiving
all the entries in a single case, and shall enter therein
all cases, numbered consecutively in the order in
which they were received, and, under the heading of
each case and a complete title thereof, the date of
Judgment and entries book
192
DISCIPLINE OF MEMBERS OF THE JUDICIARY
The clerk shall keep a judgment book containing a
copy of each judgment rendered by the court in
order of its date, and a book of entries of judgments
containing at length in chronological order entries
of all final judgments or orders of the court.
d.
Execution book
g.
h.
e.
f.
The clerk shall keep an execution book in which he
or his deputy shall record at length in chronological
each execution, and the officer’s return thereon, by
virtue of which real property has been sold.
i.
j.
k.
Certified copies
The clerk shall prepare, for any person demanding
the same, a copy certified under the seal of the court
of any paper, record, order, judgment, or entry in his
office, proper to be certified, for the fees prescribed
by these rules.
A municipal (or city) judge may keep two dockets,
one for civil and one for criminal cases. He shall also
keep all the pleadings and other papers and exhibits
in cases pending in his court, and shall certify copies
of his docket entries and other records proper to be
certified, for the fees prescribed by these rules. It
shall not be necessary for the municipal (or city)
judge to reduce to writing the testimony of
witnesses, except that of the accused in preliminary
investigations.
Index
The general docket, judgment book, entries book
and execution book shall be indexed in alphabetical
order in the names of the parties, and each of them.
If the court so directs, the clerk shall keep two or
more of either or all of the books and dockets abovementioned, separating civil from criminal cases, or
actions from special proceedings, or otherwise
keeping cases separated by classes as the court shall
deem best.
An orderly and efficient case management system is
no doubt essential in the expeditious disposition of
judicial caseloads, because only thereby can the
judges, branch clerks of courts, and the clerks-incharge of the civil and criminal dockets ensure that
the court records, which will be the bases for
rendering the judgments and dispositions, and the
review of the judgments and dispositions on appeal,
if any, are intact, complete, updated, and current.
Such a system necessarily includes the regular and
continuing physical inventory of cases to enable the
judge to keep abreast of the status of the pending
cases and to be informed that everything in the
court is in proper order. In contrast, mismanaged or
incomplete records, and the lack of periodic
inventory definitely cause unwanted delays in
litigations and inflict unnecessary expenses on the
parties and the State (In Re: Report on the Judicial
Audit Conducted in the Regional Trial Court, Br. 45,
Urdaneta City, Pangasinan, A.M. No. 08-4-253-RTC,
January 12, 2011).
Taking of record from the clerk’s office
GR: No record shall be taken from the clerk’s office
without an order of the court except as otherwise
provided by these rules.
XPN: The Solicitor General or any of his assistants,
the provincial fiscal or his deputy, and the attorneys
de officio shall be permitted, upon proper receipt, to
withdraw from the clerk’s office the record of any
cases in which they are interested.
Docket and other records of inferior courts
Every municipal and city judge shall keep a wellbound book labeled docket, in which he shall enter
for each case:
a.
b.
c.
The date of the appearance or default of the
defendant;
The date of presenting the plea, answer, or
motion to quash, and the nature of the same;
The minutes of the trial, including the date
thereof and of all adjournments;
The names and addresses of all witnesses;
The date and nature of the judgment, and, in a
civil case, the relief granted;
An itemized statement of the costs;
The date of any execution issued, and the date
and contents of the return thereon; and
The date of any notice of appeal filed, and the
name of the party filing the same.
Inventory of cases
Although the presiding judge and his or her staff
share the duty of taking a continuing and regular
inventory of cases, the responsibility primarily
resides in the presiding judge. The continuity and
regularity of the inventory are designed to invest
the judge and the court staff with the actual
knowledge of the movements, number, and ages of
the cases in the docket of their court, knowledge
essential to the efficient management of caseload.
The title of the case including the names of all
the parties;
The nature of the case, whether civil or criminal,
and if the latter, the offense charged;
The date of issuing preliminary and
intermediate processes including orders of
arrest and subpoenas, and the date and nature
of the return thereon;
193
LEGAL ETHICS
The judge should not forget that he or she is dutybound to perform efficiently, fairly, and with
reasonable promptness all his or her judicial duties,
including the delivery of reserved decisions. Thus,
the judge must devise an efficient recording and
filing system for his or her court that enables him or
her to quickly monitor cases and to manage the
speedy and timely disposition of the cases (Ibid.).
FEES IN LIEN
Where the court in its final judgment awards a claim
not alleged, or a relief different from, or more than
that claimed in the pleading, the party concerned
shall pay the additional fees which shall constitute a
lien on the judgment in satisfaction of said lien.
PERSONS AUTHORIZED TO COLLECT LEGAL
FEES
Stenographer
It shall be the duty of the stenographer who has
attended a session of a court either in the morning
or in the afternoon, to deliver to the clerk of court,
immediately at the close of such morning or
afternoon session, all the notes he has taken, to be
attached to the record of the case; and it shall
likewise be the duty of the clerk to demand that the
stenographer comply with said duty. The clerk of
court shall stamp the date on which such notes are
received by him. When such notes are transcribed
the transcript shall be delivered to the clerk, duly
initialed on each page thereof, to be attached to the
record of the case. Whenever requested by a party,
any statement made by a judge of First Instance, or
by a commissioner, with reference to a case being
tried by him, or to any of the parties thereto, or to
any witness or attorney, during the hearing of such
case, shall be made of record in the stenographic
notes.
Except as otherwise provided, these officers and
persons, together with their assistants and deputies,
may demand, receive, and take the several fees
hereinafter mentioned and allowed for any business
by them respectively done by virtue of their several
offices, and no more:
1.
2.
3.
4.
5.
6.
Clerks of the Supreme Court, Court of Appeals,
Sandiganbayan and Court of Tax Appeals
Clerks of Regional Trial Courts
Clerks of Court of the First Level Courts
Sheriffs, process servers and other persons
serving processes
Notaries
Other officers taking depositions
The following persons are also entitled to receive
fees/ compensation under rule 141:
1.
2.
3.
4.
5.
LEGAL FEES
(RULE 141, A.M. NO. 04-2-04-SC)
MANNER OF PAYMENT
Payment shall be made upon the filing of the
pleading or other application which initiates an
action or proceeding. The fees prescribed shall be
paid in full upon filing of the pleading or application.
Stenographers
Witnesses
Appraisers
Commissioners in eminent domain proceedings
Commissioners in the proceedings for partition
of real estate
NOTE: The persons herein authorized to collect
legal fees shall be accountable officers and shall be
required to post bond in such amount as prescribed
by the law.
---
Basis of the amount of fee in filing an action or
proceeding with the Court of Tax Appeals
Q: Plaintiff Jun Ahorro filed a complaint for
collection of sum of money before the Regional
Trial Court of Manila. Because of the large
amount of his claim, he had to pay a sizeable
docket fee. He insisted on paying the docket fee
and other fees in installments because staggered
payment is allowed under Rule 141, as
amended. The Office of the Clerk of Court (OCC)
refused to accept the complaint unless he paid
the full amount of the docket and other required
fees. Plaintiff Jun Ahorro’s position correct?
(2013 Bar)
1.
In an action or proceeding, including petition
for intervention, and for all services in the
same – amount of fee would be based on the:
a.
b.
A: NO, docket and other required fees must be paid
in full (A.M. No. 00-2-01-SC).
Sum claimed or amount of disputed tax or
customs assessment, inclusive of interest,
penalties and surcharges, damages of
whatever kind and attorney’s fees; and
Value of the article of property in seizure
cases.
If the value of the subject matter cannot be
estimated – P5,000.
194
DISCIPLINE OF MEMBERS OF THE JUDICIARY
2.
Petition for review from a decision of the RTC or
of the Central Board of Assessment Appeals or a
special civil action with the CTA or an appeal
from a decision of a CTA Division to the CTA En
Banc – P3,000.
In forcible entry and unlawful detainer, the
amount of fees would depend on whether damages
or costs are prayed for.
Witnesses are entitled to fees
Consequences if fees are not paid
Witnesses in the Supreme Court, in the Court of
Appeals and in the Regional Trial Courts and in the
1st level courts, either in actions or special
proceedings, shall be entitled to P200.00 per day,
inclusive of ALL EXPENSES;
If the fees are not paid, the court may refuse to
proceed with the action until they are paid and may
dismiss the action or proceedings.
Basis of the amount of fee in filing PERMISSIVE
or COMPULSORY counter-claim, CROSS-CLAIM,
money claim against an estate not based on
judgment, third-party, fourth-party, etc.
complaint, complaint-in-intervention in the RTC
Fees to which witnesses may be entitled in a civil
action shall be allowed on the certification of the
clerk of court or judge of his appearance in the case.
TOTAL SUM CLAIMED, inclusive of interests,
penalties, surcharges, damages of whatever kind,
and attorney’s fees, litigation expenses and costs
1.
Limitations
In cases involving REAL property in litigation, it
is based on the fair market value as:
1.
2.
3.
2.
stated in the current tax declaration;
current zonal valuation of the bureau of internal
revenue, whichever is higher; or
if there is none, the stated value of the property
in litigation.
A witness shall not be allowed compensation
for his attendance in more than one case or
more than one side of the same case at the same
time, but may elect in which of several cases or
on which side of a case, when he is summoned
by both sides, to claim his attendance.
A person who is compelled to attend court on
other business shall not be paid as a witness.
Sheriff’s expense is NOT the same as Sheriff’s
fees
Sheriff’s expenses are not exacted for any service
rendered by the court; they are the amount
deposited to the Clerk of Court upon filing of the
complaint to defray the actual travel expenses of the
sheriff, process server or other court-authorized
persons in the service of summons, subpoena and
other court processes that would be issued relative
to the trial of the case. It is not the same as sheriff’s
fees under Section 10, Rule 141 of the Rules of Court,
which refers to those imposed by the court for
services rendered to a party incident to the
proceedings before it (Re: Letter dated April 18, 2011
of Chief Public Attorney Persida Rueda-Acosta
Requesting Exemption From the Payment Of Sheriff’s
Expenses, A.M. No. 11-10-03-0, July 30, 2013).
In case of PERSONAL property, the FAIR MARKET
value of the property in litigation as alleged by the
claimant.
Basis for determining amount of fees in
PERSONAL actions in first level courts
The value of the subject matter involved, or the
amount
of
the
demand,
inclusive
of
interests, penalties, surcharges, damages of
whatever kind, and attorney’s fees, litigation
expenses and costs.
Basis for determining amount of fees in REAL
actions
Persons exempt from payment of legal fees
The FAIR MARKET value of the property:
1.
2.
3.
1.
2.
as stated in the current tax declaration; or
the current zonal valuation of the bureau of
internal revenue, whichever is higher, or,
If not declared for taxation purposes, the
estimated value thereof shall be alleged by the
claimant and shall be the basis in computing the
fees.
Indigent litigants
Republic of the Philippines
NOTE: The clients of PAO shall be exempt from
payment of docket and other fees incidental to
instituting an action in court and other quasijudicial bodies, as an original proceeding or on
appeal (Section 6, R.A. No. 9406).
Exemptions to fees to real actions
Rule with regard to indigent litigants
195
LEGAL ETHICS
Indigent litigants are exempt from payment of legal
fees. However, the legal fees shall be a lien on any
judgment rendered in the case favorable to the
indigent litigant unless the court otherwise
provides.
Fees do NOT form part of the Judiciary
Development Fund
The mediation fees shall not form part of the
Judiciary Development Fund (JDF) under P.D. No.
1949 nor of the special allowances granted to
justices and judges under Republic Act No. 9227.
Requisites for the indigents to be able to enjoy
exemption
The amount collected shall be receipted and
separated as part of a special fund to be known as
the “Mediation Fund” and shall accrue to the SCPHILJA-PMC Fund, disbursements from which are
and shall be pursuant to guidelines approved by the
Supreme Court.
He must execute an affidavit that he and his
immediate family do not earn a gross income of an
amount double the monthly minimum wage of an
employee, and they do not own any real property
with the fair value (as stated in the current tax
declaration) of more than P300,000. This affidavit
shall be supported by an affidavit of a disinterested
person attesting to the truth of the litigant’s
affidavit. The current tax declaration, if any, shall be
attached to the litigant’s affidavit.
Exceptions in paying mediation fees
The following are exempt from contributing to the
mediation fund:
Any falsity in the affidavit of litigant or disinterested
person shall be sufficient cause to dismiss the
complaint or action or to strike out the pleading of
that party, without prejudice to whatever criminal
liability may have been incurred (Sec. 19, A.M. No.
08-11-7-SC).
1.
Pauper litigant; and
NOTE: However, the court shall provide that
the unpaid contribution to the Mediation Fund
shall be considered a lien on any monetary
award in a judgment favorable to the pauper
litigant.
Rule as to Republic of the Philippines
2.
GR: The Republic of the Philippines, its agencies and
instrumentalities are exempt from paying the legal
fees provided in the rule.
Accused-appellant
COSTS
(RULE 142)
XPN: Local governments and government-owned or
controlled corporations with or without
independent charters are not exempt from paying
such fees.
RECOVERY OF COSTS
PREVAILING PARTY
Costs allowed to a prevailing party
However, all court actions, criminal or civil,
instituted at the instance of the provincial, city or
municipal treasurer or assessor under Sec. 280 of
the Local Government Code of 1991 shall be exempt
from the payment of court and sheriff’s fees.
Costs shall be allowed to a prevailing party as a
matter of course. However, the court shall have
power, for special reasons, to adjudge that either
party shall pay the costs of an action, or that the
same be divided, as may be equitable (Sec. 1, Rule
142, RRC).
Purpose of mediation fund
The fund shall be utilized for the promotion of courtannexed mediation and other relevant modes of
alternative dispute resolution (ADR), training of
mediators, payment of mediator’s fees, and
operating expenses of the Philippine Mediation
Center (PMC) units including expenses for technical
assistance
and
organizations/individuals,
transportation/communication
expenses,
photocopying, supplies and equipment, expense
allowance and miscellaneous expenses, whenever
necessary, subject to auditing rules and regulations.
Costs shall not be allowed to the Republic of the
Philippines (Sec. 1, Rule 142, RRC)
Q: Is the Land bank of the Philippines liable to
the cost of suit in the performance of a
governmental function such as disbursement of
agrarian funds to satisfy awards of just
compensation?
A: NO, the Land Bank of the Philippines is in the
performance of a governmental function in an
agrarian reform proceeding, hence, according to
Rule 142, it is exempt from the payment of costs of
196
LEGAL FORMS
suit (Land Bank of the Philippines vs. Esther Anson
Rivera, G.R. No. 182431, November17, 2010).
A: YES, the rejection by CA indicated that the three
lower courts with legal capacity and official function
to resolve issues, all found the same set of facts. In
this recourse, the petitioners presented no ground
sufficient to persuade the court to warrant a review
of the uniform findings of fact. Given the
frivolousness of the appeal, the court imposes treble
costs of suit on the petitioners under Rule 142
(Maglana Rice and Corn Mill Inc. v. Annie L. Tan, G.R.
No. 159051, September 21, 2011).
DISMISSED APPEAL OR ACTION
Power of the court to render judgment for costs
even if an appeal has been dismissed
If an action or appeal is dismissed, for want of
jurisdiction or otherwise, the court retains the
power to render judgment for costs, as justice may
require (Sec. 2, Rule 142, RRC).
FALSE ALLEGATIONS
FRIVOLOUS APPEAL
A false allegation made without reasonable cause
and found untrue shall subject the offending party
to the reasonable expenses as may have been
necessarily incurred by the other party by reason of
such untrue pleading. The amount shall be fixed by
the judge and shall be taxed as costs (Sec. 4, Rule 142,
RRC).
If an appeal is deemed frivolous, double or treble
costs shall be imposed on the plaintiff or appellant,
which shall be paid by his attorney, if so ordered by
the Court (Sec. 3, Rule 142, RRC).
--Q: A vehicular accident between a Fuso truck
owned by Maglana Rice and Corn Mill and a
Honda Accord owned by Sps. Tan occurred on
Aug. 28, 1996. Sps. Tan filed a complaint in the
MTCC which was ruled in their favor. Maglana
Rice appealed, but the RTC upheld the MTCC. An
appeal and the MR to the CA were later denied
by the CA, hence, Maglana Rice appealed to the
Supreme Court. The issue is whether or not the
appeal was frivolous.
NON-APPEARANCE OF WITNESSES
If a witness fails to appear at the time and place
specified in the subpoena issued by any inferior
court, the costs of the warrant of arrest and of the
arrest of the witness shall be borne by him, if the
court determines that his failure to answer the
subpoena was willful and without excuse (Sec. 12,
Rule 142, RRC).
LEGAL FORMS
QUITCLAIM IN LABOR CASES
KNOW ALL MEN BY THESE PRESENTS:
That I, __________________, Filipino, of legal age, a resident of __________________, and formerly employed with
__________________, do by these presents acknowledge receipt of the sum of __________________, Philippine Currency,
from _____________________ in full payment and final settlement of the (financial assistance or separation pay,
overtime pay, salary or salaries, wage or wages, commutable sick and vacation leaves, gratuities or any kind of
compensation or emoluments) due to me or which may be due to me from ____________________ under the law or
under any existing agreement with respect thereto, as well as any and all claims of whatever kind and nature
which I have or may have against ________________, arising from my employment with (and the termination of my
employment with ______________________.
In consideration of said payment, I do hereby quitclaim, release, discharge and waive any and all actions
of whatever nature, expected, real or apparent, which I may have against _______________, its directors, officers,
employees, agents and clients by reason of or arising from my employment with the company. I will institute no
action, whether civil, criminal, labor or administrative against _________________, its directors, officers, employees,
agents and clients. Any and all actions which I may have commenced either solely in my name or jointly with
others before any office, board, bureau, court, or tribunal against _________________, its directors, officers,
employees, agents and clients are hereby deemed and considered voluntary withdrawn by me and I will no
longer testify or continue to prosecute said action(s).
197
LEGAL ETHICS
I declare that I have read this document and have fully understood its contents. I further declare that I
voluntarily and willingly executed this Release, Waiver and Quitclaim with full knowledge of my rights under the
law.
IN WITNESS WHEREOF, I have hereunto set my hand at _____________, this ___ day of _______________, 2000.
_______________________
Affiant
SIGNED IN THE PRESENCE OF
_______________________
______________________
LEASE CONTRACT
KNOW ALL MEN BY THESE PRESENTS:
This CONTRACT OF LEASE is made and executed at the City of _____, this day of _______________, 20____, by and
between:
(NAME OF LESSOR), of legal age, single/married to (Name of spouse if any), Filipino, and with residence
and postal address at (Address), hereinafter referred to as the LESSOR.
-AND(NAME OF LESSEE), Filipino and with residence and postal address at (Address), hereinafter referred to
as the LESSEE.
WITNESSETH; That
WHEREAS, the LESSOR is the owner of THE LEASED PREMISES, a residential property situated at (Address of
property to be leased);
WHEREAS, the LESSOR agrees to lease-out the property to the LESSEE and the LESSEE is willing to lease the
same;
NOW THEREFORE, for and in consideration of the foregoing premises, the LESSOR leases unto the LESSEE and
the LESSEE hereby accepts from the LESSOR the LEASED premises, subject to the following:
TERMS AND CONDITIONS
1. PURPOSES: That premises hereby leased shall be used exclusively by the LESSEE for residential purposes
only and shall not be diverted to other uses. It is hereby expressly agreed that if at any time the premises are
used for other purposes, the LESSOR shall have the right to rescind this contract without prejudice to its other
rights under the law.
2. TERM: This term of lease is for ONE (1) YEAR. from (Date) to (Date) inclusive. Upon its expiration, this lease
may be renewed under such terms and conditions as my be mutually agreed upon by both parties, written
notice of intention to renew the lease shall be served to the LESSOR not later than seven (7) days prior to
the expiry date of the period herein agreed upon.
3. RENTAL RATE: The monthly rental rate for the leased premises shall be in PESOS: AMOUNT IN WORDS (P
00,000.00), Philippine Currency. All rental payments shall be payable to the LESSOR.
198
LEGAL FORMS
4. DEPOSIT: That the LESSEE shall deposit to the LESSOR upon signing of this contract and prior to move-in
an amount equivalent to the rent for THREE (3) MONTHS or the sum of PESOS: AMOUNT IN WORDS (P
00,000.00), Philippine Currency. wherein the two (2) months deposit shall be applied as rent for the 11th and
12th months and the remaining one (1) month deposit shall answer partially for damages and any
other obligations, for utilities such as Water, Electricity, CATV, Telephone, Association Dues or resulting from
violation(s) of any of the provision of this contract.
5. DEFAULT PAYMENT: In case of default by the LESSEE in the payment of the rent, such as when the checks
are dishonored, the LESSOR at its option may terminate this contract and eject the LESSEE. The LESSOR has the
right to padlock the premises when the LESSEE is in default of payment for One (1) month and may forfeit
whatever rental deposit or advances have been given by the LESSEE.
6. SUB-LEASE: The LESSEE shall not directly or indirectly sublet, allow or permit the leased premises to be
occupied in whole or in part by any person, form or corporation, neither shall the LESSEE assign its rights
hereunder to any other person or entity and no right of interest thereto or therein shall be conferred on or
vested in anyone by the LESSEE without the LESSOR'S written approval.
7. PUBLIC UTILITIES: The LESSEE shall pay for its telephone, electric, cable TV, water, Internet, association
dues and other public services and utilities during the duration of the lease.
8. FORCE MAJEURE: If whole or any part of the leased premises shall be destroyed or damaged by fire, flood,
lightning, typhoon, earthquake, storm, riot or any other unforeseen disabling cause of acts of God, as to render
the leased premises during the term substantially unfit for use and occupation of the LESSEE, then this lease
contract may be terminated without compensation by the LESSOR or by the LESSEE by notice in writing to the
other.
9. LESSOR'S RIGHT OF ENTRY: The LESSOR or its authorized agent shall after giving due notice to the
LESSEE shall have the right to enter the premises in the presence of the LESSEE or its representative at any
reasonable hour to examine the same or make repairs therein or for the operation and maintenance of the
building or to exhibit the leased premises to prospective LESSEE, or for any other lawful purposes which it may
deem necessary.
10. EXPIRATION OF LEASE: At the expiration of the term of this lease or cancellation thereof, as herein
provided, the LESSEE will promptly deliver to the LESSOR the leased premises with all corresponding keys and
in as good and tenable condition as the same is now, ordinary wear and tear expected devoid of all occupants,
movable furniture, articles and effects of any kind. Non-compliance with the terms of this clause by the LESSEE
will give the LESSOR the right, at the latter's option, to refuse to accept the delivery of the premises and compel
the LESSEE to pay rent therefrom at the same rate plus Twenty Five (25) % thereof as penalty until the LESSEE
shall have complied with the terms hereof. The same penalty shall be imposed in case the LESSEE fails to leave
the premises after the expiration of this Contract of Lease or termination for any reason whatsoever.
11. JUDICIAL RELIEF: Should any one of the parties herein be compelled to seek judicial relief against the
other, the losing party shall pay an amount of One Hundred (100) % of the amount clamed in the complaint as
attorney's fees which shall in no case be less than P50,000.00 pesos in addition to other cost and damages
which the said party may be entitled to under the law.
12. This CONTRACT OF LEASE shall be valid and binding between the parties, their successors-in-interest and
assigns.
IN WITNESS WHEREOF, parties herein affixed their signatures on the date and place above written.
(Name of Lessor)
LESSOR
(Name of Lessee)
LESSEE
Signed in the presence of:
199
LEGAL ETHICS
_____________________________
______________________________
ACKNOWLEDGEMENT
Republic of the Philippines)
_________________________) S.S
BEFORE ME, personally appeared:
Name
CTC Number
(Name of Lessor)
(Name of Lessee)
10000000
10000000
Date/Place Issued
February 24, 20__ / Cavite City
January 07, 20__ / Makati
Known to me and to me known to be the same persons who executed the foregoing instrument and
acknowledged to me that the same is their free and voluntary act and deed.
This instrument consisting of ____ page/s, including the page on which this acknowledgement is written, has
been signed on each and every page thereof by the concerned parties and their witnesses, and and sealed with
my notarial seal.
WITNESS MY HAND AND SEAL, on the date and place first above written.
Notary Public
Doc. No.______;
Page No. ______;
Book No.______;
Series of 20___.
DEED OF ABSOLUTE SALE
KNOW ALL MEN BY THESE PRESENTS:
This DEED OF ABSOLUTE SALE is made, executed and entered into by:
(NAME OF SELLER), of legal age, single/married to (Name of spouse if any), Filipino, and with residence
and postal address at (Address of Seller), hereinafter referred to as the SELLER
-AND(NAME OF BUYER), Filipino and with residence and postal address at (Address of Buyer), hereinafter
referred to as the BUYER.
WITNESSETH;
WHEREAS, the SELLER is the registered owner of a parcel of land with improvements located at (Address
of property to be sold) and covered by Transfer Certificate of Title No. (TCT Number) containing a total area
of (Land Area of Property in Words) (000) SQUARE METERS, more or less, and more particularly described
as follows:
TRANSFER CERTIFICATE OF TITLE NO. 0000
"(Insert the technical description of the property on the title) Example: A PARCEL OF LAND (Lot 20
Blk 54 of consolidation subdivision plan (LRC) Pcs-13265, being a portion of the consolidation of Lots 4751-A
and 4751-B (LRC) Psd-50533, Lot 3, Psd-100703, Lot 1, Psd-150980, LRC Rec. Nos. Nos. N-27024, 51768,
89632, N-11782, N-13466, and 21071 situated in the Bo. of San Donisio, Mun of Paranaque, Prov of Rizal, Is. of
200
LEGAL FORMS
Luzon. Bounded on NE., point 4 to 1 by Road Lot 22, on...to the point of beginning; containing an area of
(280) square meters more or less..."
WHEREAS, the BUYER has offered to buy and the SELLER has agreed to sell the above mentioned property
for the amount of (Amount in words) (P 000,000.00) Philippine Currency;
NOW THEREFORE, for and in consideration of the sum of (Amount in words) (P 000,000.00) Philippine
Currency, hand paid by the vendee to the vendor, the SELLER DO HEREBY SELL, TRANSFER, and CONVEY by
way of Absolute Sale unto the said BUYER, his heirsand assigns, the certain parcel of land together with all the
improvements found thereon, freefrom all liens and encumbrances of whatever nature including real estate
taxes as of the date of this sale.
(NAME OF SELLER)
Seller
(NAME OF BUYER)
Buyer
WITH MARITAL CONSENT:
________________________
Name of Seller's Spouse
_________________________
Name of Buyer's Spouse
SIGNED IN THE PRESENCE OF:
__________________________
____________________________
ACKNOWLEDGMENT
REPUBLIC OF THE PHILIPPINES)
_____________________________ ) SS.
BEFORE ME, a Notary Public for and in the City of ___________________, personally appeared:
Name
(Name of Seller)
(Name of Buyer)
CTC Number
10000000
10000000
Date/Place Issued
Jan 15, 20__ / Angeles City
Jan 9, 20__ / Manila
Known to me and to me known to be the same persons who executed the foregoing instrument and
acknowledged to me that the same are their free act and voluntary deed.
This instrument, consisting of (__) pages, including the page on which this acknowledgment is written, has been
signed on the left margin of each and every page thereof by the concerned parties and their witnesses, and
sealed with my notarial seal.
WITNESS MY HAND AND SEAL on this ___day of __________________20__ at_______________.
Notary Public
Doc. No. ........;
Page No. .......;
Book No. .......;
Series of 20__.
201
LEGAL ETHICS
PROMISSORY NOTE
P__________
FOR VALUE RECEIVED, I promise to pay without need of demand to the order of __Payee__, at his office at
_____________, the principal amount of PESOS: _______________(P_________), on or before _____________.
__Date__, _____________, Philippines.
Maker
VERIFICATION AND CERTIFICATE OF
NON-FORUM SHOPPING
I._____________________________________________, of legal age, ______________________ _______________________, and a resident
(name)
(citizenship)
(civil status)
of _______________________________________________________________, after having been duly sworn to in accordance with
law, hereby, depose and say:
1. That I am the ____________________in the above-entitled case and have caused this ___________________________________
to be prepared; that I read and understood its contents which are true and correct of my own personal
knowledge and/or based on authentic records.
2. That I have not commenced any action of proceeding involving the same issue in the Supreme Court, the
Court of Appeals or any other tribunal or agency; that to the best of my knowledge, no such action or
proceeding is pending in the Supreme Court, the Court of Appeals or any tribunal or agency, and that, if I should
learn thereafter that a similar action or proceeding has been filed or is pending before these courts of tribunal
or agency, I undertake to report that the fact to the Court within five (5) days therefrom.
IN WITNESS WHEREFOR, I have hereunto set my hand this ____ day of __________________,20____.
Affiant SUBSCRIBED AND SWORN to before me this______day of _______________, 20_____ .
NOTARY PUBLIC
NOTICE OF HEARING
REPUBLIC OF THE PHILIPPINES
_______________________________
_______________________________
__________________________________,
Plaintiff,
(Naghahabla)
Civil Case No. _________________
(Kaso Sibil Blg.)
For __________________________
(Para)
Vs.
__________________________________,
Defendant,
(Hinahabla)
NOTICE OF HEARING
(ABISO NG PAGDINIG)
YOUR CASE IS SET for hearing before the Presiding Judge of this Court on _________________________ at
___________________________________________.
(Ang iyong kaso ay diringgin ng Pinunong hukuman ng Hukumang ito sa _____________________________,
ganap na ________________________________.)
202
LEGAL FORMS
YOU MUST ATTEND THE HEARING, IF YOU CANNOT ATTEND BECAUSE IT IS PHYSICALLY
IMPOSSIBLE FOR YOU TO DO SO, YOU MAY AUTHORIZE A REPRESENTATIVE WHO IS NOT A LAWYER TO
APPEAR FOR YOU. FOR THIS PURPOSE YOU SHOULD FILL UP FORM 5-SCC (SPECIAL POWER OF
ATTORNEY).
(KINAKAILANGAN NINYONG DUMALO SA PAGDINIG. Kung hindi kaya ng katawan ninyo ang pagdalo
nang personal sa pagdinig ng iyong kaso, maaari kang magpadala ng iyong kinatawan na hindi abogado sa
pagdinig. Sa ganitong layunin, punuan ninyo ang Form 5-SCC [Natatanging Gawad-Kapangyarihan – Special
power of attorney.])
WITNESS the HON. __________________________________, Presiding Judge of this court, this ____ day of
___________________, 20___, at _______________________, Philippines.
(Saksi si Kgg. __________________________, Pinunong Hukuman ng Hukumang ito, ngayong _____________________,
20____ ditto sa _______________________________, Pilipinas.)
____________________________
Branch Clerk of Court
(Sangay na Kawani ng Hukuman)
NOTE: FOR INQUIRIES, CALL TEL. #____________
(Tala: Para sa katanungan tumawag sa Korte sa Tel. Blg. _____________.)
AFFIDAVIT OF LOSS
REPUBLIC OF THE PHILIPPINES)
_____________________________ ) S.S.
I, (Name of Affiant)., Filipino, of legal age, residing at (Address of Affiant), after having been sworn in
accordance with law hereby depose and state:
That I am the true and lawful owner of a certain motor vehicle which is more
particularly described as follows:
MAKE
:
SERIES
:
TYPE OF BODY :
YEAR MODEL
:
MOTOR NO.
:
SERIAL/CHASSIS NO. :
PLATE NO.
:
FILE NO.
:
(Change the declaration below to the actual circumstances)
That sometime in June of this year, I was looking for the original Certificate of Registration
of my car but to my surprise, said Owner’s original Copy could not found;
That I took pains to look for said Certificate of Registration, but to no avail;
That I am executing this affidavit to attest to the truth of the foregoing and to request from
the Land Transportation Office of Angeles City, a copy of said Certificate of Registration.
IN WITNESS WHEREOF, I have hereunto set my hand this _____ day of _______________.
20___ at _________________________.
203
LEGAL ETHICS
(Name Over Signature of Affiant)
SUBSCRIBED AND SWORN to before me, this ____ day of ______________, 20___ in ___________________ City, with
affiant exhibiting his CTC No. _______________ ,
Issued on ______________________ at _________________________.
NOTARY PUBLIC
Until December 31, 200___
Doc. No. : ________;
Page No. : ________;
Book No. : ________;
Series of 20_______.
CHANGE OF NAME
Republic of the Philippines
Philippine Consulate
City/State:_______________
Country:_________________
____________________)
____________________)SS
Petition No.___________
PETITION FOR CHANGE OF FIRST NAME
I, ______________________________, of legal age, ___________________, and a resident of _____________________________,
(complete name of petitioner)
(nationality /citizenship)
(complete address)
after having been duly sworn to in accordance with law, hereby declare that:
1) I am the petitioner seeking the change of first name in:
 a) my Certificate of Live Birth
 b) the Certificate of Live Birth of __________________________
(complete name of owner)
who is my ______________________________________________,
(relation of owner to the petitioner)
2) I/He/She was born on _______________ at ________________________,
(date of birth) (city/municipality)
_______________________________, ____________________________.
(province)
(country)
3) The birth was recorded under registry number ________________________.
4) The first name to be changed is from ________________ to_____________.
5) The grounds for filing this petition are the following: (Ground selected should be explained/justified in a
separate sheet of paper to be attached to this form.)
a)  The first name is extremely difficult to write or pronounce;
b)  I have/He/She has habitually and continuously used __________________ and I/he/she is publicly known
in the community with that first name;
c)  The first name is tainted with dishonor;
d)  The first name is ridiculous;
e)  The first name causes confusion;
204
LEGAL FORMS
6) I submit the following documents to support this petition: (Use additional sheets, if necessary.)
a) _______________________________________________________
b) _______________________________________________________
c) _______________________________________________________
d) _______________________________________________________
e) _______________________________________________________
7) I have/He/She has not filed any similar petition and that, to the best of my knowledge, no other similar
petition is pending with any LCRO, Court or Philippine Embassy/Consulate.
8) I have/He/She has no pending criminal, civil or administrative case in any court or quasi-judicial body.
9) I am filing this petition at the Philippine Consulate of __________________________,
(City/State/Country)
in accordance with R.A. 9048 and its implementing rules and regulations.
________________________________
Signature over printed name of petitioner
VERIFICATION
I, _____________________________________, the petitioner, hereby certify that the allegations herein are true
and correct to the best of my knowledge and belief.
_________________________________
Signature over printed name of petitioner
SUBSCRIBED AND SWORN to before me this _____ day of ___________ in the city/municipality of
____________________, petitioner exhibiting his/her Passport No. ___________________ issued _____________ on
______________.
_________________________________
Administering Officer
Doc. No. ____________
Page No. ____________
Book No. ____________
Series of ____________
205
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