Chapter I
INTRODUCTORY
§1.01 Preliminary.
The law is not a trade nor a craft but a profession.1 Its basic ideal
is to render public service and secure justice for those who seek its
aid.2 If it has to remain an honorable profession and attain its basic
ideal, those enrolled in its ranks should not only master its tenets and
principles but should also, by their lives, accord continuing fidelity
to them.3 This obligation is not an easy task, and its performance is
made difficult by the ever-growing pressure of commercialism in all
fields of human endeavor as well as by the fact that those tenets and
principles have steadily grown through the years from numerous
and scattered sources.4 The fulfillment of this obligation requires
that professional standards be constantly inculcated among lawyers
and that the rules and ethics of the profession be collated into a body
of principles and made readily available to every attorney as his
“manual of equipment without which he cannot do his part to keep
‘Director of Religious Affairs v. Bayot, 74 Phil. 749 (1944); Ledesma v. Climaco,
G.R. No. 12815, June 28, 1974; In re Tagorda, 53 Phil. 37 (1929); People v. Daban,
G.R. No. 31429, January 21,1972.
2Mayer
v. State Bar, 2 Call2d 71, 39 2d 206 (1934).
v. Limon, 295 SCRA 262,266 (1998), citing Agpalo, Legal Ethics, 1983
3Docena
ed., p. 1.
4The sources of legal ethics are the pertinent provisions of the Rules of Court,
related laws, controlling decisions of the Supreme Court, The Code of Professional
Responsibility, the Canons of Professional Ethics, applicable doctrines laid down by
the court and writings of legal scholars on the subject.
The Philippine system of legal ethics was taken from that of the United States
(In re Cunanan, 4 Phil. 543 (1954); Mortel v. Aspiras, 100 Phil. 586 (1956). And the
Canons of Professional Ethics observed in this jurisdiction are those of the American
Bar Association. (In re Tagorda, Phil. 37 [1927]). Accordingly, this research study
makes use of selected cases decided by courts in the United States as well as opinions
of the Committee on Professional Ethics and Grievances of the American Bar Association, cited hereinafter as A.B.A. Op. No.
1
2
LEGAL AND JUDICIAL ETHICS
the law on the level of a profession.”5 This study seeks to partly fill
up the need for the latter and to generate interest in the former.
A lawyer, whether he be a private practitioner or a public
prosecutor, forms part of the machinery of justice administered by
the courts. Hence, included in this book are chapters XVIII and XIX
which discuss in detail judicial conduct and liabilities of judges,
respectively; and in order to reflect the same in the title of the book,
the title has been changed from Legal Ethics to Legal and Judicial
Ethics.
§1.02. Definitions.
The term “legal ethics” is the embodiment of all principles of
morality and refinement that should govern the conduct of every
member of the bar.6 It has also been broadly defined as the “living
spirit of the profession, which limits yet uplifts it as a livelihood.”7
Specifically, it refers to that 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.8
A number of terms are used to describe a member of the legal
profession, such as the words lawyer, attorney or attomey-at-law,
advocate, barrister, counsel or counselor, proctor and solicitor. While
there are theoretical differences among these terms,9 the actual
distinctions, which have been practically abolished in the United
States,10 do not exist in this jurisdiction.
A member of the Philippine bar is commonly known by the term
lawyer or attorney or attomey-at-law or counsel, by the Spanish
% Rothman, 12 NJ 528, 97 A2d 621, 39 ALRd 1032 (1953).
Mustice Manuel V. Moran’s Foreword to MALCOLM’S LEGAL AND JUDICIAL ETHICS, ix (1949).
7Re Rothman, 12 NJ 528, 97 A2d 621, 39 ALR2d 1032, 1045 (1953), quoting
Dean H. Wigmore’s Foreword to CARTER’S THE ETHICS OF THE LEGAL PROFESSION (1915).
“MALCOLM, LEGAL AND JUDICIAL ETHICS, 8 (1949).
9The words lawyer, attorney and attomey-at-law are synonymous. A lawyer is
one skilled in the law. An advocate is a person learned in the law and duly admitted
to practice, who advises a client and pleads for him in court. A barrister is a person
entitled to practice as an advocate or counsel in superior courts in England. A counsel
or counselor is an advocate or leader, a member of the legal profession. A doctor is an
attorney in the admiralty and ecclesiastical courts. A solicitor is a person prosecuting
or defending suits in courts of chancery. 7 C.J.S. 702-703.
10Re Paschal, 10 Wall (US) 483,19 L ed 992 (1890).
INTRODUCTORY
3
word abogado11 or the Filipino word manananggol. The term has a
fixed and general signification and refers to that class of persons who
by license are officers of the court and who are empowered to appear,
prosecute and defend and on whom peculiar duties, responsibilities
and liabilities are devolved by law as a consequence.12 A person
who is a member of the Philippine Bar and who, by the warrant of
another, practices law13 or who acts professionally in legal formalities,
negotiations or proceedings, by authority of his client, is an attorney
within the meaning of the term.14 A counsel is an adviser, a person
professionally engaged in the trial or management of a cause in
court; a legal advocate managing a case at law.15
Those who pass the Shari’a Bar are not entitled to be called
“Attorneys,” unless they have also been admitted to the Philippine
Bar.16 In other words, only those who are admitted to the Philippine
Bar can be called “attorneys.”
The other terms commonly encountered in the practice of law
are counsel de parte, counsel de oficio, attorney of record, of counsel,
amicus curiae, bar and bench. A counsel de parte is an attorney
retained by a party litigant, usually for a fee, to prosecute or defend
his cause in court. The term implies freedom of choice either on
the part of the attorney to decline or accept the employment17 or on
the part of the litigant to continue or terminate the retainer at any
time.18 A counsel de oficio is an attorney appointed by the court to
defend an indigent defendant in a criminal action19 or to represent a
destitute party in a case.20 The term connotes little or no other choice
than the acceptance by the indigent party of whoever is appointed
as his counsel21 and, unless excused therefrom by the court, the
uThis term means not only possession of the academic degree of Bachelor of
Laws but membership in the bar as well as after due admission thereto, qualifying
one for the practice of law. Cui v. Cui, 11 SCRA 755 (1964).
I2Cui v. Cui, 11 SCRA 755 (1964).
lsRe Bailey. 50 Mont. 365,146 p. 1101.
14National Savings Bank v. Ward, 100 U.S. 195, 25 L ed 621 (1880).
15Villegas v. Legaspi, 113 SCRA 39 (1982).
16Alawi v. Alauya, 268 SCRA 628 (1997).
17Canon 31, Canons of Professional Ethics; Enriquez, Sr. v. Gimenez, 107 Phil.
932 (1960).
18Rustia v. CFI of Batangas, 44 Phil. 62 (1922); Bacaro v. Court of Appeals, 37
SCRA 36 (1971).
19Rule 116, Secs. 3, 4, 5; Rule 122, Sec. 13; Rule 138, Sec. 32, Rules of Court.
“Rule 138, Sec. 31, Rules of Court; Cf. In re Filart, 40 Phil. 205 (1919).
21U.S. v. Laranja, 21 Phil. 500 (1912).
4
LEGAL AND JUDICIAL ETHICS
discharge by the designated attorney of the duty to faithfully and
conscientiously render effective legal assistance in favor of such
party.22
An attorney of record is the attorney whose name, together
with his address, is entered in the record of a case as the designated
counsel of the party litigant in the case and to whom judicial
notices relative thereto are sent.23 A lawyer called “of counsel” is an
experienced lawyer, who is usually a retired member of judiciary,
employed by law firms as consultant. An amicus curiae is an
experienced and impartial attorney invited by the court to appear
and help in the disposition of issues submitted to it.24 It implies the
friendly intervention of counsel to call the attention of the court to
some matters of law or facts which might otherwise escape its notice,
and in regard to which it might go wrong.25 The term “bar” refers to
the legal profession. The word “bench” means the judiciary.
§1.03. Power to regulate practice of law.
The practice of law is a privilege impressed with public interest.
The reason for this is that an attorney, who alone enjoys such
privilege, owes duties not only to his client but also to the court, to
his brethren in the profession and to the public, and takes part in one
of the most important functions of the state — the administration
of justice.26 He is the first one, either as a government lawyer or as a
private practitioner, to sit in judgment on every case, and whether
the court will be called upon to act depends upon his decision. He
thus sets the judicial machinery in motion and participates in
judicial proceedings.27 The interest of the public requires that the
function be faithfully discharged and rendered only by those who
are qualified, fit and honest and who possess good moral character.28
22Ledesma v. Climaco, 57 SCRA 473 (1974); People v. Estebia, 27 SCRA 106
(1969); People v. Irisuillo, 92 Phil. 1 (1948).
“Rule 7, Sec. 5, Rules of Court; Flores v. Zurbito, 37 Phil. 746 (1918); U.S. v.
Borromeo, 20 Phil. 189 (1911); Vivero v. Santos, 98 Phil. 500 (1956); Ramos v. Potenciano, 9 SCRA 587 (1963).
“Rule 168, Sec. 36, Rules of Court.
“Hamlin v. particular Baptist Meeting House, 69 A 315; Kemp v. Rubin, 64
NYS2d 518.
2eIn re Integration of the Philippine Bar, 49 SCRA 22 (1973); Cf. Ortiga v. Rivera, 37 SCRA 577 (1971).
27Ruckenbrod v. Mullins, 133 2d 325,144 ALR 839 (1943).
“/re re Cunanan, 94 Phil. 554 (1954); Phil. Ass’n. of Free Labor Unions v. Binalbagan Isabela Sugar Co., Inc., 8 SCRA 700 (1971); In re Parazo, 82 Phil. 230 (1948).
INTRODUCTORY
5
Only by proper regulation of the practice of law will the interest of
the public be adequately safeguarded.
The practice of law is so intimately affected with public
interest that it is both a right and a duty of the state to control and
regulate it in order to promote the public welfare.29 The Constitution
vests this power of control and regulation in the Supreme Court.30
Independently or even in the absence of such constitutional provision,
the right to define and regulate the practice of law naturally and
logically belongs to the judiciary represented by the high tribunal
since the practice of law is inseparably connected with the exercise
of its judicial power in the administration of justice.31
The legislature, in the exercise of its police power32 may,
however, enact laws regulating the practice of law to protect the
public and promote the public welfare.33 But the legislature may not
pass a law that will control the Supreme Court in the performance of
its function to decide who may enjoy the privilege of practicing law,
and any law of that kind is unconstitutional as an invalid exercise of
legislative power.34
The power of the Supreme Court to regulate the practice of law
includes theauthority todefinethatterm,“prescribe the qualifications
of a candidate to and the subjects of the bar examinations,36 decide
who will be admitted to practice,37 discipline, suspend or disbar any
unfit and unworthy member of the bar,38 reinstate any disbarred
wIn re Integration of the Philippine Bar, 49 SCRA 22 (1973); Ruckenbrod v.
Mullins, supra; Re Macy, 196 AC 1095, 14 ALR 848 (1921); In re Edillon, 84 SCRA
554 (1978).
“Const. Art. VIII, Sec. 5(5); Const, Art. VIII, Sec. 34 (1935); Omico Mining &
Industrial Corp. v. Vallejos, 63 SCRA 285 (1975).
3lIn re Cunanan, supra.; Re Nebraska State Bar Ass’n., 133 Neb. 283,114 ALQ
151 (1937); Tejan v. Cusi; Jr., G.R. No. 28899, May 30,1974; In re Edillon, supra.
32U.S. v. Gomes Jesus, 31 Phil. 218 (1915); In re Edillon, 84 SCRA 554 (1978).
33Under the Art. X, Sec. 5(5) of the 1973 Constitution and Art. VIII, Sec. 34 of
the 1935 Constitution, the legislature has the power to repeal, alter or supplement
the rules promulgated by the Supreme Court, while the 1997 Constitution is silent
on the matter.
MIn re Cunanan, 94 Phil. 543 (1954); In re Guarina, 24 Phil. 37 (1913); State
Bar Ass’n. v. Connecticut Bank & Trust Co., 140 A2d 865, 69 ALR 2d 394 (1958).
36Phil. Lawyers Ass’n. v. Agrava, 105 Phil. 173 (1959).
36/n re Parazo, 82 Phil. 230 (1948).
37/n re Cunanan, supra.
“’Tejan v. Cusi, Jr., 57 SCRA 154 (1974); In re Alamacen, 31 SCRA 562 (1970);
In re Edillon, 84 SCRA 554 (1978).
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LEGAL AND JUDICIAL ETHICS
or indefinitely suspended attorney,39 ordain the integration of the
Philippine Bar,40 punish for contempt any person for unauthorized
practice of law41 and, in general, exercise overall supervision of the
legal profession.42 The Supreme Court can, moreover, exercise any
other power as may be necessary to elevate the standards of the bar
and preserve its integrity.43
The power to regulate the practice of law is not, however, an
arbitrary and despotic power, to be exercised at the pleasure of
the court, or from passion, prejudice or personal hostility; but it
is the duty of the court to exercise it by a sound and just judicial
discretion, whereby the rights and independence of the bar may be
as scrupulously guarded and maintained by the court as the rights
and dignity of the court itself.44
§1.04. Nature of office of attorney.
An attorney is more than a mere agent because he possesses
special powers of trust and confidence reposed in him by his client.
He is as independent as the judge, and his powers are entirely
different from and superior to those of an ordinary agent. In a
limited sense, he is a public officer, although he is not an officer in
the constitutional or statutory meaning of the term.46 He occupies
what may be called a quasi-judicial office46 because he is in fact an
officer of the court,47 whose close and intimate relationship with the
bench is best described by that phrase. He is, figuratively speaking,
a priest of justice.48
39/n re Adriatico, 17 Phil. 324 (1910); Royo v. Oliva, 107 Phil. 313 (1960); Cui
v. Cui, 11 SCRA 755, (1964).
40Const. Art. VIII, Sec. 5(5); In re Integration of the Philippine Bar, 49 SCRA
22, (1973); In re Edillon, supra.
■“People v. De Luna, 102 Phil. 968 (1958); U.S. v. Ney & Bosque, 8 Phil. 146
(1907).
i2In re Cunanan, supra.
43In re Parazo, supra.
i4Ex parte Sacombre, 19 How (US) 9, 15 L ed 565 (1857); Re Nebraska State
Bar Ass’n, 275 NW 114 ALR 151 (1937); Konigsberg v. State Bar of California, 353
U.S. 252, 1 L ed 2d 810 (1957); Andres v. Cabrera, 127 SCRA 802 (1984).
“National Savings Bank v. Ward, 100 U.S. 195, 25 L ed 621 (1880); Berman v.
Coakley, 137 NE 667, 26 ALR 92 (1923).
46Langen v. Borkowski, 206 NW 181, 43 ALR 622 (1925); People v. Sesbrano,
130 SCRA 465(1984).
47Hilado v. David, 84 Phil. 569 (1949).
48Salcedo v. Hernandez, 61 Phil. 724 (1935).
INTRODUCTORY
7
The title “attorney” is reserved to those who, having obtained
the necessary degree in the study of law and successfully taken the
bar examinations, have been admitted to the Integrated Bar of the
Philippines and remain members thereof of good standing; and it is
they only who are authorized to practice law in the Philippines."
Membership in the bar is a privilege burdened with conditions,
one of the most important of which is mindfulness that a lawyer
is an officer of the court.50 An attorney is received in that ancient
fellowship for something more than privilege gain.61 He is primarily
an officer of the court, a minister in the temple of justice, whose
high vocation is to correctly inform the court upon the law and the
facts of a case and to assist it in administering impartial justice and
arriving at a correct conclusion.62
“Membership in the bar is in the category of a mandate of public
service of the highest order. A lawyer is an oath-bound servant of
society whose conduct is clearly circumscribed by inflexible norms of
law and ethics, and whose primary duty is the advancement of the
quest of truth and justice, for which he has sworn to be a fearless
crusader.”53 Like the court itself, he is an instrument or agency to
advance the ends of justice. His cooperation with the court is due
whenever justice will be imperiled if cooperation is withheld.54 He
can thus be compelled to render professional services in favor of a
destitute party in a case,66 or to do any specific act which is incumbent
upon him as an officer of the court to perform.56
As an officer of the court an attorney is subject to the disciplinary
authority of the court and to its orders and directives with respect
to his relation to the court as well as to his client.57 He is continually
49Alawi v. Alauya, 268 SCRA 628 (1997). Those who pass the Shari’a Bar are
not full-pledged members of the Philippine Bar, unless they have also been admitted
to the Philippine Bar.
“Valencia v. Cabanting, 196 SCRA 302 (1991); Berenguer v. Carranza, 26
SCRA 673 (1969); Ledesma v. Climaco, (1974), 57 SCRA 473 (1974).
“People ex rel. Karlin v. Culkin, 24 NY 465, 60 ALR 851 (1928).
52Pangan v. Ramos, 93 SCRA 87 (1979); Re Macy, 196 1095, 14 ALR 848
(1921).
“Justice Fred Ruiz Castro, “Apostasy in the Legal profession,” 64 SCRA 784,
790 (May to June 1975).
“People ex rel. Karlin v. Culkin, 284 NY 465, 60 ALR 851 (1928);
“Ledesma v. Climaco, 57 SCRA 473 (1974); People v. Estebia, 27 SCRA 106
(1969).
“Hilado v. David, 84 Phil. 569 (1949).
6,Hilado v. David, supra.; Berenguer v. Carranza, 26 SCRA 673 (1969).
8
LEGAL AND JUDICIAL ETHICS
accountable to the court for the manner in which he exercises his
privilege to practice law. His admission to the bar is upon the implied
condition that his continued enjoyment of the privilege conferred is
dependent upon his remaining fit and safe to exercise it.68
In his relation with his client, which is characterized by utmost
trust and confidence, an attorney is more than an agent and has
powers entirely different from and superior to those of an ordinary
agent.69 Being a quasi-judicial officer, the court always looks into,
and closely scrutinizes his transaction with his client and protects
the client from undue disadvantage on account of his situation.60
§1.05. Privileges of attorney.
An attorney enjoys a number of privileges by reason of his office
and in recognition of the vital role which he plays in the administration
of justice. A lawyer has the privilege and right to practice law during
good behavior before any judicial, quasi-judicial or administrative
tribunal.61 The court, in admitting him to practice, presents him to
the public as worthy of its confidence and as a person fit and proper
to assume and discharge the responsibilities of an attorney.62 As part
of the judicial system, whose role as an advocate and as officer of the
court is necessary for the due administration of justice, he has the
privilege, as the first one to sit in judgment on every case, to set the
judicial machinery in motion.63 On him depends the proper course of
judicial direction in the administration of justice.
An attorney enjoys the presumption of regularity in the
discharge of his duty.64 He is immune, in the performance of his
obligation to his client, from liability to a third person insofar as
he does not materially depart from his character as a quasi-judicial
“Tejan v. Cusi, Jr., 57 SCRA 154 (1974); In re Gutierrez, 5 SCRA 661 (1962);
In re Santiago, 70 Phil. 66 (1940).
69Hope v. Klapperich, 28 NH2d 780,173 ALR 819 (1947).
“Hilado v. David, 84 Phil. 569 (1949).
61Phil.
Lawyers Ass’n. v. Agrava, 105 Phil. 173 (1959).
re Almacen, (1970), 31 SCRA 562; Ruckenbrod v. Mullins, 133 2d 325,144
ALR 839 (1943).
“C an tiller v. Potenciano, 180 SCRA 246 (1989).
MIn re De Guzman, 55 SCRA 139 (1974); People v. Mantawar, 80 Phil. 817
(1948); Galvez v. Court of Appeals, 42 SCRA 278 (1971); In re Tionko, 43 Phil. 191
(1922).
62/n
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9
officer.66 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; hence, he can
speak freely and courageously in the course of judicial proceedings
without the risk of incurring a criminal prosecution or an action
for damages.66 Hence, no counterclaim for damages can be asserted
against him in the complaint which he files for his client.67 He can
stand up for his right or the right of his client even in the face of a
hostile court.68 He has the right to protest, in a respectful language,
any unwarranted treatment of a witness or any unjustified delay in
the administration of justice; he is allowed great latitude of pertinent
comment in the furtherance of the causes he upholds; and for felicity
of his client, he may be pardoned for some infelicities of language.69
The rights and privileges which an attorney enjoys as an
officer of the court are as necessary for the proper administration
of justice as for the protection of the attorney and his client.70 They
are designed to encourage a lawyer to be courageous and fearless
in the prosecution or defense of his client’s cause. As there can be
no strong court without courageous and fearless judges, there can
be no strong bar without courageous and fearless attorneys. Both
are indispensable, as inseparable parts and parcels of the judicial
system, to attain a common objective — the proper, efficient, speedy
and inexpensive administration of justice.71
An attorney has other privileges than those which are inherent
in his status as a quasi-judicial officer. The law makes his passing
the bar examination equivalent to a first grade civil service eligibility
for any position in the classified service in the government the
duties of which require knowledge of law, or a second grade civil
service eligibility for any other government position which does
“Hoppe v. Klapperich, 28 NW2d 780,173 ALR 819 (1947); Cf. In re Filiart, 40
205 (1919); Boija v. Boija, 101 Phil. 911 (1957).
6®People v. Aquino, 18 SCRA 555 (1966); U.S. v. Bustos, 37 Phil. 743 (1918);
Tupas v. Parreno, 105 Phil. 1304 (1959); People v. Andres; Sison v. David, 1 SCRA 60
(1961); Gonzales v. Alvarez, 14 SCRA 901 (1965); Tolentino v. Baylosis, 1 SCRA 396
(1961); People v. Sesbrano, 130 SCRA 465 (1984).
67Chavez v. Sandiganbayan,
(1969).
193 SCRA 282 (1991).
“/n re Aguas, 1 Phil. 1 (1901); Lualhati v. Albert, 57 Phil. 86 (1932).
“Dorado v. Pilar, 104 Phil. 743 (1958); Deles v. Aragona, Jr., 27 SCRA 633
70Durst v.
Tantges, W. & McDonald, 44 F2d 507, 71 ALR 1394 (1930).
Borkowski, 188 Wis 277, 206 NW 181, 43 ALR 622 (1925); Hope v.
Klapperich, 28 NW2d 780,173 ALR 819 (1947).
71Langen v.
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LEGAL AND JUDICIAL ETHICS
not prescribe proficiency in law as a qualification.72 As a man of
law he is necessarily a leader in the community, looked up to as a
model citizen.73 Because of his integrity, ability and learning, he is
often called upon to administer the executive departments of the
government, and he fills a large part of the legislative bodies. He has
taken a most important part in framing the form of government and
in guiding its growth and development. It can even be said that a
democratic government cannot long exist without a strong, fearless,
able, honest, conscientious and patriotic bar.74
An attorney has many rights and privileges and he must,
therefore, accept his office cum onore.™
§1.06. Duties of office, generally.
While an attorney has many rights and privileges, he has
equally a number of duties and responsibilities. It is his duty
to maintain allegiance to the Republic of the Philippines and to
support the Constitution and obey the law; to observe and maintain
the respect due the courts of justice and judicial officers; to counsel
or maintain such actions or proceedings only as he believes to be
honestly debatable under the law; to employ, for the purpose of
maintaining the causes confided to him, such means only as are
consistent with truth and honor, and never to mislead the judge or
any judicial officer by an artifice or false statement of fact or law.76
He is to maintain inviolate the confidence, and at every peril
to himself, to preserve the secrets of 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
or reputation of a party or witness, unless required by the justice
of the cause with which he is charged; 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; never to
reject, for any consideration personal to himself, the cause of the
defenseless or the oppressed; and in the defense of a person accused
72Rep. Act 1080, as amended by Rep. Act 1844; Millare v. Subido, 20 SCRA 954
(1967); David v. Dancel, 17 SCRA 696 (1966).
73Blanza v. Arcangel, 21 SCRA 1 (1967).
74/n re Macy, 196 P1095,14 ALR (1921).
78Ruckenbrod v. Mullins, 133 2d 325,144 ALR 839 (1943).
76Rule 138, Sec. 20(a) to (d), Rules of Court.
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11
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 or
liberty, but by due process of law.77
The duties of an attorney, impressed with the solemnity of his
oath, may be classified into those which he owes to the court, to the
public, to the bar and to his client.
§1.07. Public versus private and personal duties.
The duties of an attorney may also be classified into public,
private and personal obligations. Such classification results from
the three-fold capacity in which an attorney operates, namely, as a
faithful assistant of the court in search of a just solution to disputes,
as a trusted agent of his client and as a self-employed businessman.78
His public duty consists of his obligations to obey the law, aid in the
administration of justice or cooperate with it whenever justice would
otherwise be imperiled. His private duty refers to his obligation to
faithfully, honestly and conscientiously represent the interest of his
client. And his personal obligation is what he owes to himself.
The rules and ethics of the legal profession demand that an
attorney subordinate his personal and private duties to those which
he owes to the court and to the public. For an attorney assumes
his obligations to the public as an officer of the court before he ever
has a client.79 His oath requires him to be absolutely honest even
though his client’s interest may seem to demand a contrary course.80
Accordingly, where his duties to his client conflict with those which he
owes to the court and the public, the former must yield to the latter.81
His obligations to his client, in turn, take precedence over his duties
to himself.82 While the foregoing rule may impose some hardship or
inconvenience upon him, personal sacrifices are, however, inherent
77Rule
138, Sec. 20(e) to (i), Rules of Court.
Hurley, 366 U.S. 117, 6 L ed 2d 156 (1961).
79Re Nebraska State Bar Ass’n., 275 NW 265, 114 ALR 151 (1937).
“°Cobb-Perez v. Lantin, 24 SCRA 291 (1962).
81Cobb-Perez v. Lantin, 24 SCRA 291 (1962); Castaneda v. Ago, 65 SCRA 505
(1975); Surigao Mineral Reservation Board v. Cloribel, 31 SCRA 1 (1970); In re Almacen, 31 SCRA 562 (1970).
82Ledesma v. Climaco, 57 SCRA 473 (1974); Sta. Maria v. Tuason, 11 SCRA
562 (1964).
78Cohen v.
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LEGAL AND JUDICIAL ETHICS
in the practice of law, which he voluntarily assumed when he took
his oath of office as an attorney.83
§1.08. Practice of law a profession.
The practice of law is a profession, a form of public trust, the
performance of which is entrusted only to those who are qualified
and who possess good moral character.84 If the respect of the people
in the honor and integrity of the legal profession is to be retained,
both lawyers and laymen must recognize and realize that the legal
profession is a profession and not a trade, and that the basic ideal of
that profession is to render public service and secure justice for those
who seek its aid.86 It is not a business, using bargain counter methods
to reap large profits for those who conduct it.86 From the professional
standpoint, it is expressive of three ideals — organization, learning
and public service. The gaining of a livelihood is not a professional
but a secondary consideration. The professional spirit — the spirit
of public service — constantly curbs the urge of that instinct.87
The law as a profession proceeds from the basic premise that
membership in the bar is a privilege burdened with conditions and
carries with it the responsibility to live up to its exacting standards
and honored traditions. A person enrolled in its ranks is called
upon to aid in the performance of one of the basic purposes of the
state — the administration of justice.88 That the practice of law is a
profession explains why lawyers of repute and of eminence welcome
their designation as counsel de oficio, as an opportunity to manifest
fidelity to the concept that law is a profession.89
The law must be thought of as ignoring commercial standards of
success. The lawyer’s conduct is to be measured not by the standards
of trade and counting house but by those of his profession. The Code
of Professional Responsibility, particularly the ethical rule against
advertising or solicitation of professional employment, rests on the
fundamental postulate that the practice of law is a profession.90
“State v. Horan, 123 NW2d 488, 98 ALR2d 1227 (1963).
“Director of Religious Affairs v. Bayot, 74 Phil. 477 (1944); People v. Daban,
43 SCRA 185 (1972).
86Meyer v. State Bar, 2 Call2d 71, 39 P2d 206 (1934).
86Meyer v. State Bar, 2 Call2d 488, 98 ALR2d 1227 (1963).
mRe Rothman, 12 NJ 528, 97 A2d 627, 39 ALR2d 1032 (1953).
“Ledesma v. Climaco, 57 SCRA 473 (1974).
89People v. Rosqueta, Jr., 55 SCRA 486 (1974); Ledesma v. Climaco, supra.
*>Re Rothman, 12 NJ 528, 97 A2d 627, 39 ALR2d 1032 (1953).
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In the matter of fixing his fees, an attorney should never forget
that “the profession is a branch of the administration of justice
and not a mere money-making trade”91 and that his standing as a
member of the bar “is not enhanced by quibbling relative to just fees,
equivalent to the bargaining between a prospective purchaser and
a merchant in the market before a sale is made.”92 Law advocacy is
not capital that yields profits. The returns are simple rewards for a
job done or service rendered. It is a calling that, unlike mercantile
pursuits which enjoy a greater deal of freedom from government
interference, is impressed with public interest, for which it is
subject to state regulation.93 However, while the practice of law is a
profession and an attorney is primarily an officer of the court, he is
as much entitled to protection from the court against any attempt
by his client to escape payment of his just fees,94 as the client against
exaction by his counsel of excessive fees.95
To summarize, the primary characteristics which distinguish
the legal profession from business are: (a) “a duty of public service,
of which emolument is a by-product, and in which one may attain
the highest eminence without making much money”; (b) “a relation
as officer of the court to the administration of justice involving
thorough sincerity, integrity, and reliability”; (c) “a relation to client
in the highest degree fiduciary”; and (d) “a relation to 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.”96
These characteristics make the law a noble profession, and the
privilege to practice it is bestowed only upon individuals who are
competent intellectually, academically and morally.97 Its basic ideal
is to render service and to secure justice for those who seek its aid.
If it has to remain a noble and honorable profession and attain its
(1935).
91Canon 12,
92Arce v.
Canons of Professional Ethics; Jayme v. Baulan, 58 Phil. 422
Philippine National Bank, 62 Phil. 569,571.
v. Court of Appeals, 164 SCRA 160 (1989); Metropolitan Bank & Trust
Co. v. Court of Appeals, 181 SCRA 367 (1990).
94Albano v. Coloma, 21 SCRA 411 (1967); Aro v. Nanawa, 27 SCRA 1090 (1969);
Fernandez v. Bello, 107 Phil. 1140 (1960).
96Sta. Maria v. Tuason, 11 SCRA 562 (1964); Gorospe v. Gochangco, 106 Phil.
425 (1959); In re Booram, 39 Phil. 247 (1918).
mIn re Sycip, 92 SCRA 1 (1979), quoting H.S. Drinker, Legal Ethics (1953),
4.5.
97Resurrecion v. Sayson, 300 SCRA 129 (1998).
93Canlas
14
LEGAL AND JUDICIAL ETHICS
ideal, those enrolled in its ranks should not only master its tenets
and principles but should also, by their lives, accord continuing
fidelity to them.98 And because they are the vanguards of the law
and the legal systems, lawyers must at all times conduct themselves
in their professional and private dealings with honesty and integrity
in a manner beyond reproach.99
As law is a profession, the practice of law may be exercised only
by natural persons who are lawyers, either as solo practitioners or
in partnership with other lawyers. The Supreme Court ruled:
“A partnership in the practice of law is a mere relationship
or association for such particular purpose, x x x l t i s not a legal
entity. It is not a partnership formed for the purpose of carrying
on a trade or business or of holding property.”100
The reason why partnership in the practice of law is a nonlegal entity and is not a trade or business partnership is because law
is a profession, thus:
“The primary characteristics which distinguish the legal
profession from business are:
1.
A duty of public service of which the emolument is a
by-product, and in which one may attain the highest eminence
without making much money.
2.
A relation as an officer of court to the administration of
justice involving thorough sincerity, integrity, and reliability.
3.
A relation to clients in the highest degree fiduciary.
4.
A relation to colleagues characterized by candor,
fairness, and unwillingness to resort to current business
methods of advertisement and encroachment upon other’s
practice, on dealing directly with their clients.”101
A professional law partnership, even if registered, with the
Securities and Exchange Commission, is not even a taxpayer and
"Docena v. Limon, 295 SCRA 264 (1998), quoting Agpalo, Legal Ethics (1983
ed., p. 1).
"Resurrecion v. Sayson, 300 SCRA 129 (1998).
100In the Matter of Petition for Authority to Continue Use of Law Firm Name,
92 SCRA 1, 9 (1979), citing in Re Crawford’s Estate, 184 NE 2d 779, 783.
mIbid., at pp. 0-10
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any lawyer practicing law under a law partnership is considered a
solo practitioner who is the taxpayer and not the law partnership.102
The law, in fact, prohibits a business or commercial partnership
or juridical entity to engage in the practice of law, the reason being
that a commercial partnership or juridical entity, by the veiy
nature of the practice of law, cannot possess nor comply with the
qualifications and requirements of a lawyer.103 As the Court aptly
stressed:
“Law is a noble profession, and the privilege to practice
it is bestowed only upon individuals who are competent
intellectually, academically and, equally important, morally.
Because they are vanguards of the law and the legal system,
lawyers must at all times conduct themselves, especially in
their dealings with their clients and the public at large, with
honesty and integrity in a manner beyond reproach.”104
As a law partnership is a non-legal entity, it cannot, by itself,
sue or be sued.106
§1.09. Necessity of representation by counsel.
In a democratic and civilized country where the rights of a person
are determined in accordance with established rules, the employment
of a person acquainted with those rules becomes a necessity both to
the litigants and to the court.106 A litigant is ordinarily not versed
in the law and its intricacies.107 A court, on the other hand, can
adjudicate a controversy between litigants only in accordance with
the law and the facts as presented by the parties pursuant to wellestablished rules of procedure and evidence.108 A litigant who is not
a lawyer is not expected to know those rules. A person unlearned in
the law can neither aid litigants nor the court in that regard. Only
a lawyer, who by mental and moral fitness previously ascertained
possesses the required training in law, can properly and effectively
extend such assistance. The law profession came into being as a
102Tan v.
15).
Del Rosario, Jr., 237 SCRA 324, 333-336 (1994).
103Sec.
104Soriano
1, Rule 138, Rules of Court; Re Cooperative Co., 198 NY 479, 92 NE
v. Dizon, A.C. No. 792, January 25, 2006.
v. Militante, 316 SCRA 226 [1999
106Ruckenbrod v. Mullins, 133 P2d 325,144 ALR 839 (1943).
mIn re Oliva, 103 Phil. 312 (1958); Cobb-Periz v. Lantin, 24 SCRA 291 (1962).
108Miranda v. Court of Appeals, G.R. No. 33007, June 18,1976.
!06Ventura
16
LEGAL AND JUDICIAL ETHICS
result of that procedural development of the court, which created
the necessity for the attorney and made him an essential part of the
judicial machinery.109 For a good bar is a necessity for a good bench,
and the labors of the latter in administering justice and keeping it
on a high plane are lightened and rendered more effective by the
learning and ability of the bar.110
The right of a litigant to counsel is a recognition of, and is
intended to give meaning to, the necessity that a litigant appear
by counsel. It is based on the fundamental premise that there can
be no fair hearing unless a litigant is represented or assisted by
counsel.111 A court cannot, therefore, compel a litigant to prosecute or
defend his cause personally if he has chosen to appear by counsel;112
nor can it assign a counsel de oficio for an accused and require said
counsel to proceed with the trial when the accused has previously
manifested his desire to secure the services of a counsel de parte.™
If in any case, civil or criminal, a court were arbitrary to refuse to
hear a party by counsel employed by and appearing for him, it may
not be doubted that such a refusal would be a denial of hearing and,
therefore, of due process in the constitutional sense.114 On the other
hand, to impress upon the attorney the importance of his role in
representing a litigant and the responsibility that goes with it, the
rules and ethics of the legal profession not only grant him a number
of rights and privileges, but also give him the management and
control of the litigation related to the enforcement of a remedy.115
And to exact from the attorney faithful devotion to his client’s cause,
warm zeal in the maintenance and defense of his rights and the
exertion of his utmost learning and ability, the Supreme Court as
guardian of the legal profession subjects him to disciplinary action
and administrative liability for his failure to properly attend to the
109Ruckenbrod v.
Mullins, 133 P2d 325,144 ALR 839 (1943).
Nebraska State Bar Ass’n. 275 NW 265,114 ALR (1937). Industrial Relations, 30 SCRA 917 (1969); Cf. Hernandez v. Clapis, 87 Phil. 437 (1950).
■“People v. Holgado, 85 Phil. 752 (1950).
U2Cf. Flores v. Ruiz, 90 SCRA 427 (1979); Francisco v. Enriquez, 94 Phil. 603
(1954); Bakewell v. Lloren 12 SCRA 691 (1964).
113People v. Malunsing, 63 SCRA 493 (1975). See People v. Solis, 128 SCRA
217.
114Powell v. Alabama, 287 U.S. 45, 77 L ed 158 (1932); Flores v. Ruiz, supra.
116See Chapter on Authority of Attorney, infra.', Rodriguez v. CFI of Rizal, 88
Phil. 417 (1951); Salazar v. Jarabe, 91 Phil. 596 (1952); Belendres v. Lopez Sugar
Central Mill Co., Inc., 97 Phil. 100 (1955).
lwRe
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17
interest of his client, which works to the latter’s prejudice,116 a means
to secure a litigant effective assistance of counsel.117
§1.10. Need for, and right to, counsel.
A party litigant needs the assistance of counsel in all
proceedings, administrative, civil or criminal. Not being a lawyer,
he is ignorant of the substantive and procedural laws which are
applied to resolve disputes. And even if he is a lawyer, his personal
and, at times emotional, involvement may adversely affect his
handling of the case, to his prejudice. Thus, it has been held that
even lawyers, who are parties in a case, need the guiding hand of
counsel. Skill in drafting pleadings is vastly different from skill
needed in the courtroom. Preparing pleadings can be done at leisure
with the luxury of consultation, either of books or of people. Trial
work, however, demands more. It requires the ability to think fast
on one’s feet and the psychologist’s feel for the witness’ mood and
motive.118
The need of a person for the assistance of counsel is felt more
urgently in a criminal than in any other proceeding against him
where his life or liberty and the comforts of his family are at stake.
He requires the guiding hand of counsel at every stage of the
proceedings,119 which the law grants him by the right accorded him to
counsel, from custodial interrogation120 to preliminary investigation121
or detention pending trial, and from arraignment to promulgation of
judgment122 and in appeals to the appellate courts.
Custodial investigation is the questioning by law enforcement
officers of a suspect taken into custody or otherwise deprived of
his freedom of action in a significant way.123 What has been a mere
judicial ruling in the United States to the effect that a person, under
custodial interrogation, has the right to counsel and to be informed
116See
seq.
Chapter on Disbarment, infra.
117See
118Reyes
in re Sotto, 38 Phil. 532 (1918), con. op. of Justice Malcolm at 549, et
v. CA, 267 SCRA 543 (1997).
v. Alabama, 287 U.S., 77 L ed 158 (1932).
120Const. Art. IV. Sec. 20.
121Aquino, Jr. v. Military Commission No. 2, G.R. 37363, May 9,1975.
122Const. Art. IV, Sec. 19; People v. Holgado, 85 Phil. 752 (1950).
123People v. Logronio, 214 SCRA 519 (1992).
119Powell
LEGAL AND JUDICIAL ETHICS
18
of such right,124 has been clothed with the impregnability of an
express constitutional mandate in this jurisdiction. The Constitution
provides that “any person under investigation for the commission of
an offense shall have the right to be informed of his right to remain
silent and to have competent and independent counsel preferably
of his choice” and any confession or admission in violation of such
provision “shall be inadmissible in evidence against him.”126 This
constitutional mandate spotlights the importance of the presence
of counsel in any police investigation of a person for the commission
of an offense, as the adequate protective device necessary to make
the process of police interrogation conform to the dictates of the
privilege against self incrimination. His presence would insure that
statements made in the government-established atmosphere are
not the product of compulsion. If the accused decides to talk to his
interrogators, the assistance of counsel can mitigate the danger of
untrustworthiness. With a lawyer present the likelihood that the
police will practice coercion is reduced, and if coercion is nevertheless
exercised the lawyer can testify to it in court.126
No custodial investigation can be conducted unless it be in the
presence of counsel engaged by the person arrested, or appointed
by the court upon petition either of the detainee himself or by one
on his behalf. Any confession of the person or any document signed
by him expressly or impliedly admitting the commission of the
crime without having been assisted by his lawyer is inadmissible in
evidence.121 While he may waive his right to counsel, such waiver, to
be valid and effective, must be made with the assistance of counsel
who must be a lawyer.128
The right of an accused to be heard will be of little avail if it does
not include the right to be heard by counsel. Even the most intelligent
or educated man may have no skill in the science of law, particularly
in the rules of procedure and evidence and, without counsel, an
accused may be put to trial without a proper charge and convicted
upon incompetent evidence or evidence irrelevant to the issue or
otherwise inadmissible. Left without the aid of counsel, he may be
(1966).
124Escobedo
126Const.
v. Illinois, 378 U.S. 478 (1964); Miranda v. Arizona, 384 U.S. 436
Art. Ill, Sec. 12
■“People v. Jimenez, 71 SCRA 186 (1976); Miranda v. Arizona, 384 U.S. 436
(1966); Escobedo v. Illinois, 375 U.S. 478 (1964).
127People v. Campos, 202 SCRA 387 (1991).
■“People v. Agustin, 240 SCRA 541 (1995).
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19
convicted not because he is guilty but because he does not know how
to establish his defense or innocence.129 He needs the assistance of
counsel lest he be the victim of over zealous prosecutors, of the law’s
complexity or of his own ignorance or bewilderment.130 It is for this
reason that the right to counsel is deemed so important that it has
become a constitutional right, and it is so implemented that it is not
enough for the court to apprise an accused of his right to counsel, nor
is it sufficient to ask him whether he desires the aid of an attorney;
but it is essential that the court should grant him reasonable time
to procure an attorney of his own or assign a counsel de oficio if he
cannot afford the services of counsel de parte.131
The right to counsel of an accused in criminal cases is immutable,
and has never been considered subject to waiver.132 Otherwise, there
would be a grave denial of due process. Thus, even if the judgment
had become final and executory, it may still be recalled, and the
accused afforded the opportunity to be heard by counsel, where he
has been denied the right to counsel during the hearing.133 Where
an accused was represented in the Regional Trial Court by a person
who claimed to be a lawyer and was thereafter convicted, but it was
later discovered that his counsel was not really a lawyer, he was
entitled to have his conviction set aside and a new trial undertaken.
The fact that the person who represented the accused during
the trial presented evidence for the defense with the ability of a
seasoned lawyer and handled the case for the accused professionally
and skillfully thus affording him due process, does not render the
judgment of conviction legal. The right of an accused to be heard by
himself and counsel goes deeper than the question of ability or still.
It lies at the heart of the adversarial system of justice.134
For unless an accused is represented by a lawyer, there is great
danger that any defense presented in his behalf will be inadequate
considering the legal skills needed in court proceedings, as would
amount to a denial of due process.136 The presence and participation
129People v. Holgado, 85 Phil. 752 (1950); Powell v. Alabama, 287 U.S. 445, 77
L. ed 158 (1932); Ledesma v. Climaco, 57 SCRA 473 (1947).
130People v. Malunsing, 63 SCRA 493 (1975), quoting William v. Kaiser, 323,
U.S. 471 (1945).
131Flores v. Ruiz, 90 SCRA 427 (1979).
132Flores v. Ruiz, 90 SCRA 427 (1979); People v. Holgado, 85 Phil. 752 (1950);
Ledesma v. Climaco, 57 SCRA 473 (1974).
133Tejan v. CA, 202 SCRA 534 (1991).
134People v. Santocildes, Jr., 321 SCRA 310 (1999).
135Delgado v. Court of Appeals, 145 SCRA 357.
LEGAL AND JUDICIAL ETHICS
20
of counsel in criminal proceedings is a part of due process which
cannot be taken lightly.136
The right to counsel in civil cases exists forcefully as in criminal
cases, especially where as a consequence life, liberty or property
is subject to restraint or in danger of loss. The right to counsel
is absolute and may be invoked at all times. And a resolution of
the Court of Appeals dismissing an appeal for failure to file the
appellant’s brief may be recalled and the appeal reinstated, where
it appears that the “lawyer” who perfected the appeal and failed to
file the appellant’s brief turned out to be a fake lawyer.137 Similarly,
if the incompetence, ignorance or inexperience of counsel is so great
and the error committed as a result thereof is so serious that the
client, who otherwise has a good cause, is prejudiced and denied
his day in court, the litigation may be re-opened to give the client
another chance to present his case.138
§1.11. Consequences of denial of right to counsel.
The denial of the right to counsel, which may either be the
absence of assistance of counsel or the inadequate and grossly
negligent representation of counsel, may have the following adverse
results or consequences:
1.
Admission of guilt given by the accused in custodial
investigation, including receipts he signed for items which are
inculpatory in nature, are not admissible in evidence, and if
properly objected to will not be received in evidence against him.
Thus, regardless of whether or not the extrajudicial confession of
an accused is true, as long as it was given without the assistance
of counsel, it becomes inadmissible in evidence although it was a
product of the accused’s free will and violation.139 Similarly, the
receipt issued and signed by an accused without the assistance
of his counsel acknowledging receipt from him of prohibited drug
seized from him by police officers is inadmissible as it is in violation
of his right to counsel.140
136People
v. Santocildes, Jr., G.R. No. 109149, December 21,1999.
CA, 202 SCRA 534 (1991).
138See discussion on this subject, §11.34, infra.
139People v. Nicolas, 204 SCRA 191 (1991).
140People v. De la Pena, 199 SCRA 28 (1991).
137Telan v.
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2.
If the judgment of conviction had become final and
executory, it may still be recalled, and the accused afforded the
opportunity to be heard by counsel, where he has been denied the
right to counsel during the hearing.141
3.
Where an accused was represented in the Regional Trial
Court by a person who claimed to be a lawyer and was thereafter
convicted, but it was later discovered that his counsel was not really
a lawyer, he was entitled to have his conviction set aside and a new
trial undertaken.142
4.
A resolution of the Court of Appeals dismissing an appeal
for failure to file the appellant’s brief may be recalled and the appeal
reinstated, where it appears that the “lawyer” who perfected the
appeal and failed to file the appellant’s brief turned out to be a fake
lawyer.143
5.
If the incompetence, ignorance or inexperience of counsel
is so great and the error committed as a result thereof is so serious
that the client, who otherwise has a good cause or defense is
prejudiced and denied his day in court, the litigation may be reopened to give the accused another chance to present his case.
There had been occasions when the court gave the accused another
chance to present his evidence after a showing that the conviction
has been brought about by his counsel’s gross ignorance of law and
procedure.144
6.
Where the failure of the defense to present its evidence
is due to the absences of the counsel for the accused, despite the
trial court’s warning that such failure would amount to a waiver of
the his client’s right to present evidence in his defense, the accused
should be given another chance to present his evidence. For the
judicial conscience cannot rest easy on a conviction based solely
on the evidence of the prosecution just because the presentation
of the defense evidence had been barred by a technicality. Rigid
application of rules must yield to the duty of courts to render justice
where justice is due — to secure to every individual all possible legal
means to prove his innocence of a crime which he or she might be
charged.145
141Tejan v.
CA, 202 SCRA 534 (1991).
I42Delgado v.
Court of Appeals, 145 SCRA 357.
CA, 202 SCRA 534 (1991).
144De Guzman v. Sandiganbayan, G.R. No. 103276, April 11,1996; Reyes v. CA,
267 SCRA 543 (1997).
145Reyes v. CA, 267 SCRA 543 (1997).
143Telan v.
22
LEGAL AND JUDICIAL ETHICS
7.
In a custodial investigation, the accused has the right
to a competent and independent counsel of his choice. Where the
accused has persistently and insistently disavows knowledge of the
lawyer who allegedly assisted him in the taking of his extrajudicial
admission during custodial investigation and the prosecution has
failed to present the lawyer as a witness to show his role therein, the
extrajudicial confession is not admissible in evidence, as his right to
a competent and independent counsel of his own choosing has been
denied.146 However, a lawyer provided by the investigators is deemed
engaged by the accused where he never raised any objection against
the appointment of the lawyer during the course of the investigation
and the accused thereafter subscribes to the veracity of his statement
before the swearing officer, which is presumed given in accordance
with the constitutional requirements.147
8.
The accused’s confession given to a prosecutor after the
information has been filed in court without the assistance of a
competent and independent counsel, preferably of his own choice,
violates his right to counsel and the confession is inadmissible. A
legal officer of a city is not an independent counsel, as he is burdened
with task antithetical to the interest of an accused, similar to that of
a prosecutor who undoubtedly cannot represent an accused during
custodial investigation due to conflict of interest.148 Similarly, in a
custodial investigation before the NBI, the counsel chosen by the
NBI investigators for the accused was an applicant for a position in
the NBI and was in fact hired thereafter. The Court held that he was
not a competent and independent counsel, so that the statements
taken by the NBI investigators with the counsel’s assistance were
held not admissible in evidence.149
9.
Where the trial court conducted hearing even in the
absence of the counsel for the accused and subjected the offended
party in a charge of rape, to lengthy cross-examination and thereafter
convicted the accused and imposed the penalty of reclusion perpetua,
the accused’s right to counsel had been violated and the trial court did
not exhibit the cold neutrality of an impartial judge, as to render the
proceedings and the decision of conviction null and void, warranting
a remand and trial de novo.™
146People
147People
v. Santos, 283 SCRA 443 (1997).
v. Jerez, 285 SCRA 393 (1998).
v. Espanola, 271 SCRA 689
,49People v. Januario, 267 SCRA 608 (1997).
1 “Valdez v. Aquilizan, 133 SCRA 150
148People
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§1.12. When appearance by counsel not obligatory.
The right to appear by counsel does not, however, make that
method of appearance obligatory in all judicial proceedings. In the
municipal trial court, a party may conduct his litigation in person
or with the aid of an agent or friend appointed by him for that
purpose or with the aid of an attorney. In the Regional Trial Court
and Appellate Courts, a party in a civil suit may either conduct his
litigation personally or by attorney161 unless the party is a juridical
person, in which case it may appear only by attorney.162 And even
if he has chosen to appear by counsel, he may at any time dispense
with the services of his lawyer and prosecute or defend his case
personally.1"
In administrative proceedings, the right to counsel is not
indispensable to due process. If a respondent had chosen to represent
himself without the assistance of counsel, he could not later claim
that he had been denied due process. For there is nothing in the
Constitution that says that a party in a non-criminal proceeding
is entitled to be represented by counsel and that, without such
representation, he shall not be bound by such proceedings. The
assistance of lawyers, while desirable, is not indispensable. The legal
profession was not engrafted in the due process clause such that
without the participation of the members of the bar, the safeguard is
deemed ignored or violated. The ordinary citizen is not that helpless
that he cannot validly act except only with a lawyer at his side.164
It must be emphasized, however, that the fact that a person may
conduct his own litigation in person or, in some instances, waive his
right to counsel does not detract from the necessity or diminish the
importance of assistance of counsel. A party who conducts his own
litigation in person or waives his right to counsel may not realize the
benefit of representation by counsel, and he is the party who needs
most the services of a lawyer.155
(1983).
161Rule
138, Sec. 34, Rules of Court: Catimbuhan v. Cruz, 126 SCRA 190
16JOsbom v. Bank of United States, 9 Wheat (U.S.) 738, 6 L. ed 204 (1824);
Lichauco v. Alejandrino, 21 Phil. 58 (1911).
153Rustia v. Judge of CFI of Batangas, 44 Phil. 62 (1922); De Mondia v. Public
Service Commission, 65 Phil. 708 (1938).
l64Luminqued v. Exevea, 282 SCRA 125.
luCf. People v. Dorado, 62 Cal2d 338, 398 P2d 361 (1965).
24
LEGAL AND JUDICIAL ETHICS
The rule that appearance by counsel is not obligatory applies
only in civil and administrative cases. The rule does not apply in
criminal cases involving grave and less grave offenses, where an
accused must be represented by counsel de parte or counsel de oficio
and in which his right to counsel is not waivable.
§1.13. Canons of professional responsibility.
A practicing lawyer is constantly confronted with conflicting
loyalties which he must reconcile. He is answerable not only to his
client whose interest he has to serve with zeal and devotion but also
to the court of which he is an officer.156 His obligation to the bar
requires him to uphold its honored traditions.167 To merit the respect
of the public, he should do nothing which may tend to lessen in any
degree the public confidence in the fidelity, honesty and integrity of
the legal profession.158 He should promote and embrace the objectives
and policies of the society in which he lives.169 Finally, his personal
interest, particularly his eye on the attorney’s fees, impinges upon
his cardinal loyalties.160
The criticism and prejudice against lawyers as a class161
stem largely from the failure on the part of some practitioners to
reconcile those conflicting loyalties, and partly from the way some
of them misinterpret the law to the point of distortion to achieve
their purposes.162 These lapses and acts of misconduct tend to be
more noticeable, because of the lawyer’s prominent position in the
community, than the invaluable usefulness of the legal profession.
Such circumstance marks the beginning of the concern with the
ethical aspect of advocacy and requires the formulation of ethical
standards for the attorney’s guidance. Professional standards serve
166Canon 15, Canons of Professional Ethics: Javier v. Cornejo, 63 Phil. 293
(1930); In re Tionko, 43 Phil. 191 (1922); In re Oliva, 103 Phil. 312 (1958); Cantome
v. Ducasin, 57 Phil. 23 (1932); Perkins v. Perkins, 57 Phil. 223 (1932) Castaneda v.
Ago, 65 SCRA 505 (1975).
167Canon 29, Canons of Professional Ethics; State v. Horan, 123 NW2d 488, 98
ALR2d 1227 (1963).
168Lyons v. Hall, 90 So2d 519, 60 ALR2d 1003 (1956).
169Banogan v. Zema, 154 SCRA 593 (1987).
160Sta. Maria v. Tuazon, 11 SCRA 562 (1964); Ledesma v. Climaco, 57 SCRA
473 (1974).
161MALCOLM, LEGAL ETHICS, 1, et seq. (149); PHILLIPS & McCOY, CONDUCT OF JUDGES AND LAWYERS, 188, et seq. (1952).
162Banogan v. Zema, 154 SCRA 593 (1987).
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25
as the lawyer’s chart and compass to resolve difficult questions of
duty and help minimize ethical delinquencies. The earliest recorded
attempts to attain such end were the requirement of the lawyer’s
oath and the statement of his duties, which trace back to the
thirteenth and fourteenth centuries and which traditionally have
been the basis of all disciplinary proceedings.163
It was not until 1917 when the Philippine Bar realized that
something more than the oath and duties of a lawyer was needed
to attain the full measure of public respect to which the legal
profession is entitled. In that year the Philippine Bar Association
adopted, as its own, Canons 1 to 32 of the Canons of Professional
Ethics of the American Bar Association.164 In 1946, it again adopted,
as its own, Canons 33 to 47 of the Canons of Professional Ethics of
the American Bar Association. For a number of years these canons
served as the ethical rules and guiding principles in the practice
of law in the country. Their enforcement by the courts and their
observance by all lawyers indicative of a due appreciation of their
responsibilities to the courts, to the clients, to the bar and to the
public are as necessary to the profession to deserve the respect due
it from the public as to the community to maintain its respect to the
profession.166
The Supreme Court has cited and applied some of those canons
in cases of professional misconduct.166 It has, moreover, expressed
itself emphatically on the subject whenever the occasion demands.
It has formulated a number of ethical principles.167 But it is obvious
that more than adopting and applying the Canons of Professional
Ethics of the American Bar Association is required. A sense of
identity and the necessity of restating the canons to conform with
present-day realities and reflect the local customs, traditions and
practices of the bar dictate that the Philippine Bar fashion and
formulate its own Code of Professional Responsibility. Toward such
end, the Integrated Bar of the Philippines adopted in 1980 a proposed
Code of Professional Responsibility, which it later submitted to the
I63PHILLIPS
& McCOY, op. cit. at 204.
re Tagorda, 53 Phil. 37 (1927).
166J?e Cohen, 159 NE 495 55 ALR 1309 (1928); Re Rothman, 97 A2d 621, 39
ALR2d 1032 (1953); Re Heirich, 140 NE2d 825, 67 ALR2d 827 (1956).
lmE.g. In re Tionko, 43 Phil. 191 (1922); Hernandez v. Villanueva, 40 Phil. 775
(1920); In re Oliva, 103 Phil. 313 (1958); Daroy v. Legaspi, 65 SCRA 304 (1975).
l67E.g. Hilado v. David, 84 Phil. 569 (1949); Ledesma v. Climaco, 57 SCRA 473
(1974) : In re Almacen, 31 SCRA 562 (1970).
1MIn
26
LEGAL AND JUDICIAL ETHICS
Supreme Court for approval.168 On June 21,1988, the Supreme Court
promulgated the Code of Professional Responsibility.
The Code consists of 22 Canons and 77 Rules, which are
divided into four (4) Chapters, namely: The Law and Society; The
Lawyer and The Legal Profession; The Lawyer and The Courts;
and The Lawyer and The Clients. The Code establishes norms of
conduct and ethical standards for all lawyers, including those in
the government service, to observe in their professional, official and
private capacities. The Code is binding upon all lawyers and failure
to live up to any of its provisions is a ground for disciplinary action.169
The faithful observance of the canons and rules of ethical conduct,
demanded of every lawyer, requires a thorough understanding of
the Code.
It has been aptly observed that “there is, perhaps, no profession,
after that of the sacred ministry, in which a high-toned morality is
more imperatively necessary than that of the law. There is certainly,
without exception, no profession in which so many delicate and
difficult questions of duty are continually arising.”170 It has also been
noted that within the community in which a lawyer lives and is
known, he is the legal profession and he is judged as the profession
of which he is a part is judged on the basis of his conduct.171 These
observations underscore the necessity to inculcate professional
standards in the profession of the law. Inculcation “must begin
with the student and end with the judge, for student, lawyer and
judge alike must have a thorough understanding and appreciation
of the true meaning and purpose of the standards of professional
conduct.”172 The Supreme Court took the initial step by requiring
legal ethics to be a bar examination subject and a prescribed course
in law schools.173 The high tribunal left to the law schools much to be
done.
If the number of units given to the subject of legal ethics and its
place in the law curriculum are indicative,174 they unmistakably show
that law schools have not accorded as much importance to the subject
168Cf. In re Integration of the Philippine Bar, 49 SCRA 22 (1973). See Appendix
B, The Code of Professional Responsibility.
169Collantes v. Renomeron, 200 SCRA 584 (1991).
170MALCOLM, op. cit., at 46, quoting SHARESWOOD, LEGAL ETHICS, 55.
171PHILLIPS & McCOY, op. cit., at 47.
>72PHILLIPS & McCOY, op. cit., at 206.
173Rule 138, Secs. 5 and 9, Rules of Court.
174Legal Ethics is a two-unit course.
INTRODUCTORY
27
as it rightfully deserves. Law schools may well give this matter a
second serious look and find out, with the view of adopting remedial
measures, whether they have risen to the challenge, as they should,
in the light of what an eminent jurist has said on the subject: “From
the beginning the law schools have steadily raised their intellectual
standards. It is not too much to say that they have worshipped the
proficiency which they have sought and attained to a remarkable
degree . . . . We may well pause to consider whether the professional
school has done well to neglect so completely the inculcation of some
knowledge of the social responsibility which rests upon a public
profession. I do not refer to the teaching of professional ethics. I
have no thought that men are made moral by the mere formulation
of rules of conduct. It is not beyond the power of institutions which
have so successfully mastered the art of penetrating all the intricacies
of legal doctrine to impart a truer understanding of the functions of
those who are to be its servants.”175
175PHILLIPS & McCOY, op. cit., at. 21-22, quoting Justice Stone, The Public
Influence of the Bar, 48 Harv. Law Rev. 1, 13-14 (1934).
Chapter II
ADMISSION TO PRACTICE
A. JUDICIAL CONTROL
§2.01. Admission to practice a judicial function.
The power to admit applicants to the practice of law is judicial
in nature and involves the exercise of judicial discretion.1 It has
been traditionally exercised by the Supreme Court as an inherent
part of its judicial power.2 That the authority to decide who may be
admitted to the bar naturally and logically belongs to the judiciary
represented by the Supreme Court finds its underlying rationale in
the nature of a judicial function and in the role played by attorneys
in the administration of justice.3
A judicial function, committed to the judiciary under the
Constitution, involves the determination of rights and obligations
with reference to transactions that are past or to conditions that
exist at the time of the exercise of judicial power. The admission
to the practice of law requires (a) previously established rules and
principles; (b) concrete facts, whether past or present, affecting
determinate individuals; and (c) a decision as to whether the facts are
governed by rules and principles.4 The first requisite, by constitutional
mandate, is the primary responsibility of the Supreme Court;5 the
second requisite is brought about by the applicant for admission to
1In re Cunanan, 94 Phil. 534 (1954); In re Lanuevo, 66 SCRA 245 (1975); People
v. Romualdez, 57 Phil. 148 (1932); In re Almacen, 31 SCRA 562 (1970).
2Const. Art. VIII, Sec. 5(5); Const. Art. VIII, Sec. 13 (1935); In re Guarina, 24
Phil. 37 (1913); Philippine Lawyers Ass’n. v. Agrava, 105 Phil. 173 (1959).
37/i re Cunanan, supra.', In re Lanuevo, supra; In re Edillon, G.R. No. AC-1928,
August 3,1978.
*In re Cunanan, 94 Phil. 534 (1954); In re Lanuevo, 66 SCRA 245 (1975).
6Const., Art. VIII, Sec. 5(5).
28
ADMISSION TO PRACTICE
29
the bar; and the third requisite involves judicial adjudication which
is essentially a function of the court.6
An attorney, moreover, plays an indispensable role in the
administration of justice and participates in judicial proceedings
on behalf of a litigant.7 The quality of justice dispensed by the
court depends in no small degree upon the integrity of the attorney
and the manner in which he performs his role as an officer of the
court. To enable the court to properly discharge its responsibility
for the efficient and impartial administration of justice requires
that it must have the primary authority to decide (a) who may be
admitted to the bar as one of its officers, (b) what are the causes
for disciplinary action against him, and (c) whether he should be
disciplined, suspended, disbarred or reinstated. Only by exercising
that primary authority will the high tribunal be able to elevate and
maintain the standard of the legal profession, properly administer
justice and help keep the people’s faith and confidence in the court
and in the bar.8
The authority of the Supreme Court over the legal profession
is a constituent element of its judicial power. That authority may
not be separated in parts and exercised in part by the legislature or
the executive departments without undermining the judicial power.
Accordingly, any legislative or executive judgment substituting that
of the Supreme Court in matters concerning the admission to the
practice of law or the suspension, disbarment or reinstatement of
an attorney infringes upon and constitutes an invalid exercise of the
legislative or executive power.9
§2.02. Legislative power to repeal, alter or supplement.
The 1935 and 1973 Constitutions provide that the Supreme
Court shall have the power to “promulgate rules concerning. . . the
admission to the practice of law, and the integration of the Bar,
which, however, may be repealed, altered, or supplemented by the
Batasang Pambansa.”10 The 1987 Constitution deleted the provision
6In
re Cunanan, supra.; In re Lanuevao, supra.
re Integration of the Philippine Bar, January 9,1973;
Ruckenbrod
v. Mullins, 133 P2d 325,144 ALR 839 (1943).
eIn re Cunanan, supra.; In re Parazo, 82 Phil. 230 (1948).
9/n re Cunanan, 94 Phil. 534 (1954); In re Guarina, 24 Phil.
37 (1913); In re
Garcia, August 15, 196.
‘“Const. Art. X, Sec. 5(5) (1973); Const. Art. VIII, Sec. 13 (1935).
7In
30
LEGAL AND JUDICIAL ETHICS
concerning the power of the legislature to repeal, alter or supplement
such rules. This provision not only retains in the Supreme Court
the primary responsibility for the admission to the practice of law11
but it also vests in the high tribunal the jurisdiction to promulgate,
alter or repeal rules of procedure, including those enacted by the
legislature.12
The legislature may, however, enact laws with respect to
first requisite for the admission to the bar, namely, that there be
previously established rules and principles that applicants to the
bar should observe. In that regard, the legislature may pass a law
prescribing additional qualifications for candidates for admission to
practice or filling up deficiencies in the requirements for admission
to the bar. Such a law may not, however, be given retroactive effect
so as to entitle a person, not otherwise qualified, to be admitted to
the bar; nor will such a law preclude the Supreme Court from fixing
other qualifications or requirements for the practice of law. The
reason is that the legislature has no power to grant a layman the
privilege to practice law nor the authority to control the Supreme
Court in the performance of its primary responsibility to decide who
may be admitted to practice.13
In the exercise of its police power, the legislature may,
however, regulate the practice of law.14 Thus, it may enact a law
declaring illegal and punishable the unauthorized practice of law.15
It may also by law require further examination for any attorney
desiring to practice law before any quasi-judicial or administrative
agency,16 provided that such additional requirement must have a
rational connection with the attorney’s fitness or capacity to practice
law before such agency.17 But the promotion of the general welfare,
which is the objective sought to be attained by the legislature in the
exercise of its police power, furnishes no sufficient justification to
(1959).
nIn
re Cunanan, supra.; cf. Philippine Lawyers Ass’n. v. Agrava, 105 Phil. 173
12First Lepanto Ceramics, Inc. v. CA, 231 SCRA 30 (1994); First Lepanto Ceramics, Inc. v. CA, 237 SCRA 519 (1994).
l3In re Cunanan, 94 Phil. 534 (1954); People ex rel. Chicago Bar Ass’n. v. Goodman, 366 111 346,8 NE2d 941, 111 ALR 1 (1937); State Bar Ass’n. v. Connecticut Bank
& Trust Co., 145 Conn 222, 140 A2d 863, 69 ALR2d 394 (1958).
14U.S. v. Gomes Jesus, 31 Phil. 218 (1915); In re Edillon, 84 SCRA 554 (1978).
15People ex rel. Chicago Bar Ass’n. v. Goodman, supra.
16Philippine Lawyers Ass’n. v. Agrava, 105 Phil. 173 (1959).
llCf. Schware v. Board of Bar Examinations, 354 U.S. 232, 1 L. ed 2d 796
(1957).
ADMISSION TO PRACTICE
31
restrict the power of the Supreme Court to decide who may practice
law. Whatever law may be passed in the exercise of the police power
is merely in aid of, and does not detract from, the judicial power to
regulate the practice of law.18
§2.03. Executive power in relation to practice.
The Chief Executive cannot, by executive order, admit a person
to the practice of law nor can he, by treaty with another country,
modify the rules concerning the admission to the bar.19 Thus, the
Treaty on the Validity of Academic Degrees and the Exercise of
Professions between the Philippines and Spain,20 which grants to
the nationals of both countries, who obtain degrees or diplomas to
practice the liberal profession in the contracting states, the privilege
of exercising their professions in the territory of the other, subject
to the laws and regulations of the latter, cannot be so interpreted
as to entitle a holder of a law degree obtained in Spain to practice
law in this country without complying with the requirements of
existing law. Accordingly, a Filipino citizen who obtained the degree
of Bachelor of Laws in Spain and who was admitted to practice in
that country is not entitled to be admitted to the Philippine Bar
without examination, successfully passing the bar examination
being a prerequisite to the admission to practice in this country.21
It has been held, however, in one case22 that since the Chief
Executive, in creating a military commission to try war criminals,
has not required that counsel appearing before the commission be
duly licensed members of the bar, the appearance of two American
lawyers not authorized by the Supreme Court to practice law in this
country as prosecutors before the commission to vindicate crimes
against the United States, was lawful because the commission is
a special tribunal governed by a special law. This ruling, unless
qualified, is of doubtful validity. In fact, a member of the Court
dissented and contended that they being aliens and not having “been
authorized by the Supreme Court to practice law, there could not be
18People
ex rel. Chicago Bar Ass’n. v. Goodsman, supra.
re Garcia, August 15, 1961; cf. In Cunanan, 94 Phil. 534 (1954).
“Signed in Manila on March 4, 1949, ratified on May 19,1949 and became effective on January 5, 1951.
2IIn re Garcia, supra.-, Phil. Medical Ass’n v. Board of Medical Examiners, 25
SCRA 29 (1968).
22Kuroda v. Jalandoni, 83 Phil. 171 (1949).
19/n
32
LEGAL AND JUDICIAL ETHICS
any question that said persons cannot appear as prosecutors” “as
with such appearance they would be practicing law against the law.”23
The majority opinion is silent as to whether that limited appearance
constitutes practice of law; the dissenting opinion assumes that the
same constitutes practice of law. If such appearance constitutes
practice of law, then the majority decision may be difficult to
reconcile with the rule that neither the legislature nor the executive
branch has the authority to grant a layman the privilege to practice
law. The majority decision may only be reconciled with such rule by
considering the limited appearance of the two American lawyers as
not constituting practice of law.24
§2.04. Prescribing standards for law schools.
The Commission on Higher Education, under existing laws,
exercises regulatory power over private law schools.25 It certifies
as to the satisfactory completion of the prescribed courses of law
study by an applicant for admission to the bar examination;26 and,
in that respect, it assumes some responsibility for the quality of
instruction and training required of an applicant for membership
in the bar. In performing that responsibility, the Commission on
Higher Education acts as an agency or in aid of the Supreme Court
in the exercise by the latter of its primary authority to determine
who may be admitted to practice since that primary authority, by
constitutional mandate, rests and remains exclusively with the high
tribunal.27
The exercise by the Supreme Court of its primary authority
to decide who may be one of its officers includes the discharge of
incidental powers which may be necessary to make that exercise
effective and meaningful.28 Such incidental powers which the high
tribunal can exercise may include (a) the fixing of minimum standards
of instruction for all law schools to observe, (b) the setting up of
the necessary administrative machinery to determine compliance
therewith, and (c) by way of sanction, the refusal to admit to the
“Justice Perfecto dissenting, Kuroda v. Jalandoni, 83 Phil. 171,181 (1949).
“C/-. People v. Villanueva, 14 SCRA 109 (1965).
“Const. Art. XTV, Sec. 4(1); Art. 2706, as amended; Phil. Ass’n. of Colleges and
Univ. v. Secretary of Education, 97 Phil. 806 (1955).
“Rule 138, Secs. 5 and 6, Rules of Court.
27Const. Art. VIII, Sec. 5(5); In re Cunanan, 94 Phil. 534 (1954).
wIn re Parazo, 82 Phil. 230 (1948).
ADMISSION TO PRACTICE
33
bar examinations law graduates from any law school failing to
meet those standards.29 This may partly be implemented through
the process of accreditation. Substandard law schools will then die
a natural death for no student will patronize them, knowing that
the educational training any such school offers will be insufficient
to qualify him to take the bar examinations. It will be one way of
improving the standards of the legal profession.
B. WHAT CONSTITUTES PRACTICE OF LAW
§2.05. Practice of law, generally.
The term “practice of law” is incapable of exact definition.
Whether a particular activity comes within the meaning of the term
depends upon the circumstances of each case.30 There are, however,
general principles and doctrines laid down by the courts explaining
the meaning and scope of the term. Generally, to engage in the
practice of law is to do any of those acts which are characteristic
of the legal profession.31 It embraces any activity, in or out of court,
which requires the application of law, legal principle, practice or
procedure and calls for legal knowledge, training and experience.32
It involves the carrying on of the calling of an attorney, usually for
gain, acting in a representative capacity and rendering service to
another.33 It is not limited to the conduct of cases in court. It includes
legal advice and counseling, and the preparation of legal instruments
and contracts by which legal rights are secured, which may or may
not be pending in court.34
In the practice of his profession, a licensed attorney-at-law
generally engages in three principal types of professional activities:
legal advice and instructions to clients to inform them of their rights
and obligations; preparation for clients of documents requiring
^See Rosental v. State Bar Examining Committee, 116 Comm. 409, 87 ALR
991 (1935); State ex rel. Ralston v. Turner, 141 Neb. 556, 4 NW2d 304,144 ALR 138
(1942).
30Nelson v. Smith, 154 P2d 634, 157 ALR 512 (1944); Creditor’s Service Corp.
v. Cummings, 57 R1 291, 190 A22 (1937).
3I/n re David, 93 Phil. 461 (1954).
32Philippine Lawyers Ass’n. v. Agrava, 105 Phil. 173 (1959); See Omico Mining
& Industrial Corp. v. Vallejos, 63 SCRA 285 (1975).
“People v. Villanueva, 14 SCRA 109 (1965); Nelson v. Smith, supra.
“Ulep v. Legal Clinic, Inc., 223 SCRA 378 (1993).
34
LEGAL AND JUDICIAL ETHICS
knowledge of legal principles not possessed by ordinary layman;
and 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 the proper interpretation
and enforcement of law. When a person participates in a trial and
advertises himself as a lawyer, he is in the practice of law. One who
confers with clients and advises them of their legal rights is also
practicing law. Giving advice for compensation regarding the legal
status and rights of another constitutes practice of law. One who
renders an opinion as to the proper interpretation of a statute, and
receives pay for it, is to that extent practicing law.36
Engaging in the practice of law presupposes the existence of an
attomey-client relationship. Hence, where a lawyer undertakes an
activity which requires knowledge of law but involves no attomeyclient relationship, such as teaching law or writing law books or
legal articles, he cannot be said to be engaged in the practice of his
profession as a lawyer.
§2.06. Characteristics of term "practice of law.”
The phrase “practice of law” implies customarily or habitually
holding oneself out to the public, as a lawyer, for compensation as a
source of livelihood or in consideration of his service.36 Holding oneself
out as a lawyer may be shown by acts indicative of that purpose.
Thus, a layman holds himself out as illegally engaged in the practice
of law when he sends a circular announcing the establishment of a
law office for the general practice of law,37 or when he takes the oath
of office as a lawyer before a notary public and files a manifestation
with the Supreme Court informing the latter of his intention to
practice law in all courts in the country.38
Private practice is more than an isolated appearance for it
consists of frequent or customary actions, a succession of acts of the
same kind. It contemplates a succession of acts of the same nature
habitually or customarily holding one’s self to the public as a lawyer.
A judge who is prohibited from engaging in the private practice of
law has not violated this prohibition when he appeared as counsel
36Ibid.
36People v.
37U.S.
Villanueva, supra.
v. Ney & Bosque, 8 Phil. 146
“People v. De Luna, 102 Phil. 968 (1958).
ADMISSION TO PRACTICE
35
for his cousin pro bono in a criminal case, as his appearance was
isolated.39 The appearance as counsel in one occasion is not conclusive
as determinative of engagement in the practice of law. Thus, it has
been held that the appearance as private prosecutor in one case
of a city attorney who is prohibited from practicing law does not
constitute private practice within the prohibition, his appearance
being isolated.40
An isolated appearance may, however, amount to practice
in relation to the rule prohibiting some persons from engaging in
the exercise of the legal profession. For example, a lawyer who is
a member of the Legislature cannot “appear as counsel before
any court of justice or Electoral Tribunals, or quasi-judicial and
other administrative bodies”41 even in a single instance. While a
layman may represent a person outside of court without necessarily
engaging in the practice of law, he cannot appear as counsel, except
to the extent permitted by law, for any person before the court even
in a single occasion.42 His representation as defense counsel for an
accused in a criminal case is invalid and the conviction of the accused
may be set aside, as violative of due process.43
§2.07. Representation before the court.
The practice of law, as customarily understood, is the rendering
of services to a person, natural or juridical, in a court of justice
on any matter pending therein through its various stages and in
accordance with established rules of procedure.44 It includes the
appearance before the court, the preparation and filing of a pleading,
motion, memorandum or brief incident to an action or proceeding
in court,46 the conduct of the litigation, such as the determination
of the procedural steps to be taken, the examination of witnesses
390ffice of Court Administrator v. Ladaga, Adm. Case No. P-99-1287, January
26, 2001.
40People v.
Villanueva, 14 SCRA 109 (1965).
Art. VI, Sec. 14.
42Rule 7, Sec. 5, Rules of Court; Lichauco v. Alejandrino, 21 Phil. 58 (1911);
Nelson v. Smith, 154 P2d 634, 157 ALR 512 (1944).
43People v. Santocildes, Jr., 321 SCRA 310 (1999).
Mathews, 62 P2d 578, 111 ALR 13 (1936); Agran v. Shapiro, 127 Cal. App
2d 807, 273 P2d 619 (1954).
45/ra re David, 93 Phil. 461 (1954); Dia-Anonuevo v. Bercacio, 68 SCRA 81
(1975).
41Const.
36
LEGAL AND JUDICIAL ETHICS
or the presentation of evidence or exhibits;46 and, in general, the
management and control of the proceedings in court.47
§2.08. Representation before other agencies.
Generally, the appearance before any quasi-judicial, administrative or legislative agency, which calls for the interpretation
and application of laws and presentation of evidence to establish
certain facts, constitutes practice of law.48 It includes the appearance before the Philippines Patent Office in representation of an
applicant for registration of trademark, trade name or service mark,
of an inventor for the issuance of letters patent or of an oppositor
for the enforcement of his rights involved therein;49 the rendering
of professional services in advocating or resisting claims before administrative agencies,60 such as National Labor Relations Commissions,61 Bureau of Customs and Bureau of Internal Revenue;62 and
the representation before a legislative body regarding a proposed
legislation or ordinance.63
The service to prepare and prosecute a just claim before a
quasi-judicial or administrative agency is as legitimate as the
service rendered in court in arguing a cause to convince the court
that the claim presented or defense set up against the claim ought to
be allowed or rejected.64 The fact that the service is rendered before
a quasi-judicial or administrative agency and not before the court
is immaterial to the question as to whether the service constitutes
practice of law because the character of the service, and not the
place where it is performed, is the decisive factor determinative
of that question.66 But the rendition of professional services by
“Robinson v. Villafuerte, 18 Phil. 121 (1911).
"Hightower v. Detroit Edison Co., 262 Mich. 1, 86 ALR 509 (1933).
“Philippine Lawyers Ass’n. v. Agrava, 105 Phil. 173 (1959); De Guzman v.
Visayan Rapid Transit Co., 68 Phil. 463 (1939); Canon 26, Canons of Professional
Ethics.
“Philippine Lawyers Ass’n. v. Agrava, 105 Phil. 173 (1959).
“People ex rel. Chicago Bar Ass’n. v. Goodman, 8 NE2d 941, 111 ALR 1
(1937).
“Philippine Ass’n. of Free Labor Unions v. Binalbagan Isabela Sugar Co., 42
SCRA 302 (1971).
“Philippine Lawyers Ass’n. v. Agrava, supra.
63Canon 26,
Canons of Professional Ethics.
Guzman v. Visayan Rapid Transit Co., 68 Phil. 463 (1939).
“People ex. rel. Chicago Bar Ass’n. v. Goodman, supra.
MDe
ADMISSION TO PRACTICE
37
an attorney before a quasi-judicial, administrative or legislative
tribunal must be upon the same principles of ethics which justify
his appearance before the court; and it is unprofessional for a lawyer
so engaged to conceal his attorneyship or to employ secret personal
solicitations or to use means other than those addressed to reason
and understanding, to influence action.56
§2.09. Activity outside of court.
The practice of law consists in no small part of work performed
outside of court. It embraces the giving of legal advice on a large
variety of subjects, conveyancing and the preparation and execution
of legal instruments covering an extensive field of business and
trust relations and other affairs. These require in many aspects a
high degree of legal skill, a wide experience with men and affairs
and great capacity for adaptation to difficult and complex situations.
These customary functions of an attorney bear an intimate relation
to the administration of justice by the court. No valid distinction
can be drawn between that part of the work of the lawyer which
involves appearance in court and that part which involves advice
and drafting of instruments in his office. The work of office lawyer
has profound effect on the whole scheme of the administration of
justice. It is performed with the possibility of litigation in mind,
otherwise it would hardly be needed.67
In Cayetano v. Monsod,m the majority of the court through Mr.
Justice Paras held that a person’s past work experiences as a lawyereconomist, a lawyer-manager, a lawyer-entrepreneur of industry, a
lawyer-negotiator of contracts, and a lawyer-legislator more than
satisfy the constitutional requirement for appointment as Chairman
of the Commission on Elections that he has been engaged in the
active practice of law for at least ten years and that practice of law
need not be habitual services rendered in litigations in court. Mr.
Justice Gutierrez, in his dissenting opinion, noted that engaging in
the practice of law is also a qualification for appointment of Justices
of the Supreme Court and Judges of lower courts and then asked:
What kind of judges or justices will we have if their main occupation
“Canon 26, Canons of Professional Ethics.
57Philippine Lawyers Ass’n. v. Agrava, 105 Phil. 173 (1959); State Bar Ass’n. v.
Connecticut Bank & Trust Co., 140 A2d 863, 69 ALR2d 399 (1958).
“201 SCRA 210 (1991).
38
LEGAL AND JUDICIAL ETHICS
is selling real estate, managing a business or media, or operating a
farm with no active involvement in the law, whether in Government
or private practice, except that in one joyful moment in the distant
past, they happened to pass the bar examinations?” Mr. Justice Cruz,
in his dissent, stated that from the term “practice of law” as defined
by the majority of the Court, “one does not even have to be a lawyer
to be engaged in the practice of law as long as his activities involve
the application of some law, however, peripherally.” Mr. Justice
Padilla, in his dissent, said that the respondent did not meet the
essential criteria enumerated by the Commission on Appointments
as determinative of engaging in the practice of law, said criteria
being the following:
“1. Habituality. The term ‘practice of law’ implies
customarily or habitually holding oneself out to the public
as a lawyer (People vs. Villanueva, 14 SCRA 109 citing State
v. Boyen, 4 S.E. 522, 98 N.C. 644) such as when one sends a
circular announcing the establishment of a law office for the
general practice of law (U.S. v. Ney Bosque, 8 Phil. 146), or
when one takes the oath of office as a lawyer before a notary
public, and files a manifestation with the Supreme Court
informing it of his intention to practice law in all courts in the
country (People v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance, for it
consists in frequent or customary action, a succession of acts of
the same kind. In other words, it is a habitual exercise (People
v. Villanueva, 14 SCRA 109 citing State v. Cotner, 1 2 7 p . 1, 87
Kan, 864).
2.
Compensation. Practice of law implies that one
must have presented himself to be in the active practice and
that his professional services are available to the public for
compensation, as a source of his livelihood or in consideration of
his said services. (People v. Villanueva, supra). Hence, charging
for services such as preparation of documents involving the use
of legal knowledge and skill is within the term ‘practice of law’
(Ernani Pano, Bar Reviewer in Legal and Judicial Ethics, 1988
ed., p. 8 citing People v. People’s Stockyards State Bank, 176
N.B. 901) and, one who renders an opinion as to the proper
interpretation of a statute, and receives pay for it, is to that
extent, practicing law (Martin, supra, p. 806 citing Mendelaun
v. Gilbert and Barket Mfg. Co., 290N.Y.S. 462). If compensation
is expected, ‘all advice to clients and all action taken for them
ADMISSION TO PRACTICE
39
in matters connected with the law are practicing law.’ (Elwood
Fitchette, et al. v. Arthur C. Taylor, 94A-L.R. 356-359)
3.
Application of law, legal principle, practice, or procedure which calls for legal knowledge, training and experience
is within the term ‘practice of law.’ (Martin, supra)
4.
ttorney-client
relationship.
Engaging
in
the
practice
of law presupposes the existence of lawyer-client relationship.
Hence, where a lawyer undertakes an activity which requires
knowledge of law but involves no attomey-client relationship,
such as teaching law or writing law books or articles, he cannot
be said to be engaged in the practice of his profession as a
lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30).”
C. WHO MAY PRACTICE LAW
§2.10. Persons entitled to practice law, generally.
Any person who has been duly licensed as a member of the bar
in accordance with the statutory requirements and who is in good
and regular standing is entitled to practice law.69 This statutory
rule lays down two basic requirements that must be complied with
before a person can engage in the practice of law. Firstly, he must
have been admitted to the bar. This requirement involves various
phases consisting of (a) furnishing satisfactory proof of educational,
moral and other qualification,60 (b) passing the bar examinations,61
(c) taking the lawyer’s oath before the Supreme Court itself,62 and
(d) signing the roll of attorneys and receiving from the clerk of court
of the Supreme Court a certificate of the license to practice.63 In the
regular course, it will take nine years for an applicant to fulfill these
requirements from the time he begins his collegiate education to the
time he receives the license to practice.64
59Rule
(1983).
138, Sec. 1, Rules of Court; In re Edillon, 84 SCRA 554 (1978).
“Rule 138, Secs. 2, 5 and 6, Rules of Court.
61Rule 138, Secs. 8, 9,10,11 and 14, Rules of Court.
e2Rule 138, Sec. 17, Rules of Court.
“Rule 138, Secs. 18 and 19, Rules of Court; Beltran v. Abad, 121 SCRA 217
“The number of years required is ordinarily four years of study for a bachelor’s
degree in arts or sciences, another four years of law proper and one year of preparing
for the bar examinations and waiting for the release of the results thereof.
40
LEGAL AND JUDICIAL ETHICS
Secondly, after his admission to the bar, a lawyer must remain
in good and regular standing, which is a continuing requirement for
the practice of law. This means that he must (a) remain a member
of the Integrated Bar of the Philippines,65 (b) regularly pay all IBP
membership dues and other lawful assessments66 as well as the
annual privilege tax,67 (c) faithfully observe the rules and ethics of the
legal profession, and (d) be continually subject to judicial disciplinary
control.68 The rigid requirements and conditions are not intended
to create a monopoly in the legal profession69 but are designed to
admit to its ranks only those who are adequately prepared, mentally
and morally, to discharge the duties of an attorney and to exclude
therefrom those who cannot live up to its exacting standards. The
purpose, in the final analysis, is to protect the public, the court, the
client and the bar from incompetence and dishonesty of those who
are unfit to become members of the legal profession.70
In other words, only those who are competent, honorable and
reliable may practice law, and every lawyer must pursue only the
highest standards in the practice of his calling.71
§2.11. Right and privilege to practice.
The question as to whether the practice of law is a right or a
privilege has provoked considerable discussion.72 A more accurate
characterization is that the practice of law is, to a great extent, a
privilege and, to some degree, a right, which accounts for the fact
that these words have been interchangeably used to qualify the
term.73
65/n re Integration of the Philippine Bar, January 9. 1973; In re Edillon, 84
SCRA 554 (1978).
“Art. Ill, Secs. 23 and 24. By Laws of the Integrated Bar of the Philippines, In
re Edillon, supra.
67Local Tax Code, Sec. 12.
^Philippine Ass’n. of Free Labor Unions v. Binalbagan Isabela Sugar Co., 42
SCRA 302 (1971).
69People ex rel. Chicago Bar Ass’n. v. Goodman, 8 NE2d 944, 111 ALR 1
(1937).
70/re re Cunanan, 94 Phil. 534 (1954); In re Parazo, 82 Phil. 230 (1948); Philippine Ass’n. of Free Labor Unions v. Binalbagan Isabela Sugar Co., 42 SCRA 302
(1971).
71Collantes v. Renomeron, 200 SCRA 584 (1991).
12Cf. Schware v. Board of Bar Examiners, 353 U.S. 231, 1 L ed 2d 796 (1957).
73See In re Santiago, 70 Phil. 66 (1940); Omico Mining and Industrial Corp. v.
Vallejo, 63 SCRA 285 (1975).
ADMISSION TO PRACTICE
41
The practice of law is not a natural, property or constitutional
right but a mere privilege.74 It is not a right granted to any one
who demands it but a privilege to be extended or withheld in the
exercise of a sound judicial discretion.75 It is in the nature of a
franchise conferred only for merit which must be earned by hard
study, learning and good conduct.76 It is a privilege accorded only
to those who measure up to certain rigid standards of mental and
moral fitness. Those standards are neither dispensed with nor
lowered after admission.77 The attorney’s continued enjoyment of the
privilege conferred depends upon his remaining a fit and safe person
to exercise it and his complying with the rules and ethics of the
profession. As an officer of the court, he is continually accountable
to the court for the manner in which he exercises the privilege.78
When it appears that he, by recklessness or sheer ignorance of law,
is no longer fit or safe to be entrusted with the responsibilities and
obligations of a lawyer, his privilege to engage in the practice of law
should be suspended or terminated.79
But while the practice of law is a privilege, a lawyer cannot be
prevented from practicing law except for valid reasons, the practice
of law not being a matter of state’s grace or favor.80 He holds office
during good behavior and can only be deprived of it for misconduct
ascertained and declared by judgment of the Supreme Court after
opportunity to be heard has been afforded him.81 The state cannot
exclude an attorney from the practice of law in a manner or for
reasons that contravene the due process or equal protection clause
of the Constitution.82 No court, including a court-martial, can deny
an attorney the right to appear before it for a party litigant, in
the absence of a valid statutory limitation or ground disqualifying
him to practice.83 A quasi-judicial or administrative agency cannot
restrict his privilege to practice law by imposing conditions that
7iIn
re Edillon, 84 SCRA 554 (1978); In re Sycip, 92 SCRA 1 (1979).
75/n re Del Rosario, 52 Phil. 399 (1928); In re Bosque, 1 Phil. 88 (1902).
Morse, 98 VT 85,126 A 550, 36 ALR (1924); In re Sycip, supra.
77In re Gutierrez, 5 SCRA 661 (1962).
78Tejan v. Cusi, Jr., 57 SCRA 154 (1974); In re Almacen, 31 SCRA 562 (1970).
nIn re Santiago, 70 Phil. 66 (1940); In re Sotto, 38 Phil. 932 (1918).
mEx parte Garland, 4 Wall (U.S.) 323,18 L. ed 366 (1866); Wilner v. Committee
on Character and Fitness, 376 U.S. 96,10 L ed2d 224 (1963).
81Tejan v. Cusi, Jr., supra.; Ex parte Garland, supra.
82Schware v. Board of Bar Examiners, 353 U.S. 231,1 L ed2d 796 (1957).
83Marcos v. Chief of Staff, 89 Phil. 246 (1951).
16Re
42
LEGAL AND JUDICIAL ETHICS
amount to discrimination,84 nor limit such privilege by requiring the
passing of an examination that is not expressly sanctioned by law as
a prerequisite to appearing before such agency.86 In that sense, the
practice of law is in the nature of a right which cannot be lightly or
capriciously restricted or taken away from him.86
§2.12. Practice without examination.
The privilege to practice law is reserved to Filipino citizens who
have passed the required bar examinations.87 The Rules of Court
still provide for two exceptions, although the passage of time has
now entirely foreclosed their operation.
The first exception refers to those who come within and avail
the benefits of the provision to the effect that “citizens of the United
States who, before July 4, 1946, were duly licensed members of the
Philippine Bar, in active practice in the courts of the Philippines
and in good and regular standing as such may, upon satisfactory
proof of these facts before the Supreme Court, be allowed to continue
such practice after taking” the oath of office.88 During the American
regime, some American lawyers were admitted to practice without
examination pursuant to the comity clause of the then Rules of
Examination of Candidates for Admission to the Practice of law,89
or in accordance with the then existing law giving a person who had
held a certain government office the privilege to apply for admission
to the bar without examination.90
84Beaumont
& Tenny v. Herstein, 34 Phil. 127 (1916).
“Philippine Lawyers Ass’n. v. Agrava, 105 Phil. 173 (1959).
a6Re Burr, 9 Wheat (U.S.) 529, 6 L ed 152 (1824); Alcala v. Vera, 56 SCRA 30
(1974) ; Noriego v. Sison, 125 SCRA 293 (1983).
87Rule 138, Secs. 2, 14 and 17, Rules of Court; In re Garcia Bosque, 1 Phil. 88
(1902); Tan Sen Hoo v. De la Fuente, 90 Phil. 605 (1951); In re Garcia, 2 SCRA 984
(1961).
88Rule 138, Sec. 3, Rules of Court.
mIn re Shoop, 41 Phil. 213 (1920). The comity clause reads: “Applicants for
admission who have been admitted to practice in the Supreme Court of the United
States or in any circuit court of Appeals or district court therein, or in the highest
court of any state or territory of the United States, which state or territory by comity
confers the same privileges on attorneys admitted to practice in the Philippine Islands, and who can show by satisfactory affidavit that they have practiced at least
five years in any of said courts, may, in the discretion of the Court, be admitted without examination.” 41 Phil. 213, 215.
90/n re Guarina, 24 Phil. 37 (1913); In re Du Fresne, 20 Phil. 489 (1911).
ADMISSION TO PRACTICE
43
The second exception includes those who are comprehended in
and take advantage of the provision which states that “applicants
for admission who, being Filipino citizens, are enrolled attorneys in
good standing in the Supreme Court of the United States or in any
circuit court of appeals or district court therein, or in the highest
court of any State or Territory of the United States, and who can
show by satisfactory certificates that they have practiced before July
4,1946, and that they have never been suspended or disbarred, may,
in the discretion of the Court, be admitted without examination.”91
§2.13. Practice without admission.
To a certain extent, some persons not duly licensed to practice
law are allowed limited representation on behalf of others. In the
municipal trial court, a party may conduct his litigation with the aid
of an agent or friend appointed by him for that purpose.92 The attorney-client privilege does not extend to such agent or friend because
not being an attorney his appearance in court is in the character of
an agent. It has been held that a municipal trial court includes a
metropolitan trial court for the purpose of the rule.93 But the agent
or friend may not hold himself out as habitually engaged in the occupation of appearing for or defending party litigants, since that
calling constitutes practice of law reserved for members of the bar.
In a criminal proceeding before a municipal trial court in a
locality where a duly licensed member of the bar is not available, a
municipal trial court may in its discretion admit or assign a person,
resident in the province and of good repute for probity and ability, to
defend the accused in his defense, although the person so assigned
be not a duly authorized member of the bar.94 But in a place where
a duly licensed member of the bar is available, the municipal trial
court may not admit or assign a layman to defend the accused.95
A layman is permitted by the Supreme Court to appear for
another only in the municipal or metropolitan trial court. Accordingly,
he cannot, even in a single occasion, represent another in any other
(1983).
91Rule
138, Sec. 4, Rules of Court.
92Rule
138, Sec. 34, Rules of Court; Catimbuhan v. Cruz, 126 SCRA 190
93Laput v.
Bemabe, 55 Phil. 621 (1931).
116, Sec. 7, Rules of Court.
96Paar v. Borromeo, 79, Phil. 344 (1947).
94Rule
44
LEGAL AND JUDICIAL ETHICS
court;96 nor can he be appointed by any court other than a municipal
trial court to aid a defendant in his defense, in the absence of an
authority from the high tribunal.
There is no question that the Supreme Court, in the exercise
of its judicial power, can validly authorize a layman to represent
a litigant in court. The question as to whether the legislature can
validly permit, by law, a layman to appear on another’s behalf in
court or in an administrative body is an entirely different matter.97
For instance, there are laws which authorize a union representative
to appear for his organization or any of its members before the National Labor Relations Commission, labor arbiter or arbitrator,98 and
an individual to act on behalf of a land claimant before a cadastral
court.99
Three limitations should be observed in order that the appearance of a layman on behalf of another as authorized by law may be
reconciled with the rule that the admission to practice is a judicial
function and that the practice of law is a lawful activity for members
of the bar only. Firstly, a layman should confine his work to nonadversary contentions. He should not undertake purely legal work,
such as the examination or cross-examination of witnesses or the
presentation of evidence.100 Public policy demands that legal work in
representation of party litigants should be entrusted only to those
who possess tested qualifications, are sworn to observe the rules
and ethics of the legal profession and subject to judicial disciplinary
control.101 Secondly, the services should not be habitually rendered,
habituality being one of the characteristics of the practice of law.102
Finally, a layman should not charge or collect attorneys’ fees, one of
the requisites for payment thereof being the relation of attorney and
client which cannot exist between a layman and a person in whose
favor representation is made.103
“Lichauco v. Alejandrino, 21 Phil. 58 (1911).
97See
Act No. 3428, as amended, Sec. 31.
"Labor Code, Art. 221; Rule IV, Sec. 5, Rules of the National Labor Relations
Commission.
"Act No. 2259, Sec. 9.
““Philippine Ass’n. of Free Labor Unions v. Binalbagan Isabela Sugar Co., 42
SCRA 302 (1971); Robinson v. Villafuerte, 18 Phil. 171 (1911).
101Philippine Ass’n. of Free Labor Unions v. Binalbagan Isabela Sugar Co., 42
SCRA 302 (1971).
102People v. Villanueva, 14 SCRA 109 (1965).
103Philippine Ass’n. of Free Labor Unions v. Binalbagan Isabela Sugar Co., supra.; Amalgamated Laborers Ass’n. v. CIR, 22 SCRA 1266 (1968).
ADMISSION TO PRACTICE
45
Unless the foregoing limitations are observed, the legality of
the appearance of a layman as permitted by law may be seriously
doubted, the legislature not having the power to admit laymen to
practice law. To the extent, therefore, that a law permits a layman
to practice law before any judicial, quasi-judicial or administrative
tribunal will, to that extent, render that law unconstitutional as
an invalid exercise of the power to decide who may be admitted to
the bar.104 And a layman who, pursuant to that law, engages in the
practice of law may be held liable for unauthorized practice.105
§2.14. Right of party to represent himself.
An individual litigant in a civil case has the right to conduct his
litigation personally.106 This means that a litigant may personally
do every thing in the progress of the action from commencement
to the termination of the litigation.107 But if he were to appear by
himself and conduct his own litigation, he will be bound by the
same rules of procedure and evidence as those applicable to a party
appearing through counsel; otherwise, ignorance will be unjustifiably
rewarded.108 Moreover, he may not be heard to complain later that
he has been deprived of the right to the assistance of counsel.109
The prohibition against the practice of law by a layman is not in
conflict with the right of an individual to defend or prosecute a cause
in which he is a party. An individual has long been permitted to
manage, prosecute and defend his own action, but his representation
on his behalf is not considered to be the practice of law. One does
not practice law by acting for himself any more than he practices
medicine by rendering first aid to himself.110 For this reason, an
attorney who is otherwise disqualified to practice law or has been
disbarred or suspended from practice, can validly prosecute or defend
luln
105As
re Cunanan, 94 Phil. 534 (1954); In re Guarina, 24 Phil. 37 (1913).
to the claim of petitioners in Philippine Ass’n. of Free Labor Unions v. Binalbagan Isabela Sugar Co., supra, that a number of laymen have been appearing almost daily before the court of Industrial Relations as “representatives,” the Supreme
Court said the same “is a serious situation” and “petitioners, however may file proper
action against the persons alleged to be illegally engaged in the practice of law.”
106Rule 138, Sec. 34, Rules of Court; Rustia v. Judge of CFI of Batangas, 44
Phil. 62 (1922); De Mondia v. Public Service Commission, 21 Phil. 58 (1911).
l07De Castro v. Salas, 34 Phil. 818 (1916).
I08Lombardi v. Citizens National Trust & Sav. Bank, 137 Cal App2d 206, 289
P2d 823.
109U.S. v. Go-Leng, 21 Phil. 426 (1912); People v. Sin Ben 98 Phil. 138 (1955).
u0Nelson v. Smith, 154 P2d 634,157 ALR 512 (1944).
LEGAL AND JUDICIAL ETHICS
46
his own litigation, he having as much right as that of a layman in
that regard.111
However, in criminal cases involving grave and less grave
offenses, an accused who is a layman must always appear by counsel;
he cannot conduct his own defense, as his right to counsel may not
be waived without violating his right to due process of law.
A juridical person must always appear in court by a duly
licensed member of the bar,112 except in the municipal trial court
where it may be represented by its agent or officer who need not
be a lawyer.113 The reason for this rule is that, by its very nature, a
juridical person cannot appear except through an agent,114 and an
agent is prohibited from representing another in court other than in
the municipal trial court unless that agent is a duly licensed member
of the bar.115
§2.15. Practice by corporation.
It is well-settled that a corporation cannot engage in the
practice of law.116 It may, however, hire an attorney to attend to and
conduct its own legal business or affairs. It is not unusual for a big
corporation to hire a staff of lawyers as its in-house counsel, pay
them regular salaries, rank them in its table of organization, and
otherwise treat them like its other officers and employees.117 But
it cannot practice law directly or indirectly by employing a lawyer
to practice for it or to appear for others for its benefit.118 Thus, the
activities for gain by a corporation or association holding itself out to
the public of drawing wills, trust agreements, mortgage documents
and the like,119 of rendering advice relating to property rights,120 or
of broadcasting legal questions submitted by the public and the
1020.
ulRe Duncan,
112Osbom
83 SC 186, 65 SE 210; Danforth v. Egan, 23 SD 43, 119 NW
v. Bank of United States, 9 Wheat (U.S.) 738, 6 L ed 204 (1824).
138, Sec. 34, Rules of Court.
luCf. Francisco v. GSIS, 7 SCRA 577 (1963).
115Lichauco v. Alejandrino, 21 Phil. 58 (1911); In re David, 93 Phil. 461 (1954);
U.S. v. Ney & Bosque, 8 Phil. 146 (1907).
116Rule 138, Sec. 1, Rules of Court.
U7Hydro Resources Contractors Corp. v. Pagalilauan, 172 SCRA 399 (1989).
118Liberty Mut. Ins. Co. v. Jones, 130 SW2d 945, 125 ALR 1149 (1939).
119Liberty Mut. Ins. Co. v. Jones, supra.
120Hexter Title & Abstract Co. v. Grievance Committee, 142 Tex 506,179 SW2d
946, 157 ALR 268 (1944).
113Rule
ADMISSION TO PRACTICE
47
answers prepared by qualified men,121 have been held to be illegal
practice of law.
The underlying reason why a juridical entity or corporate
agency cannot practice law rests on the nature of the privilege and
on the confidential and trust relation between attorney and client. A
corporation cannot perform the conditions required for membership
in the bar, such as the possession of good moral character and other
special qualifications, the taking of an oath and becoming an officer of
the court, subject to its discipline, suspension or removal. Moreover,
the relation of trust and confidence growing out of the employment
and entering into the performance of every duty which an attorney
owes to his client cannot arise where the attorney is employed by
a corporation to practice for it, his employer and he owing, at best,
a secondary and divided loyalty to the clientele of his corporate
employer. The intervention of the corporation is destructive of that
confidential and trust relation and is obnoxious to the law.122
§2.16. Persons authorized to represent the government.
Any official or other person appointed or designated in
accordance with law to appear for the Government of the Philippines
or any of its officials shall have all the rights of a duly authorized
member of the bar to appear in any case in which the government has
an interest, direct or indirect, or in which such official is charged in
his official capacity.123 In this rule are the Solicitor General, assistant
solicitors general, solicitors and trial attorneys,124 state prosecutors
or special counsel in the Department of Justice, provincial and city
prosecutors and their assistants and other attorneys in other legal
offices of the government. The common qualification of these public
officials is membership in the bar.
§2.17. Disability of public officials to practice.
Generally, the appointment or election of an attorney to a government office disqualifies him from engaging in the private prac-
(1938).
121Rosenthal
v. Shepard Broadcasting Service, 12 NE2d 819, 114 ALR 1502
122Re Cooperative Law Co., 198 NY 479, 92 NE 15 (1910); People v. People’s
Trust Co., 180 App. Dv. 494,147 N.Y. Supp. 767 (1917).
123Rule 138, Sec. 33, Rules of Court.
12iCf. Presidential Decree Nos. 478 and 1347.
48
LEGAL AND JUDICIAL ETHICS
tice of law.126 The reason for the disqualification is that 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 efficiency126 but also with exclusive fidelity.127 The
disqualification is intended to preserve the public trust in a public
office, avoid conflict of interests or a possibility thereof, assure the
people of impartiality in the performance of public functions and
thereby promote the public welfare.128
The public officials who are absolutely prohibited from engaging
in the private practice of law or giving professional advice to clients,
as members of the bar, include judges and other officials or employees
of the courts, of the office of the Solicitor General129 and of other
government prosecution offices;130 the President, Vice-President,
and members of the cabinet and their deputies and assistants;131
members of constitutional commissions;132 and civil service officers
or employees whose duties and responsibilities require that their
entire time be at the disposal of the government.133 When any one of
these officials is appointed or elected and has qualified, he ceases, as
a general rule, to engage in the private practice of law and his right
to practice is suspended during his tenure of office.134
A lawyer member of the Legislature is not absolutely prohibited
from personally engaging in the practice of his profession. He
is only prohibited from appearing as “counsel before any court of
justice or before the Electoral Tribunals, or quasi-judicial and
other administrative bodies.”135 This prohibition under the 1987
1Z5Rule 138, Sec. 35, Rules of Court; Aquino v. Blanco, 79 Phil. 647 (1947);
People v. Villanueva, 14 SCRA 109 (1965); Ramos v. Rada, 65 SCRA 179 (1975).
(1975).
^CONSTITUTION, Art. XI, Sec. 1.
n7Re A & B, 44 NJ 331, 209 A2d 101, 17 ALR3d 827 (1965).
128Omico Mining & Industrial Corp. v. Vallejo, 63 SCRA 285 (1975); DiaAnonuevo v. Bercacio, 68 SCRA 81 (1975); Ranosa v. Garcia, 62 SCRA 406 (1975).
129Rule 138, Sec. 35, Rules of Court.
130Aquino v. Blanco, supra; People v. Villanueva, supra.
131CONSTITUTION, Art. VII, Sec. 13 (1987).
^CONSTITUTION, Art. IX(A), Sec. 2 (1987).
133Ramos v. Rada, 65 SCRA 179 (1975). Ranosa v. Garcia, 62 SCRA 406
134Aquino v. Blanco, 79 Phil. 647 (1949); cf. Heirs v. Acuesta v. Eugenio, CA-P.
R. No. 30881-R, October 20,1967,0.G. 1744 (1971); Omico Mining & Industrial Corp.
v. Vallejo, 63 SCRA 285 (1975); Botay v. Blanco, 84 SCRA 585 (1978).
135CONST. Art. VI, Sec. 14; See also CONST. Art. VII, Sec. 17 (1935).
ADMISSION TO PRACTICE
49
Constitution is more restrictive than that of the 1973 Constitution.136
Under the 1973 Constitution, an assemblyman may appear as
counsel in the Regional Trial Court when the latter is exercising
appellate jurisdiction over a case appealed to it from the municipal or
metropolitan trial court,137 or as counsel in the Court of Appeals and
in the Supreme Court, except in a civil case wherein the government
or any of its instrumentalities is the adverse party and in a criminal
case wherein an officer or employee of the government is accused of
a crime committed in relation to his office.138
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.”139 Hence, a Senator
or Congressman cannot file pleadings. The question may be raised
whether he can allow his name to appear in such pleadings by itself
or as part of a firm name under the signature of another qualified
lawyer because the signature of an agent amounts to a “signing by
non-qualified” Senator or Congressman, the office of attorney being
originally of agency140 and because he will, by such act, be appearing
in court or quasi-judicial or administrative body. If the answer to
the question is in the affirmative, may not the rule that one cannot
do indirectly what the Constitution prohibits directly141 be violated?
The maxim is, quando aliquid prohibitur ex directo, prohibitur et per
obliquum or what is prohibited directly is prohibited indirectly.
Under the Local Government Code, all governors, city and
municipal mayors are prohibited from practicing their profession or
engaging in any occupation other than the exercise of their functions
as local chief executives. In other words, they cannot engage in the
practice of law.142
Members of sanggunian may engage in the practice of law,
except in the following: (1) they shall not appear as counsel before any
court in any civil case wherein a local government unit or any office,
136Art.
VIII, Sec. 11,1973 Constitution.
137Villegas
(1951).
v. Legaspi, 113 SCRA 39 (1982).
■“CONSTITUTION, Art. VIII, Sec. 11 (1973).
139Flores v. Zurbito, 37 Phil. 746 (1918); Ramos v. Manalac, 89 Phil. 270
140U.S. v. Ney, 8 Phil. 146-148 (1907); In re David, 93 Phil. 461 (1954).
re David, supra; U.S. v. Ney, supra.
142Sec. 90(a), Rep. Act No. 7160.
ulIn
50
LEGAL AND JUDICIAL ETHICS
agency or instrumentality of the government is the adverse party;
(2) they shall not 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; (3) they shall not
collect any fee for their appearance in administrative proceedings
involving the local government unit of which he is an official; and (4)
they shall not use property and personnel of the Government except
when the sanggunian member concerned is defending the interest
of the government.143
A civil service officer or employee whose duty or responsibility
does not require his entire time to be at the disposal of the Government
may not engage in the private practice of law without the written
permit from the head of the department concerned; consequently, he
may, with such written permit, exercise his profession as a lawyer.144
However, government officials who, by express mandate of the law,
are prohibited from practicing law, may not, even with the consent
of the department head concerned, engage in the practice of law; but
if so authorized by the department head, he may, in an isolated case,
act as counsel for a relative or close family friend.146
The Court in Catu v. Rellosa,li6 cites the laws prohibiting
government officials, as lawyers, from practicing law, except as
qualified therein, as follows:
Section 7(b)(2) of RA 6713 prohibits public officials and
employees, during their incumbency, from engaging 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.” This
is the general law which applies to all public officials and
employees.
For elective local government officials, Section 90 of RA
7160147 governs:
SEC. 90. Practice of Profession. — (a) All governors,
city and municipal mayors are prohibited from practicing
143Sec.
(1983).
90(b), Rep. Act No. 7160.
144Ramos v. Rada, 65 SCRA 179 (1975); Zeta v. Malinao, 87 SCRA 303 (1978).
146People v. Villanueva, 14 SCRA 109 (1965); Noriega v. Sison, 125 SCRA 293
146A.C.
147The
No. 5738, February 19, 2008.
Local Government Code of 1992.
ADMISSION TO PRACTICE
51
their profession or engaging in any occupation other than the
exercise of their functions as local chief executives.
(b) Sanggunian members may practice their professions,
engage in any occupation, or teach in schools except during
session hours: Provided, That sanggunian members who are
members of the Bar shall not:
(1) 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;
(2) 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;
(3) Collect any fee for their appearance in administrative proceedings involving the local government unit
of which he is an official; and
(4) Use property and personnel of the Government
except when the sanggunian member concerned is defending the interest of the Government.
(c)
Doctors of medicine may practice their profession
even during official hours of work only on occasions of
emergency: Provided, That the officials concerned do not derive
monetary compensation therefrom.
This is a special provision that applies specifically to the
practice of profession by elective local officials. As a special
law with a definite scope (that is, the practice of profession by
elective local officials), it constitutes an exception to Section
7(b)(2) of RA 6713, the general law on engaging in the private
practice of profession by public officials and employees. Lex
specialibus derogat generalibus.
Under RA 7160, elective local officials of provinces,
cities, municipalities and barangays are the following: the
governor, the vice governor and members of the sangguniang
panlalawigan for provinces; the city mayor, the city vice mayor
and the members of the sangguniang panlungsod for cities; the
municipal mayor, the municipal vice mayor and the members
of the sangguniang bayan for municipalities and the punong
LEGAL AND JUDICIAL ETHICS
barangay, the members of the sangguniang barangay and the
members of the sangguniang kabataan for barangays.
Of these elective local officials, governors, city mayors
and municipal mayors are prohibited from practicing their
profession or engaging in any occupation other than the exercise
of their functions as local chief executives. This is because they
are required to render full time service. They should therefore
devote all their time and attention to the performance of their
official duties.
On the other hand, members of the sangguniang panlalawigan, sangguniang panlungsod or sangguniang bayan may
practice their professions, engage in any occupation, or teach
in schools except during session hours. In other words, they
may practice their professions, engage in any occupation, or
teach in schools outside their session hours. Unlike governors,
city mayors and municipal mayors, members of the sangguniang panlalawigan, sangguniang panlungsod or sangguniang
bayan are required to hold regular sessions only at least once a
week. Since the law itself grants them the authority to practice
their professions, engage in any occupation or teach in schools
outside session hours, there is no longer any need for them to
secure prior permission or authorization from any other person
or office for any of these purposes.
While, as already discussed, certain local elective
officials (like governors, mayors, provincial board members
and councilors) are expressly subjected to a total or partial
proscription to practice their profession or engage in any
occupation, no such interdiction is made on the 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. And this stands to reason
because they are not mandated to serve full time. In fact, the
sangguniang barangay is supposed to hold regular sessions
only twice a month.
Accordingly, as punong barangay, respondent was not
forbidden to practice his profession. However, he should have
procured prior permission or authorization from the head of his
Department, as required by civil service regulations.
ADMISSION TO PRACTICE
53
A Lawyer In Government Service Who Is Not Prohibited
To Practice Law Must Secure Prior Authority From The Head
Of His Department.
A civil service officer or employee whose responsibilities do
not require his time to be fully at the disposal of the government
can engage in the private practice of law only with the written
permission of the head of the department concerned. Section
12, Rule XVIII of the Revised Civil Service Rules provides:
Sec. 12. No 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 the Department: Provided, That this prohibition
will be absolute in the case of those officers and employees
whose duties and responsibilities require that their entire time be at the disposal of the Government; Provided,
further, That if an employee is granted permission to engage in outside activities, time so devoted outside of office
hours should be fixed by the agency to the end that it will
not impair in any way the efficiency of the officer or employee: And provided, finally, That no permission is necessary in the case of investments, made by an officer or
employee, which do not involve real or apparent conflict
between his private interests and public duties, or in any
way influence him in the discharge of his duties, and he
shall not take part in the management of the enterprise
or become an officer of the board of directors.
As punong barangay, respondent should have therefore
obtained the prior written permission of the Secretary of Interior
and Local Government before he entered his appearance as
counsel for Elizabeth and Pastor. This he failed to do.
The failure of respondent to comply with Section 12, Rule
XVIII of the Revised Civil Service Rules constitutes a violation
of his oath as a lawyer: to obey the laws. Lawyers are servants
of the law, vires legis, men of the law. Their paramount
duty to society is to obey the law and promote respect for
it. To underscore the primacy and importance of this duty,
it is enshrined as the first canon of the Code of Professional
Responsibility.
LEGAL AND JUDICIAL ETHICS
54
In acting as counsel for a party without first securing the
required written permission, respondent not only engaged in
the unauthorized practice of law but also violated civil service
rules which is a breach of Rule 1.01 of the Code of Professional
Responsibility:
Rule 1.01 — A lawyer shall not engage in unlawful,
dishonest, immoral or deceitful conduct.
For not living up to his oath as well as for not complying with the exacting ethical standards of the legal
profession, respondent failed to comply with Canon 7 of
the Code of Professional Responsibility:
CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND THE DIGNITY OF THE
LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR.
Indeed, a lawyer who disobeys the law disrespects it. In
so doing, he disregards legal ethics and disgraces the dignity of
the legal profession.
Public confidence in the law and in lawyers may be eroded
by the irresponsible and improper conduct of a member of the
bar. Every lawyer should act and comport himself in a manner
that promotes public confidence in the integrity of the legal
profession.
A member of the bar may be disbarred or suspended from
his office as an attorney for violation of the lawyer’s oath and/or
for breach of the ethics of the legal profession as embodied in
the Code of Professional Responsibility.
§2.18. Liability for unauthorized practice.
The rule that a person who has been duly admitted to the
bar and in good and regular standing is entitled to practice law148
implies that any other person, including a disbarred attorney until
his re-admission149 or a suspended lawyer during his suspension,150
is prohibited from engaging in the practice of law; and any such
person who practices law or who assumes to be an attorney is liable
148Rule
138, Sec. 1, Rules of Court.
149San Luis
lmIn
v. Pineda, 13 SCRA 441
re David, 93 Phil. 461 (1954).
ADMISSION TO PRACTICE
55
for contempt of court, punishable by fine or imprisonment or both in
the discretion of the court.161 The fact that the person signs a court
pleading as an agent of a litigant or the circumstance that he holds
himself out as a lawyer in association with a duly licensed attorney
will not exempt him from liability for unauthorized practice, since
he cannot do indirectly what he cannot do directly.152
If the unauthorized practice on the part of a person who assumes
to be an attorney causes damage to a party, the former may likewise
be liable for estafa. Thus, a person who falsely represented himself
to be a duly licensed member of the bar and rendered service in court
on behalf of a litigant for a fee defrauds that litigant and is guilty
of estafa even if he were successful in managing the litigation.163
And a person who obtained title deeds from another upon the false
representation that he was qualified to represent him in court and
who refused to return such title deeds upon demand is guilty of
estafa.1M
A government official forbidden to practice law may be held
criminally liable for doing so.165 An officer or employee of the civil
service who, as a lawyer, engages in the private practice of law
without a written permit from the department head concerned
may be held administratively liable therefor.156 The ethics of the
legal profession forbid an attorney from permitting his professional
services or his name to be used in aid of the unauthorized practice
of law by lay agency, personal or corporate.157 A lawyer who violates
such rule or makes possible the illegal practice of law by a layman
may, in addition to being held liable for contempt, be disciplined,
suspended or disbarred for misconduct as an officer of the court.158
161Rule 71, Rules of Court; Philippine Ass’n. of Free Labor Unions v. Binalbagan
Isabela Sugar Co., 42 SCRA 302 (1971); People v. De Luna, 102 Phil. 968 (1958); U.S.
v. Ney & Bosque, 8 Phil. 146 (1907); Beltran v. Abad, 132 SCRA 452 (1984)
1627re re David, supra; U.S. v. Ney & Bosque, supra, cf. In re Culanag, G.R. Misc.
Bar 1-2, September 30, 1971.
163U.S. v. Durban, 36 Phil. 797 (1917).
1MU.S. v. Castillo, 35 Phil. 413 (1916).
■“Republic Act No. 6713, Secs. 7(b) and 11
■“Misamin v. San Juan, 72 SCRA 491, (1976); Ramos v. Rada, 65 SCRA
179 (1975); Zeta v. Malinao, 87 SCRA 303 (1978); Noriega v. Sison, 125 SCRA 293
(1983).
167Canon 9, Code of Professional Responsibility; Canon 47, Canons of Professional Ethics.
168People v. De Luna, 102 Phil. 968 (1958); Be Rothman, 12 NW2d 528, 97 A2d
627, 39 ALR2d 1032, (1953); Beltran v. Abad, 132 SCRA 492 (1984).
LEGAL AND JUDICIAL ETHICS
56
A judge is prohibited from engaging in private practice of
law. A judge who violates this restriction may be administratively
held liable in an administrative charge filed against him for such
misconduct.169
§2.19. Remedies against unauthorized practice.
The legal remedies to suppress the unauthorized practice of law
include petitions for injunction,160 declaratory relief,161 contempt of
court,162 petition for disqualification, and complaints for disbarment
or administrative complaint against the erring lawyer or government
official. A criminal complaint for estafa may also be filed against a
person who falsely represented to be an attorney to the damage of a
party.163 Any of these proceedings may be initiated by an aggrieved
or interested party or by a bar association.164
With reference to the appearance of an attorney who, by virtue
of his government position, is disqualified from engaging in the
private practice of law, the adverse party may ask for the attorney’s
disqualification on that ground.166
D. QUALIFICATIONS FOR ADMISSION
§2.20. Generally.
Every applicant for admission to the practice of law must be
(a) a citizen of the Philippines, (b) a resident thereof, (c) at least
twenty-one years of age, and (d) a person of good moral character.166
He must also (e) show that no charges against him involving moral
169Candia
160Merrick
v. Tagabucha, 79 SCRA 51 (1977).
v. American Security & Trust Co., 107 F2d 271; Hexter Title & Abstract Co. v. Grievance Committee, 179 SW2d 946,157 ALR 268 (1944).
161Grievance Committee of State Bar of Texas, 190 SW2d 387, 335 Mass 228.
162U.S. v. Ney & Bosque, 8 Phil. 146 (1907); People v. De Luna, 102 Phil. 968
(1958).
163U.S. v. Durban, 36 Phil. 797 (1917); U.S. v. Castillo, 35 Phil. 413 (1916); In
re Culanag, G.R. Misc. Bar 1-2 September 30, 1971.
164Hexter Title & Abstract Co. v. Grievance Committee, 179 SW2d 46,
157ALR
166Marcos v. Chief of Staff, 89 Phil. 246 (1951); People v. Villanueva, 14 SCRA
109 (1965). 268 (1944); Merrick v. American Security & Trust Co., 107 F2d 271; People v. De Luna, supra.
166Rule 138, Sec. 2, Rules of Court.
ADMISSION TO PRACTICE
57
turpitude, are filed or pending in court,167 (f) possess the required
educational qualifications,168 and (g) pass the bar examinations.169
The Supreme Court, in the exercise of its power to admit applicants
to the bar, may likewise prescribe such other qualifications or
requirements as it may deem necessary to elevate the standards of
the legal profession. The additional qualifications may be apart from
whatever qualifications the legislature may provide in the exercise
of its legislative power.170
§2.21. Citizenship and residence.
The practice of law is a privilege denied to foreigners.171
The requirement of Filipino citizenship and of residence in the
Philippines is not harsh nor unreasonable but is based on wise and
sound principles of public policy, which takes into account the close
connection of the practice of law with the administration of justice
and the other branches of the government.172 An alien cannot well
maintain allegiance to the Republic of the Philippines, which is
required in the oath of a lawyer.173
§2.22. Good moral character.
Good moral character is not only one of the qualifications
required of a candidate for membership in the bar; continued
possession of good moral character after admission is a requirement
for enjoyment of the privilege to practice174 and has served a useful
purpose in that respect.175 This requirement aims to maintain
and uphold the high moral standard and the dignity of the legal
167Rule
168Rule
138, Sec. 2, Rules of Court.
138, Secs. 5 and 6, Rules of Court.
138, Secs. 14 and 17, Rules of Court; Ui v. Bonifacio,
333 SCRA 38, 4950 (2000), citing Ruben E. Agpalo, Legal Ethics (1985).
170/n re Cunanan, 94 Phil. 534 (1954).
171Rule 138, Sec. 2, Rules of Court; In re Bosque, 1 Phil. 88 (1902); Tan Sen Hoo
v. De la Fuente, 90 Phil. 605 (1951).
mEx parte Thompson, 10 N.C. (3 Hawks) 455; Cf. Bosque v.U.S., 209 U.S. 91,
52 L ed 698 (1907).
173Form 28, Appendix of Forms, Rules of Court; see supra., Sec. 2.12 concerning
American lawyers as exception to the rule. The oath to be taken by them requires,
among others, that they recognize the supreme authority of the Republic of the Philippines. Rule 138, Sec. 3, Rules of Court.
174In re Sotto, 38 Phil. 532 (1918); In re Paraiso, 41
Phil. 24 (1920); Rayong v.
Oblena, 7 SCRA 859 (1963); Quingwa v. Puno, 19 SCRA 439 (1967).
176Konegsberg v. State Bar of California, 353 U.S. 252, 1 L ed2d 818 (1957).
169Rule
LEGAL AND JUDICIAL ETHICS
58
profession and one of the ways of achieving this end is to admit to
the practice of the profession only those persons who are shown to be
honest and to possess good moral character.176 The standard of moral
fitness for membership in the legal profession is the same as that for
continuous enjoyment of the privilege to practice, and want of moral
character is a ground for refusal to admit an applicant to the bar
just as the loss thereof is a ground for cancellation of the license to
practice.177
The law does not define the term “good moral character,” nor
does it lay the criteria for determining its meaning. It has been
said that the term, in itself, is ambiguous and susceptible to as
many definitions as there are persons defining it, and that such
vague qualification, which is easily adapted to personal views and
predilections, can be a dangerous instrument for arbitrary and
discriminatory denial of the privilege to practice.178 As applied to
concrete cases, the term has, however, a more restricted meaning
than what it ordinarily implies.
It has been held that moral character is what a person really is,
as distinguished from good reputation or from the opinion generally
entertained of him, the estimate in which he is held by the public
in the place where he is known. Moral character is not a subjective
term but one which corresponds to objective reality. The standard of
personal and professional integrity is not satisfied by such conduct as
merely enables a person to escape the penalty of criminal law. Good
moral character includes at least common honesty.179 Immorality,
which is the antonym of good moral character, connotes conduct that
shows indifference to the moral norms of society and the opinion of
good and respectable members of the community.180
Good moral character may be realistically defined in a negative
way in terms of an absence of proven conduct or act which has
176Bacarro
177Kayong
v. Pinotacan, 127 SCRA 218 (1984).
v. Oblena, 7 SCRA 859 (1963).
178Konegsberg v. State Bar of California, supra.
179Rayong v. Oblema, supra.; In re Del Rosario, 52 Phil. 399 (1928).
“From a lawyer, to paraphrase Justice Felix Frankfurter, are expected those
qualities of truth-speaking, a high sense of honor, full candor, intellectual honesty,
and the strictest observance of fiduciary responsibility — all of which, throughout
the centuries, have been compendiously described as ‘moral character.’” Justice Fred
Ruiz Castro, “Apostacy in the Legal Profession,” 64 SCRA. 784, 789-790 (May-June,
1975).
180Ui v. Bonifacio, 333 SCRA 38 (2000).
ADMISSION TO PRACTICE
59
been historically and traditionally considered as a manifestation of
moral turpitude.181 The act or conduct showing moral turpitude need
not amount to a crime; and even if it does constitute an offense, a
conviction upon a criminal charge based thereon is not necessary to
demonstrate bad moral character, although that circumstance would
be the best evidence to establish moral depravity. Thus, it has been
held that an applicant for admission to the bar is not of good moral
character who made a false statement in his application,182 presented
a forged certificate of good moral character183 or impersonated
another person by using the latter’s school records;184 who was
charged with or convicted of a crime involving moral turpitude; who
lived an adulterous life;185 who contracted a second marriage during
the existence of his first marriage;186 who was involved in a bar
examination anomaly even though he was acquitted of the offense
arising therefrom;187 who held himself out as an attorney without
being admitted to practice;188 and who engaged in unethical and
questionable business practices, as by issuing bouncing checks which
had remained unpaid189 or by obtaining credit through concealment
of material facts.190
§2.23. Educational qualifications.
Public policy demands that a person seeking admission to
the practice of law must not only possess the required educational
qualifications but must also show such degree of learning and
proficiency in law as may be necessary for the due performance of
the duties of a lawyer.191 To the lawyer is entrusted the protection
of life, liberty, property or honor, and to approve officially one who
is not adequately prepared to dedicate himself to such a delicate
181Konegsberg v. State
Bar of California, supra.
Bar 211 Cal 183, 294 P. 697 (1930).
183Ree Woodward, 27 Mont. 355, 71 P 161 (1903).
mRe Portnow, 253, App. Div. 395, 2 NYS2d 553 (1938).
l8SRayong v. Oblema, 7 SCRA 859 (1963).
186Villasanta v. Peralta, 101 Phil. 313 (1957).
18,/n re Del Rosario, 52 Phil. 399 (1928).
mEx parte McCue, 211 Cal. 57, 293 P. 47 (1930); Yap Tan v. Sabandol, 126
SCRA 60 (1983).
mRe O’Brien’s Petition, 79 Conn. 46, 63 A 777 (1906).
mRe Wells, 174 Cal. 467,163 P. 657 (1917).
mIn re Du Fresne, 20 Phil. 488 (1911).
182Spears v. State
60
LEGAL AND JUDICIAL ETHICS
mission is to create a social danger.192 Knowledge of and proficiency
in law are among the requirements designed to avoid such social
danger.193
An applicant must have pursued and satisfactorily completed
in an authorized and recognized university, college or school (a) a
four-year high school course; (b) a course of study prescribed for a
bachelor’s degree in arts or sciences with political science, or logic,
or english, or spanish, or history, or economics as a major or a field
of concentration;194 and (c) a four-year bachelor’s degree in law
with completed courses in 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.195
The courses of study leading to the degree of bachelor of laws
must be taken progressively in the usual manner. For that reason,
an applicant who has not completed his pre-legal education or
completed the same only after he began his study of law will not be
qualified to take the bar examinations, and if by concealment of that
fact he is able to take and pass the bar examinations and thereafter
is admitted to the bar, his passing the bar examinations will not
validate his admission to practice, taking the prescribed course of
legal study in the regular manner being as essential as the other
requirements for membership in the bar.196
The pre-legal education requirement used to be a two-year
course of study only. The poor showing of postwar examinees in the
bar examinations and the clamor to elevate the standards of the legal
profession prompted the Supreme Court to prescribe a bachelor’s
degree in arts or science as a prerequisite to the study of law. The
courses in law have likewise been expanded, with the addition of
labor and social legislation, medical jurisprudence and taxation as
prescribed subjects. The requirement of a bachelor’s degree in arts
or sciences for the study of law and the addition of new courses in
law proper are designed not only to upgrade the quality of those
seeking admission to the bar but also to adequately prepare them
for the highly technical work and growing complexities of advocacy.
l92In
193/n
re Cunanan, 94 Phil. 534 (1954).
re Parazo, 82 Phil. 230 (1948).
194Rule 138, Sec. 6, Rules of Court.
I95Rule 138, Sec. 5, Rules of Court.
196Diao v. Martinez, 7 SCRA 475
ADMISSION TO PRACTICE
61
§2.24. Bar examination.
The applicant’s learning and proficiency in law is ascertained
by requiring him to submit to the bar examinations.19’ The subjects
chosen for these examinations are designed to eliminate any one
whose general intelligence, learning and mental capacity are
inadequate to enable him to assume and discharge the duties of an
attorney.198
An applicant is subjected to written examinations in civil law,
labor and social legislation, mercantile law, criminal law, political
law (constitutional law, public corporations and public officers), international law (private and public), taxation, remedial law (civil
procedure, criminal procedure and evidence) and legal ethics and
practical exercises (in pleading and conveyancing).199 A general average of 75% in all subjects, without failing below 50% in any subject,
is the passing grade. The Supreme Court may, however, reduce the
general passing average. In determining the average, the subjects
are given the following relative weights: civil law, 15%; labor and social legislation, 10%; mercantile law, 15%; criminal law, 10%; political and international law, 15%; taxation, 10%; remedial law, 20%;
and legal ethics and practical exercises, 5%.200
The rule does not permit the partial passing of the examinations
at indefinite intervals because of the grave defects of such a system
in failing to take into account that the laws and jurisprudence are not
stationary and that when a candidate finally receives his certificate
it may happen that the existing laws and jurisprudence are already
different, seriously affecting in that manner his usefulness.201
A candidate who fails in the bar examinations for three
times is disqualified from taking another examination, unless
he has shown to the satisfaction of the court that he has enrolled
and passed regular fourth year review classes as well as attended
a pre-bar review course in a recognized law school. He must also
submit not only a certification under oath by the professors of the
individual review subjects attended by him that he has regularly
attended classes and passed the subjects under the same conditions
197/n
198/n
re Du Fresne, 20 Phil. 488 (1911).
re Bergoron, 220 Mass 472,107 N.E. 1007.
138, Sec. 9, Rules of Court.
200Rule 138, Sec. 14, Rules of Court.
mIn re Cunanan, 94 Phil. 534 (1954).
199Rule
62
LEGAL AND JUDICIAL ETHICS
as an ordinary student, but also the rating obtained by him in the
particular subject.202
E. PROCEDURE FOR ADMISSION
§2.25. Bar examination committee.
In the exercise of its judicial function to admit candidates to the
legal profession, the Supreme Court acts through a bar examination
committee. The committee is composed of a member of the Court
who acts as chairman and eight members of the bar who serve as
examiners in the eight subjects with one subject assigned to each
member. Acting as a sort of liaison officer between the Court and
the chairman, on the one hand, and the individual members of the
committee, on the other hand, is the bar confidant who is at the
same time a deputy clerk of court.203
Every member of the committee is required to exercise the
greatest care and diligence in the performance of his duties. Every
act of the committee in connection with the exercise of discretion in
the admission of applicants for membership in the bar must always
be in accordance with the established rules and subject to the final
approval of the Court. On the other hand, the functions of the bar
confidant are purely ministerial.204
§2.26. Application and supporting documents.
An applicant must file with the clerk of court of the Supreme
Court at least fifteen days before the beginning of the bar examination
a duly accomplished application form provided for the purpose,
together with supporting documents concerning his qualifications.
The application should neither contain false statement nor suppress
any material fact.205 The affidavit of the applicant, accompanied
by a certificate from the university or school of law concerned,
is filed as evidence of his having complied with all educational
requirements.206
202Rule
ity.
138, Sec. 16, Rules of Court.
^“Rule 138, Sec. 12, Rules of Court; In re Lanuevo, 66 SCRA 245 (1975).
204In re Lanuevo, 66 SCRA 245 (1975).
205Rule 138, Sec. 7, Rules of Court; Rule 7.01, Code of Professional Responsibil206Rule
138, Sec. 5, Rules of Court.
ADMISSION TO PRACTICE
63
An applicant who seeks membership in the bar pursuant to
the provision authorizing American lawyers in active practice of law
in the Philippines before July 4, 1946 or a Filipino citizen enrolled
as attorney in the United States before said date who desires
admission without examination,207 should file his petition with the
Court, together with (a) his license evidencing the fact of admission
to practice, (b) satisfactory evidence that the same has not been
revoked, and (c) certificates of his professional standing.208
§2.27. Disclosure of involvement in any criminal case.
An applicant must show that no charges against him involving
moral turpitude, have been filed or pending in court in the
Philippines.209 The question as to whether an offense involves moral
turpitude is for the Supreme Court to decide.210 There will, of course,
be no controversy as to those crimes which the high tribunal, in past
decisions, has considered as involving moral turpitude. To enable the
court to resolve whether a particular crime involves moral turpitude
and thus determine the applicant’s moral character, the applicant is
required to disclose, in the application form, any crime of which he
has been charged.211
The concealment or withholding from the court of the fact
that an applicant has been charged with or indicted for an alleged
crime is a ground for disqualification of the applicant to take the
bar examination, or for revocation of the license to practice if he has
already been admitted to the bar. If what the applicant concealed
is a crime which does not involve moral turpitude, it is the fact of
concealment and not the commission of the crime itself that makes
him morally unfit to become a lawyer. It should be noted that the
application is under oath which he lightly took when he made the
concealment.212
“’Rule 138, Secs. 3 and 4, Rules of Court.
’’“Rule 138, Sec. 7, Rules of Court.
^Rule 138, Sec. 2, Rules of Court.
210/n re Lanuevo, 66 SCRA 245 (1975).
211/re re Lanuevo, supra.
2,2In re Lanuevo, supra.-, Rule 7.01, Code of Professional Responsibility.
64
LEGAL AND JUDICIAL ETHICS
§2.28. Burden of proof to show qualifications.
By asking admission to the practice of law, an applicant puts
in issue all his qualifications and assumes the burden of proof to
establish all those qualifications to the satisfaction of the court.213 He
must, accordingly, produce sufficient evidence to clear any doubt as
to any of his qualifications.214 But after having presented prima facie
evidence of his qualifications, such as three testimonials of his good
moral character from members of the bar as far as that qualification
is concerned, it is incumbent upon any one objecting to his admission
to offer contrary evidence to overcome the prima facie showing made
by him.216
The fact that the bar examination committee has passed upon,
and is satisfied with, the applicant’s qualifications will not preclude
a subsequent judicial inquiry on the same question in a disbarment
proceeding where that question is raised as an issue. The lawyer’s
name may not, however, be stricken off from the roll of attorneys
by reason of alienage, non-completion of the prescribed course of
study or bad moral character in the absence of clearly preponderant
evidence that he did not, in fact, possess the necessary qualifications
at the time of his admission.216 The burden of proof, in such a case,
shifts to the complainant.
§2.29. Written examinations.
Applicants whose qualifications are found to be sufficient are
required to take written examinations. The examinations take place
annually in Manila. They are held in four days designated by the
chairman of the committee on bar examinations. The subjects are
distributed as follows: first day, political and international law
(morning) and labor and social legislation (afternoon): second day,
civil law (morning) and taxation (afternoon); third day, mercantile
law (morning) and criminal law (afternoon); and fourth day, remedial
law (morning) and legal ethics and practical exercise (afternoon).217
213Rosencranz v.
Tidrington, 193 Ind. 472, 141 N.E. 58 (1923); State ex rel.
Board of Bar Examiners v. Poyntz, 52 P2d 353 (1934).
21*Cf. In re Arnaiz, 9 Phil. 705 (1960); State ex rel. Board of Bar Examiners v.
Poyntz, supra.
216Coleman v. Watts, 81 So2d 650 (1955); State ex rel. Board of Bar Examiners
v. Polyntz, supra.
216Lim v. Antonio, 41 SCRA 44 (1971); Soberano v. Villanueva, 6 SCRA 891
(1962) ; Diao v. Martinez, 7 SCRA 475 (1963).
217Rule 138, Secs. 8 and 11, Rules of Court.
ADMISSION TO PRACTICE
65
The committee on bar examination prepares the questions
which are the same for all examinees. The examinee answers the
questions in his own hand writing, without help from any one.218
However, upon verified application made by an examinee stating that
his penmanship is so poor that it will be difficult to read his answers
without much loss of time, the court may allow such examinee to use
a noiseless typewriter.219
§2.30. Restrictions to insure integrity in examination.
An examinee is prohibited from bringing papers, books or
notes into the examination room.220 He is not to communicate with
the other examinees during the examination, nor is he to influence
any member of the committee on bar examinations.221 To keep the
examinee’s identity secret and thus avoid any influence to bear
upon the examiner in the valuation of his answers, the examination
papers provided for the purpose are identified by numbers and the
name of the examinee is written in a piece of paper, which is then
sealed in an envelope. The committee is moreover enjoined to take
such precautions as are necessary to prevent substitution of papers
or the commission of other frauds.222
Any candidate who violates any of the rules concerning the
conduct of the examination will be barred from the examination and
the same will be counted as a failure against him. Other disciplinary
actions, including permanent disqualification from taking the bar
examinations, may also be taken in the discretion of the court.223 Thus,
an examinee who was found to have some notes in his possession in
the examination room and who refused to surrender them until he
was told that he would be reported was disqualified from taking the
examination for the succeeding year even though the notes bore no
relation to the questions asked. He would have been counted as a
218Rule
138, Sec. 10, Rules of Court.
The examination of applicants for admission to the bar being a judicial function, examination papers submitted by an applicant are official or public documents
and their falsification constitutes the crime of falsification of a public or official document. People v. Romualdez, 57 Phil. 148 (1932); cf. People v. Castro, 54 Phil. 44
(1929).
219Rule 138, Sec. 10, Rules of Court.
220Rule 138, Sec. 10, Rules of Court.
221Rule 138, Sec. 13, Rules of Court; In re Amparo, 65 SCRA 120 (1975).
222Rule 138, Sec. 10, Rules of Court.
““Rule 138, Sec. 10, Rules of Court; In re Del Rosario, 52 Phil. 399 (1928).
66
LEGAL AND JUDICIAL ETHICS
failure in the year he took the examination had he not failed in that
examination.224
The conduct of the bar examinations involves public interest.
Any charge of anomaly in the manner they are administered requires
prompt and immediate action from the high tribunal to prevent the
erosion of public faith in the bar and in the court. The Supreme
Court has taken a bold stand in that regard. It has punished for
contempt of court a reporter who published a charge of anomaly in
the conduct of the bar examinations and refused, when asked in the
course of the investigation ordered by the court to verify the truth
of the charge, to disclose the source or sources of his information.225
It has moreover nullified the admission of successful bar candidates
for fraudulent passing of the bar examinations and has disbarred
a bar confidant who, taking advantage of his position, adroitly
maneuvered the passing of an examinee in the bar examinations
and his admission to the bar.228
§2.31. Correction and revaluation of grades.
The bar examiners correct the examination papers, give the
grades obtained by the examinees and submit the corrected papers
to the bar confidant. The bar confidant tallies the individual grades
of every examinee in all subjects, computes the general average and
prepares a comparative data showing the percentage of passing and
failing in relation to a certain average, which he submits to the bar
examination committee and to the court. The committee prepares
its report not later than February 15th after examination or as soon
thereafter as may be practicable. The court then determines the
passing average.227
It has been held that any request for revaluation of the answers
and the grades given should be made by the examinee and the
same should be addressed to the court, which alone can validly act
thereon.228 Such request may only be presented after the reports of
the committee shall have been approved by the court and the results
“Vn re Amparo, 65 SCRA 120 (1975).
re Parazo, 82 Phil. 230 (1948).
™In re Lanuevo, 66 SCRA 245 (1975); In re Del Rosario, 52 Phil. 399 (1928);
People v. Romualdez, 57 Phil. 151 (1932).
^Rule 138, Sec. 15, Rules of Court; In re Lanuevo, supra.
228In re Lanuevo, supra.
mIn
ADMISSION TO PRACTICE
67
of the examinations released, as it is only then that the examination
papers and notes of the committee are open for inspection by any
interested party229 and it is only then that an examinee will know
that he failed in the bar examinations.
§2.32. Administration of oath.
An applicant who has passed the required bar examinations
or who has been otherwise found to be entitled to be admitted to
the bar shall take and subscribe the oath of office as a lawyer.230
The oath is a prerequisite to the admission to practice law and may
only be taken before the Supreme Court by a person authorized by
the high tribunal to engage in the practice of law.231 The court may
deny the applicant’s petition to take the lawyer’s oath for grave
misconduct, such as calling himself “attorney” and appearing as
counsel for clients in courts even before being admitted to the bar.232
The court may also defer the applicant’s taking the oath if there is
a pending complaint against him, which, if found to be true, will
disqualify him from becoming a lawyer,233 or if has been involved
in a fraternity hazing which caused the death of a neophyte.234 Due
process requires that the applicant, in that event, be given due
notice, hearing and opportunity to answer the complaint.235 He may
be permitted to take the oath only after the complaint is found to be
groundless; or he has shown to the satisfaction of the court that he
has, in immorality cases, led for quite a long time a morally upright
life,236 or acknowledged his child with complainant and undertaken
to support him;237 or in cases of gross discourtesy conformed to the
use of polite, courteous and civil language.238
229Rule
(1971).
138, Sec. 15, Rules of Court.
“'’Rule 138, Sec. 17, Rules of Court.
“‘People v. De Luna, 102 Phil. 968 (1958).
232Tan v. Sabandal, 126 SCRA 60 (1983).
“Barba v. Pedro, 61 SCRA 484 (1974); Arganoza v. Tubaces, 41 SCRA 38
234/n
Re Argosino, 270 SCRA 26 (1997).
v. Committee on Character and Fitness, 373 U.S. 96, 10
235Willner
L ed2d 224
(1963)
; Goldsmith v.
United States Board of Tax Appeals, 270 U.S.
117, 70 L ed 494
236Barba v. Pedro, supra.; Arganoza v. Tubaces, supra. In re Ladrera, 147
SCRA 350.
^Bacarro v. Pinatacan, 127 SCRA 218 (1984).
^Andres v. Cabrera, 94 SCRA 512 (1979). Resolution dated February 29,
1984,127 SCRA 802.
68
LEGAL AND JUDICIAL ETHICS
The applicant swears to maintain allegiance to the Republic of
the Philippines, support its Constitution and obey the laws as well as
the legal orders of the duly constituted authorities therein; to do no
falsehood nor to consent to the doing of any in court; not to wittingly
or willingly promote or sue any groundless, false or unlawful suit
nor to give nor to consent to the same; to delay no man for money or
malice and to conduct himself as a lawyer according to the best of
his knowledge and discretion, with all good fidelity as well as to the
courts as to his clients; and to impose upon himself that voluntary
obligation without any mental reservation or purpose of evasion.239
The lawyer’s oath is not a mere ceremony or formality for
practicing law. Every lawyer should at all times weigh his actions
according to the sworn promises he makes when taking the lawyer’s
oath. For if all lawyers conduct themselves strictly according to
the lawyer’s oath and the Code of Professional Responsibility, the
administration of justice will undoubtedly be faster, fairer and
easier for everyone concerned.240
The significance of the oath is that it not only impresses upon
the attorney his responsibilities but it also stamps him as an officer
of the court with rights, powers and duties as important as those
of the judge themselves.241 The oath of a lawyer is a condensed code
of legal ethics.242 It is a source of his obligations and its violation is
a ground for his suspension, disbarment or other disciplinary action.243
239Form 28, Appendix of Forms, Rules of Court; In re Carmen, 41 Phil. 999
(1920); In re Rustia, 73 Phil. 162 (1941); Occena v. Marquez, 60 SCRA 38 (1974).
240/ra
Re: Argosino, 270 SCRA 26 (1997).
A person takes an oath when he is admitted to the bar which is designed to
impress upon him his responsibilities. He thereby becomes an ‘officer of the court’ on
whose shoulders rests the grave responsibility of assisting the courts in the proper,
fair, speedy and efficient administration of justice.” Justice Fred Ruiz Castro, “Apostacy in the Legal Profession,” 64 SCRA 784, 789 (May-June, 1975).
’’"PHILLIPS & McCOY, CONDUCT OF JUDGES AND LAWYERS, 8, 10
(1952).
243Collantes v. Renomeron, 200 SCRA 584 (1981), citing Legal Ethics, Ruben
E. Agpalo, 1983, ed., pp. 66-67. In re Montagne & Dominguez, 3 Phil. 577 (1904); In
re Adriatico, 7 Phil. 173 (1906); In re Paraiso, 41 Phil. 24 (1920); Topacio-Nuevo v.
Santos, 58 Phil. 557 (1933); Nalos v. Formoso, 56 Phil. 798 (1931); Sevilla v. Zoleta,
96 Phil. 979 (1955); Villegas v. De Mesa, 70 Phil. 411 (140); Santos v. Sagalongos, 69
Phil. 406 (1940); Natam v. Capule, 91 Phil. 640 (1952).
241,1
ADMISSION TO PRACTICE
69
§2.33. Issuance of certificate.
After the applicant has taken his oath, the Supreme Court
admits him as a member of the bar for all courts of the Philippines
and directs that an order be entered to that effect upon the records
and that a certificate of such record be given him by the clerk of court.
When he receives such certificate, which is his license to practice
law, he signs the roll of attorneys.244 The roll is the official record
containing the names and signatures of those who are authorized to
practice law. A lawyer is not authorized to use a name other than
the one inscribed in the roll.246
The right to practice the law profession proceeds not from
the territorial boundaries of the licensing authority but within the
jurisdiction of such authority. Since a U.S. Court Martial inside the
U.S. bases in the country is outside the jurisdiction of the Supreme
Court, a lawyer licensed by the Supreme Court to practice law has
no right to practice his profession before such U.S. Court Martial.246
The license to practice is a guaranty that, as far as the court is
advised, the licensee is fit and in a position to assume and discharge
the responsibilities of an attorney.247 It is a certificate of good
moral character. It is a representation by the court, as of the date
of the license, that the licensee is a trustworthy person who may
reasonably be expected to act fairly and honestly in the practice of
his profession. Thereafter, in the absence of proof to the contrary the
original representation exists as a continuing presumption.248
§2.34. Payment of IBP dues and privilege tax.
The integration of the Bar of the Philippines, as ordained by
the Supreme Court, made membership therein by every attorney
compulsory with the obligation to support it financially. His
continued membership in the Integrated Bar and his regularly
paying the membership dues and other lawful assessments that it
244Rule 138, Secs. 18 and 19, Rules of Court; Cui v. Cui, 11 SCRA 755 (1964).
See People v. Bella Bautista, 53 Phil. 158 (1929) and People v. Pena-ferranda, 54
Phil. 68 (1929), holding that the roll of attorneys being a public document, its falsification constitutes the crime of falsification of public document.
^Pangan v. Ramos, 93 SCRA 87 (1979).
246Vargas vs. Kilcline, 142 SCRA 232 (1986).
247PeopIe v. Czamocki, 109 N.E. 14, 268 111. 278; In re Almacen, 31 SCRA 562,
(1970).
^Roark v. State Bar, 5 Cal2d 665, 55 P2d (1936).
70
LEGAL AND JUDICIAL ETHICS
may levy are conditions sine qua non to the privilege to practice law
and to the retention of his name in the roll of attorneys.249
Section 9 of Rule 139-A of the Rules of Court provides that
“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.” Section 10 of said Rule warms that “default in the
payment of annul dues for six months shall warrant suspension of
members in the Integrated Bar, and default in such payment for one
year shall be a ground for removal of the name of the delinquent
member from the Roll of Attorneys.” However, Sec. 12 states that
“no action involving the suspension or disablement of a member or
the removal of his name from the Roll of Attorneys shall be effective
without the final approval of the Supreme Court.”
To enforce the above provision, Supreme Court has required, as
embodied in its Circular No. 10 dated July 24, 1985, that “Effective
August 1, 1985, all lawyers shall indicate in all pleadings, motions
and papers signed and filed by them in any court in the Philippine,
the number and date of their official receipt indicting payment of the
annual membership dues to the Integrated Bar of the Philippines
for the current year; Provided, however, That such official receipt
number and date for any year may be availed of and indicated in all
such pleadings, motions and papers filed by them in court up to the
end of the month of February of the next succeeding year.”
A lawyer must comply with the requirement regarding payment
of membership dues even though his practice is “limited.” The grant
by RA 7432 to senior citizens of “exemptions from the payment of
individual income taxes” does not include payment of membership
or association dues. His falsely indicating in his pleading an IBP
number and date of issue merits a more sever penalty, like suspension
from the practice of law for one year or until he has paid his IBP
dues.260
The law, moreover, requires every lawyer legally authorized to
practice his profession to pay annually the privilege or occupation
tax to the province where he practices his profession or where he
maintains his principal office in case he practices in several places.261
249/n re Integration of the Phil. Bar, 49 SCRA 22 (1973); In re Edillon, 84 SCRA
554 (1978).
260Santos, Jr. v. Llamas, 322 SCRA 529 (2000).
261Local Tax Code, Sec. 12.
Chapter III
LAWYER’S DUTIES TO SOCIETY
A. UPHOLDING THE CONSTITUTION AND THE LAW
§3.01. Duty to uphold Constitution and obey the law.
The first and foremost duty of a lawyer is to maintain allegiance
to the Republic of the Philippines, uphold the Constitution, and
obey the laws of the land.1 The Code of Professional Responsibility
underscores the primacy of such duty by providing as its first canon,
that “a lawyer shall uphold the Constitution, obey the laws of the
land, and promote respect for law and legal processes.”2 For a lawyer
is the servant of the law and belongs to a profession to which society
has entrusted the administration of law and the dispensation of
justice.3 As well said by the Court:
A lawyer is the servant of the law and belongs to a
profession to which society has entrusted the administration
of law and the dispensation of justice. As such, he should make
himself more an exemplar for others to emulate.4
The Court in Lee v. Tambago,6 has stressed the role of lawyers
in the community, thus:
While the duty to uphold the Constitution and obey the
law is an obligation imposed on every citizen, a lawyer assumes
responsibilities well beyond the basic requirements of good
(1988).
•Montecillo v. Gica, 60 SCRA 234 (1974); Zaldivar v. Gonzales, 166 SCRA 316
2Canon 1,
Code of Professional Responsibility.
Comments of IBP Committee that drafted the Code of Professional Responsibility, pp. 1-2 (1980).
4Samala v. Valencia, Adm, Case No. 5439, January 22, 2007.
6A.C. No. 5281, February 12,2008.
71
LEGAL AND JUDICIAL ETHICS
72
citizenship. As a servant of the law, a lawyer should moreover
make himself an example for others to emulate. Being a lawyer,
he is supposed to be a model in the community in so far as
respect for the law is concerned.
“A lawyer shall not counsel or abet activities aimed at defiance
of the law or at lessening confidence in the legal system.”6 His
responsibilities are greater than those of a private citizen. Moreover,
he is looked up to in the community. For these reasons, he must not
subvert the law by counseling or assisting in activities which are in
defiance of the law.7 Thus, he should not promote an organization
known to be violating the law nor assist it in a scheme which he
knows is dishonest.8 Nor should he allow his services to be engaged
by an organization whose members are violating the law, to defend
them when they get caught.9
§3.02. Duty not to engage in unlawful conduct.
While the duty to uphold the Constitution and obey the laws
is an obligation imposed upon every citizen, a lawyer assumes
responsibilities well beyond the basic requirements of good
citizenship. As servant of the law, a lawyer should moreover make
himself an exemplar for others to emulate. “(F)or him, of all men
in the world, to repudiate and override the laws, to trample them
under foot and to ignore every bond of society, argues recreancy to his
position and office and sets a pernicious example to the subordinate
and dangerous elements of the body politic.”10
The lawyer’s duty to obey the laws and promote respect for
law and legal processes, negatively put, demands that he “shall not
engage in unlawful, dishonest, immoral or deceitful conduct.”11 An
unlawful conduct is an act or omission which is against the law.12 A
dishonest act is an act of lying or cheating.13 An immoral or deceitful
conduct is one that involves moral turpitude. It includes anything
6Rule
1.02, Code of Professional Responsibility.
Committee that drafted the Code, p. 5.
8/n re Turrel, 2 Phil. 266 (1903).
9A.B.A. Op. 281 (March 11,1952).
l0In re Gutierrez, 5 SCRA 661, 664 (1962).
“Rule 1.01, Code of Professional Responsibility.
12People v. Smith, 93 Am. St. Rep. 206 (1902).
13Alsup v. State, 91 Tex. Crim. R. 224 (1922).
7Comments of IBP
LAWYER’S DUTIES TO SOCIETY
73
done contrary to justice, modesty or good morals,14 or to any
vileness, baseness or depravity in the private and social duties that
a man owes to his fellowmen or society, contrary to accepted rule
of right and duty between man and man.16 A lawyer who engages
in unlawful, dishonest, immoral or deceitful conduct may be held
administratively liable therefor.16
§3.03. Duty not to counsel illegal activities.
The responsibilities of a lawyer are greater than those of
a private citizen. Moreover, he is looked up to in the community.
Rule 1.02 of the Code accordingly requires that “A lawyer shall not
counsel or abet activities aimed at defiance of the law or at lessening
confidence in the legal profession.” Nor should he subvert the law by
counseling or assisting in activities which are in defiance of the law.17
Thus, he should not promote an organization known to be violating
the law nor assist it in a scheme which he knows is dishonest.18
He should not allow his services to be engaged by an organization
whose members are violating the law, to defend them when they get
caught.19
A lawyer who defies a writ of preliminary injunction has flouted
his duties as a member of the legal profession. He is prohibited from
counseling or abetting activities aimed at defiance of the law or at
lessening confidence in the legal system.20
The Supreme Court had occasion to underscore faithful
compliance by lawyers with Rule 1.02 of the Code in its inquiry into
the anomalous election of IBP Officers in 1989 when it nullified the
results thereof after finding that the election was characterized
by electioneering activities and extravagance on the part of the
candidates, their campaigners and supporters in violation of the
IBP Rules, thus:
“The candidates and many of the participants in that
election not only violated the By-Laws of the IBP but also the
re Basa, 41 Phil. 275 (1920).
re Gutierrez, 5 SCRA 661 (1962).
16See discussion on Disbarment, infra.
"Comments of IBP Committee that drafted the Code, p. 5.
18/n re Turrel, 2 Phil. 266 (1903)
19A.B.A. Op. 281 (March 11,1952).
20Oronce v. Court of Appeals, 298 SCRA 133 (1998).
l*In
15/n
74
LEGAL AND JUDICIAL ETHICS
ethics of the legal profession which imposes on all lawyers, as a
corollary of their obligation to obey and uphold the constitution
and the laws, the duty to promote respect for law and legal
processes and to abstain from activities aimed at defiance of the
law or at lessening confidence in the legal system. (Rule 1.02,
Canon 1, Code of Professional Responsibility). Respect for law
is gravely eroded when lawyers themselves, who are supposed
to be minions of the law, engage in unlawful practices and
cavalierly brush aside the very rules that the IBP formulated
or their observance.”21
§3.04. Duty not to encourage lawsuits.
A lawyer owes to society and to the court the duty not to stir
up litigation. Rule 1.03 of the Code provides that a “lawyer shall
not, for any corrupt motive or interest, encourage any suit or
proceeding.” To stir up litigation is a crime known as maintenance
at common law. Among the unprofessional acts which come within
the prohibition include the lawyer’s (a) volunteering advice to bring
lawsuit, except in rare cases where ties of blood, relationship or
trust make it his duty to do so; (b) hunting up defects in titles or
other causes of action and informing thereof in order to be employed
to bring suit or collect judgment, or to breed litigation by seeking
out those claims for personal injuries or those having any other
grounds of action in order to secure them as clients; (c) employing
agents or runners for like purposes; (d) paying reward, directly or
indirectly, to those who bring or influence the bringing of such cases
to his office; (e) remunerating policemen, court or prison officials,
physicians, hospital attaches or others who may succeed, under
the guise of giving disinterested friendly advice, in influencing the
criminal, the sick and the injured, the ignorant or others, to seek
professional services;22 (f) searching for unknown heirs and soliciting
their employment of him;23 (g) initiating a meeting of the members
of club and inducing them to organize and contest legislation under
his guidance;24 (h) purchasing notes to collect them by litigation
at a profit;25 (i) furnishing credit reports in expectation of possible
21Bar
Matter No. 491, October 6, 1989.
22Canon 28,
Canons of Professional
“A.B.A. Op. 173 (July 24,1937).
“A.B.A. Op. 8 (April 28,1925).
26A.B.A. Op. 51 (December 14,1931).
LAWYER’S DUTIES TO SOCIETY
75
employment;26 and (j) agreeing with a purchaser of future interests
to invest therein in consideration of his services.27
The purpose of the prohibition is to prevent ambulance chasing,
which refers to solicitation of almost any kind of legal business by
laymen employed by an attorney for the purpose or by the attorney
himself.28 For ambulance chasing has spawned recognized evils,
such as the (a) fomenting of litigation with resulting burdens on
the courts and the public, (b) subornation of perjury, (c) mulcting
of innocent persons by judgments, upon manufactured causes of
actions, and (d) defrauding of injured persons having proper causes
of action but ignorant of legal rights and court procedure 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 the just rights of the injured
persons.29
§3.05. Duty to encourage amicable settlement.
The useful function of a lawyer is not only to conduct litigation
but to avoid it where possible, by advising settlement or withholding
suit.30 He is often called upon less for dramatic forensic exploits than
for wise counsel in every phrase of life.31 He should be a mediator for
concord and a conciliator for compromise rather than an instigator of
controversy and a predator of conflict, a true exponent of the primacy
of truth and moral justice rather than a virtuoso of technicality in
the conduct of litigation.32 To attain such objective, Rule 1.04 of the
Code requires that “a lawyer shall encourage his client to avoid, end
or settle a controversy if it will admit of a fair settlement.”
Parties to an amicable settlement enjoy benefits better than
those which can legally be secured to them by the most elaborate
and exacting judicial procedure.33 A litigation involves time, expense
26A.B.A.
Op. 188 (July 24, 1938).
2,A.B.A. Op. 176
(February 19, 1938).
“See Annotation on “Ambulance Chasing,” 67 ALR2d 859 (1959).
“Hightower v. Detroit Edison Co., 247 NW 97, 86 ALR 509 (1933).
30W.H. Taft, Ethics in Science (1915), 31-32; See Drinker, Legal Ethics, 133,
note 28 (1953).
31Report on January 23, 1948 of the Committee on Professional Ethics of the
New York State Bar Ass’n., DRINKER, op. cit., at 102, note 10.
32De Ysasi v. NLRC, 231 SCRA 173 (1994), citing Ruben E. Agpalo, Legal Ethics, 1989 ed., p. 66; Castaneda v. Ago, 65 SCRA 505 (1975).
33Brodett v. De la Rosa, 77 Phil. 752 (1946).
76
LEGAL AND JUDICIAL ETHICS
and ill feelings, which may well be avoided by the settlement of
the action. And in those clearly unmeritorious cases, a compromise
or even a confession of judgment will accord respect to the just
claim of the other party, save the client additional expenses and
help prevent clogging of the docket.34 A “compromise is as often the
better part of justice as prudence is the better part of valor” and a
lawyer who encourages compromise is no less the client’s champion
in settlement out of court than he is the client’s “champion in the
battle in court.”35
What sometimes beclouds the lawyer’s judgment as to what
is best for his client is his eye on his attorney’s fees which are
often considerably less when the cause is amicably settled than
when it goes through the usual proceeding until its termination.36
The problem involves a conflict of interests, which a lawyer should
resolve against self-interest.
B. MAKING LEGAL SERVICES AVAILABLE
§3.06. Generally.
“A lawyer shall make his legal services available in an efficient
and convenient manner compatible with the independence, integrity
and effectiveness of the profession.”37 This canon requires that legal
services should not only be efficient but should also be made available
and accessible to those who need them in a manner compatible
with the ethics of the profession. A lawyer who accepts professional
employment should be in a position to render efficient and effective
legal assistance, otherwise he should help find another lawyer who is
qualified and able to do so. And a lawyer who is qualified to provide
efficient legal services should make available such services to those
who are in need thereof. This is an obligation a lawyer assumes
when he took his oath of office.
34Pajares v. Abad Santos, 30 SCRA 748 (1969); Samar Mining Co. v. Amado,
24 SCRA 402(1968).
“Charles P. Curtis, The Advocate, William H. Davenport, VOICES IN COURT,
5 (1958).
36See Cabildo v. Navarro, 54 SCRA 26 (1973); Jeselva v. Bautista, 105 Phil.
348 (1959).
37Canon 2, Code of Professional Responsibility.
LAWYER’S DUTIES TO SOCIETY
77
The necessity of representation by counsel and the right to
counsel in all judicial proceedings and, at times, in administrative
proceedings have given rise to the correlative duty on the part of
the legal profession, namely, to make legal services available in an
efficient and convenient manner to those who need such services.
Canon 2 and its implementing Rules make such duty clear and
specific. The IBP Committee that drafted the Code explained: “A
person in need of legal services should be able to find a lawyer who
is qualified to provide them. It is the responsibility of the bar to
make such services available. A wide gap exists between the need
and its satisfaction. This has been ascribed mainly to two reasons:
first is poverty and the consequent inability to pay, and second,
ignorance not only of the need of legal services but also of where
to find a competent and dependable lawyer. There is also fear of
the delays and technicalities of the law and of overreaching and
overcharging lawyers. The profession should therefore use such
methods, compatible with its ethics and dignity to bring the services
of its members to those who are actually caught up in litigation as
well as to those who have need of legal advice to avoid litigation.”38
§3.07. A lawyer shall not reject the cause of the defenseless.
The rule that “A lawyer shall not reject, except for valid reasons,
the cause of the defenseless or the oppressed,”39 stems from one of
the obligations incident to the status and privileges of a lawyer,
which is to represent the poor and the oppressed in the prosecution
of their claims or the defense of their rights. Even in those instances
in which he may not, for valid reasons, accept the case, the lawyer
“shall not refuse to render legal advice to the person concerned if
only to the extent necessary to safeguard the latter’s rights.”40
The duty of a lawyer to accept the cause of the defenseless
and the oppressed empowers the court to require him to render
professional services to any party in a case, if the party is without
means to employ an attorney and the services of a lawyer are
necessary to protect the rights of such party or secure the ends of
justice,41 or to designate him as counsel de oficio for an accused if the
^Comments of IPB Committee that drafted the Code, p. 10.
39Rule
2.01, Code of Professional Responsibility.
2.02, Code of Professional Responsibility.
41Rule 138, Sec. 31, Rules of Court.
40Rule
78
LEGAL AND JUDICIAL ETHICS
latter is unable to employ a counsel de parte.*2 In either instance, the
lawyer so assigned has to render effective legal services, under pain
of disciplinary sanction should he fail or neglect to do so, until he is
excused therefrom by the court.43 Every lawyer should welcome the
assignment as an opportunity to render public service, show that
the practice of law is a profession, and demonstrate that the efficient
discharge of his duties does not depend upon payment or amount of
his fees.44
In the performance of its public responsibility to render free
legal services to the poor and the oppressed, the Integrated Bar of
the Philippines through its Committee on Legal Aid has established
legal aid offices throughout the country. Its objective is to provide
and make available on a nationwide basis legal services in favor of
the poor segment of society. The operation of these legal aid offices
proceeds from the basic policy that “legal aid is not a matter of charity.
It is a means for the correction of social imbalance that may and
often do lead to injustice, 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 administered to indigent
and deserving members of the community in all cases, matters
and situations in which legal aid may be necessary to forestall an
injustice.”45
§3.08. A lawyer shall not refuse to render legal advice.
A lawyer may refuse to accept the cause of the defenseless or the
oppressed for valid reasons, such as when he is not in a position to
carry out the work effectively or competently. Nonetheless, Rule 2.02
of the Code requires that “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 extend necessary to safeguard the latter’s interests,” such
as advising him what preliminary steps to take, until he shall have
secured the services of counsel. He should, however, refrain from
giving such legal advice if the reason for not accepting the case is that
he labors under a conflict of interests between him and a prospective
(1950).
42Rule
116, Secs. 6 and 7, Rules of Court; People v. Holgado, 85 Phil. 752
“People v. Estebia, 27 SCRA 106 (1969); People v. Ingco, 42 SCRA 170 (1970);
Ledesma v. Climaco, 57 SCRA 473 (1974).
“People v. Rosqueta, 55 SCRA 486 (1974).
46Art. I, Sec. 1, Guidelines Governing the Establishment and Operation of Local Aid Offices in Chapters of the Integrated Bar of the Philippines.
LAWYER’S DUTIES TO SOCIETY
79
client or between a present client and a prospective client16 because
extending such legal advice will create and establish an attomeyclient relationship between them47 and may involve violation of the
rule prohibiting a lawyer from representing conflicting interests.48
§3.09. Participating in legal development.
While the lawyer’s task in contributing to the improvement of
the legal system is not a matter of strict duty, it is a duty nevertheless that flows from the lawyer’s sense of public responsibility. The
improvement of the legal system cannot, however, be done by dreaming in a vacuum. The lawyer must recognize that the law is a part of
vast social network and whether he likes it or not, he has to interact
with the rest of society. There is thus the need on the part of a lawyer
to transcend the narrow limits of technical law. Intricately woven is
the law with the social fabric that the legal profession cannot afford
to confine itself to narrowly technical legal questions. A lawyer must
broaden out and continue to grow in knowledge and competence in
order to be able to make the law socially responsive.49
§3.10. Lawyer shall keep abreast of legal developments.
Canon 5 provides that “A lawyer shall keep abreast of legal
developments, participate in continuing legal education programs,
support efforts to achieve highest standards in law schools as well as
in the practical training of law students and assist in disseminating
information regarding the law and jurisprudence.”
Lawyers in the active practice of law and judges should put to
heart Canon 5. For it is the bounden duty of counsel in the active
practice to keep abreast of decisions of the Supreme Court and
changes in the law.60 And it is imperative that judges should be
conversant with basic legal principles and with the changes in the
law and with the latest decisions and precedents. For service in the
judiciary and being in the active practice of law require continuous
study and research on the law from beginning to end.61 Unless each
“Rule 14.03, Code of Professional Responsibility.
47Hilado
v. David. 84 Phil. 569 (1949).
“Rule 15.03, Code of Professional Responsibility.
“Comments of the IBP Committee that drafted the Code, pp. 20-21.
“De Roy v. Court of Appeals, 157 SCRA 757 (1989).
5IAbad v. Bleza, 145 SCRA 1 (1986).
80
LEGAL AND JUDICIAL ETHICS
of them faithfully complies with such duty, he may not be able to
competently and diligently discharge his obligations as a lawyer or
a judge. Worst, he is susceptible to commit mistakes.
Legal education should be a continuing concern. After admission to practice, a lawyer incurs a three-fold obligation. First, he
owes it to himself to continue improving his knowledge of the law;
second, he owes it to his profession to take an active interest in the
maintenance of high standards of legal obligation; and third, he owes
it to the lay public to make the law a part of its social consciousness.
In the discharge of such duties, a lawyer should however see to it
that his activities may not develop into solicitation of legal business
or popularity-hunting.52
§3.11. Mandatory continuing legal education.
Continuing legal education is required of members of the IBP to
ensure that throughout their career, they keep abreast with law and
jurisprudence, maintain the ethics of the profession and enhance the
standards of the practice of law. To achieve such purpose, members of
the IBP not exempt under Rule 7 shall complete every three (3) years
at least thirty-six (36) hours of continuing legal education activities,
with appropriate penalties for failure to do so, in accordance with
the Rules on Mandatory Continuing Legal Education.63
C. APPLICABILITY OF CODE TO GOVERNMENT
LAWYERS
§3.12. Code is applicable to government lawyers.
Canon 6 makes the Code of Professional Responsibility applicable “to lawyers in government service in the discharge of their official duties.” The reason for the rule is that a lawyer does not shed
his professional obligations upon his assuming public office. In fact,
his professional obligations should make him more sensitive to his
official obligations because a lawyer’s disreputable conduct is more
likely to be magnified in the public eye.64 And want of moral integrity
s2Ibid.
63See Appendix F for the Rules on Mandatory Continuing Legal Education.
“Comments of IBP Committee that drafted the Code, p. 30; Penticostes v.
Ibanez, 304 SCRA 281 (1999).
LAWYER’S DUTIES TO SOCIETY
81
is to be more severely condemned in a lawyer who holds a responsible public office.66
The ethical duties provided for in the Code of Professional Responsibility are rendered even more exacting as to the lawyers in
the government service because, as government counsel, they have
the added duty to abide by the policy of the State to promote a high
standard of ethics in public service. As part of the government bureaucracy, it is incumbent upon lawyers to perform and discharge
their duties with the highest degree of professionalism, intelligence
and skill and to extend prompt, courteous and adequate service to
the public.66
A government lawyer may thus be held administratively
liable for breach of the canons and rules of the Code of Professional
Responsibility or the lawyer’s oath in the discharge of official duties.67
It is however one thing in taking disciplinary action against him
and another thing in protecting vital government interests which
should not be jeopardized through neglect of the lawyer appearing
for it when this can be done without adverse results to the private
party.68
The rule is a reiteration of the fundamental principle in public
law, which is that a public office is a public trust and a public
servant owes utmost fidelity to the public service.69 It supplements
the norms of conduct required of public officials to uphold the public
interest over and above personal interest; discharge their duties
with the highest degree of excellence, professionalism, intelligence
and skill; act with justness and sincerity; provide service without
discrimination; extend prompt, courteous and adequate service to
the public; be loyal to the Republic; commit themselves to democratic
way of life and values; and lead modest lives.60
§3.13. A prosecutor shall see to it that justice is done.
Rule 6.01 provides that “The primary duty of a lawyer in
public prosecution is not to convict but to see that justice is done.
“Macoco v. Diaz, 70 Phil. 97 (1940).
“Far Eastern Shipping Co. v. CA, 297 SCRA 30, 51-52 (1998).
67Pimentel,
Jr. v. Llorente, 339 SCRA 154 (2000).
“Republic v. Court of Appeals, 292 SCRA 243 (1998).
“Comments of IBP Committee that
drafted the Code, p. 30.
82
LEGAL AND JUDICIAL ETHICS
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 rule is a reiteration of the fundamental principle in public
law, which is that a public office is a public trust and a public servant
owes utmost fidelity to the public service.61
A public prosecutor is a quasi-judicial officer. He is the
“representative not of an ordinary party to a controversy, but of a
sovereignty whose obligation to govern impartially is as compelling
as its obligation to govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case but that justice
shall be done. As such, he is in a peculiar and very definite sense the
servant of the law, the two-told aim of which is that guilt shall not
escape or innocence suffer.”62 “The primary duty of a lawyer engaged
in public prosecution is not to convict but to see that justice is done.
The suppression of facts or the concealment of witnesses capable
of establishing the innocence of the accused is highly reprehensible
and is cause for disciplinary action.”63 He owes the state, the court
and the accused the duty to lay before the court the pertinent facts
at his disposal with methodical and meticulous attention, clarifying
contradictions and filling up gaps and loopholes in his evidence to the
end that the court’s mind may not be tortured by doubts, the innocent
may not suffer, and the guilty may not escape unpunished.64
A pubic prosecutor should not hesitate to recommend to the
court the accused’s acquittal if the evidence in his possession shows
that the accused is innocent. If on appeal by the accused from a
conviction by the trial court he finds no legal basis to sustain the
conviction, he should not also hesitate to recommend that the
accused be acquitted.66 For “his finest hour is not when he wins a
case with the conviction of the accused. His finest hour is still when,
overcoming the advocate’s natural obsession for victory, he stands
up before the court and pleads not for the conviction of the accused
61Comments of
62Suarez
IBP Committee that drafted the Code, p. 30.
v. Platon, 69 Phil. 556, 564-565 (1940); Jose v. Court of Appeals, 70
SCRA 257 (1976).
“Rule 6.01, Code of Professional Responsibility.
“People v. Esquivel, 82 Phil. 453 (1948); People v. Tamayo, 42 SCRA 59
(1971).
“Trieste v. Sandiganbayan, 145 SCRA 508 (1986).
LAWYER’S DUTIES TO SOCIETY
83
but for his acquittal. For indeed, his noble task is to prosecute only
the guilty and to protect the innocent.”66
In Dimatulac v. Villon,67 the Supreme Court summed up the
role of a public prosecutor in the prosecution of criminal actions:
“Prosecutors must never forget that, in the language of
Suarez v. Platon, they are the representatives not of an ordinary
party to a controversy, but of a sovereignty whose obligation to
govern impartially is as compelling as its obligation to govern
at all; and whose interest, therefore, in a criminal prosecution
is not that it shall win every case but that justice be done. As
such, they are in a peculiar and every definite sense the servants
of the law, whose two-fold aim is that guilt shall not escape or
innocence suffer.” “Prosecutors are charged with the defense
of the community aggrieved by a crime, and are expected to
prosecute the public action with such zeal and vigor as if they
were the ones personally aggrieved, but at all times cautious
that they refrain from improper methods designed to secure
a wrongful conviction. With them lies the duty to lay before
the court the pertinent facts at the judge’s disposal with strict
attention to punctilious, thereby clarifying contradictions and
sealing all gaps with evidence, with a view to erasing all doubt
from the court’s mind as to the accused’s innocence or guilt.”68
§3.14. Restrictions on the functions of public prosecutor.
Public prosecutors should not allow, and should avoid, giving
the impression that their noble office is being used or prostituted,
wittingly or unwittingly, for political ends or other purposes alien to,
or subversive of, the basic and fundamental objective of serving the
interests of justice evenhandedly, without fear or favor to any and
all litigants alike, whether rich or poor, weak or strong, powerless
or mighty. Only by strict adherence to the established procedure
may the public perception of the impartiality of the prosecutor be
enhanced.69
A public prosecutor should prosecute with earnestness and
vigor. But while he may strike hard blows, he is not at liberty to
66People v.
67297
Madera, 57 SCRA 349, 356 (1974).
SCRA 679 (1998).
'“Dimatulac v. Villon, 297 SCRA 679, 713 (1998).
69Tatad v. Sandiganbayan, 159 SCRA 70 (1988).
LEGAL AND JUDICIAL ETHICS
84
strike foul ones. It is as much his duty to refrain from improper
methods calculated to produce a wrongful conviction as it is to use
every legitimate means to bring about a just one.70 He should not offer
as proof of the accused’s guilt illegally seized or acquired evidence,71
nor suppress facts or conceal witnesses capable of establishing the
innocence of the accused.72 Neither should he consent to any undue
delay in the prosecution of the action73 because it is also his duty to
see to it that a person on trial is not deprived of his statutory or legal
rights.74 He may not assert his personal knowledge of a crime unless
he withdraws as prosecutor and takes the witness stand, to give the
defense counsel opportunity to cross-examine him.75
It is improper for a public prosecutor to assist in the escape
of a prisoner, institute a criminal action to force a settlement of a
case,76 agree to refrain from prosecuting a person in consideration of
some reward,77 receive money for dismissing a complaint,78 induce an
accused to plead guilty,79 willfully fail to prosecute violations of law
or lose the records thereof,80 or have a secret law partner with whom
he divides the attorney’s fees.81 A prosecuting officer should observe
a high standard of morality and integrity.82
A public prosecutor, however, like a defense counsel,83 is
presumed to be a man learned in the law, of high moral character
and to have performed his duty impartially and with but one object
in view — that justice be meted out to all violators of law and that
no innocent man be punished.84
70Suarez v. Platon, supra.-, U.S. v. Mamintud, 6 Phil. 372 (1906); People v. Esquivel, supra.
71A.B.A.
Op. 150 (February 15,1936).
6.01, Code of Professional Responsibility.
73Kalaw v. Apostol, 64 Phil. 852 (1937).
74Kalaw v. Apostol, supra.-, U.S. v. Barredo, 32 Phil. 444 (1915).
76See Umali v. Villaluz, 51 SCRA 84 (1973); Robinson v. United States, 66 ALR
468 (1928).
7,sRe Waggoner, 206 NW 427 (1925).
77People ex rel. Colorado Bar Ass’n. v. Anglim, 33 Colo 40 78 P 687 (1904); Re
Simpson, 192 P 1097 (1920).
™Re Norris, 60 Kan 649, 57 P 528 (1899).
79People ex rel. Stead v. Phipps, 261 111 576,104 NE 144 (1944).
mRe Simpson, 9 K.D. 379, 83 NW 541 (1900).
*“Re Lyons, 162 Mo. App. 688, (1912).
82Macoco v. Diaz, 70 Phil. 97 (1940).
“People v. Mantawar, 80 Phil. 817 (1948).
“U.S. v. Grant, 18 Phil. 122 (1910); People v. Pineda, 20 SCRA 748 (1967).
72Rule
LAWYER’S DUTIES TO SOCIETY
85
§3.15. In appeals, the Solicitor General has control.
The Solicitor General shall represent the People in criminal
actions brought to the Court of Appeals and the Supreme Court.85
The rule is that only the Solicitor General may bring or defend action
on behalf of the People once such actions are brought to the Court
of Appeals or the Supreme Court. However, the Court sometimes
overlooks this procedural lapse and proceeds to resolve the case on
its merit, even when the case is filed by a prosecutor.86 As the official
in control of criminal cases before the appellate courts, the Solicitor
General may abandon or discontinue the prosecution of the case in
the exercise of his sound discretion.87 He may even recommend the
acquittal of an accused when he believes that the evidence does not
warrant his conviction. The Supreme Court has even commended
him by saying that “his finest hour is not when he wins a case
with the conviction of the accused. His finest hour is still when,
overcoming the advocate’s natural obsession for victory, he stands
up before the court and pleads not for the conviction of the accused
but for his acquittal. For indeed, his noble task is to prosecute only
the guilty and to protect the innocent.”88
The rule that the Solicitor General is the lawyer of the People
in appellate courts admits of an exception, namely, that which is
provided for in RA 8249, which states in part that “In all cases
elevated to the Sandiganbayan and from the Sandiganbayan to the
Supreme Court, the Office of the Ombudsman, through its special
prosecutor, shall represent the People of the Philippines, except
in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A,
issued in 1986.”
§3.16. Role of private prosecutor.
Section 16 of Rule 110 of the Rules of Court provides that
unless the offended party has waived the civil action or expressly
reserved the right to institute it separately from the criminal action,
and subject to the provision of Section 5 hereof, which gives to the
public prosecutor the direction and control of the prosecution, he
may intervene by counsel in the prosecution of the offense. This
85City Fiscal of
Tacloban v. Espina, 166 SCRA 614 (1988).
“People v. Mendoza, 231 SCRA 264 (1994).
87Commission on Elections v. CA, 229 SCRA 501 (2004).
“People v. Madera, 57 SCRA 349, 356 (1974).
86
LEGAL AND JUDICIAL ETHICS
rule is based on the legal axiom that an act or omission which is
punishable by law gives rise to civil liability not so much because
it is a crime but because it causes damage to another, and to the
offender’s obligation and moral duty to repair or make whole the
damage caused to the offended party by reason of his own act or
omission.89
The general rule is that an offended party has the right to
intervene in the prosecution of a crime, except in the following
instances:
1.
Where from the nature of the crime and the law defining
and punishing it no civil liability arises in favor of a private offended
party; and
2.
n cases where from the nature of the offense the offended
party is entitled to civil indemnity arising therefrom but he has
waived the same or has expressly reserved his right to institute a
civil action or he has already instituted said action. For in any of
such instances, his interest in the criminal case has disappeared and
the prosecution becomes the sole function of the public prosecutor.90
The role of the private prosecutor is to represent the offended
party with respect to the civil action for the recovery of civil liability
arising from the offense. His sole purpose is to enforce the civil
liability and not to demand punishment of the accused. He cannot
intervene in the prosecution of the action, where he has reserved
the right to file or has filed a separate civil action, or where from
the nature of the offense or where the law defining and punishing
the offense charged, it does not provide for an indemnity.91 Where
the offended party has filed a separate civil action arising from an
offense, he has no legal personality, by himself or through counsel,
to intervene in the prosecution of said offense. Consequently, the
motion for reconsideration filed by the counsel for the offended party,
of the order dismissing the case produced no legal effect, because
only the prosecutor can file the appropriate pleading, if it will not
put the accused in double jeopardy.92
(1991).
"Banal v. Tadeo, Jr., 156 SCRA 325 (1987); Abejuela v. People, 200 SCRA 806
“Gorospe v. Gatmaitan, 98 Phil. 600 (1956).
91Tan, Jr. v. Gallardo, 73 SCRA 306 (1976).
92Cabral v. Puno, 70 SCRA 606 (1976).
LAWYER'S DUTIES TO SOCIETY
87
However, where the offended party withdrew his reservation
to file a separate civil action, the private prosecutor may still
intervene in the prosecution of the criminal case, by conducting the
examination of witnesses under the control of the prosecutor.93 On
the other hand, once the offended party has filed a separate civil
action arising from the crime, he may not withdraw such civil case
in order to intervene in the criminal prosecution. He loses the right
to intervene. He no longer has any standing in the criminal case,
except to be a prosecution witness.94
In other words, a private prosecutor on behalf of the offended
party is allowed to intervene in the prosecution of a crime only where
from the nature of the offense or the law defining and punishing the
offense charged civil liability is deemed instituted with the criminal
action. Absent any of these requisites, an offended party or private
prosecutor cannot intervene in the prosecution of the offense.96
§3.17. Intervention by private lawyer is subject to prosecutor’s control.
The intervention of the private prosecutor in the criminal
prosecution is always subject to the direction and control of the public
prosecutor, who is duty bound to take charge of the prosecution until
its termination. While he may allow a private prosecutor to actively
handle the conduct of the trial, where the civil action arising from the
crime is deemed instituted in the criminal action, his duty to direct
and control the prosecution of criminal cases requires that he must
be present during the proceedings and must at any time take over
the conduct of the trial from the private prosecutor. For this reason,
where the prosecutor has turned over the active conduct of the trial
to the private prosecutor who presented testimonial evidence even
when the public prosecutor was absent during the trial, the evidence
presented could not be considered valid evidence of the People of the
Philippines. To “permit such prosecution of the criminal case by the
private prosecutor with the fiscal in absentia can set an obnoxious
precedent that can be taken advantage of by some indolent members
of the prosecuting arm of the government as well as those who are
oblivious of their bounden duty to see to it not only that the guilty
should be convicted, but that the innocent should be acquitted - a
“People v. Munar, 53 SCRA 278 (1973).
“Tactaquin v. Palileo, 21 SCRA 1431 (1967).
“Tan v. Gallardo, 73 SCRA 306 (1976).
88
LEGAL AND JUDICIAL ETHICS
duty that can only be effected and sincerely performed if they actively
participate in the conduct of the case, especially in the examination
of the witnesses and the presentation of documentary evidence for
both parties.”96 However, the rule that the evidence presented by the
private prosecutor at a hearing, at which neither the prosecutor or
his assistant or authorized special counsel was present, cannot be
considered as evidence for the People of the Philippines, applies only
to courts which are provided by law with their own prosecutors, and
not to municipal courts which have no trial prosecutors.97
Where the offended party has the right to intervene, his
intervention must always be subject to the direction and control
of the public prosecutor. He cannot take a stand different from or
opposed to that of the prosecutor or, if the case on appeal in which
the Solicitor General represents the People of the Philippines, he
cannot adopt a stand inconsistent with that of the Solicitor General,
otherwise it would be tantamount to giving him the direction and
control of criminal proceedings, contrary to law and settled rules on
the matter.98
Where a criminal action has been provisionally dismissed upon
motion of the prosecutor, the revival of the case upon motion of the
offended party is an error, for the offended party or complaining
witness cannot act for the prosecutor. He has no legal personality
to move for the dismissal or revival of the action, his only function
being to testify. The plaintiff or the People of the Philippines is
represented by the prosecutor or one acting under his control and
authority.99
§3.18. When public prosecutor should take over handling of
case.
There is nothing objectionable in allowing a private prosecutor
to participate in the proceedings and in turning over to him the
active conduct of the case, as long as the public prosecutor is always
present at every hearing, retains control thereof and assumes full
responsibility therefor.100 A public prosecutor should not however
“People v. Beriales, 70 SCRA 361, 367 (1976).
’"People v. Beriales, 76 SCRA 42 (1977).
98Tan, Jr. v. Gallardo, 73 SCRA 306 (1976).
"Caes v. IAC, 179 SCRA 54 (1989).
100U.S. v. Desbabiladoras, 32 Phil. 442 (1915); People v. Sendaydiego, 81 SCRA
120 (1978).
LAWYER’S DUTIES TO SOCIETY
89
allow the trial in the hands of a private prosecutor to degenerate into
a private persecution. The administration of criminal law should
never be the vehicle of oppression for the gratification of private
malice or the accomplishment of private gain or advantage.101 The
public prosecutor should, in such event, take over the active conduct
of the litigation.102 The protection of innocent and law-abiding citizens
from undue harassment in the prosecution of any crime should
remain paramount, irrespective of the personalities involved.103
§3.19. A lawyer shall not use his public position to promote
his private interest.
In line with the duty of public officials to uphold public interest
over and above private interest, Rule 6.02 of the Code of Professional
Responsibility requires that “a lawyer in government service
shall not use his public position to promote or advance his private
interests nor allow the latter to interfere with his public duties.”
This restriction applies particularly to lawyers in government
service, who are allowed by law to engage in private law practice
and to 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. If the law allows a public official to practice
law concurrently, he must not use his public position to feather his
law practice. Neither should he accept any private legal business
in which his duty to his client will or may conflict with his official
duties, and if some unforeseen conflict with his official duties arises
he should terminate his professional relationship, explaining to his
client that his official duties must prevail.104 If the law does not allow
him to practice his profession, he should not do so indirectly by being
a silent partner in a law firm or by securing legal business for a
friend or former associate in the active practice of law and receiving
a share in the attorney’s fees for his efforts.106
A public official should see to it that his private activity does
not interfere with the discharge of his official functions. He should
not only avoid all impropriety but should also avoid the appearance
of impropriety. Neither should he even inferentially create a
101MALCOLM,
102See
op. cit., at 126.
U.S. v. Desbabiladoras, supra.
103See Garcia v. Milla, 14 SCRA 67 (1965).
104Comments of IBP Committee that drafted the Code, pp. 31-32.
106Re Lyons, 162 Mo. App. 688 (1912).
90
LEGAL AND JUDICIAL ETHICS
public image that he is utilizing his public position to advance
his professional success or personal interest at the expense of the
public.1116
The foregoing principles complement the code of conduct and
ethical standards for public officials and employees, which provides
that public officials and employees during their incumbency shall not
(1) “own, control, manage or accept employment as officer, employee,
consultant, counsel, broker, agent, trustee or nominee in any private
enterprise regulated, supervised or licensed by their office unless
expressly allowed by law”; (2) “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”; (3) “recommend any person to any position in a
private enterprise which has a regular or pending official transaction
with their office”; and (4) “use or divulge confidential or classified
information officially known to them by reason of their office and
not available to the public either” “to further their private interests,
or give undue advantage to anyone, or” “to prejudice the public
interest.”107
§3.20. Former official may not accept certain employment.
The restriction against a public official from using his public
position as a vehicle to promote or advance his private interests
extends beyond his tenure on certain matters in which he intervened
as a public official. Thus, Rule 6.03 of the Code requires that a
“lawyer shall not, after leaving the government service, accept
engagement or employment in connection with any matter in which
he had intervened while in said service.”
The qualifying words or phrases that define the prohibition are
(1) “any matter,” and (2) “he had intervened” thereon while he was in
the government service. These are very broad terms, which include
any conceivable subject in which he acted in his official capacity. The
restriction 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
iasRe A. & B. 44 NJ 331, 17 ALR 3d 827 (1965); See Candia v. Tagabucba, 79
SCRA 61 (1977); Misamin v. San Juan, 72 SCRA 491 (1976).
107Sec. 7(b) and (c), RA 6713.
LAWYER’S DUTIES TO SOCIETY
91
official, except on behalf of the body or authority which he served
during his public employment.108
The Court in PCGG v. Sandiganbayan and Mendoza,109
discussed in detail the basis, meaning and scope of Rule 6.03 of the
Code of Professional Responsibility. In said case, the PCGG seeks to
disqualify Atty. Estelito Mendoza as counsel for the Lucio Group of
companies in the suit involving the sequestration of shares of stock
of the Lucio Group of Companies as alleged ill-gotten wealth, on the
ground that as former Solicitor General. He intervened in the matter
of the liquidation of Genbank which was eventually purchased and
taken over by the Lucio Group of Companies.
The key issue is whether Rule 6.03 of the Code of Professional
Responsibility applies to respondent Mendoza. The prohibition
states: “A lawyer shall not, after leaving government service, accept
engagement or employment in connection with any matter in which
he had intervened while in the said service.”
The Court ruled that Atty. Mendoza could not be disqualified
from representing the Lucio Tan group of companies. The Court
explained:
The key to unlock Rule 6.03 lies in comprehending first,
the meaning of “matter” referred to in the rule and, second,
the metes and bounds of the “intervention” made by the
former government lawyer on the “matter.” The American Bar
Association in its Formal Opinion 342, defined “matter” as
any discrete, isolatable act as well as identifiable transaction
or conduct involving a particular situation and specific party,
and not merely an act of drafting, enforcing or interpreting
government or agency procedures, regulations or laws, or
briefing abstract principles of law.
Beyond doubt, therefore, the “matter” or the act of
respondent Mendoza as Solicitor General involved in the case
at bar is “advising the Central Bank, on how to proceed with
the said bank’s liquidation and even filing the petition for its
liquidation with the CFI of Manila.” In fine, the Court should
resolve whether his act of advising the Central Bank on the
legal procedure to liquidate GENBANK is included within
‘“Comments of IBP that drafted the Code, pp. 32-33.
I09G.R.
Nos. 151800-12, April 12, 2005.
LEGAL AND JUDICIAL ETHICS
the concept of “matter” under Rule 6.03. The procedure of
liquidation is given in black and white in Republic Act No. 265,
section 29, viz:
We hold that this advice given by respondent Mendoza
on the procedure to liquidate GENBANK is not the “matter”
contemplated by Rule 6.03 of the Code of Professional
Responsibility. ABA Formal Opinion No. 342 is clear as daylight
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” and cannot disqualify.
Secondly, it can even be conceded for the sake of argument
that the above act of respondent Mendoza falls within the
definition of matter per ABA Formal Opinion No. 342. Be that
as it may, the said act of respondent Mendoza which is the
“matter” involved in Sp. Proc. No. 107812 is entirely different
from the “matter” involved in Civil Case No. 0096. Again, the
plain facts speak for themselves. It is given that respondent
Mendoza had nothing to do with the decision of the Central
Bank to liquidate GENBANK. It is also given that he did
not participate in the sale of GENBANK to Allied Bank. The
“matter” where he got himself involved was in informing Central
Bank on the procedure provided by law to liquidate GENBANK
thru the courts and in filing the necessary petition in Sp. Proc.
No. 107812 in the then Court of First Instance. The subject
“matter” of Sp. Proc. No. 107812, therefore, is not the same nor
is related to but is different from the subject “matter” in Civil
Case No. 0096. Civil Case No. 0096 involves the sequestration
of the stocks owned by respondents Tan, etal., in Allied Bank
on the alleged ground that they are ill-gotten. The case does not
involve the liquidation of GENBANK. Nor does it involve the
sale of GENBANK to Allied Bank. Whether the shares of stock
of the reorganized Allied Bank are ill-gotten is far removed
from the issue of the dissolution and liquidation of GENBANK.
GENBANK was liquidated by the Central Bank due, among
others, to the alleged banking malpractices of its owners
and officers. In other words, the legality of the liquidation of
GENBANK is not an issue in the sequestration cases. Indeed,
the jurisdiction of the PCGG does not include the dissolution
and liquidation of banks. It goes without saying that Code
6.3 of the Code of Professional Responsibility cannot apply to
LAWYER’S DUTIES TO SOCIETY
93
respondent Mendoza because his alleged intervention while a
Solicitor General in Sp. Proc. No. 107812 is an intervention on
a matter different from the matter involved in Civil Case No.
0096.
Thirdly, we now slide to the metes and bounds of the
“intervention” contemplated by Rule 6.03. “Intervene” means,
viz.:
1) to enter or appear as an irrelevant or extraneous feature or circumstance . . . ; 2) to occur, fall, or come
in between points of time or events . . . ; 3) to come in
or between by way of hindrance or modification: INTERPOSE . . . ; 4) to occur or lie between two things. (Paris,
where the same city lay on both sides of an intervening
r i ve r. .. )
On the other hand, “intervention” is defined as:
1) The act or fact of intervening: INTERPOSITION; 2) interference that may affect the interests of others.
There are, therefore, two possible interpretations of the
word “intervene.” Under the first interpretation, “intervene”
includes participation in a proceeding even if the intervention is
irrelevant or has no effect or little influence. Under the second
interpretation, “intervene” only includes an act of a person who
has the power to influence the subject proceedings. We hold
that this second meaning is more appropriate to give to the
word “intervention” under Rule 6.03 of the Code of Professional
Responsibility in light of its history. The evils sought to be
remedied by the Rule do not exist where the government lawyer
does an act which can be considered as innocuous such as “x
x x drafting, enforcing or interpreting government or agency
procedures, regulations or laws, or briefing abstract principles
of law.”
In fine, the intervention cannot be insubstantial and
insignificant. Originally, Canon 36 provided that a former
government lawyer “should not, after his retirement, accept
employment in connection with any matter which he has
investigated or passed upon while in such office or employ.” As
afore-discussed, the broad sweep of the phrase “which he has
investigated or passed upon” resulted in unjust disqualification
LEGAL AND JUDICIAL ETHICS
of former government lawyers. The 1969 Code restricted its
latitude, hence, in DR 9-101(b), the prohibition extended only to
a matter in which the lawyer, while in the government service,
had “substantial responsibility.” The 1983 Model Rules further
constricted the reach of the rule. MR 1.11(a) provides that “A
lawyer shall not represent a private client in connection with
a matter in which the lawyer participated personally and
substantially as a public officer or employee.”
To be sure, Rule 6.03 of our Code of Professional Responsibility represents a commendable effort on the part of the IBP
to upgrade the ethics of lawyers in the government service. As
afore-stressed, it is a take-off from similar efforts especially by
the ABA which have not been without difficulties. To date, the
legal profession in the United States is still fine tuning its DR
9-101(b) rule.
In fathoming the depth and breadth of Rule 6.03 of our
Code of Professional Responsibility, the Court took account of
various policy considerations to assure that its interpretation
and application to the case at bar will achieve its end without
necessarily prejudicing other values of equal importance.
Thus, the rule was not interpreted to cause a chilling effect on
government recruitment of able legal talent. At present, it is
already difficult for government to match compensation offered
by the private sector and it is unlikely that government will be
able to reverse that situation. The observation is not inaccurate
that the only card that the government may play to recruit
lawyers is have them defer present income in return for the
experience and contacts that can later be exchanged for higher
income in private practice. Rightly, Judge Kaufman warned
that the sacrifice of entering government service would be too
great for most men to endure should ethical rules prevent them
from engaging in the practice of a technical specialty which
they devoted years in acquiring and cause the firm with which
they become associated to be disqualified. Indeed, “to make
government service more difficult to exit can only make it less
appealing to enter.”
In interpreting Rule 6.03, the Court also cast a harsh eye
on its use as a litigation tactic to harass opposing counsel as
well as deprive his client of competent legal representation. The
danger that the rule will be misused to bludgeon an opposing
counsel is not a mere guesswork. The Court of Appeals for the
LAWYER’S DUTIES TO SOCIETY
95
District of Columbia has noted “the tactical use of motions to
disqualify counsel in order to delay proceedings, deprive the
opposing party of counsel of its choice, and harass and embarrass
the opponent,” and observed that the tactic was “so prevalent in
large civil cases in recent years as to prompt frequent judicial
and academic commentary.” Even the United States Supreme
Court found no quarrel with the Court of Appeals’ description
of disqualification motions as “a dangerous game.” In the case
at bar, the new attempt to disqualify respondent Mendoza is
difficult to divine. The disqualification of respondent Mendoza
has long been a dead issue. It was resuscitated after the lapse of
many years and only after PCGG has lost many legal incidents
in the hands of respondent Mendoza. For a fact, the recycled
motion for disqualification in the case at bar was filed more
than four years after the filing of the petitions for certiorari,
prohibition and injunction with the Supreme Court which were
subsequently remanded to the Sandiganbayan and docketed as
Civil Case Nos. 0096-0099. At the very least, the circumstances
under which the motion to disqualify in the case at bar were
refiled put petitioner’s motive as highly suspect.
Similarly, the Court in interpreting Rule 6.03 was not
unconcerned with the prejudice to the client which will be
caused by its misapplication. It cannot be doubted that granting
a disqualification motion causes the client to lose not only the
law firm of choice, but probably an individual lawyer in whom
the client has confidence. The client with a disqualified lawyer
must start again often without the benefit of the work done by
the latter. The effects of this prejudice to the right to choose an
effective counsel cannot be overstated for it can result in denial
of due process.
The Court has to consider also the possible adverse effect
of a truncated reading of the rule on the official independence
of lawyers in the government service. According to Prof.
Morgan: “An individual who has the security of knowing he or
she can find private employment upon leaving the government
is free to work vigorously, challenge official positions when
he or she believes them to be in error, and resist illegal
demands by superiors. An employee who lacks this assurance
of private employment does not enjoy such freedom.” He adds:
“Any system that affects the right to take a new job affects
the ability to quit the old job and any limit on the ability to
LEGAL AND JUDICIAL ETHICS
quit inhibits official independence.” The case at bar involves
the position of Solicitor General, the office once occupied by
respondent Mendoza. It cannot be overly stressed that the
position of Solicitor General should be endowed with a great
degree of independence. It is this independence that allows
the Solicitor General to recommend acquittal of the innocent;
it is this independence that gives him the right to refuse to
defend officials who violate the trust of their office. Any undue
diminution of the independence of the Solicitor General will
have a corrosive effect on the rule of law.
No less significant a consideration is the deprivation
of the former government lawyer of the freedom to exercise
his profession. Given the current state of our law, the
disqualification of a former government lawyer may extend to
all members of his law firm. Former government lawyers stand
in danger of becoming the lepers of the legal profession.
It is, however, proffered that the mischief sought to be
remedied by Rule 6.03 of the Code of Professional Responsibility
is the possible appearance of impropriety and loss of public
confidence in government. But as well observed, the accuracy
of gauging public perceptions is a highly speculative exercise
at best which can lead to untoward results. No less than Judge
Kaufman doubts that the lessening of restrictions as to former
government attorneys will have any detrimental effect on that
free flow of information between the govemment-client and
its attorneys which the canons seek to protect. Notably, the
appearance of impropriety theory has been rejected in the 1983
ABA Model Rules of Professional Conduct and some courts
have abandoned per se disqualification based on Canons 4 and
9 when an actual conflict of interest exists, and demand an
evaluation of the interests of the defendant, government, the
witnesses in the case, and the public.
It is also submitted that the Court should apply Rule
6.3 in all its strictness for it correctly disfavors lawyers who
“switch sides.” It is claimed that “switching sides” carries the
danger that former government employee may compromise
confidential official information in the process. But this concern
does not cast a shadow in the case at bar. As afore-discussed,
the act of respondent Mendoza in informing the Central Bank
on the procedure how to liquidate GENBANK is a different
matter from the subject matter of Civil Case No. 0005 which
LAWYER’S DUTIES TO SOCIETY
97
is about the sequestration of the shares of respondents Tan, et
al., in Allied Bank. Consequently, the danger that confidential
official information might be divulged is nil, if not inexistent.
To be sure, there are no inconsistent “sides” to be bothered
about in the case at bar. For there is no question that in
lawyering for respondents Tan, et al., respondent Mendoza
is not working against the interest of Central Bank. On the
contrary, he is indirectly defending the validity of the action
of Central Bank in liquidating GENBANK and selling it later
to Allied Bank. Their interests coincide instead of colliding. It
is for this reason that Central Bank offered no objection to the
lawyering of respondent Mendoza in Civil Case No. 0005 in
defense of respondents Tan, et al. There is no switching of sides
for no two sides are involved.
It is also urged that the Court should consider that
Rule 6.03 is intended to avoid conflict of loyalties, i.e., that a
government employee might be subject to a conflict of loyalties
while still in government service. The example given by the
proponents of this argument is that a lawyer who plans to
work for the company that he or she is currently charged with
prosecuting might be tempted to prosecute less vigorously. In
the cautionary words of the Association of the Bar Committee in
1960: “The greatest public risks arising from post employment
conduct may well occur during the period of employment
through the dampening of aggressive administration of
government policies.” Prof. Morgan, however, considers this
concern as “probably excessive.” He opines “x x x it is hard to
imagine that a private firm would feel secure hiding someone
who had just been disloyal to his or her last client — the
government. Interviews with lawyers consistently confirm that
law firms want the “best’ government lawyers — the ones who
were hardest to beat — not the least qualified or least vigorous
advocates.” But again, this particular concern is a non-factor in
the case at bar. There is no charge against respondent Mendoza
that he advised Central Bank on how to liquidate GENBANK
with an eye in later defending respondents Tan, et al. of Allied
Bank. Indeed, he continues defending both the interests of
Central Bank and respondents Tan, et al., in the above cases.
Likewise, the Court is nudged to consider the need to
curtail what is perceived as the “excessive influence of former
officials” or their “clout.” Prof. Morgan again warns against
98
LEGAL AND JUDICIAL ETHICS
extending this concern too far. He explains the rationale for
his warning, viz: “Much of what appears to be an employee’s
influence may actually be the power or authority of his or her
position, power that evaporates quickly upon departure from
government x x x.” More, he contends that the concern can be
demeaning to those sitting in government. To quote him further:
“x x x The idea that, present officials make significant decisions
based on friendship rather than on the merit says more about
the present officials than about their former co-worker friends.
It implies a lack of will or talent, or both, in federal officials
that does not seem justified or intended, and it ignores the
possibility that the officials will tend to disfavor their friends
in order to avoid even the appearance of favoritism.”
Where the “matter” referred to in Rule 6.03, in which the
lawyer intervened as a government official in a case is different
from the “matter” or case in which he intervenes either as
incumbent government official or as a former or retired public
officer, there is no violation of Rule 6.03 nor will he be taking
inconsistent positions nor will there be representation of
conflict of interests, nor violation of Sec. 3(e) of the Anti-Graft
Law.110
In the foregoing connection, mention may be made that one
of the corrupt practices of public officials which the Anti-Graft and
Corrupt Practices Act prohibits is “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 its termination.”111 Section 7(b) of Republic Act
No. 6713, establishing a code of conduct and ethical standards for
public officials, prohibits any former public official or employee for
a period of one year after retirement or separation from office to
“practice his profession in connection with any matter before the
office he used to be with.” Section 1 of Republic Act 910, as amended,
provides that “it is a condition of the pension provided herein that
no retiring justice or judge of a court of record or city or municipal
judge during the time that he is receiving said pension shall appear
as counsel in any court in any civil case wherein the Government or
any subdivision or instrumentality thereof is the adverse party, or in
2000.
"“General Bank and Trust Co. v. Ombudsman, G.R. No. 125440, January 31,
"'Sec. 3(d), Republic Act 3019, as amended. Section 7(b) of Republic Act 6713.
LAWYER’S DUTIES TO SOCIETY
99
any criminal case wherein an officer or employee of the Government
is accused of an offense committed in relation to his office, or collect
any fee for his appearance in any administrative proceedings to
maintain an interest adverse to the Government, national, provincial
or municipal, or to any of its legally constituted officers.”
CHAPTER IV
THE LAWYER’S DUTIES TO
THE LEGAL PROFESSION
A. UPHOLDING INTEGRITY OF PROFESSION
§4.01. Generally.
Canon 7 provides that “A lawyer shall at all times uphold the
integrity and dignity of the legal profession and support the activities
of the integrated bar.”
The maintenance by the bar of a high standard of legal proficiency as well as honesty and fair dealing is a prerequisite to making the bar an effective instrument in the proper administration of
justice. But the bar can only be as reputable as its members. To
enable the bar to be an effective instrument in the proper administration of justice it is necessary that every lawyer should strive at
all times to uphold the honor and maintain the dignity of the legal
profession and to improve not only the law but the administration of
justice as well.1
The respect of the public to the legal profession is immeasurably
enhanced by the faithful performance of the lawyer’s duties to the
court, to society, to his brethren in the profession, and to his client.
Conversely, such respect is inexorably diminished whenever a
member of the bar betrays his trust and confidence reposed in him
by his client.2
In other words, a lawyer can do honor to the legal profession
by faithfully performing his duties to the court, to the public, to his
brethren in the profession and to his client. He advances the honor
•Canon 29, Canons of Professional Ethics.
2See
Rivera v. Angele, 339 SCRA 149
100
THE LAWYER’S DUTIES TO THE LEGAL PROFESSION
101
of the profession and the best interests of his client when he renders
service or gives legal advice tending to impress upon his client and
his undertaking exact compliance with the strictest principles of
moral law.3 In this way, he not only avoids transgressions of the law
and of the canons of legal ethics but also helps build public esteem
in the legal profession.
“Public confidence in law and lawyers may be eroded by the
irresponsible and improper conduct of a member of the Bar. Thus,
every lawyer should act and comport himself in such a manner
that would promote public confidence in the integrity of the legal
profession. Members of the Bar are expected to always live up to
the standards of the legal profession as embodied in the Code of
Professional Responsibility.”4
A lawyer should also involve in, and actively support the
activities of, the Integrated Bar of the Philippines. He should not
limit himself to merely paying his dues and other assessments to
the Integrated Bar, but should also help realize its objectives and
purposes. The Integrated Bar seeks to assist in the administration
of justice; foster and maintain on the part of its members high
ideals of integrity, learning, professional competence, public service
and conduct; safeguard the professional interests of its members;
cultivate among its members a spirit of cordiality and brotherhood;
provide a forum for the discussion of law, jurisprudence, law reform,
pleading, practice and procedure and the relations of the bar thereto;
encourage and foster legal education; and promote a continuing
program of legal research in substantive and adjective law, and
make reports and recommendations thereon.6
§4.02. A person shall make no false statement in his
application for admission to the bar.
Rule 7.01 provides that “A lawyer shall be answerable for
knowingly making false statement or suppressing a material fact in
connection with his application for admission to the bar.”
A student aspiring to be a lawyer must, at that early period,
study and observe the duties and responsibilities of a lawyer.
He cannot claim that not being a member of the bar the Code of
3Canon 32,
4Ducat,
ibid.
Jr. v. Villalon, Jr., 337 SCRA 622, 629 (2000).
6Art. 1, Sec. 2, By-Laws of the Integrated Bar of the Philippines.
102
LEGAL AND JUDICIAL ETHICS
Professional Responsibility does not apply to him. One who aspires
to profess the law must show his fitness for admission by adherence
to, or observance of, the standards of conduct required of members
of the bar. For his failure to live up to them may prevent him from
being admitted to practice6 and, if admitted without the Supreme
Court acquiring knowledge of his transgressions thereof, he may be
disbarred for such misconduct.7
A person seeking to be admitted to the bar must show that he
has all the qualifications and none of the disqualifications prescribed
by law.
Every applicant for admission to the practice of law must be
(a) a citizen of the Philippines, (b) a resident thereof, (c) at least
twenty-one years of age, and (d) a person of good moral character.8
He must also (e) show that no charges against him involving moral
turpitude, are filed or pending in court,9 (f) possess the required
educational qualifications,10 and (g) pass the bar examinations.11
In his application for admission to the bar, the applicant must not
knowingly make false statements regarding the requirements for
admission to the practice of law. If he passes the bar and he is later
found to have made false statements in his application, he may be
disbarred for such falsehood.
§4.03. A lawyer shall not support unqualified applicant to
the bar.
The duty to uphold the integrity and dignity of the legal
profession demands that “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.”12
He should not readily execute an affidavit of good moral character
in favor of an applicant whom he knows has not lived up to such
standard. He should help in guarding the bar against admission to
the profession of candidates who are unfit or unqualified because
6Barba
7Diao
v. Pedro, 61 SCRA 484 (1974); Tan v. Savandal, 126 SCRA 60 (1983)
v. Martinez, 7 SCRA 475 (1973).
8Rule 138, Sec. 2, Rules of Court.
9Rule 138, Sec. 2, Rules of Court.
I0Rule 138, Secs. 5 and 6, Rules of Court.
“Rule 138, Secs. 14 and 17, Rules of Court.
12Rule 7.02, Code of Professional Responsibility.
THE LAWYER’S DUTIES TO THE LEGAL PROFESSION
103
they are deficient either in moral character or in education.13 He
should volunteer information or cooperate in any investigation
concerning alleged anomaly in the bar examination so that those
candidates who failed therein can be ferreted out and those lawyers
responsible therefor can be disbarred.14 He should expose without
fear or favor before the Supreme Court corrupt or dishonest conduct
in the profession and should accept without hesitation professional
employment against a lawyer who has wronged his client.16
§4.04. A lawyer shall always conduct himself ethically and
morally.
The best way a lawyer can uphold the integrity and dignity
of the legal profession is not to engage in any conduct or do any
act that adversely reflects on his fitness to practice law, nor to
behave, in his public or private life, in a scandalous manner to the
discredit of the legal profession.16 He should instead endeavor to
conduct himself at all times in such a way as to give credit to the
legal profession and to inspire the confidence, respect and trust of
his clients and the community.17 “It is a fair characterization of the
lawyer’s responsibility in our society that he stands ‘as a shield’ in the
defense of rights and to weird off wrong. From the profession charged
with these responsibilities there must be expected those qualities of
truthspeaking, of a high sense of honor, of granite discretion, of the
strictest observance of fiduciary responsibility, that have throughout
the centuries been compendiously described as ‘moral character.”118
Some lawyers have taken the forbidden path and, as a
consequence, have been disciplined or deprived of their privilege
to practice law. Among those acts which adversely reflect on the
lawyer’s fitness to practice law which justify suspension from
practice or disbarment include gross immorality, conviction of a
crime involving moral turpitude, and fraudulent transactions.
13Canon 29,
Canons of Professional Ethics.
re Parazao, 82 Phil. 230 (1948).
16Canon 29, Canons of Professional Ethics.
16Rule 17.03, Code of Professional Responsibility.
"Comments of IBP Committee that drafted the Code, p. 37.
wIbid„ p. 37.
uIn
104
LEGAL AND JUDICIAL ETHICS
§4.05. Gross immorality reflective of unfitness to practice.
An act of personal immorality on the part of a lawyer in his
private relation with the opposite sex may put his moral character
in doubt. However, to justify suspension or disbarment, the act must
not only be immoral; it must be grossly immoral as well. 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.19 It has been held that a lawyer is guilty of gross
immorality, which justifies denial of his application to take the
lawyer’s oath or, after his admission, his suspension or disbarment,
where he lives an adulterous life with a married woman,20 maintains
illicit relations with his niece21 or with the niece of his commonlaw wife,22 abandons his lawful wife to live with another woman,23
contracts a marriage while his first marriage is still subsisting,24
seduces a woman to have carnal knowledge with her on the basis of
misrepresentation that he is going to marry her,25 that he is single26 or
that they are already married upon their signing a mere application
for marriage license;27 or has carnal knowledge with a student by
taking advantage of his position.28 A married lawyer, who proposed
love and marriage to a 20-year old woman and succeeded in having
carnal relations with her by promise of marriage, made her pregnant,
suggested abortion, breached his promise of marriage, and deserted
her and his child is guilty of grossly immoral conduct.29
On the other hand, it has also been held that mere intimacy
between a man and a woman, either of whom possesses no legal
impediment to marry, voluntarily carried on and devoid of any deceit
19Reyes v. Wong, 63 SCRA 667 (1975); Soberano v. Villanueva, 6 SCRA 893
(1962); Royong v. Oblena, 7 SCRA 869 (1963); Quinwa v. Puno, 19 SCRA 347 (1967).
“Royong v. Oblena, supra.; Viojan v. Duran, 4 SCRA 390 (1963); Cordova v.
Cordova, 179 SCRA 837 (1989).
21Sarmiento v. Cui, 100 Phil. 1102 (1957).
22Royong v. Oblena, supra.
23Toledo v. Toledo, 7 SCRA 747 (1963); Obusan v. Obusan, 128 SCRA 485
(1984).
“Santos v. Tan, 196 SCRA 16 (1991).
“Bolivar v. Simbol, 16 SCRA 623 (1966); Almirez v. Lopez, 27 SCRA 169
(1969).
26Pangan v. Ramos, 107 SCRA 1 (1981).
27Cabrera v. Agustin, 106 Phil. 256 (1959); See also Mortel v. Aspiras, 100 Phil.
586 (1956); Argononza v. Tubaces, 41 SCRA 38 (1971).
28Delos Reyes v. Aznar, 179 SCRA 653 (1989).
“Delos Reyes v. Aznar, 179 SCRA 653 (1989).
THE LAWYER’S DUTIES TO THE LEGAL PROFESSION
105
on the part of the lawyer, is neither so corrupt nor so unprincipled
as to warrant imposition of disciplinary sanction against him as
a member of the bar, even if as a result of such relationship the
woman gave birth to a child,30 and so long as he admits the paternity
of, and agrees to support, such child.31 He may be disciplined if he
subsequently disowns, or refuses to support, the child.32
Apparently cohabitation per se is not grossly immoral. Whether
a lawyer’s sexual congress with a woman not his wife or without the
benefit of marriage should be characterized as a grossly immoral
conduct will depend on the surrounding circumstances.33 It may
not be difficult to determine whether the cohabitation, under the
circumstances of the case, amounts to a criminal act for the language
of the penal statute can provide the answer to the question. It is
not, of course, necessary that there be a prior conviction for the
offense before a lawyer can be disciplined for gross immorality; it is
enough that the act charged, in the language of the law, constitutes
a crime.34
The question as to whether an act is so unprincipled or so
disgraceful as to be reprehensible to a high degree presents a more
difficult problem for the answer may, to some extent, depend upon
the prejudice, caprice and bias of the court and the general concept
of morality prevailing at the time.35
Even if the evidence is not sufficient to hold a lawyer liable
for gross immorality, he may nonetheless be reprimanded where
such evidence shows failure on his part to comply with the rigorous
standards of conduct appropriately required from members of the
Bar and officers of the court. As officers of the court, lawyers must
not only in fact be of good moral character but must also be seen
to be of good moral character and leading lives in accordance with
the highest moral standards of the community. More specifically,
a member of the Bar and officer of the court is not only required to
refrain from adulterous relationships or the keeping of mistresses
30Soberano v. Villanueva, 6 SCRA 893 (1962); Montana v. Rueda, 62 SCRA
382. See Abaigar v. Paz, 93 SCRA 91 (1979); Arcega v. Maniwang, 106 SCRA 591
(1981); Radaza v. Tejano, 106 SCRA 246 (1981).
31Arciga v. Maniwang, 106 SCRA 591 (1981).
32Marcayda v. Naz, 125 SCRA 466 (1983).
“Arcega v. Maniwang, 106 SCRA 591 (1981). Reyes v. Wong, 63 SCRA 667
(1975); Royong v. Olena, 7 SCRA 869 (1963).
“See Royong v. Oblena, supra.
MCf. Konegsber v. State Bar of California, 353 US 252 (1957).
LEGAL AND JUDICIAL ETHICS
106
but must also so behave himself as to avoid scandalizing the public
by creating the belief that he is flouting those moral standards.36
§4.06. Conviction of a crime involving moral turpitude.
The term “moral turpitude” means anything which is done
contrary to justice, honesty, modesty or good morals,37 or to any act
of vileness, baseness or depravity in the private and social duties
that a man owes his fellowmen or to society, contrary to the accepted
rule of right and duty between man and man.38 In general, all crimes
of which fraud or deceit is an element or those which are inherently
contrary to rules of right conduct, honesty or morality in a civilized
community, involve moral turpitude.39 Lawyers convicted of crimes
involving moral turpitude are either suspended from the practice of
law or disbarred.40
§4.07. Commission of fraud or falsehood.
The commission of fraud or falsehood in the lawyer’s private
dealings may badly reflect on his fitness to practice law, and he may
be administratively disciplined therefor.
The following acts of misconduct on the part of a lawyer call for
disciplinary actions as they show the lawyer to be unfit to manage
the legal business of others, unworthy of public confidence and devoid
of high sense of morality and fair dealing expected and required of a
member of the bar: falsely stating in a deed of sale that the property
is free from liens or encumbrances;41 knowingly taking part in a false
and simulated transaction;42 making it appear that a vendor, long
dead, executed a document of sale in his favor;43 concealing in an
information sheet required by law in connection with his employment
the fact that he was charged with or convicted of a crime;44 borrowing
36Tolosa
37Rule
v. Cargo, 171 SCRA 21 (1989).
138, Sec. 27, Rules of Court; De Jesus-Paras v. Vailoces, 111 Phil. 569
(1961); In re Peralta, 101 Phil. 313 (1959).
^In re Gutierrez, 5 SCRA 661 (1962).
39De Jesus-Paras v. Vailoces, 111 Phil. 569 (1961); Katalbas v. Tupas, 105 Phil.
1289 (1959).
■“See detailed discussion on the Chapter “Disbarment,” infra.
41In re Quambao, 102 Phil. 940 (1958); Custodio v. Esto, 81 SCRA 517 (1978).
42Saboyle v. Tandayog, 158 SCRA 497 (1988).
"Sevilla v. Zoleta, 96 Phil. 979 (1955).
^Montery v. Arayata, 61 Phil. 820 (1935).
107
THE LAWYER’S DUTIES TO THE LEGAL PROFESSION
money as a guardian for his benefit upon the ward’s property as
collateral without the court’s approval;46 encashing a check payable
to his deceased cousin by signing the latter’s name;46 falsifying a
power of attorney and using it to collect the money due the principal
and converting it to his benefit;47 preparing a deed of adjudication
solely in favor of the wife of the decedent with knowledge of other
heirs;48 or failing, as general manager of a company, to remit the
proceeds of the sale of company properties nor to make an accounting
thereof to his employer;49 and misappropriating money belonging to
his employer.60
B. LAWYER’S RELATION WITH OTHER LAWYERS
§4.08. Generally.
Membership in the bar imposes upon lawyers certain obligations
to one another. These include observance of honorable, candid and
courteous dealings with other lawyers and fidelity to known and
recognized customs and practices of the bar that make the practice
of law a profession.
§4.09. Candor, fairness and truthfulness should characterized relations.
Candor, fairness and truthfulness
conduct of a lawyer with other lawyers.
should
characterize
the
In Yap-Paras v. Paras?' the Court held:
The “Court takes this opportunity to remind the parties in
the instant case, as well petitioner-movant’s counsels, to avoid
further squabbles and unnecessary filing of administrative
cases against each other. An examination of the records
45Calo v. Degano, 20 SCRA 447 (1967); Cf. Sevilla v. Zoleta, G.R. Adm. Case
No. 31, March 28,1955.
46/n re Pelaez, 44 Phil. 569 (1923).
47In re Samaniego, 90 Phil. 382 (1951).
48In re Rusiana, 105 Phil. 1328 (1959).
49Manalo v. Gan, 93 Phil. 292 (1953).
“Investment and Management Services Corp. v. Roxas, 256 SCRA 229
(1996).
61A.C. No. 4947, June 7, 2007.
LEGAL AND JUDICIAL ETHICS
108
reveals a pervasive atmosphere of animosity between Atty.
Paras and petitioner’s counsels as evidenced by the number
of administrative cases between them. It is well to stress that
mutual bickerings and unjustified recriminations between
attorneys detract from the dignity of the legal profession and
will not receive sympathy from this Court. Lawyers should
treat each other with courtesy, fairness, candor and civility.”
A lawyer should not ignore recognized customs and practices of
the bar.62 In the conduct of litigation, he should not yield to his client’s
demand that he be illiberal, nor should he do anything repugnant to
his sense of honor and propriety.53 His duty, in fact, is to restrain his
client from improprieties and to terminate his relation with him if
the latter persists in wrongdoing.54
A lawyer should not avoid performance of an agreement fairly
made because it is not reduced to writing.55 Thus, a lawyer who agreed
to preserve the status quo in a pending case should not, without notice
to court and counsel, cooperate in disturbing or changing said status
quo.56 He should not take advantage of the excusable unpreparedness
or absence of counsel during the trial of a case.57 Nor should he make
use, to his or to his client’s benefit, the secrets of the adverse party
acquired through design or inadvertence. Hence, a lawyer who has
inadvertently received by reason of family relationship with counsel
for the adverse party an improper disclosure of the adverse party’s
confidences should withdraw from the case and preserve inviolate
the confidence thus obtained.58
A lawyer who thinks a case is weak may not criticize the lawyer
who accepts it,59 much less should he attribute to him evil motive for
taking up the client’s cause.60 Criticism or allusion of motive by one
lawyer against another for the making of an honest legal effort to
protect the interest of a client is not only wholly immaterial and of
62Canon 25,
Canons of Professional Ethics.
“Canon 24, Canons of Professional Ethics.
54Canon 16,
Canons of Professional Ethics.
Canons of Professional Ethics.
56A.B.A. Op. 25 (May 5, 1950).
57See Yulo v. Yang Chiao Seng, 106 Phil. 110 (1959).
58A.B.A. Op. 47 (September 18,1931).
59Asia Banking Corp. v. Herridge, 45 Phil. 850 (1923).
“See Nardo v. Linsangan, 58 SCRA 85 (1974.)
55Canon 25,
THE LAWYER’S DUTIES TO THE LEGAL PROFESSION
109
no value to the court but also betrays lack of understanding of the
attorney’s duties to his client.61
“A great part of man’s comfort, as well as of his success at the
bar, depends upon his relations with his professional brethren. With
them he is in daily necessary intercourse, and he must have their
respect and confidence, if he wishes to sail along in smooth waters.
He cannot be too particular in keeping faithfully and liberally every
promise or engagement he may make with them. One whose perfect
truthfulness is even suspect by his brethren at the bar has always
an uneasy time of it. He will be constantly mortified by observing
precautions taken with him which are not used with others.”62
It is not, however, improper for a lawyer to accept employment
to compel another lawyer to honor the just claim of a layman. On the
contrary, it is highly proper that he do so.63 His action toward such
end, as writing a letter of demand to the lawyer, does not constitute
unethical conduct as it is a mere honest effort on his part to serve
the interest of his client.64
§4.10. A lawyer shall use temperate language.
In his professional dealings, a lawyer shall not use language
which is abusive, offensive or otherwise improper. His arguments,
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
gentlemen to another. He should treat the opposing counsel and
other lawyers with that courtesy, dignity and civility all have a
right to expect65 and use only such temperate but forceful language
in his pleadings or arguments as befitting an advocate.66 “Do as
adversaries do in law: strive mightily but eat and drink as friends”
should characterize the relation between opposing counsel in a case.
Whatever may be the ill-feelings between clients should not influence
counsel in their conduct and demeanor toward each other. They
(1948).
61Asia
Banking Corp. v. Herridge, supra.; People v. Mantawar, 80 Phil. 817
62SHARWOOD, PROFESSIONAL ETHICS, p. 73, quoted in DRINKER, LEGAL ETHICS, 194 (1953).
63A.B.A. Op. 144 (May 9, 1935).
64Javier v. Cornejo, 63 Phil. 293 (1936); Macias v. Malig, 157 SCRA 762
(1988).
“Perkins v. Perkins, 57 Phil. 223 (1932).
“Rule 8.01, Code of Professional Responsibility; Asturias Sugar Central v. The
Pure Cane Molasses Co., 57 Phil. 517 (1932).
110
LEGAL AND JUDICIAL ETHICS
should scrupulously avoid all personalities and personal history
or personal peculiarities and idiosyncrasies of the other.67 The fact
that one of them conducts himself improperly does not relieve the
other from professional obligation in his relation with him.68 This
will enable the erring lawyer to realize the impropriety of his action.
For mutual bickerings, unjustified recriminations and offensive
personalities between brother lawyers not only detract from the
dignity of the legal profession,69 but constitute highly unprofessional
conduct subject to disciplinary action as well.70
“The highest reward that can come to a lawyer is the esteem of
his professional brethren. That esteem is won in unique conditions
and proceeds from an impartial judgment in professional trials. It
cannot be purchased. It cannot be artificially created. It cannot be
gained by artifice or contrivance to attract public attention. It is
not measured by pecuniary gains. It is an esteem which is borne
in sharp contests and thrives despite conflicting interests. It is an
esteem commanded solely by integrity, by character and by brains
and skill in the honorable performance of professional duty. No
subservient ‘yes men’ can win it. No mere manipulator or negotiator
can secure it. It is essentially a tribute to a rugged independence of
thought and intellectual honesty which shine forth amid the clouds
of controversy. It is a tribute to exceptional power controlled by
conscience and a sense of public duty — to a knightly bearing and
valor in the hottest of encounters. In a world of imperfect humans, the
faults of human clay are always manifest. The special temptations
and tests of lawyers are obvious enough. But, considering trial and
error, success and defeat, the bar slowly makes its estimate and the
memory of the careers which it approves is at once its more precious
heritage and an important safeguard of the interests of society so
largely in the keeping of the profession of the law in its manifold
services.”71
(1984).
67Canon 17,
Canons of Professional Ethics; People v. Sembrano, 130 SCRA 465
“A.B.A. Op. 17 (January 23, 1930).
69Javier v. Cornejo, supra; Narido v. Linsangan, 58 SCRA 85 (1974).
70Tolentino v. Baylosis, 110 Phil. 1010.
71From the address of Chief Justice Hughes at the meeting of the American
Law Institute, Washington, D.C., May 7, 1936, quoted in DRINKER, LEGAL ETHICS 129 (1953).
THE LAWYER’S DUTIES TO THE LEGAL PROFESSION
111
§4.11. A lawyer shall not encroach upon business of
another.
Rule 8.02 of the Code requires that “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.” For this reason, efforts, direct or
indirect, in any way to encroach upon the professional employment
of another lawyer, are unworthy of those who should be brethren at
the bar.72 This proscribes competition among lawyers in the matter
of securing clientele. A lawyer should not steal the other lawyer’s
client nor induce the latter to retain him by a promise of better
service, good result or reduced fees for his services. Neither should
he disparage another, make comparisons or publicize his talent as a
means to feather his law practice.
It is, however, the right of a lawyer, without fear or favor,
to give proper advice to those seeking relief against unfaithful or
neglectful counsel.73 He may properly accept employment to handle
a matter which has been previously handled by another lawyer,
provided that the other lawyer has been given notice by the client
that his services have been terminated.74 In the absence of such
notice of termination by the client, a lawyer retained to take over
a case from a peer in the bar should do so only after he shall have
obtained the conformity of the counsel whom he would substitute.
If such conformity cannot be had, he should at least give sufficient
notice to such lawyer of the contemplated substitution. His entry of
appearance in the case without notice to the first lawyer amounts
to an improper encroachment upon the professional employment of
the original counsel.76 The notice will enable the lawyer sought to
be changed to assert and protect any right to compensation which
he may claim or possess. While it may become the duty of the
second lawyer to contest such claim, it is equally his duty to extend
to the first lawyer every opportunity to have his claim protected.76
As the original lawyer has his remedy in law to protect his right
against the client who terminated his services, he cannot insist that
72Canon 7,
73Canon 7,
Canons of Professional Ethics.
Canons of Professional Ethics.
Remotigue, 6 SCRA 45 (1962); A.B.A. Ops. 10 (July 13, 1926) and
149 (February 15,1936).
16In re Soriano, 33 SCRA 801 (1970).
76A.B.A. Op. 17 (January 23,1930).
74Laput v.
112
LEGAL AND JUDICIAL ETHICS
his professional brother refuse employment in the matter merely
because he claims the termination of his services is a breach of
contract. To hold otherwise would be to deny a litigant the right to
be represented at all times by counsel of his choice.77
§4.12. Negotiation with opposite party.
Canon 9 of the Canons of Professional Ethics provides that
a “lawyer shall not in any way communicate upon the subject of
controversy with a party represented by counsel, much less should
he undertake to negotiate or compromise the matter with him, but
should deal only with his counsel. It is incumbent upon the lawyer
most particularly to avoid everything that may tend to mislead a
party not represented by counsel, and he should not undertake to
advise him as to the law.”
A lawyer should not, in the absence of the adverse party’s
counsel, interview the adverse party and question him as to the facts
of the case even if the adverse party was willing to do so. Neither
should he sanction the attempt of his client to settle a litigated
matter with the adverse party without the consent or knowledge of
the latter’s counsel.78
It has been held that a lawyer who communicated directly to,
and sought amicable settlement of the case with, the adverse party
and not with the latter’s counsel violated Canon 9 of the Canons of
Professional Ethics, and he was suspended from the practice of law
for such infraction.79
§4.13. Association as a colleague in a case.
A client’s proffer of assistance of additional counsel should not
be regarded as evidence of want of confidence, but the matter should
be left to the determination of the client.80 The lawyer subsequently
retained as additional counsel should, however, communicate first
with the original counsel before he enters his appearance in the case
as the ethical thing to do when a lawyer associates with another in
77A.B.A. Ops. 10 (July 13, 1926) and 149 (February 15, 1936); See Laput v.
Remotigue, 6 SCRA 45 (1962).
78Ops. 75 (July 27,1972), 124 (December 14, 1934) and 187 (July 24,1938).
79Camacho v. Pangulayan, 328 SCRA 631 (2000).
“Canon 7, Canons of Professional Ethics.
THE LAWYER’S DUTIES TO THE LEGAL PROFESSION
113
a pending litigation.81 He should decline association as a colleague
if it is objectionable to the original counsel, but if the lawyer first
retained is relieved, he may come into the case.82
When lawyers jointly associated in a cause cannot agree as to
any matter vital to the interest of the client, the conflict of opinion
should be frankly stated to him for his final determination. His
decision should be accepted unless the nature of the difference makes
it impracticable for the lawyer whose judgment has been overruled
to cooperate effectively. In this event it is his duty to ask his client
to relieve him.83
C. PREVENTING UNAUTHORIZED PRACTICE OF LAW
§4.14. Duty to prevent unauthorized practice of law.
Canon 9 requires that “A lawyer shall not, directly or indirectly,
assist in the unauthorized practice of law.”
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. The purpose
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.84 It devolves upon
the lawyer to see to it that the purpose is attained. The Code of
Professional Responsibility makes it the duty of a lawyer prevent the
unauthorized practice of law.85 And the law makes it a misbehavior
on his part, subject to disciplinary action, to aid a layman in the
unauthorized practice of law.86
A lawyer may not, without aiding the unauthorized practice of
law by a layman, establish a law office with one who has not been
81Jn
re Soriano, supra.
Canons of Professional Ethics.
“Canon 7, Canons of Professional Ethics.
^Philippine Ass’n. of Free Labor Union v. Binalbagan Isabela Sugar Co., 42
SCRA 302 (1971).
^anon 9, Code of Professional Responsibility.
86U.S. v. Ney & Bosque, 8 Phil. 146 (1907); People v. Luna, 102 Phil. 968
(1958).
82Canon 7,
LEGAL AND JUDICIAL ETHICS
114
licensed to practice law by the Supreme Court,81 nor may he form a
partnership with a lay accountant to specialize in income tax work
and related accounting unless he ceases entirely to hold himself out
as a lawyer and confines his activities strictly to such as are open to
lay accountants.88 He should not allow his name to be displayed on the
letterheads or advertising materials of a corporation which solicits
business and advertises that its services include the preparation,
examination and filing of articles of incorporation and by-laws and
acting on proposals for the issuance of stock in exchange for property
or other assets, such services being practice of law.89 Nor should he
accept employment from a lay intermediary to do legal work for its
patron.90 These and similar activities are improper for the lawyer
to do for, by his action, he is fostering the practice of law by a lay
agency as well as aiding therein and profiting therefrom.91
§4.15. Intervention of intermediary not allowed.
The lawyer’s duty not to assist, directly or indirectly, in the
unauthorized practice of law prohibits him from allowing an
intermediary to intervene in the performance of his professional
obligations.
The responsibilities and qualifications of a lawyer are individual.
The lawyer’s relation to his client is personal and his responsibility
is direct to the client. These principles forbid a lawyer from allowing
his professional services to be controlled or exploited by any lay
agency, personal or corporate, which intervenes between him and
his client. He should avoid all relations which direct the performance
of his duties by or in the interest of such intermediary.92
It is thus improper for a lawyer to accept employment from an
automobile club which, in soliciting membership, offers free services
of its legal department to members,93 or from a grange association to
handle legal matters for its members.94 A lawyer may not permit his
87U.S.
v. Ney & Bosque, supra.
“A-B.A. Op. 269 (June 21,1945).
89A.B.A. Op. 31 (March 2,1931) and A.B.A, Op. 41 (September 17,1931).
“A.B.A. Op. 31, supra.; A.B.A. Op. 12 (March 2,1931).
91A.B.A. Op. 35 (March 4,1931) and A.B.A. Op. 122 (December 14,1934).
“Canon 35, Canons of Professional Ethics.
"A.B.A. Op. 8 (April 25,1925).
MA.B.A. Op. 56 (December 14,1931).
THE LAWYER’S DUTIES TO THE LEGAL PROFESSION
115
services to be exploited by a collection agency or credit exchange,95
allow his letterhead to be used by a layman for the purpose of sending
out form collection letters,96 or authorize a bank to use his name
as a director in advertising its services in drawing wills and other
legal instruments.97 He may not cooperate with a trust company or
other lay institution to facilitate its unauthorized practice of law,98
nor permit an accountant employee to perform legal services to his
clients.99
While a lawyer may accept employment from any organization,
such as an association, club or trade organization, to render legal
services in any matter in which the organization as an entity is
interested, that employment should not include the rendering
of legal services to members of such an organization in respect to
their individual affair.100 Accordingly, he may not as counsel for an
organization furnish free legal advice to its members with respect
to their personal problems,101 although he may properly render
legal opinion on problems common to all members or to those who
individually retain his services.102 A charitable society rendering aid
to the indigent is not, however, an intermediary within the meaning
of the rule.103
§4.16. A lawyer shall not delegate legal work to nonlawyers.
A corollary to the injunction that a lawyer should prevent the
unauthorized practice of law is the rule that “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.”104 Thus, he should not delegate to a layman any
work which involves the application of law, such as the computation
and determination of the period within which to appeal an adverse
95A.B.A.
96A.B.A.
Op. 34 (March 4, 1931).
Op. 68 (March 31, 1932).
Op. 41 (September 17, 1931).
98A.B.A. Op. 122 (December 14,1934).
"A.B.A. Op. 272 (October 25,1946).
100Canon 35, Canons of Professional Ethics, v. Amado, 24 SCRA 402 (1968).
101A.B.A. 162 (August 22,1936).
102A.B.A. Op. 168 (February 12, 1937).
103Canon 35, Canons of Professional Ethics.
104Rule 9.01, Code of Professional Responsibility.
97A.B.A.
116
LEGAL AND JUDICIAL ETHICS
judgment,106 the examination of witnesses or the presentation of
evidence,106 because these involve the practice of law which may
be undertaken only by a lawyer. However, a lawyer can employ
lay secretaries, lay investigators, lay detectives, lay researchers,
accountants or non-lawyer draftsmen, to undertake any task not
involving practice of law. He may also avail himself of the assistance
of law students in many of the fields of the lawyer’s work, such as
an examination of a case law, finding and interviewing witnesses,
examining court records, delivering papers, and similar matters.107
§4.17. A lawyer shall not divide fees with non-lawyers.
Generally, a “lawyer shall not divide or stipulate to divide a
fee for legal services with a person not licensed to practice law.”108
This is a necessary consequence of the rule against layman from
practicing law109 and the rule against the employment of brokers or
agents to attract legal business.110 An agreement between a union
lawyer and a layman president of the union to divide equally the
attorney's fees that may be awarded in a labor case violates the rule
and is illegal and immoral.111 Similarly, a contract between a lawyer
and a layman granting the latter a percentage of the fees collected
from clients secured by the layman and enjoining the lawyer not to
deal directly with said clients is null and void, and the lawyer may
be disciplined for unethical conduct.112 A donation by a lawyer to a
labor union of part of his attorney’s fees taken from the proceeds of
a judgment secured by him for the labor union is improper because
it amounts to a rebate or commission.113
There are three (3) exceptions to the rule, namely: (1) where
there is a pre-existing agreement with a partner or associate that,
upon the latter’s death, money shall be paid over a reasonable period
of time to his estate or to persons specified in the agreement; (2)
106Eco
v. Rodriguez, 107 Phil. 612 (1960).
Villafuerte, 18 Phil. 121 (1911).
106Robinson v.
107Comments of
IBP Committee that drafted the Code, pp. 47-48.
9.02, Code of Professional Responsibility.
109Rule 9.02, Code of Professional Responsibility.
■“Comments of IBP Committee that drafted the Code, p. 50; Tan Tek Beng v.
David, 126 SCRA 389 (1983).
“‘Amalgamated Laborers Assn v. CIR, 22 SCRA 1266 (1968).
U2Tan Tek Beng v. David, 126 SCRA 389 (1983).
113Halili v. CIR, 136 SCRA 113 (1985).
108Rule
THE LAWYER’S DUTIES TO THE LEGAL PROFESSION
117
where a lawyer undertakes to complete unfinished legal business
of a deceased lawyer; and (3) where a lawyer or law firm includes
non-lawyer employees in a retirement plan, even if the plan is based
in whole or in part on a profit sharing arrangement.114 The first two
exceptions to the rule, strictly speaking, represent compensation for
legal services rendered by the deceased lawyer during his lifetime,
which is paid to his estate or heirs. There is nothing improper in this
arrangement. Impropriety arises where the effect of the arrangement
is to make the estate or heir a member of the partnership along
with the surviving partners, or where the estate or heir is to receive
a percentage of the fees that may be paid from future business of
the deceased lawyer’s clients because such fees no longer represent
compensation for past services of the deceased lawyer but for
future services of the law firm or its surviving partners.116 The third
exception to the rule does not involve, strictly speaking, a division of
legal fees with non-lawyer employees. The retirement benefits in the
form of pension represent additional deferred wages or compensation
for past services of the employees.
D. SOLICITATION AND ADVERTISING
§4.18. A lawyer shall not solicit legal business.
The law prohibits lawyers from soliciting cases for the purpose
of gain, either personally or through paid agents or brokers, and
makes the act malpractice.116 Rule 2.03 of the Code provides that “A
lawyer shall not do or permit to be done any act designed primarily
to solicit legal business.” The rule prohibits professional touting.
Among those that fall under the prohibition would be that of a lawyer
who recommends employment of himself, his partner, associate,
or member of his legal staff to a non-lawyer who has not sought
his advice regarding employment of a lawyer; or compensates and
gives anything of value to a person or organization to recommend or
secure his employment of a client or as a reward for having made a
recommendation resulting in his employment by a client.117 A lawyer
114Rule
9.02, Code of Professional Responsibility.
116Comments of
IBP Committee that drafted the Code, p. 49; In re Sycip, 92
SCRA 1 (1979).
116Rule 138, Sec. 27, Rules of Court.
•"Comments of IBP Committee that drafted the Code, p. 12.
118
LEGAL AND JUDICIAL ETHICS
who agrees with a non-lawyer to divide attorney’s fees paid by clients
supplied or solicited by the non-lawyer is guilty of malpractice, the
same being a form of solicitation of cases.118
§4.19. A lawyer shall not charge lower rates to attract business.
Another unethical practice of indirect solicitation of legal
business is that of offering lower rates than that prescribed by
others for similar work or service. To discourage such malpractice,
Rule 2.04 of the Code requires that “A lawyer shall not charge rates
lower than those customarily prescribed unless the circumstances so
warrant.” What the rule prohibits is the 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 or
to a person who would have difficulty paying the fee usually charged
for such services.119
§4.20. A lawyer cannot advertise his talent; reasons
therefor.
The general rule is that a lawyer cannot advertise his talent as
a shopkeeper advertises his wares. The restriction originated from
the practices in the Inns of Court of England. The young men who,
in the early days of the bar, came to the Inns of Court in England
to study in order to become barristers were practically all the sons
of well-to-do parents who did not have to worry about earning a
living and who traditionally looked down on all forms of trade and
competition. They regarded the law as primarily a form of public
service in which the gaining of a livelihood was but a secondary
consideration.120 This attitude became in time a recognized custom
and tradition of the legal profession which was later brought to the
United States and from that country to the Philippines.121
118Tan
Tek Beng v. David, 126 SCRA 389 (1983).
119Comments of
IBP Committee that drafted the Code, p. 12.
LEGAL ETHICS, 210 (1953).
121The Philippine system of professional ethics was taken from that of the United States (In re Cunanan, 94 Phil. 543 (1954); Mortel v. Aspiras, 100 Phil. 586 (1956).
And the Canons of the American Bar were adopted by the Philippine Bar Association
in 1917 (In re Tagorda, 54 Phil. 37 [1927]) and in 1946.
120DRINKER,
THE LAWYER’S DUTIES TO THE LEGAL PROFESSION
119
As a result of the recognition that the practice of law is
primarily a form of public service, the legal profession acquired a
certain traditional dignity. The proscription against advertising of
legal services or solicitation of legal business aims to preserve that
dignity. It has now become the inflexible rule that a lawyer cannot
advertise his talent as a shopkeeper advertises his wares.122 A
number of reasons underlie such prohibition. A lawyer is a member
of an honorable profession whose primary purpose is to render public
service and help secure justice and in which remuneration is a mere
incident.123 Such professional consideration makes a lawyer radically
different from a shopkeeper, a trader, a manufacturer or a money
lender whose primordial aim is private gain and whose principal
tool, to sell his product or service, is advertising. To allow a lawyer
to advertise his talent or skill is to commercialize the practice of
law, lower the profession in public confidence and lessen its ability
to render efficiently that high character of service to which every
member of the bar is called.124
Moreover, advertising inescapably involves self-praise or
puffing. If competitive advertising among lawyers were permitted,
the conscientious and ethical will unavoidably be at the mercy of
the braggart.125 Advertising may also lead to assertion of fraudulent
claims, corruption of public officials, and attacks on marital stability;
it may likewise encourage lawyers to engage in overreaching,
overcharging, under representation and misrepresentation.126 It will
doubtless increase lawsuits and result in needless litigations and
inciting to strife otherwise peaceful citizens.127
§4*21. Proper or permissible advertising or solicitation.
Not all types of advertising or solicitation are prohibited, that
activity not being inherently malum in se. What makes advertising
or solicitation improper is the employment of such methods as
are incompatible with the traditional dignity of a lawyer and the
i22In re Tagorda, 54 Phil. 37 (1927); Director of Religious Affairs v. Bayot, 74
Phil. 579 (1944); Rule 138, Sec. 27, Rules of Court.
‘“Canon 12, Canons of Professional Ethics.
124Director of Religious Affairs v. Bayot, 74 Phil. 579 (1944); In re Tagorda, 53
Phil. 37 (1929).
125Re Rothman, 97 Phil. A2d 627, 39 ALR2d 1932 (1953).
128See Advertising, Solicitation and the Professional Duty to Make Legal Counsel Available, 81 Yale L. J. 1184 (Note) (May 1972).
127/re re Tagorada, supra; Director of Religious Affairs v. Bayot, supra.
120
LEGAL AND JUDICIAL ETHICS
maintenance of correct professional standards, or the use of artificial
means to augment the publicity that normally results from what a
lawyer does. There is a clear delineation in that regard.
The canons of the profession tell that the best advertising
possible for a lawyer is a well-merited reputation for professional
capacity and fidelity to trust, which must be earned as the outcome
of character and conduct.128 Good and efficient service to a client as
well as to the community has a way of publicizing itself and catching
public attention. That publicity is a normal by-product of effective
service which is right and proper. A good and reputable lawyer needs
no artificial stimulus to generate it and to magnify his success. He
easily sees the difference between a normal by product of able service
and the unwholesome result of propaganda.129
The canons of the profession likewise enumerate
to the rule against advertising or solicitation and define
to which they may be undertaken. The exceptions are of
categories, namely, those which are expressly allowed
which are necessarily implied from the restrictions.
exceptions
the extent
two broad
and those
The first of such exceptions is the publication in reputable law
lists, in a manner consistent with the standards of conduct imposed
by the canons, of brief biographical and informative data. “Such
data must not be misleading and may include only a statement of
the lawyer’s name and the names of his professional associates;
addresses, telephone numbers, cable addresses; branches of law
practiced; date and place of birth and admission to the bar; schools
attended with dates of graduation, degrees and other educational
distinction; public or quasi-public offices; posts of honor; legal
authorships; legal teaching positions; membership and offices in bar
associations and committees thereof, in legal and scientific societies
and legal fraternities; the fact of listings in other reputable law
lists; the names and addresses of references; and, with their written
consent, the names of clients regularly represented.”130
128Prior to its amendment in 1940, Canon 27 of the Canons of Professional Ethics embodied this exhortation. Canon 27 as now amended no longer carries it, as it
has become a commonly accepted ethical norm that its inclusion as part of the canons
is unnecessary.
129Ulep v. Legal Clinic, Inc., 223 SCRA 378 (1993), citing Agpalo, Legal Ethics,
Fourth Edition (1989), 79-80.
130Ulep v. Clinic, Inc., 223 SCRA 378 (1993), citing Agpalo, Legal Ethics, Fourth
Edition (1989), 80; Canon 27, Canons of Professional Ethics.
THE LAWYER’S DUTIES TO THE LEGAL PROFESSION
121
The law list must be a reputable law list published primarily
for that purpose; it cannot be a mere supplemental feature of a
paper, magazine, trade journal or periodical which is published
principally for other purposes.131 For that reason, a lawyer may not
properly publish his brief biographical and informative data in a
daily paper,132 magazine,133 trade journal134 or society program.136
Nor may a lawyer permit his name to be published in a law list the
conduct, management or contents of which are calculated or likely
to deceive or injure the public or the bar, or to lower the dignity or
standing of the profession.136
The use of an ordinary simple professional card is also permitted.
The card may contain only a statement of his name, the name of
the law firm of which he is connected with, address, telephone
number and special branch of law practiced.137 The publication of
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.138 He may
likewise have his name listed in a telephone directory139 but not
under a designation of special branch of law.140
A lawyer engaged in a particular branch of law and available
to act as an associate of other lawyers in that specific branch of
legal service may send to local lawyers only and publish in a local
legal journal a brief and dignified announcement of his availability
to serve other lawyers in connection therewith. The announcement
or representation should be in a form which does not constitute a
statement or representation of special experience or expertness.141 It
must contain no reference to his supposed qualifications142 and may
131A.B.A.
132A.B.A.
Op. 69 (March 19, 1932).
Op. 69 (March 19, 1932).
Op. 133 (March 13, 1935).
134A.B.A. Op. 116 (August 27,1934).
136A.B.A. Op. 24 (January 24, 1930).
136Canon 43, Canons of Professional Ethics.
137A.B.A. Op. 11 (May 11,1927).
138A.B.A. Op. 24 (January 24,1930).
139A.B.A. Ops. 53 (December 14, 1931), 123 (December 14, 1934), (July 12,
1941), 241 (February 21,1942) and 284 (August, 1951).
I40A.B.A. Op. 286 (September 25,1952).
141Canon 46, Canons of Professional Ethics.
142A.B.A. Op. 194 (April 22,1939).
133A.B.A.
LEGAL AND JUDICIAL ETHICS
122
not be sent to persons who are not lawyers.143 It cannot be published
in any publication other than in a law list or local legal journal.144
Nor can it be carried on his letterhead.146
Whether a particular service is a specialized service depends
upon the extent to which it is available from members of the bar.146
A patent, trademark and copyright practice is a specialized legal
service147 but not a service preparing brief or rendering legal opinion,
the latter being a normal service of a general practitioner.148 But the
fact that a lawyer is engaged in a specialized service does not exempt
him from complying with the rules and ethics of the profession,149 nor
does it justify solicitation of employment from one lawyer to another
on a reciprocal basis.160
The seeking of appointment to a public office which can be filled
up only by a lawyer is not solicitation of professional employment
within the meaning of the proscription;151 nor is an advertisement,
in a dignified manner, seeking full-time position as counsel for a
corporation, there being a distinction between an application for
such position which would take the lawyer out of general practice,
which is permitted, on the one hand, and an application to handle
a particular matter while continuing in the general practice, which
is proscribed, on the other hand.162 It is not improper for a lawyer
to permit his name to be published in a law journal in connection
with an account of a legal matter of current interest, in which he is
acting as counsel.163 Nor is it improper for a lawyer in a foreclosure
proceeding to advertise for sale, over his name, the property involved
as his effort is only an incidental part of his professional service.164
The activity of an association for the purpose of legal
representation as a mode of expression and for meaningful access
to courts is protected by the Constitution and may ethically be
143A.B.A.
Op. 114 (August 27, 1934).
46, Canons of Professional Ethics; A.B.A. Op. 116 (August 27,1934).
146A.B.A. Op. 277 (June 26,1948).
14*A.B.A. Op. 194 (April 22,1939).
147A.B.A. Op. 203 (November 23,1940).
148A.B.A. Op. 145 (July 17,1935).
149A.B.A. Op. 152 (February 15,1936).
144Canon
160A.B.A.
Op. 232 (July 12,1941).
Op. 74 (August 26,1932).
162A.B.A. Op. 244 (June 20,1942).
163A.B.A. Op. 158 (May 5,1936).
I64A.B.A. Op. 80 (August 27, 1932).
161A.B.A.
THE LAWYER’S DUTIES TO THE LEGAL PROFESSION
123
undertaken.166 Similarly, the proffer of free legal services to the
indigent, even when broadcast over the radio or tendered through
circulation of printed matter to the general public, offends no ethical
rule.156 The defense of indigent citizens without compensation is
carried throughout the country by lawyers representing legal aid
societies not only with the approval but with the commendation of
those acquainted with the work. The rule proscribing advertising or
solicitation of business is aimed at commercialization of the profession
and has to do with the effort to obtain remunerative business. It was
never aimed at a situation in which a group of lawyers announce
that they are willing to devote some of their time and energy to the
interests of indigent citizens.167
§4.22. Writing legal articles.
An attorney “may with propriety write articles for publications
in which he gives information upon the law; but he should not accept
employment from such publications to advise inquiries in respect
to their individual rights.”158 Within the prescription of this canon,
a lawyer may properly write and sell for publication articles of
general nature on legal subjects,159 send upon request his picture
for publication with the article in a law journal160 or submit for
publication to a bar association journal an unsolicited article on a
legal subject.161
What should be guarded against is the violation of the ethical
principles concerning the (a) improper advertising by a lawyer,162 (b)
giving of legal advice to one with whom no attomey-client relationship
exists,163 and (c) aiding of a layman to engage in unauthorized
practice of law.164 Thus, a lawyer may not as counsel for a bankers’
156NAACP v. Button, 371 US 415 (1963); United Transp. Union v. State Bar of
Michigan, 401 US 576 (1971); United Mines Workers v. Illinois Bar Ass’n., 389 US
217 (1967); Brotherhood of R. R. Trainmen v. Virginia ex rel. Virginia State Bar, 377
US 1 (1961).
166A.B.A. Op. 148 (November 1935).
157A.B.A. Op. 48 (November 16,1935).
158Canon 40, Canons of Professional Ethics.
159A.B.A. Op. 92 (May 2, 1933).
160A.B.A. Op. 141 (May 9,1935).
161A.B.A. Op. 141 (May 9,1935).
162Canon 27, Canons of Professional Ethics.
163Canon 35, Canons of Professional Ethics.
164Canon 47, Canons of Professional Ethics.
124
LEGAL AND JUDICIAL ETHICS
association write a legal bulletin to be issued to the members165 nor
allow his name to be carried in a magazine representing that he
is an attorney for a named organization and will furnish free legal
advice to its members.166
The giving of advice on legal matters through the medium of a
newspaper column or radio or television broadcast is improper.167 It
cannot be undertaken by a layman because that service constitutes
practice of law. Nor can it be undertaken by a lawyer because that
work involves indirect advertising, violation of the confidential
relation of attorney and client, and a breach of the traditional
standards of the profession.168 It has been said that writing a column
in a newspaper will, sooner or later, violate those ethical principles
because what the readers want is not a general discussion such as
they can find in law books or articles in law journals, but something
practical which they can apply to their own experience, which is what
the publishers will see that they get, and a lawyer answering such is
apt to follow what he thinks his readers want to hear about and to
answer the personal problem which he sees behind the questions.169
§4.23. Engaging in business or other occupation.
It is not uncommon to see lawyers combining law practice with
some other lawful occupation. The fact that he is a lawyer does not
preclude him from engaging in business. Engaging in business or
other lawful calling entirely apart from the attorney’s practice of law
is not necessarily improper. Impropriety “arises when the business
is of such a nature or is in such a manner as to be inconsistent with
the lawyer’s duties as a member of the bar. Such inconsistency
arises when the business is one that will readily lend itself as a
means of procuring professional employment for him, is such that
it can be used as a cloak for indirect solicitation on his behalf or is
of a nature that, if handled by a lawyer, would be regarded as the
practice of law. To avoid such inconsistencies, it is always desirable
and usually necessary that the lawyer keeps any business in which
he is engaged entirely separate and apart from his practice of the
166A.B.A.
Op. 98 (August 29,1933).
Op. 162 (August 22, 1936).
167A.B.A.
Op. 270 (November 30, 1945).
v. Shepard Broadcasting Service, 12 NE2d 819, 114 ALR 1502
166A.B.A.
(1938).
168Rosenthal
169DRINKER,
op cit., at 264.
THE LAWYER’S DUTIES TO THE LEGAL PROFESSION
125
law and he must, in any event, conduct it with due observance of the
standards of conduct required of him as a lawyer.”170 Moreover, he
shall make it clear to his client whether he is acting as a lawyer or
in another capacity.171
“Some businesses in which laymen engage are so closely
associated with the practice of law that their solicitation of
business may readily become a means of indirect solicitation for
any lawyer that is associated with them. The adjustment of claims,
the incorporating of companies and the handling of matters before
governmental commissions and boards and in government offices fall
within such classifications.”172 Other businesses closely associated
with the practice of law include collection agency, real estate
brokerage, insurance agency, mortgage service and tax service and
consultancy. If any of these and similar businesses and the lawyer’s
law practice are conducted in the same office, the public could not
be expected to distinguish his dual capacities and know when he is
acting in the capacity of a lawyer and when in that of a layman.173
§4.24. A lawyer shall make clear whether he is acting in
another capacity.
A practicing lawyer may lawfully engage in any other lawful
occupation or business. In his dealings with a party in business,
he is under no greater obligation to the party than a person not
an attorney would be.174 However, Rule 15.08 of the Code requires
that 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,” especially
in those occupations which are related to the practice of law.176 The
reason is that certain ethical considerations governing the attomeyclient relationship may be operative in one and not in the other.176
170A.B.A.
(1953).
171Rule
Op. 57 (March 19, 1932); Re Rothman, 97 A2d 627, 39 ALR2d 1032
15.08, Code of Professional Responsibility.
Op. 57 (March 19, 1932); cf. A.B.A. Ops. 31 (March 2, 1931) and 35
(March 4,1931).
173A.B.A. Op. 57 (March 19,1932).
lliIn re Renehan, 145 Pac. Rep. Ill (1914).
™Re Rothman, 39 ALR2d 1032 (1953).
176Comments of IBP Committee that drafted the Code, p. 84.
172A.B.A.
LEGAL AND JUDICIAL ETHICS
126
§4.25. A lawyer shall not use false statement regarding his
qualification or service.
“A lawyer in making known his legal services shall use
only true, honest, fair, dignified and objective information or
statement of facts.”177 Conformably with this canon, Rule 3.01 of
the Code provides that “a lawyer shall not use or permit the use
of any false, fraudulent, misleading, deceptive, undignified, selflaudatory or unfair statement or claim regarding his qualifications
or legal services.” Nor shall he “pay or give something of value to
representatives of the mass media in anticipation of, or in return
for, publicity to attract legal business.”178 Similarly, he should not
resort to indirect advertisements, such as furnishing or inspiring
newspaper comments, or procuring his photograph to be published
in connection with causes in which the lawyer has been or is engaged
or concerning the manner of their conduct, the magnitude of the
interest involved, the importance of the lawyer’s position and other
like self-laudations.179
The following examples, in the light of the foregoing guidelines,
constitute improper advertising or solicitation:
(a) The use of a card containing the following: “As a notary
public, he can execute for you a deed of sale for the purchase of land
as required by the cadastral office, can renew lost documents of
young animals, can make your application and final requisites for
your homestead, and execute any kind of affidavit. As a lawyer, he
can help you collect your loans, altogether long overdue, as well as
any complaints for or against you. Come or write to him in his town,
Echague, Isabela. He offers free consultation and is willing to help
the poor.”180
(b) Causing to be published in a newspaper the following
advertisement: “Marriage, License promptly secured through
our assistance and the annoyance of delay or publicity avoided if
desired, and marriage arranged to wishes of parties. Consultation
on matter free to the poor. Everything confidential. Legal assistance
service.”181
177Canon 3,
178Rule
Code of Professional Responsibility.
3.04, ibid.
179Canon 27, Canons of Professional Ethics.
lmIn re Tagorda, 53 Phil. 37 (1929).
181Director of Religious Affairs v. Bayot, 74 Phil. 579 (1944).
THE LAWYER’S DUTIES TO THE LEGAL PROFESSION
127
(c) The distribution of a diary or appointment book which has
an attorneys card printed in the cover182 or of a circular concerning
specific fields of law in which a lawyer will engage in183 or containing
a digest of laws on a particular subject with the lawyer’s name and
address.”184
(d) Posing for photographs of incidents connected with a
case which a lawyer is handling, the photographs to be used as
illustrations in a newspaper article186 or securing such photographs
with his name, address and vocation to be published by paying the
cost thereof,186 or a newspaper’s repeated publication of a laudatory
announcement regarding an attorney.187
(e) Procuring a lawyer’s name to be written in an automobile
insurance or other policy with direction to the insured to contact
the attorney in case of accident or other real or probable liability
under the policy,188 using in his letterhead the phrase “remedial
law,”189 subscribing to a booklet as the condition for the inclusion of
his biography therein,190 furnishing credit reports to an agency in
return for a promise of future employment,191 and offering free legal
services to an association with expectation of ultimately profiting
thereby.192
(f)
Accompanying an announcement of the opening or
transferring a law office with a statement that the members thereof
intend to specialize in certain types of legal work,193 announcing the
retirement of a lawyer from a government office with a statement
telling the resumption of his practice of law, describing his experience
and extolling his ability194 and publishing a professional card in a
newspaper.196
182A.B.A.
183A.B.A.
Op. 73 (May 5,1932).
Op. 73 (May 5,1932).
186A.B.A. Op. 42 (September 17,1932).
186A.B.A. Op. 43 (September 17, 1931).
187A.B.A. Op. 62 (March 19,1932).
188A.B.A. Op. 137 (March 15,1935).
189A.B.A. Op. 159 (May 5,1936); Cf. A.B.A. Op. 183 (May 10,1938).
190A.B.A. Op. 207 (November 23,1940).
19IA.B.A. Op. 188 (July 24,1938).
192A.B.A. Op. 169 (February 12, 1937).
193A.B.A. Op. 251 (June 26, 1943).
194A.B.A. Op. 124 (July 23,1938).
196A.B.A. Ops. 24 (January 24, 1930), 69 (March 19, 1932), 107 (March 10,
184A.B.A.
1934),
Op. 59 (December 14, 1931).
128
LEGAL AND JUDICIAL ETHICS
(g) Requesting business from other lawyers,196 seeking employment from those other than his clients benefited in a test case,197
furnishing information as to how and when claims may be presented,198 affiliating himself with an association which is formed for the
purpose of obtaining professional employment for its members,199
employing a bail procurer to persuade those accused of crimes to
employ a particular lawyer,200 and searching for unknown heirs with
the end in view of having himself employed.201
(h) A newspaper ad, which reads: “SECRET MARRIAGE?
P560.00 for a valid marriage. Info on DIVORCE, ABSENCE,
ANNULMENT, VISA. GUAM DIVORCE. DON ARMNSON an
attorney in Guam is giving FREE BOOKS on Guam Divorce through
The Legal Aid Clinic beginning Monday to Friday during office hours.
Guam Divorce. Annulment of Marriage, Immigration Problems, Visa
Ext. Quota/Non-quota Res. & Special Reference Visa. Declaration
of Absence. Remarriage to Filipina Fiancees. Adoption. Investment
in the Phil. US/Foreign Visa for Filipina Spouse/Children. Call
Mari vie.”202
The above illustrations of improper advertising or solicitation
indicate in unmistakable terms what a lawyer may not ethically do
to attract prospective clients. What may present a more difficult
problem is where to draw the line in borderline cases, as there are
always honest differences of opinion as to what is ideal or improper
advertising or solicitation of business. While in some respects the
successful lawyer’s ideas of professional conduct should differ from
the ideas of those less fortunate, the ideals of the lawyer struggling
to make enough money to support his family can no more be accepted
as the standard than those of his more fortunate brother.203 In the last
analysis, where to draw the line is a question of good faith and good
taste.204 Common sense and a spirit of fairness must, in the absence
of judicial guideline, be relied upon for guidance in determining the
question.206
196A.B.A.
197A.B.A.
Op. 1 (January 15,1924).
Op. 5 (July 7, 1924).
Op. 9 (April 28,1926).
199A.B.A. Op. 13 (January 4,1928).
200A.B.A. Op. 147 (July 17, 1935).
201A.B.A. Op. 173 (July 24, 1937).
““Ulep v. Legal Aid Clinic, Inc., 223 SCRA 378 (1993).
““'People ex rel. Chicago Bar Ass’n. v. Baker, 142 NE 554, 31 ALR 727 (1924).
204DRINKER, op. cit., at 260.
’““People ex rel. Chicago Bar Ass’n v. Baker, 142 NE 554, 31 ALR 737 (1924).
198A.B.A.
THE LAWYER’S DUTIES TO THE LEGAL PROFESSION
129
§4.26. A lawyer shall not use false or misleading firm name.
Law partnership among lawyers for the general practice of law
is common. However, such law partnership is a mere association of
lawyers for such purpose and is a non-legal entity; it is not a business
partnership which has a legal entity under the Civil Code.206 It is
not a taxpayer, even if such law partnership is registered with the
Securities and Exchange Commission, the taxpayers) being the
lawyer(s) receiving income therefrom.207
In the formation of such partnership, no person should be
admitted or held out as a member who is not a lawyer.208 Nor may a
group of lawyers hold themselves out as partners when, in fact, they
are not or when no partnership actually exists.209
Rule 3.02 of the Code provides: “In the choice of a firm name, no
false, misleading or assumed name shall be used. The continued use of
the name of a deceased partner is permissible provided that the firm
indicates in all its communications that said partner is deceased.”
The reason for allowing the continued use of the name of a deceased
partner is that all of the partners by their joint efforts over a period
of years contributed to the goodwill attached to the firm name, and
this goodwill is disturbed by a change in firm name every time a
partner dies. The name of a law firm may not necessarily identify
the individual members of the firm, and consequently, the continued
use of the firm name after the death of one or more partners is not
a deception.210 The rule abandoned the doctrine laid down in a case
to the effect that upon the death of a partner, his name should be
dropped from the firm name, for the charge that it is being retained
as part of the firm name to improperly exploit its advertising value
can hardly be avoided.211
Filipino lawyers cannot practice law under the name of a
foreign law firm, as the latter cannot practice law in the Philippines
206In the Matter of Petition for Authority to Continue Use of Law Firm Name,
92 SCRA 1, 9 [1979], citing in Re Crawford’s Estate, 184NE 2d 779, 783.
M7Tan v.
Del Rosario, Jr., 237 SCRA 324, 333-336 (1994).
’’“Canon 33, Canons of Professional Ethics.
“’’A.B.A. Op. 126 (March 15, 1935).
210Comments of IBP Committee that drafted the Code, p. 16.
211/ra re Sycip, 92 SCRA 1 (1979). Considering the legal and ethical considerations set forth in this case, Justices Ameurfina M. Herrera, Isagani A. Cruz, Emilio
A. Cancayco, Teodoro R. Padilla and Abraham F. Sarmiento registered their dissent
to Rule 3.02 of the Code of Professional Responsibility.
130
LEGAL AND JUDICIAL ETHICS
and the use of the foreign law firm in the country is unethical. In
Dacanay v. Baker & McKenzie,212 the Supreme Court ruled:
“We hold that Baker & McKenzie being an alien law firm,
cannot practice law in the Philippines (Sec. 1, Rule 138, Rules of
Court). As admitted by the respondents in their memorandum,
Baker & McKenzie is a professional partnership organized
in 1949 in Chicago, Illinois with members and associates in
30 cities around the world. Respondents, aside from being
members of the Philippine bar, practicing under the firm name
Guerrero & Torres, are members or associates of Baker &
McKenzie.
“As pointed out by the Solicitor General, respondents’
use of the firm name Baker & McKenzie constitutes a
representation that being associated with the firm they could
render legal services of the highest quality to multinational
business enterprises and others engaged in foreign trade and
investment (p. 3, respondents’ memo). This is unethical because
Baker & McKenzie is not authorized to practice here. (See
Ruben E. Agpalo, Legal Ethics, 1983 Ed., p. 115).”
§4.27. A partner who accepts public office should withdraw
from the firm; exception.
Rule 3.03 of the Code provides that “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.” The purpose of the rule is to prevent the law firm
from using his name to attract legal business and to avoid suspicion
of undue influence.213
§4.28. A lawyer shall not seek media publicity.
Rule 3.04 of the Code mandates that “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 attack legal business.”
Media publicity, as a normal by-product of efficient legal service, is
not improper. What is improper is for a lawyer to resort to adroit
212G.R.
Adm. Case No. 2131, May 10,1985.
213Comments of
IBP committee that drafted the Code, p. 16.
THE LAWYER’S DUTIES TO THE LEGAL PROFESSION
131
propaganda to secure media publicity for the purpose of attracting
legal business. The purpose of the rule is to prevent some lawyers
from gaining an unfair advantage over others through the use of
gimmickry, press agentry or other artificial means.214
The rule also prohibits from making indirect publicity gimmick,
such as furnishing or inspiring newspaper comments, procuring
his photograph to be published in connection with cases which he
is handling, making a courtroom scene to attract the attention of
newspapermen, or arranging for the purpose an interview with him
by media people. Any of these is reprehensible.216
E. THE INTEGRATED BAR OF THE PHILIPPINES
§4.29. Integration of the bar.
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.216
The complete unification of the bar is not possible unless it is
decreed by an entity with power to do so: the State. Bar integration,
therefore, signifies the setting up by government authority of a
national organization of the legal profession based on the recognition
of the lawyer as an officer of the court. Designed to improve the
position of the bar as an instrumentality of justice and the rule
of law, integration fosters cohesion among lawyers and ensures,
through their own organized action and participation, the promotion
of the objectives of the legal profession pursuant to the principle of
maximum bar autonomy with minimum supervision and regulation
by the Supreme Court.217
214Comments of
215Canon 27,
IBP Committee that drafted the Code, p. 17.
Canons of Professional Responsibility.
216Report of the Commission on Bar Integration, quoted in In re Integration of
the Bar of the Philippines, 49 SCRA 22, 25 (1973); In Edillon, 84 SCRA 554 (1978).
217Ibid. See Parlade v. Board of Governor, 7 IBP, 107 SCRA 589 (1981).
132
LEGAL AND JUDICIAL ETHICS
§4.30. Power to integrate the bar.
The Constitution vests upon the Supreme Court the power to
integrate the Philippine bar.218 Such power is an inherent part of
the Court’s constitutional authority over the bar. While Republic
Act No. 63 97219 provides that the “Supreme Court may adopt rules
of court to effect the integration of the Philippine bar,” said law
neither confers a new power nor restricts the Court’s inherent power
but is a mere legislative declaration that the integration of the bar
will promote public interest or will “raise the standard of the legal
profession, improve the administration of justice and enable the bar
to discharge its public responsibility more effectively.”220
On January 16, 1973 the Supreme Court ordained the
integration of the Philippine bar, which is officially known as The
Integrated Bar of the Philippines.221 Presidential Decree No. 181
constituted the Integrated Bar into a corporate body.
§4.31. Constitutionality of integration.
The answer to the question — is the integration of the bar
constitutional? — hinges on the effects of bar integration on the
lawyer’s constitutional rights of freedom of association and freedom
of speech and on the nature of the dues exacted from him. In
resolving that question in the affirmative and in thus upholding the
constitutionality of the integration of the bar, the Supreme Court
quoted approvingly the report of the Commission on Bar Integration
on the matter as follows:
Freedom of association. — “To compel a lawyer to be a member
of an integrated bar is not violative of his constitutional freedom to
associate (or the corollary right not to associate).”
“Integration does not make a lawyer a member of
any group of which he is not already a member. He became
a member of the bar when he passed the bar examinations.
All that integration actually does is to provide an official
national organization for the well-defined but unorganized and
incohesive group of which every lawyer is already a member.”
218Constitution,
219Took
Art. X, Sec. 5(5).
effect on September 7, 1971.
220/ra re Integration of the Bar of the Philippines, 49 SCRA 22 (1973); In re
Edillon, 84 SCRA 554 (1978).
221 Ibid.
THE LAWYER’S DUTIES TO THE LEGAL PROFESSION
133
“Bar integration does not compel the lawyer to associate
with anyone. He is free to attend or not attend the meetings
of his integrated bar chapter or vote or refuse to vote in its
elections as he chooses. The compulsion to which he is subjected
is the payment of annual dues.”
“Otherwise stated, membership in the unified bar imposes
only the duty to pay dues in reasonable amount. The issue,
therefore, is a question of compelled financial support of group
activities, not involuntary membership in any other aspect.”
“The greater part of unified bar activities serves the
function of elevating the educational and ethical standards of
the bar to the end of improving the quality of the legal service
available to the people. The Supreme Court, in order to further
the State’s legitimate interest in elevating the quality of
professional services, may require that the cost of improving
the profession in this fashion be shared by the subjects and
beneficiaries of the regulatory program — the lawyers.”
“Assuming that bar integration does 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. The
legal profession has long been regarded as a proper subject
of legislative regulation and control. Moreover, the inherent
power of the Supreme Court to regulate the bar includes the
authority to integrate the bar.”
Regulatory fee. — “For the Court to prescribe dues to be paid by
the members does not mean that the Court levies a tax.”
“A membership fee in the Integrated Bar is an exaction for
regulation, while the purpose of a tax is revenue. If the Court
has inherent power to regulate the bar, it follows that as an
incident to regulation, it may impose a membership fee for that
purpose. It would not be possible to push through an integrated
bar program without means to defray the concomitant expenses.
The doctrine of implied power necessarily includes the power
to impose such an exaction.”
“The only limitation upon the State’s power to regulate the
bar is that the regulation does not impose an unconstitutional
burden. The public interest promoted by the integration of
the bar far outweighs the inconsequential inconvenience to a
member that might result from his required payment of annual
dues.”
134
LEGAL AND JUDICIAL ETHICS
Freedom, of speech. — “A lawyer is free, as he has always been,
to voice his views on any subject in any manner he wishes, even
though such views be opposed to positions taken by the unified
bar.”
“For the Integrated Bar to use a member’s dues to promote
measures to which said member is opposed, would not nullify
or adversely affect his freedom of speech.”
“Since a State may constitutionally condition the right
to practice law upon membership in the Integrated Bar, it is
difficult to understand why it should become unconstitutional
for the bar to use the member’s dues to fulfill the very purposes
for which it was established.”
“The objection would make every governmental exaction
the material of a ‘free speech’ issue. Even the income tax
would be suspect. The objection would carry us to lengths
that have never been dreamed of. The conscientious objector,
if his liberties were thus extended, might refuse to contribute
taxes in furtherance of war or of any other end condemned by
his conscience as irreligious or immoral. The right of private
judgment has never yet been exalted above the powers and the
compulsion of the agencies of Government.”
Fair to all lawyers. — “Bar integration is not unfair to lawyers
already practicing because although the requirement to pay annual
dues is a new regulation, it will give the member of the bar a new
system which they hitherto have not had and through which, by
proper work, they will receive benefits they have not hereto enjoyed,
and discharge their public responsibilities in a more effective manner
than they have been able to do in the past. Because it will apply
equally to all lawyers, young and old, at the time bar integration
takes effect, and because it is a new regulation in exchange for new
benefits, it is not retroactive, it is not unequal, it is not unfair.”222
§4.32. Purposes and objectives of the Integrated Bar.
Generally, the objectives of the Integrated Bar are to elevate
the standards of the legal profession, improve the administration
of justice and enable the bar to discharge its public responsibility
222/n re Integration of the Bar of the Philippines, 49 SCRA 22, 28-31 (1973); In
re Edillon, 84 SCRA 554 (1978).
THE LAWYER’S DUTIES TO THE LEGAL PROFESSION
135
more effectively. Specifically, it seeks to assist in the administration
of justice; foster and maintain on the part of its members high
ideals of integrity, learning, professional competence, public service
and conduct; safeguard the professional interests of its members;
cultivate among its members a spirit of cordiality and brotherhood;
provide a forum, for the discussion of law, jurisprudence, law reform,
pleading, practice and procedure and the relations of the bar to the
bench and to the public, and publish information relative thereto;
encourage and foster legal education; and promote a continuing
program of legal research in substantive and adjective law, and
make reports and recommendations thereon.223
The integration of the bar also makes it possible for the legal
profession to render more effective assistance in maintaining the rule
of law; protect lawyers and litigants against the abuses of tyrannical
judges and prosecuting officers; discharge fully and properly its
responsibility in the disciplining and/or removal of incompetent
and unworthy judges and prosecuting offices; shield the judiciary,
which traditionally cannot defend itself except within its own forum,
from assaults that politics and self-interest may level at it, and
assist it to maintain its integrity, impartiality and independence;
have an effective voice in the selection of judges and prosecuting
officers; prevent the unauthorized practice of law and break up any
monopoly of local practice maintained through influence or position;
establish welfare funds for families of disabled and deceased
lawyers; provide placement services, establish legal aid offices and
set up lawyer reference services throughout the country so that the
poor may not lack competent legal service; distribute educational
and informational materials that are difficult to obtain in many of
the provinces; devise and maintain a program of continuing legal
education for practicing attorneys in order to elevate the standards
of the legal profession throughout the country; enforce rigid ethical
standards and promulgate minimum fee schedules; create law centers
and establish law libraries for legal research; conduct campaigns
to educate the people on their legal rights and obligations, on the
importance of preventive legal advice and on the function and duties
of the Filipino lawyer; and generate and maintain pervasive and
meaningful countrywide involvement of the lawyer population in
the solution of the multifarious problems that afflict the country.224
223Art. 1, Sec.
22*/n re
2, By Laws of the Integrated Bar of the Philippines.
Integration of the Bar of the Philippines, 49 SCRA 22 (1973).
LEGAL AND JUDICIAL ETHICS
136
§4.33. Non-political bar.
The Integrated Bar is strictly non-political. To maintain its nonpolitical color, no lawyer holding an elective, judicial, quasi-judicial
or prosecutory office in the Government or any political subdivision or
instrumentality thereof shall be eligible for election or appointment
to any position in the Integrated Bar or any chapter thereof. And
a delegate, governor, officer or employee of the Integrated Bar or
an officer or employee of any chapter thereof shall be considered
ipso facto resigned from his position as of the moment he files his
certificate of candidacy for any elective public office or accepts
appointment to any judicial, quasi-judicial or prosecutory office
in the Government or any political subdivision or instrumentality
thereof.225
The election of IBP officers is required to be conducted on a nonpolitical basis. Partisan political activities may thus invalidate the
elections. In connection with the 1989 election of IBP officers, which
marred the election with partisan political activities, it has been
held that partisan political activities of candidates for IBP positions,
such as setting up campaign headquarters, island-hopping to solicit
votes of chapter presidents, formation of tickets, procurement of
written commitments, printing and distribution of tickets and
bio-data, employment of uniformed girls to distribute campaign
materials, made a political circus of the proceedings and tainted the
whole election process. The candidates violated the IBP by-laws and
of the ethics of the legal profession. Respect for law is gravely eroded
when lawyers themselves, who are supposed to be minions of the
law, engage in unlawful practices and cavalierly brush aside the
very rules that the IBP formulated for their observance.226
§4.34. Membership, resignation, retirement and reinstatement.
All lawyers whose names were in the Roll of Attorneys of the
Supreme Court on January 16,1973 and all those whose names were
included or are entered therein after said date are automatically and
without exception members of the Integrated Bar.227 Every member
225Art. I,
(1989).
Bar.
22eRe:
Sec. 4, By-Laws of the Integrated Bar of the Philippines.
1989 Election of the Integrated Bar of the Philippines, 178 SCRA 398
227Art. II, Sec.
18, Id. As of 1978, there are 27,545 members of the Integrated
THE LAWYER’S DUTIES TO THE LEGAL PROFESSION
137
who has paid all membership dues and all authorized special
assessments, plus surcharges owing thereon and who is not under
suspension from the practice of law or from membership privileges,
is a member in good standing.228
Every lawyer is required to register at the national office or
at the office of his chapter by filing in duplicate the prescribed form
for the purpose. Unless he otherwise registers his preference for a
particular chapter, a lawyer shall be considered a member of the
chapter of the province, city, political subdivision or area where his
office or, in the absence thereof, his residence is located. In no case
shall any lawyer be a member of more than one chapter.229
A member may voluntarily terminate his membership by filing
a verified notice to that effect with the Secretary of the Integrated
Bar, who shall immediately bring the matter to the attention of the
Supreme Court. Forthwith, he shall cease to be a member and his
name shall be stricken from the Roll of Attorneys.230 A member of
good standing who is seventy-five years old or who has been forty
years a lawyer or who is unable to practice law by reason of physical
disability or judicially adjudged mental incapacity, may be retired
from the Integrated Bar upon verified petition to the Board of
Governors.231 A lawyer who voluntarily resigns his membership or
who is retired from the Integrated Bar cannot practice law.232
A lawyer who terminated his membership may be reinstated
by filing a written application for reinstatement with the Board
of Governors which shall, within fifteen days from receipt thereof,
forward the same to the Supreme Court with its appropriate
recommendation.233 And a retired member may be reinstated to
active membership upon written application to and approval by the
Board.234
§4.35. Membership dues and effect of nonpayment thereof.
Every member of the Integrated Bar shall pay annual dues
in such amount as fixed by the Board of Governors and approved
^Art. II, Sec. 20, id.
229Art. II, Sec. 19, id.
230Art. II, Sec. 22, By-Laws of the Integrated Bar.
“‘Art. II, Sec. 21, id.
232Art. II, Secs. 21 and 22, id.
233Art. II, Sec. 21, id.
234Art. II, Sec. 22, id.
138
LEGAL AND JUDICIAL ETHICS
by the Supreme Court, on or before the last day (June 30) of the
immediately preceding fiscal year. A member who fails to pay his
dues on or before that date shall be considered dues-delinquent
and if the delinquency continues until the following December 31,
the Board of Governors shall by resolution forthwith suspend all
his membership privileges other than the practice of law. A copy of
such resolution shall be sent by registered mail to the member and
to the secretary of the chapter concerned. Whenever a delinquent
member makes full payment of the membership dues owing, plus a
sum equivalent to ten percent thereof, such fact shall without delay
be reported to the Board, which shall take such action as may be
warranted.235
The Board shall make inquiry into the cause or causes of the
delinquency and take whatever action it shall deem appropriate.
It may recommend to the Supreme Court the suspension of the
delinquent member from the practice of law if the delinquency
continues until December 31 or his removal from the Roll of Attorneys
if the delinquency continues further until the following June 29. The
Board, for justifiable reasons, may remit or lift sanctions it imposed;
however, sanctions imposed or approved by the Supreme Court may
only be remitted or lifted by the Court.236
§4.36. Organization setup.
The Integrated Bar is governed by a network of national and
local officials. At the top are national officers composed of a President,
an Executive Vice-President, nine Governors each of whom shall
be ex officio Vice-President for his Region and who collectively
comprise the Board of Governors, a Secretary and a Treasurer.237
The deliberative body is the House of Delegates238 and at the local
level are the Chapter officials.239
§4.37. National officers.
The chief executive of the Integrated Bar and presiding officer
of the Board of Governors is the President.240 The Presidency shall
235Art. Ill, Secs.
23 and 24, id.
236Art. Ill, Secs.
24 and 25, By-Laws of the Integrated Bar; See In re Edillon,
84 SCRA 554 (1978).
237Art. VII, Sec. 47, id.
238Art. V, id.
239Art. IV, id.
240Art. VII, Sec. 50, id.
THE LAWYER’S DUTIES TO THE LEGAL PROFESSION
139
rotate among the nine regions as the country is delineated for
the purposes of the Integrated Bar.241 Next to the President is the
Executive Vice-President who exercises the powers and performs the
duties of the President during the latter’s absence or inability to act
and such other functions and duties as are assigned to him by the
President and the Board of Governors.242 The Board of Governors,
immediately after their election by the House of Delegates, shall, by
the vote of at least five, choose President and other officials either
from among themselves or from other members of the Integrated
Bar. 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.243 The Secretary and the
Treasurer as well as other officers and employees are appointed by
the President with the consent of the Board.244
§4.38. Board of Governors.
The Integrated Bar is governed by a Board of Governors
consisting of nine Governors from the nine regions, on the
representation basis of one Governor for each region. The President
and the Executive Vice President, if chosen by the Governors from
outside of themselves, shall ipso facto become members of the
Board.246 The Governors are elected by the House of Delegates246
and serve 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.247
The Board of Governors takes charge of the affairs and activities
of the Integrated Bar. It has authority to fix the date, time and place
of every convention of the House of Delegates; make appropriations
and authorize disbursements from the funds of the Integrated Bar
within the limits provided in its by-laws; engage the services of
employees, define their duties and fix their compensation; receive,
consider and act on reports and recommendations submitted by the
241Art.
242Art.
VII, Sec. 47, id.
VII, Sec. 50, id.
VII, Sec. 48, id.
244Art. VII, Secs. 47 and 48,
246Art. VI, Sec. 37, id.
246Art. VI, Sec. 39, id.
247Art. VI, Sec. 38, id.
243Art.
140
LEGAL AND JUDICIAL ETHICS
House of Delegates or its committees; provide for the publication of
the Journal of the Integrated Bar; administer the welfare fund in
accordance with such rules and regulations as it may promulgate;
fill vacancies, however arising, in the Board and in the positions
of officers subject to such limitations as provided in the by-laws;
subject to the approval of the Supreme Court, promulgate Canons
of Professional Responsibility for all members of the Integrated
Bar; promulgate rules and regulations for the establishment
and maintenance of lawyer referral services throughout the
Philippines; subject to the approval of the Supreme Court, impose
special assessments for specific national purposes, and impose or
recommend in proper cases to the Court the imposition of sanctions
for non-payment or delinquency in the payment thereof; prescribe
such rules and regulations as may be necessary and proper to carry
out the objectives and purposes of the Integrated Bar as well as the
provisions of the Integration Rule and Presidential Decree No. 181;
and perform such other functions as may be necessary or expedient
in the interest of the Integrated Bar.248
In the discharge of its duties, the Board of Governors is assisted
by national committees, the functions of which may be implied from
their respective names: Committee on Chapter Affairs, Committee
on Legal Aid, Committee on Administration of Justice, Committee
on Legal Education and Bar Admissions, Committee on Professional
Responsibility, Discipline and Disbarment, Committee on Research
Services, Committee on Legislation, Committee on Public Services,
Committee on Books and Publications, Committee on Unauthorized
Practice of Law, Committee on Law Reporting, and Budget
Committee.249
§4.39. House of Delegates.
The deliberative body of the Integrated Bar is the House of
Delegates.260 It is composed of not more than one hundred and
twenty members apportioned among all the chapters by the Board of
Governors according to the number of their respective members, but
each chapter shall have at least one Delegate.261 The membership
consists of all the Chapter Presidents and, in the case of chapters
248Art.
VI, Sec. 41, By-Laws of the Integrated Bar.
249Arts.
VII and IX, By-Laws of the Integrated Bar.
V, Sec. 33(f), id.
251Art. V, Sec. 30, id.
260Art.
THE LAWYER’S DUTIES TO THE LEGAL PROFESSION
141
entitled to more than one Delegate each, the Vice-Presidents and
such additional Delegates as the Chapters are entitled. Governors
who are not Delegates are ex oficio members of the House, without
the right to vote.252
The House of Delegates meets in an annual convention during
the month of April each year at the call of the Board of Governors253
and in such special conventions as may be called by the Board motu
proprio or upon written petition therefore by not less than thirty
Delegates.254 Its main duty is to elect the members of the Board of
Governors. Its resolutions, if concurred in by the Board, bind the
Integrated Bar. It has its own set of officers, namely, a Chairman, a
Vice-Chairman, a Secretary, a Treasurer and Sergeant-at-arms, all
elected by plurality vote of the House.255
§4.40. Chapter government.
The fundamental objective of the Chapter, organized in every
province and some major political subdivisions and cities, is to
administer the affairs of the Integrated Bar within its territorial
jurisdiction under the general direction and supervision of the Board
of Governors, with the end in view of elevating the standards of the
legal profession, improving the administration of justice, enabling
the bar to discharge its public responsibility more effectively and
carrying out the purposes of the Integrated Bar.256
Each Chapter comprising all members registered in its
membership roll has its own government.257 The chapter government
is vested in a Board of Officers composed of a President, a VicePresident, a Secretary, a Treasurer and five Directors, who shall
be elected at the biennial meeting and shall hold office for a term of
two years from the first day of April next following their election and
until their successors shall have been duly chosen and qualified.268
252Art.
253Art.
V, Sec. 31, id.
V, Sec. 33, id.
V, Sec. 34, id.
255Art. V, Sec. 33, id.
256Sec. 1, Chapter By-Laws, Integrated Bar.
267Art. V, Sec.
27, By-Laws of
254Art.
Chapter V
LAWYER’S DUTIES TO COURTS
A. LAWYER OWES CANDOR AND FAIRNESS
TO THE COURTS
§5.01. Lawyer’s duties to court, generally.
A lawyer is, first and foremost, an officer of the court. His
duties to the court are more significant than those which he owes to
his client.1 His first duty is not to his client but to the administration
of justice; to that end, his client’s success is wholly subordinate; and
his conduct ought to and must always be scrupulously observant
of the law and ethics of the profession.2 For like the court itself, a
lawyer is an instrument to advance the ends of justice. His superior
retainer is with the court, which outlasts all his retainers with his
clients.3 Accordingly, should there be a conflict between his duty to
his client and that to the court, he should resolve the conflict against
the former and in favor of the latter, his primary responsibility being
to uphold the cause of justice.4
A lawyer owes the court the duty to render no service or to do
no act which involves disrespect to the judicial office,6 adoption of
legal proposition which is not honestly debatable,6 artifice or false
•Salcedo v. Hernandez, 61 Phil. 724 (1935); Cobb-Perez v. Lantin, 24 SCRA
291 (1968).
2City Seriff, Illigan City v. Fortunato, 288 SCRA 190 (1998), citing Agpalo,
Legal Ethics, 1989 ed., p. 110.
3Surigao Mineral Reservation Board v. Cloribel, 31 SCRA 1 (1970); Castaneda
v. Ago, 65 SCRA 505 (1975); Ledesma v. Climaco, 57 SCRA 473 (1974); Chavez v.
Viola, 196 SCRA 10 (1991); Maglasang v. People, 190 SCRA 306 (1990).
4Cobb-Perez v. Lantin, supra; Castaneda v. Ago, supra.
6Lualhati v. Albert, 57 Phil. 87 (1932); In re Almacen, 31 SCRA 562 (1970).
6People v. Young, 83 Phil. 702 (1949).
142
LAWYER’S DUTIES TO COURTS
143
statement of fact or law to mislead the court,7 or unlawful conspiracy
with his client, a third person or a judge tending to frustrate or delay
the administration of justice or to secure for his client that which is
not legally and justly due him.8 Utmost good faith and punctilio of
honor are standards of conduct required of every lawyer pleading
his cause before a court of justice.9
§5.02. A lawyer should be candid and truthful to court.
Canon 9 provides that “A lawyer owes candor, fairness and good
faith to the court.” He is an officer of the court exercising a privilege,
which is indispensable in the administration of justice. If he were
to act other than candidly, fairly and truthfully, the administration
of justice will suffer as a result thereby.10 The Supreme Court aptly
underscored the reasons therefor:
“As between the lawyer and the courts, a lawyer owes
candor, fairness and good faith to the court. He is an officer
of the court exercising a privileges which is indispensable in
the administration of justice.11 Candidness, especially towards
the courts, is essential for the expeditious administration of
justice. Courts are entitled to expect only complete honesty
from lawyers appearing and pleading before them. Candor in
all dealings is the very essence of honorable membership in
the legal profession. More specifically, a lawyer is obliged to
observe the rules of procedure and not to misuse them to defeat
the ends of justice. It behooves a lawyer, therefore, to exert
every effort and consider it his duty to assist in the speedy and
efficient administration of justice. Being an officer of the court,
a lawyer has a responsibility in the proper administration of
justice. Like the court itself, he is an instrument to advance its
ends — the speedy, efficient, impartial, correct and inexpensive
adjudication of cases and the prompt satisfaction of final
judgment. A lawyer should not only help attain these objectives
but should likewise avoid any unethical or improper practices
that impede, obstruct or prevent their realization, charged
7Occena
v. Marquez, 60 SCRA 38 (1974).
8Langen v.
Borkowski, 188 Wis 277, 43 ALR 622 (1925).
Mineral Reservation Board v. Cloribel, supra.
“Comments of IBP Committee that drafted the Code, p. 53.
“Citing Agpalo, Legal Ethics, 1992 ed., p. 109.
9Surigao
144
LEGAL AND JUDICIAL ETHICS
as he is with the primary task of assisting in the speedy and
efficient administration of justice.”12
It cannot be gainsaid that candor, especially towards the
courts, is essential for the expeditious administration of justice.
Courts are entitled to expect only complete candor and honesty from
the lawyers appearing and pleading before them. A lawyer, on the
other hand, has the fundamental duty to satisfy that expectation.
Otherwise, the administration of justice would gravely suffer.13
A lawyer’s conduct before the court should be characterized
by truthfulness, frankness, candor and fairness.14 Candor in all his
dealings is of the very essence of honorable membership in the legal
profession.16 It requires that a lawyer act with the highest standards
of truthfulness, fair play and nobility in the conduct of litigation and
in his relations with his client, the opposing party and his counsel,
and the court before which he pleads his client’s cause.16 For the
principles of legal ethics demand good faith of the highest order in
the practice of law.17
It is thus unprofessional to deal other than candidly with
the facts in taking statements of witnesses, in drawing affidavits
and other documents and in the presentation of causes.18 A lawyer
should not suppress material and vital facts which bear on the merit
or lack of merit of a complaint or petition.19 He should volunteer to
the court any development of the case which has rendered the issue
raised moot and academic and thus help in its prompt disposition
and avoid the time of the court from being needlessly wasted.20 He
should disclose to the court any decision adverse to his position, of
which opposing counsel is apparently ignorant and which the court
should obviously consider in deciding the case. He may, of course
after doing so, challenge the soundness of the decision or present
12Far
Eastern Shipping Co. v. CA, 297 SCRA 30,51-52 (1998).
Viola, 196 SCRA 10 (1991).
14Albert v. Court of First Instance, 23 SCRA 948 (1968); Pangan v. Ramos, 93
SCRA 87 (1979).
16Cuaresma v. Daquis, 63 SCRA 257 (1975).
16Director of Lands v. Adorable, 77 Phil. 468 (1946).
17People v. Casiano, 111 Phil. 73 (1961).
18Canon 22, Canons of Professional Ethics.
19Orbit Transportation Co. v. WCC, 58 SCRA 78 (1974); Santos v. Paguio, 227
SCRA 1 (1993).
20Chan Kian v. Angsin, 53 SCRA 295 (1972); National Shipyard and Steel
Corp. v. CIR, 61 SCRA 125 (1974).
13Chavez v.
LAWYER’S DUTIES TO COURTS
145
reasons which he believes would warrant the court in not following
it in the pending case.21
A lawyer who represented himself as lawyer for a client,
appeared for him in court and presented pleadings, only to claim
later that he was not authorized to do so is remiss in his duties and
reckless in the performance of his responsibilities. Candor toward
the courts is a cardinal requirement of practicing lawyer. To say one
thing today and another tomorrow is a transgression of such duty.22
A lawyer, however, though an officer of the court and charged
with the duty of candor and fairness, is not an umpire but an
advocate. He is under no duty to refrain from making every proper
argument in support of any legal point because he is not convinced
of its inherent soundness. Neither is he under obligation to suggest
arguments against his position. His personal belief in the soundness
of his cause or of the authorities supporting it is irrelevant.23
§5.03. A lawyer shall do no falsehood.
“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 article.”24 He swore, upon his admission to practice, that he
will do no falsehood and conduct himself according to the best of
his knowledge and discretion with all good fidelity to the court and
to his client; employ in the conduct of a case such means only as
are consistent with truth and honor; and never to seek to mislead
the courts by an artifice or false statement of fact or law. The oath
embodies, in a capsule, the fundamental duties of a lawyer, which
he must honor as there would be a great detriment to, if not a
failure of, the administration of justice if courts could not rely on the
submissions and representations of lawyers in the handling of their
cases.26
A lawyer should not conceal the truth from the court, nor
mislead the court in any manner, no matter how demanding his
duties to his clients may be. His duties to his client should yield
21A.B.A.
Op. 146 (July 17,1935); A.B.A. Op. 280 (June 18,1949).
22Paluwagan ng
Ethics.
(1973).
Bayan Savings Bank v. King, 172 SCRA 60 (1989).
“A.B.A. Op. 280 (June 18,1949); See Canons 5 and 15, Canons of Professional
“Rule 10.01, Code of Professional Responsibility.
25Berenguer v. Carranza, 26 SCRA 673 (1969); Casals v. Cusi, 53 SCRA 58
146
LEGAL AND JUDICIAL ETHICS
to his duty to deal candidly with the court. For no client is entitled
to receive from the lawyer any service involving dishonesty to the
courts.26 He violates such duty when he alleged in his complaint that
his clients were lessees of a parcel of land and thereafter alleged,
in an application for registration of such land, that his clients
were owners thereof, for one of such pleadings is false.27 A lawyer
should neither endeavor by dishonest means to mislead the court
or the adverse party nor make false allegations in a pleading.28 It
is improper for counsel of the accused to ask him to plead guilty
to an offense which counsel knows his client did not commit,29 to
make complaining witness believe that he is working for him and
to instruct him not to appear at the scheduled hearing so that the
case against his client would be dismissed for non-appearance of the
offended party.30
§5.04. A lawyer should not misquote nor misrepresent.
Rule 10.02 of the Code requires that “A lawyer shall not knowingly misquote or misrepresent the contents of a paper, the language
or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has
not been proved.” To knowingly misquote or misrepresent in any of
these matters is not only unprofessional but contemptuous as well.
A lawyer who deliberately made it appear that the quotations in
his motion for reconsideration were findings of the Supreme Court,
when they were just part of the memorandum of the Court Administrator, and who misspelled the name of the complainant and made
the wrong citation of authority is guilty of violation or Rule 10.02 of
the Code.31
There is another equally important reason why a lawyer
should not misquote nor misrepresent the decision of the court. The
Supreme Court in a case explained: “(I)n citing this Court’s decisions
and rulings, it is the bounden duty of courts, judges and lawyers to
“Comments of IBP Committee that drafted the Code, p. 53.
27Chavez v. Viola, 196 SCRA 10 (1991).
(1975); Gentugao v. Court of Appeals, 71 SCRA 565 (1976).
“Occena v. Marquez, 60 SCRA 38 (1974); Cuaresma v. Daquis, 63 SCRA 257.
“Nueno v. Santos, 58 Phil. 557 (1933).
30Cantorme v. Ducasin, 57 Phil. 23 (1932).
31Comelec v. Noynay, 292 SCRA 254 (1992).
LAWYER’S DUTIES TO COURTS
147
reproduce or copy the same word for word and punctuation mark by
punctuation mark. Indeed, there is a salient and salutary reason
why they should do this. Only from this Tribunal’s decisions and
rulings do all other courts, as well as lawyers and litigants take
their bearings. This is because the decisions referred to in Article
8 of the Civil Code which reads, ‘Judicial decisions applying or
interpreting the laws or the Constitution shall form part of the
legal system of the Philippines’ are only those enunciated by this
Court of last resort, x x x Thus, ever present is the danger that if not
faithfully and exactly quoted, the decisions and rulings of this Court
may lose their proper and correct meaning, to the detriment of other
courts, lawyers and the public who may thereby be misled. If inferior
courts and members of the bar meticulously discharge their duty
to check and recheck their citations of authorities culled not only
from this Court’s decisions but from other sources and make certain
that they are verbatim reproductions down to the last word and
punctuation mark, appellate courts will be precluded from acting
on misinformation, as well as be saved precious time in finding out
whether the citations are correct.”32
It has been held that a lawyer should not assert as meritorious
his client’s case when he has in his possession adverse information
or knowledge in regard thereto.33
A lawyer should always bear in mind that he is an officer in the
temple of justice whose high vocation is to correctly inform the court
upon the law and the facts of the case and to aid it in doing justice
and arriving at correct conclusions.34
§5.05. A lawyer shall not misuse rules of procedure.
“A lawyer shall observe the rules of procedure and shall not
misuse them to defeat the ends of justice.”36 This rule is ever timely
and should always be inculcated among lawyers because the rules of
procedure offer innumerable opportunities and means for delay and
to defeat the ends of justice. Procedural rules are instruments in the
speedy and efficient administration of justice. They should be used
to achieve such end and not to derail it. Thus, the filing by a lawyer
32Insular Life Assurance Co., Ltd. Employees Ass’n. v. Insular Life Assurance
Co., Ltd., 37 SCRA 244, 279-280 (1971).
33The
Philippine British Co. v. De los Angeles, 65 SCRA 118 (1975).
Ramos, 93 SCRA 87 (1979).
36Rule 10.03, Code of Professional Responsibility.
34Pangan v.
LEGAL AND JUDICIAL ETHICS
148
of multiple petitions regarding the same subject matter constitutes
abuse of the court’s processes and improper conduct that tends to
obstruct and degrade the administration of justice.36
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. While a lawyer owes fidelity to the cause of his client, it should
not be at the expense of truth and the administration of justice.37 He
should not forget that he is an officer of the court, bound to exert
every effort to assist in the speedy and efficient administration of
justice. He should not misuse the rules of procedure to defeat the
ends of justice or unduly delay a case, impede the execution of final
judgments or misuse court processes.38 He does not discharge his responsibility to assist in the proper administration of justice by filing
pointless petitions. A judicious study of the facts and the law should
advise him when a case should not be filed, as it would only clutter
the dockets. He does not advance the cause of the law or his client
by commencing litigations that for sheer lack of merit do not deserve
the attention of the courts.39
The filing by a lawyer of a petition as a scheme to frustrate and
further delay the execution of a final and executory judgment is a
misuse of judicial process. As an officer of the court, a lawyer should
not misuse the rules of procedure to defeat the ends of justice or
unduly delay or impede the execution of final judgment, otherwise
he may be subjected to disciplinary sanctions. And courts must
guard themselves against any scheme to deprive the winning party
of the fruits of the verdict, for courts are constituted to put an end
to controversies and they should prevent any attempt to prolong
them.40
A deliberate misreading or misinterpretation of the law by a
lawyer also falls under the injunction and puts him in public distrust.
For as the Court explained:
36Macias v. Uy Kim, 45 SCRA 251 (1970); Gabriel v. Court of Appeals, 72 SCRA
273 (1976).
37Garcia
v. Francisco, 220 SCRA 512 (1993).
Gardens Memorial Part Corp. v. CA, 293 SCRA 622 (1998).
39Pepsi Cola Products Phil., Inc. v. CA, 299 SCRA 518 (1998).
40Gomez v. Presiding Judge, 249 SCRA 432 (1995).
38Etemal
LAWYER’S DUTIES TO COURTS
149
“One reason why there is a degree of public distrust for
lawyers is the way some of them misinterpret the law to the
point of distortion in a cunning effort to achieve their purpose.
By doing so, they frustrate the ends of justice and at the same
time lessen popular faith in the legal profession as the sworn
upholder of the law. While this is not to say that every wrong
interpretation of the law is to be condemned, as indeed most
of them are only honest errors, this Court must express its
disapproval of the adroit and intentional misreading designed
precisely to circumvent or violate it.”41
B. OBSERVING AND MAINTAINING RESPECT DUE
THE COURTS AND JUDICIAL OFFICERS.
§5.06. Respect due the courts.
Canon 11 of the Code provides that “A lawyer shall observe
and maintain the respect due to the courts and to judicial officers
and should insist on similar conduct by others.” This canon
should constantly remind lawyers that second only to the duty of
maintaining allegiance to the Republic of the Philippines and to
support the Constitution and obey the laws of the land is the duty of
all attorneys to observe and maintain the respect due to the courts
of justice and judicial officers. The faithful performance of this duty
is necessary for the stability of democratic institutions.42
A lawyer should conduct himself toward judges with that
courtesy all have a right to expect43 and with the propriety which
the dignity of the courts requires.44 For his “investiture into the
legal profession places upon his shoulders no burden more basic,
more exacting and more imperative than that of respectful behavior
toward the courts.”45
A lawyer owes the court the duty to observe and maintain a
respectful attitude not for the sake of the temporary incumbent of the
41Banogon v.
42Zaldivar
Zema, 154 SCRA 593, 598 (1987).
v. Gonzales, 166 SCRA 316 (1988).
^People v. Carillo, 77 Phil. 572 (1946); Paragas v. Cruz, 14 SCRA 809 (1965).
“Salcedo v. Hernandez, 61 Phil. 729 (1935).
*In re Almacen, 31 SCRA 562 (1970).
150
LEGAL AND JUDICIAL ETHICS
judicial office but for the maintenance of its supreme importance.46
Respect of courts helps build the high esteem and regard toward
them which is essential to the proper administration of justice.47 It
moreover guarantees the stability of their institution, without which
guarantee said institution would rest on a shaky foundation.48
A lawyer violates Canon 11 of the Code when he threatens
the judge with the filing of an administrative charge if his motion
is not granted.49 Similarly, his berating the researcher of the court
in his pleading is disrespectful to the court itself.60 A lawyer who
openly defied the temporary restraining order issued by the Court of
Appeals is guilty of disrespect to the court.51
The duty to observe and maintain the respect due the courts
devolves not only upon lawyers but also upon those who will choose to
enter the profession. They have as much the same duty as a member
of the bar to observe the respect due the courts, and their failure to
discharge such duty may prevent them from being inducted into the
office of attorney.52
§5.07. Obeying court orders.
Lawyers are particularly called upon to obey court orders and
processes.53 They should stand foremost in complying with the court’s
directives or instructions.64 Court orders, however erroneous they
may be, must be respected especially by lawyers who are themselves
officers of the court.66
The reason is that judges who issue the orders or rulings
should not only be respected but respect and consideration should
likewise be extended to the judicial branch of the government. This
is absolutely essential to the maintenance of a government of laws
■“People v. Estebia, 27 SCRA 106 (1969); Rheem of the Phil. v. Ferrer, 20 SCRA
441 (1967).
47People v.
Carillo, supra.4, Paragras v. Cruz, supra.
Hernandez, supra.-, Montecillo v. Gica, 60 SCRA 234 (1974).
49ToIentino v. Cabral, 329 SCRA 1 (2000).
“Maglucot-Aw v. Maglucot, 329 SCRA 78 (2000).
51Villafor v. Santa, 308 SCRA 129 (1999).
“Andres v. Cabrera, 94 SCRA 514 (1979).
b3In re Abistado, 57 Phil. 668 (1932).
54Ngayan v. Tugade, 193 SCRA 779 (1991), citing Ruben Agpalo, Legal Ethics,
2nd ed., p. 75.
66De Leon v. Torres, 99 Phil. 463 (1956).
48Salcedo v.
LAWYER’S DUTIES TO COURTS
151
and not of men. Respect must be had not because of the incumbents
to the judicial positions but because of the authority that vests in
them. Disrespect to judicial incumbents is disrespect to that branch
of the government to which they belong, as well as to the State which
has instituted the judicial system.56
It will of course be a trying ordeal for attorneys under certain
conditions to maintain respectful obedience to the court. It may
happen that counsel possesses greater knowledge of the law than
the judge who presides over the court. It may also happen that
since no court claims infallibility judges may grossly err in their
decisions. Nevertheless, discipline and self-restraint on the part of
the members of the bar even under these adverse conditions are
necessary for the orderly administration of justice.67 It has thus been
aptly observed:
“The counsel in any case may or may not be an abler or
more learned lawyer than the judge and it may tax his patience
and temper to submit to rulings which he regards as incorrect,
but discipline and self-respect are as necessary to the orderly
administration of justice as they are to the effectiveness of an
army. The decisions of the judge must be obeyed because he
is the tribunal appointed to decide, and the bar should at all
times be the foremost in rendering respectful submission.”58
Obedience to lawful orders of the court is underscored by the
fact that a willful disregard thereof may subject the lawyer not only
to punishment for contempt but to disciplinary sanction as an officer
of the court as well.59 The word “willful” conveys the idea of flagrant
misconduct such as would indicate a disposition on the part of a
lawyer so refractory in character as to affect his qualifications and
standing for the further exercise of his profession.60 A lawyer who
gives a clearly unsatisfactory explanation as to why he failed to
comply with a lawful order or who simply ignores it commits an act
within the meaning of the term “willful disobedience.” Such conduct
evinces disrespect to the court and a willful disregard of his solemn
duty as an attorney to employ in the conduct of a case such means
“De Leon v. Torres, 99 Phil. 463 (1956).
6,Surigao
Mineral Reservation Board v. Cloribel, 31 SCRA 1 (1970).
“Jn re Almacen, 31 SCRA 562 (1970) quoting Scouten, 40 Atl. 482.
mIn re MacDougall, 3 Phil. 70 (1903); De Leon v. Torres, 99 Phil. 463 (1956).
mIbid.; People v. Estebia, 69 SCRA 402 (1975).
152
LEGAL AND JUDICIAL ETHICS
only as are consistent with truth and honor.61 One such misconduct,
for which a number of lawyers have either been fined or suspended
from practice, is the failure to comply with the court’s order to file
appellant’s brief or comment within the required period.62
§5.08. Defending judges from unjust criticism.
It is the attorney’s duty as an officer of the court to defend a
judge from unfounded criticism or groundless personal attack.63 This
requires of him not only to refrain from subjecting the judge to wild
and groundless accusation but also to discourage other people from
so doing and to come to his defense when he is so subjected.64 By the
very nature of his position a judge lacks the power, outside of his
court, to defend himself against unfounded criticism and clamor and
it is the attorney, and no other, who can better or more appropriately
support the judiciary and the incumbents of the judicial positions.65
In special civil actions or proceedings, a judge whose decision
or order is under attack in a higher court is merely a nominal
party.66 A decent regard for the judicial hierarchy bars the judge
from seeking a reversal of his action and requires the lawyer to
refrain from making the judge appear as a party suing against the
adverse ruling,67 so that he may not be distracted from his main
function of trying and adjudicating cases in court. The burden of
defending his challenged action falls on private respondent and the
latter’s counsel may be subjected to disciplinary action should he fail
to discharge the task.68
§5.09. A lawyer shall appear in proper attire.
“A lawyer shall appear in court properly attired,”69 which
should be a Barong Tagalog or a coat and tie, either of which is the
61Casals
v. Cusi, 52 SCRA 59 (1973).
62People v. Manangan, 56 SCRA 817 (1974); People v. Rosqueta, 55 SCRA 846
(1974) ; People v. Dalusag, 62 SCRA 450 (1975).
“People v. Carillo, 77 Phil. 572 (1946); Surigao Mineral Reservation Board v.
Cloribel, supra.
MSee Cabansag v. Fernandez, 102 Phil. 152 (1957).
“Surigao Mineral Reservation Board v. Cloribel, 31 SCRA 1 (1970).
“Alcasid v. Samson, 102 Phil. 735 (1957); Taroma v. Sayao, 67 SCRA 508
(1975)
.
67Alcasid v. Samson, supra.; Lim See v. Argel, 70 SCRA 378 (1976).
taroma v. Sayo, supra.
69Rule 11.01, Code of Professional Responsibility.
LAWYER’S DUTIES TO COURTS
153
recognized formal attire in the country. Respect to the court must
begin with the lawyer’s outward physical appearance in court. Sloppy
or informal attire adversely reflects on the lawyer and demeans the
dignity and solemnity of court proceedings. If he dresses improperly,
he may be cited for contempt.
§5.10. Lawyer shall be punctual.
A lawyer should show respect due the court and judicial officer
by appearing during the trial of a case punctually and in proper
attire. The Code of Professional Responsibility requires that a “lawyer
shall punctually appear in court hearings”70 “properly attired.” He
owes it not only to his client but to the court and the public as well
to be punctual in attendance and to be concise and direct in the trial
and disposition of causes.71 Inexcusable absence from, or repeated
tardiness in, attending a pre-trial or hearing may not only subject
the lawyer to disciplinary action,72 but may also prejudice his client
who, as a consequence thereof, may be non-suited, declared in
default or adjudged liable ex parte, as the case may be.
§5.11. A lawyer shall abstain from offensive language or
behavior.
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.73 His arguments, 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.74
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 a disrespect to
™Rule 11.02, Code of Professional Ethics.
(1979).
71Canon 21,
72De
Canons of Professional Ethics; Cantelang v. Medina, 91 SCRA 403
Gracia v. Warden of Makati, 69 SCRA 4 (1976).
Mineral Reservation Board v. Cloribel, 31 SCRA 1 (1970); Rheem of
the Phil. v. Ferrer, 20 SCRA 441 (1967); In re Climaco, 55 SCRA 107 (1974).
74Romero v. Valle, 147 SCRA 197 (1987), citing Agpalo, Legal Ethics, U.P. Law
Center, 1980 ed., 68-69, 548.
,3Surigao
154
LEGAL AND JUDICIAL ETHICS
the dignity of the court of justice. Moreover, the use of impassioned
language in pleadings, more often than not, creates more heat than
light.76
Rule 11.03 of the Code provides: “A lawyer shall abstain
from scandalous, offensive or menacing language or behavior
before the courts.” While he should so abstain from using such
language, no doubt he may, when the circumstances require,
use strong language to drive home a point.76 He has the right to
be assiduous and zealous, even tenacious, in the prosecution or
defense of the client’s cause.77 He should be courageous enough
to point out errors, arbitrariness and injustice of the courts and
judges. The fear of provoking displeasure of the offended judges
must not deter him from complying with this duty to object to
illegal or erroneous judicial decisions, rulings, acts or conduct.78
He should be allowed some latitude of remark or comment in
the furtherance of the causes he upholds. For the felicity of his
client he may be pardoned for some infelicities of language.™
It must not, however, be forgotten that a lawyer pleads; he does
not dictate.80 He should be courageous, fair, and circumspect, not petulant or combative or bellicose in his dealings with the court.81 The
prosecution or defense of the client’s cause does not permit a lawyer
to cross the line between liberty and license.82 He should not assail,
without basis, the personal integrity of a judge and accuse him of
misfeasance in an attempt to hide his own inadequacies and omissions to escape criticism of his client.83 Neither should he attribute to
a judge motives not supported by the record or have no materiality
to the case.84 For while a judge as a public official is not supposed
to be onion-skinned, neither is he supposed to be so thick-skinned
76Buenaseda .
76Femandez
77The
Flavier, 226 SCRA 645 770 (1993).
v. Bello, 107 Phil. 1140 (1960).
British Co. v. De los Angeles, 63 SCRA 50 (1975).
Justice Perfecto’s concurring and dissenting opinion, People v. Carillo, 77
Phil. 572, 582 (1946).
laIn re Pilar, 104 Phil. 743 (1958); Enriquez v. Bidin, 47 SCRA 183 (1972);
Deles v. Aragona, Jr., 27 SCRA 633.
“Rodil v. Garcia, 104 SCRA 362 (1981).
8IBaja v. Macandog, 158 SCRA 391 (1988).
82Surigao Mineral Reservation Board v. Cloribel, 31 SCRA 1 (1970); In re Almacen, 31 SCRA 562 (1970).
“The Phil.-British Co. v. De los Angeles, 63 SCRA 50 (1975).
“Rule 11.04, Code of Professional Responsibility.
78See
LAWYER’S DUTIES TO COURTS
155
as to be impervious to groundless personal attack.86 Disrespectful,
abusive and abrasive language, offensive personalities, unfounded
accusations or intemperate words tending to obstruct, embarrass or
influence the court in administering justice or to bring it into disrepute have no place in a pleading.86 Their employment serves no useful purpose and on the contrary constitutes direct contempt of court
or contempt in facie curiae87 and a violation of the lawyer’s oath and
a transgression of the canons of professional ethics, for which a lawyer may be administratively disciplined.88
The discharge of the lawyer’s duty to his client does not justify
or require the use of inflammatory or threatening words because
in order to call the attention of the court in a special way to the
essential points relied upon in an argument and emphasize the force
thereof, the many reasons advanced are sufficient and the abusive
and abrasive words superfluous.89 Neither does the mistake of a judge
in some of his rulings warrant the use of offensive language.90 Nor
does his superior ability permit him to lampoon the judge. For as
has been aptly said: “(A) lawyer may think highly of his intellectual
endowment. That is his privilege. And he may suffer frustration at
what he feels is other’s lack of it. That is his misfortune. Some such
frame of mind, however, should not be allowed to harden into belief
that he may attack a court’s decision in words calculated to jettison
the time honored aphorism that courts are the temple of right. He
should give allowance to the fact that judges are but men; and men
are encompassed by error, fettered by fallibility.”91
In championing the cause of his client, a lawyer should not
resort to insulting or disparaging language amounting to disrespect
toward the court. While he must advocate his client’s cause in utmost
earnest and with maximum skill he can marshal, he is not at liberty
to resort to arrogance, intimidation, and innuendo. He should not
“/n re Pilar, 104 Phil. 743 (1958).
“Surigao Mineral Reservation Board v. Cloribel, supra.; Rheem of the Phil,
v. Ferrer, 20 SCRA 441 (1967); Lim See v. Argel, 70 SCRA 378 (1976); In re Almacen, supra.; People v. Manobo, 18 SCRA 30 (1966); Urbina v. Maceren, 57 SCRA 403
(1974)
.
81Salcedo v. Hernandez, 61 Phil. 724 (1935); Femandos v. Reyes, 64 SCRA 270
(1975)
.
“Zaldivar v. Gonzales, 166 SCRA 316 (1988); Sanggalang v. Intermediate Appellate Court, 177 SCRA 87 (1989).
89Salcedo v. Hernandez, supra.; Rheem of the Phil. v. Ferrer, supra.
“Cornejo v. Tan, 85 Phil. 772 (1950).
91Rheem of the Phil. v. Ferrer, supra.
156
LEGAL AND JUDICIAL ETHICS
think that he can win his case by sheer multiplication of words nor
hide the weakness of his client’s case with inflammatory language.
While courts are not unreceptive to comments and criticisms of their
decisions, provided they are fair and dignified, lawyers should not
transcend the limits of fair comments, otherwise they deserve the
Court’s rebuke.92
Alawyer who uses intemperate, abusive, abrasive or threatening
language betrays the weakness of his client’s cause, shows disrespect
to the court, disgraces the bar and invites the exercise by the court
of its disciplinary power.93 Upon reflection on his conduct and on
his obligations as an officer of the court he will certainly realize the
impropriety of his action, which oftentimes comes too late as he has
in the meanwhile been disciplined.94
§5.12. A judge should be courteous to lawyer to merit
respect.
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.95 He
should be civil, for it is unbecoming of a judge to utter intemperate
language during the hearing of a case.96 For “if a judge desires not
to be insulted he should start using temperate language himself; he
who sows the wind will reap a storm.”97
§5.13. Upholding court’s authority and dignity.
As member of the bar and an officer of the court, a lawyer
should uphold the dignity and authority of the court and not promote
distrust in the administration of justice.98 He should seek to preserve
faith in the courts and help build and not destroy the high esteem
92Sanggalang
pra.
93Surigao
v. Intermediate Appellate Court, 177 SCRA 87 (1989).
Mineral Reservation Board v. Cloribel, supra.', In re Almacen, su-
94Zaldivar
v. Gonzales, supra.; In re Gomez, 43 Phil. 376.
Canons of Judicial Ethics.
“Retuya v. Equipilog, 91 SCRA 416 (1979); Santos v. Cruz, 100 SCRA 538
95Canon 10,
(1980).
9,Femadez
v. Bello, 107 Phil. 1140, 1146 (1960).
"Surigao Mineral Reservation Board v. Cloribel, 31 SCRA 1 (1970).
LAWYER’S DUTIES TO COURTS
157
and regard toward them." He owes the court such duty not only
because it has conferred upon him its high privilege of being what he
is now: A priest of justice, but also because in upholding the court’s
dignity and authority he avoids mistrust in the administration of
justice and prevents anybody from harboring and encouraging
discontent and thus strengthens the foundation upon which rests
that bulwark called judicial power to which those who are aggrieved
turn for protection and relief.100
§5.14. A lawyer shall not attribute to a judge improper
motives.
A judge may commit errors or mistakes in his decisions. He may,
without realizing it, abuse his discretion in the resolution of issues
before him. They do not, however, justify a lawyer to “attribute to
a judge motives not supported by the record or have no materiality
to the case.”101 He should not make hasty accusation against the
judge, before whom he pleads his case, without any cogent and valid
ground extant in the record. His arguments, written or oral, should
be gracious to both the court and opposing counsel.102
The rule does not preclude a lawyer from criticizing judicial
conduct. The rule allows such criticism so long as it is supported by
the record or is material to the case. His right to criticize the acts
of courts and judges in a proper and respectful way and through
legitimate channels is well recognized. The fact that a person is a
lawyer does not deprive him of the right, enjoyed by every citizen,
to comment on and criticize the actuations of a judge. For a lawyer
“does not surrender, in assuming the important place accorded him
in the administration of justice, his right as a citizen to criticize
the decisions of the courts in a fair and respectful manner, and the
independence of the bar as well as the judiciary has always been
encouraged by the court.”103
"People v. Carillo, 77 Phil. 572 (1946); In re Climaco, 55 SCRA 107 (1974).
100Salcedo v.
Hernandez, 61 Phil. 724 (1935).
11.04, Code of Professional Responsibility.
102People v. Taneo, 284 SCRA 251 (1998).
103In re Ades, 6 F. Supp. 487, quoted in In re Almacen, supra.
101Rule
LEGAL AND JUDICIAL ETHICS
158
§5.15. A lawyer shall submit grievances to proper authorities.
The duty of the bar to support the judge against unjust
criticism and clamor104 does not, however, preclude a lawyer from
filing administrative complaints against erring judges or from
acting as counsel for clients who have legitimate grievances against
them. However, Rule 11.05 of the Code reminds that “A lawyer shall
submit grievances against a judge to the proper authorities only,”
which means that they be filed with the Supreme Court which has
administrative supervision over all courts and the power to discipline
judges of lower courts.105
A lawyer may prefer charges against a judge only after proper
circumspection and without the use of disrespectful language and
offensive personalities so as not to unduly burden the court in the
discharge of its functions. The filing on behalf of disgruntled litigants
of unfounded or frivolous charges against judges and the use of
offensive and intemperate language as a means of harassing the
judge whose decisions have not been to their liking will subject them
to appropriate disciplinary action as officers of the court.106 For any
unfounded or groundless accusation against a judge may undermine
the people’s faith in the judicial edifice. And as an officer of the court,
it is the lawyer’s legal and moral duty to help build and not destroy
unnecessarily that high esteem and regard toward the court which
is essential to the administration of justice.107 The performance of
that duty demands that the lawyer refrain from filing, or be not
a party to the bringing of, unfounded charges against judges.108
Moreover, a lawyer may not file administrative complaint against
a judge, which arises from his judicial acts, until the lawyer shall
have exhausted judicial remedies which result in a finding that the
judge has gravely erred. If the lawyer does so without exhausting
such judicial remedies or awaiting the result thereof, he may be
administrative held to account therefor.109
104Canon 1,
106Art.
Canons of Professional Ethics; Cabansag v. Fernandez, supra.
VIII, Secs. 6 and 11, Constitution.
106Urbina v. Maceren, 57 SCRA 403 (1974); Rule 11.05, Code of Professional
Responsibility.
107People v. Carillo, 77 Phil. 572 (1946); Surigao Mineral Reservation Board v.
Cloribel, 31 SCRA 1 (1970); Borromeo v. Court of Appeals, 87 SCRA 67 (1978).
108Urbina v. Maceren, supra. ', Cabansag v. Fernandez, 102 Phil. 152 (1957).
109Flores v. Abesamis, 275 SCRA 302 (1997).
LAWYER’S DUTIES TO COURTS
159
C. ASSISTING THE COURT IN SPEEDY AND
EFFICIENT ADMINISTRATION OF JUSTICE
§5.16. Duty to assist in the administration of justice, generally.
Being an officer of the court a lawyer is part of the machinery
in the administration of justice. Like the court itself, he is an
instrument to advance its ends — the speedy, efficient impartial,
correct, and inexpensive adjudication of cases and the prompt
satisfaction of final judgments. A lawyer should not only help attain
these objectives but should likewise avoid any unethical or improper
practices that impede, obstruct or prevent their realization, charged
as he is with the primary task of assisting in the speedy and efficient
administration of justice. Thus, Canon 12 enjoins him to “exert every
effort and consider it his duty to assist in the speedy and efficient
administration of justice.” He is reminded that a lawyer is, first and
foremost, an officer of the court. His duties to the court are more
significant than those which he owes to his client. His first duty is
not to his client but the administration of justice; to that end, his
client’s success is wholly subordinate; and his conduct ought to and
must always be scrupulously observant of the law and ethics of the
profession.110
Generally, a lawyer may be able to help the court in the due
and orderly administration of justice by doing no act that obstructs,
perverts or impedes the administration of justice and by faithfully
complying with all his duties to the court and to his client.
§5.17. A lawyer should come to court adequately prepared.
Rule 12.01 of the Code provides that “A lawyer shall not appear
for trial unless he has adequately prepared himself on the law and
the facts of his case, the evidence he will adduce and the order of
its preference” and that he “should also be ready with the original
documents for comparison with the copies.” Rule 12.01 should be
read in relation to Rule 18.02, which requires that “A lawyer shall not
handle any legal matter without adequate preparation.” For without
110City Sheriff, Iligan City v. Fortunato, 288 SCRA 190 (1998), citing Agpalo,
Legal Ethics, 1989 ed., p. 110.
LEGAL AND JUDICIAL ETHICS
160
adequate preparation, the lawyer may not be able to effectively assist
the court in the speedy and efficient administration of justice111 nor
can he serve his client with competence and diligence.112
Unless a lawyer comes to court adequately prepared for pretrial
or trial, the pre-trial or hearing may be postponed which would
thus entail delay in the early disposition of the case, or the judge
may consider his client non-suited or in default or consider the case
deemed submitted for decision without his evidence, to his client’s
prejudice. The duty of a lawyer to appear on the dates of hearing
adequately prepared is an obligation which he owes to the court as
well as to his client.113
§5.18. A lawyer shall not file multiple actions.
Litigation must end and terminate sometime and somewhere,
and it is essential to an effective and efficient administration of
justice that once a judgment has become final the winning party be
not, through subterfuge, and misuse of legal process, deprived of that
verdict.114 For this reason, a lawyer should not file several actions
or petitions arising from the same cause or seeking substantially
identical reliefs as those that had already been finally disposed of.115
He should not file pointless petitions that only add to the workload
of the courts.116 He should not enter his appearance as counsel for a
party in a case which had long been terminated by final judgment,117
nor misuse legal remedies to thwart or delay the satisfaction of a
final judgment.118 A lawyer who prostitutes judicial process to secure
for his client what is not justly and validly due him119 or appeals a
case manifestly for the purpose of delay — an improper step often
taken as a means of draining the resources of the poorer party and
of compelling him to submit out of sheer exhaustion or of preventing
mCanon 12,
Code of Professional Responsibility.
ibid.
U2Canon 18,
U3Comments of IBP
Committee that drafted the Code, p. 65.
82 Phil. 776 (1949); Aguinaldo v. Aguinaldo, 36 SCRA
114Likim Tho v. Sanchez,
137 (1970).
115Macias v. Uy Kim, 45 SCRA 251 (1972); Gabriel v. Court of Appeals, 72
SCRA 273 (1976).
116Banogon v. Zema, 154 SCRA 593 (1987).
nlIn re Soriano, 33 SCRA 801 (1970).
118Cobb-Perez v. Lantin, 23 SCRA 637 (1968); Castaneda v. Ago, 65 SCRA 505
(1975).
U9Cobb-Perez v. Lantin, supra.
LAWYER’S DUTIES TO COURTS
161
and even foreclosing the payment of a valid claim — violates his
oath and obstructs the administration of justice.120
While a lawyer owes entire devotion to the interest of his client
and zeal in the defense of his client’s rights, he should not forget that
he is an officer of the court, bound to assist in the speedy and efficient
administration of justice. He does not discharge such responsibility
by filing pointless actions or petitions. A judicious study of the facts
and the law should advise him when a case should not be filed, as
the same would only clutter the dockets. He does not advance the
cause of law or his client by commencing litigations that, for sheer
lack of merit, do not deserve the attention of the court.121
The reason is that a lawyer not only owes to his client the duty
of fidelity but, more important, he owes the duty of good faith and
honorable dealing to the judicial tribunal before which he practices
his profession. Inherent in that duty is the obligation to assist the
court in the speedy disposition of cases. Excessive delay causes
hardships, may force parties into unfair settlement, and, more
significant, nurture a sense of injustice and breed cynicism about
the administration of justice itself.122
§5.19. Lawyer shall not resort to forum shopping.
Rule 12.02 of the Code of Professional Responsibility provides
that a “lawyer should not file multiple actions arising from the same
cause.” He is prohibited from filing a petition with Court of Appeals
or the Regional Trial Court where a similar petition has been filed
or pending with the Supreme Court, and vice versa. By so doing,
he will make a mockery of the judicial process to defeat the ends of
justice and open himself to disciplinary action.123 The restrictions are
intended to prevent forum-shopping.
Section 5, Rule 7 of the Rules of Court provides:
Section 5. Certification against forum shopping. — The
plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief,
120Samar Mining Co., Inc. v. Amado, 24 SCRA 402 (1968); Uypangco v. Equitable Banking Corp., 27 SCRA 12172 (1969); Gillego v. Diaz, 39 SCRA 88 (1971).
121Pepsi Cola Products Phil., Inc. v. Court of Appeals, 229 SCRA 518 (1998);
Eternal Gardens Memorial Park, Corp. v. Court of Appeals, 293 SCRA 622 (1998).
122Magat v. Santiago, 97 SCRA 1 (1980).
123Millare v. Montero, 246 SCRA 1 (1995).
162
LEGAL AND JUDICIAL ETHICS
or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced
any action or filed any claim involving the same issues in any
court, tribunal or quasi-judicial agency and, to the best of his
knowledge, no such other action or claim is pending therein;
(b) if there is such other pending action or claim, a complete
statement of the present status thereof; and (c) if he should
thereafter learn that the same or similar action or claim has
been filed or is pending, he shall report that fact within five (5)
days therefrom to the court wherein his aforesaid complaint or
initiatory pleading has been filed.
Failure to comply with the foregoing requirements shall
not be curable by mere amendment of the complaint or other
initiatory pleading but shall be cause for the dismissal of the
case without prejudice, unless otherwise provided, upon motion
and after hearing. The submission of a false certification or
non-compliance with any of the undertakings therein shall
constitute indirect contempt of court, without prejudice to
the corresponding administrative and criminal actions. If
the acts of the party or his counsel clearly constitute willful
and deliberate forum shopping, the same shall be ground for
summary dismissal with prejudice and shall constitute direct
contempt, as well as a cause for administrative actions.
Forum shopping is the improper practice of going from one
court to another in the hope of securing a favorable relief in one
court which another court has denied or the filing of repetitious suits
or proceedings in different courts concerning substantially the same
subject matter. There is also forum shopping whenever, as a result of
an adverse opinion in one forum, a party seeks a favorable opinion in
another forum, other than appeal or certiorari. The principle applies
not only with respect to suits filed in courts but also in connection
with litigations commenced in courts while administrative
proceeding is pending, in order to defeat administrative processes
and in anticipation of an unfavorable administrative ruling and a
favorable court ruling.124
The new Rules of Court require that a certification against
forum shopping be made on initiatory pleading, omitting therefrom
124Buan v. Lopez, 145 SCRA 34 (1986); Minister of Natural Resources v. Heirs
of Huges, 155 SCRA 566 (1987); Pacquing v. Court of Appeals, 115 SCRA 117 (1982);
Villanueva v. Adre, 172 SCRA 876 (L989); Crisostomo v. SEC, 179 SCRA 146 (1989).
LAWYER’S DUTIES TO COURTS
163
“applications” which was required under Circular No. 04-94. There
being no such mention of “applications” in the new Rules of Court, in
effect amending Circular No. 04-94, applications for search warrant
need not contain a non-forum certification.125
The rule against forum shopping and the requirement that a
certification to that effect be complied with in the filing of complaints,
petitions, or other initiatory pleadings in all courts and agencies applies to quasi-judicial bodies, such as the NLRC or Labor Arbiter.126
§5.20. Duty to disclose pending case.
Every party filing any initiatory pleading is required to swear
under oath that he has not and will not commit forum shopping. This
requires disclosure of any pending case at the time the initiatory
pleading is filed, even if he has withdrawn the pending case because
before its dismissal said case is still legally pending. The fact that
the initiatory pleading is not based on the same cause of action as
the pending case is not a valid excuse for non-compliance with the
disclosure requirement, otherwise the parties themselves would
be the judge whether the filing of the action or petition constitutes
violation of the rule against forum shopping.127
§5.21. Verification must be signed by party, not his counsel;
exception.
The forum shopping certification must be signed by the party
himself as he has personal knowledge of the facts therein stated;
it should not be executed by his counsel. Where there two or more
plaintiffs or petitioners, all of them must sign the verification and
non-forum certification, unless the one who signs the verification
and certification has been authorized to execute the same by, and
on behalf of, the co-plaintiff or co-petitioner128 or except where the
joint parties are husband and wife involving their property, in which
case only the husband may sign the verification.129 If the party is a
125Kenneth Roy Savage/K Angelin Export Trading v. Taypin, G.R. No. 134217,
May 11, 2000.
126Maricalum Mining Corp. v. NLRC, 298 SCRA 378 (1998).
127Soller v. Comelec, 339 SCRA 685 (2000).
128Loquias v. Office of the Ombudsman, 338 SCRA 62 (2000).
129Dar v. Alonzo-Legasto, 339 SCRA 306 (2000).
164
LEGAL AND JUDICIAL ETHICS
juridical person, the certification must be executed by a corporate
officer or agent duly authorized by its board of directors.130
A non-forum certification executed by counsel of the party
is fatally defective, unless the counsel certifies in the certification
against forum shopping that he has personal knowledge of the
facts therein stated and gives justifiable reason or explanation
why the party himself cannot sign the same.131 The reason why the
certification against forum shopping has to be executed by the party
himself and not his lawyer is because while the lawyer is aware of
the action for which he has been retained, only the party himself has
actual knowledge of whether or not he has initiated similar actions
or proceedings in different courts or agencies.132 However, in the case
of a juridical person, its lawyer who has been duly authorized by
its board of directors, as its agent to sign the verification and nonforum shopping certification on behalf of the corporation can validly
execute the non-forum certification. The requirement that the party
himself should sign the certification applies only to a natural person
and not to a juridical person who can only act through its officer or
agent duly authorized by its board of directors.133
§5.22. Test to determine forum shopping.
Forum shopping is also defined as the act of a party against
whom an adverse judgment has been rendered in one forum, of seeking
another (other than by appeal or the special civil action of certiorari)
or of instituting two or more actions or proceedings grounded on the
same cause on the supposition that one or the other would make a
favorable disposition.134 The test to determining whether a party has
violated the rule against forum shopping is whether the elements of
litis pendentia are present or whether a final judgment in one case
will amount to res judicata in the other.135 In other words, forum
shopping exists not only when a final judgment in one case will
amount to res judicata, but also where the elements of litis pendentia
130Loquias v. Office of Ombudsman, G.R. No. 139396, August 2000; Digital Microware Corp. v. CA, G.R. No. 128550, March 16, 2000.
131Ortiz
v. CA, 299 SCRA 708 (1998).
Microware Corp. v. CA, G.R. No. 128550, March 16, 2000.
133BA Savings Bank v. Sia, G.R. No. 131214, July 27, 2000.
134Chemphil Export & Import Corp. v. Court of Appeals, 251 SCRA 257 (1995);
Ligon v. CA, 294 SCRA 73 (1998).
135First Phil. International Bank v. Court of Appeals, 252 SCRA 259 (1996).
132Digital
LAWYER’S DUTIES TO COURTS
165
are present.136 What is important in determining whether forum
shopping exists or not is the vexation caused the courts and partieslitigants by a party who asks different courts and/or administrative
agencies to rule on the same or related causes and/or grant the same
or substantially the same reliefs, in the process creating possibility
of conflicting decisions being rendered by the different fora upon the
same issues.137
There is forum shopping where there are identity of parties or
interests represented, rights asserted and relief sought in different
tribunals. Where different groups have different interests, then
their filing different petitions in the same court, where they seek
relief, does not constitute forum shopping.138
It exists where the elements of litis pendentia are present
or where a final judgment in one case will amount to res judicata
in the other. Res judicata requires that there be a decision on the
merits; by a court of competent jurisdiction; the decision is final;
and the two actions involved identical parties, subject matter and
causes of action. If one of these elements is absent, there is no forum
shopping.139
Since a party resorts to forum shopping in order to increase his
chances of obtaining a favorable decision or action, a party cannot be
said to have sought to improve his chances of obtaining a favorable
decision or action where no unfavorable decision has ever been
rendered against him in any of the cases he has brought before the
courts.140
The mere fact that an appeal by petitioner is pending before
the Court of Appeals based on the same transactions, essential facts
and circumstances and subject matter does not suffice to conclude
that there was forum shopping, absent any showing of identical
issues raised.141
There is forum shopping when as a result of an adverse decision
in one forum or, in anticipation thereof, a party seeks a favorable
136Quimsay v. CA, 339 SCRA 429 (2000); R. Transport Corp. v. Laguesma, 227
SCRA 826 (1993).
137Galongco v. CA, 283 SCRA 493 (1997).
138Ruby Industrial Corp. v. CA, 284 SCRA 445 (1998).
139Alejandrino v. Court of Appeals, 295 SCRA 536 (1998).
140Executive Secretary v. Gordon, 298 SCRA 736 (1998).
141Professional Regulation Commission v. CA, 292 SCRA 155 (1998).
166
LEGAL AND JUDICIAL ETHICS
opinion in another forum through means other than appeal or
certiorari, raising identical causes of action, subject matter, and
issues. Forum shopping exists when two or more actions involve
the same transactions, essential facts, and circumstances; and raise
identical causes of action, subject matter, and issues. It exists when
the elements of litis pendentia are present or where a final judgment
in one case will amount to res judicata in the other. The test is whether
in the two or more pending cases there is an identify of parties, rights
or causes of action, and reliefs sought.142 Forum shopping is an act
of a party against whom an adverse judgment has been rendered
in one forum of seeking and possibly getting a favorable opinion
in another form, other than by appeal or the special civil action of
certiorari, or the institution of two or more actions or proceedings
grounded on the same cause of action on the supposition that one
or the other court would make a favorable disposition. It applies to
initiatory pleadings or an incipient application of a party asserting
a claim for relief. It does not apply to compulsory counterclaims.143
Simply put, forum shopping exists when two or more actions
involve the same transactions, essential facts, and circumstances, and
raise identical causes of action, subject matter, and issues. Another
indication is when the elements of litis pendencia are present or
where a final judgment in one case will amount to res judicata in the
other. The test is whether in the two or more pending cases there is
an identity of parties, rights or causes of action, and reliefs sought.144
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.146
However, the fact that the party or his counsel impleaded different
or additional party litigants in the subsequent case or petition
involving similar issue or issues with that of the first case does not
make it less than a forum shopping.146
The filing of a civil case in court does not preclude the filing
of a criminal complaint arising from the same set of facts on which
142Ligon v.
143Santo
Court of Appeals, 294 SCRA 73 (1998).
Tomas University v. Surla, 294 SCRA 382 (1998).
144Ligon v. CA, 294 SCRA 73 (1998).
145Paredes v. Sandiganbayan, 252 SCRA 641 (1996).
146Benguet Elecric Cooperative, Inc. v. National Electrification Administration,
193 SCRA 250 (1991).
LAWYER’S DUTIES TO COURTS
167
the civil action is based, as the law allows it. Neither does the
rule on forum shopping apply. Such rule should not be interpreted
with absolute literalness as to subvert its ultimate and legitimate
object, which is to achieve substantial justice as expeditiously as
possible.'47
The filing of successive suits as part of an appeal or a special
civil action does not constitute forum shopping because such remedy
is a recognized and authorized remedy under the Rules of Court, as
an exception to the rule against forum shopping.148
§5.23. Sanctions for violation.
Failure to file the certification against forum shopping is fatal
to the complaint or petition. Subsequent filing of the certification
does not cure the fatal defect. The fact that the party concerned is
not at all guilty of forum shopping does not excuse non-compliance
with the mandatory requirement.149
Any clearly willful and deliberate forum shopping by any party
and his counsel through the filing of multiple complaints or other
initiatory pleadings to obtain favorable action shall be a ground for
summary dismissal thereof and shall constitute direct contempt of
court. Furthermore, the submission of a false certification or noncompliance with the undertakings herein, shall constitute indirect
contempt of court, without prejudice to disciplinary proceedings
against the counsel and the filing of a criminal action against the
guilty party.
The dismissal of the complaint or initiatory pleading for
violation of the rule against forum shopping is understood to be
without prejudice, unless the order dismissing it specifically states
that it is with prejudice.160
Apart from administrative sanction which may be imposed
against erring lawyers violating the rule against forum shopping,
willful and deliberate forum shopping is also punishable either as
direct or indirect contempt of court.161 Moreover, forum shopping
147Cabarrus,
148Quimsay
Jr. v. Bemas, 279 SCRA 388 (1997).
v. CA, 339 SCRA 429 (2000).
•“Spouses Melo v. CA, G.R. No. 123686, November 16,1999.
150Sto. Domingo-David v. Guerrero, 296 SCRA 277 (1998).
161Sanchez v. Brion, 249 SCRA 1 (1995).
168
LEGAL AND JUDICIAL ETHICS
works havoc to the rule on orderly procedure. It obstructs the
administration of justice, impedes the speedy and orderly disposition
of cases, unduly burdens the courts and embarrasses the adverse
party. A lawyer who resorts to forum shopping puts in doubt his
fitness to practice law and subjects him to disciplinary action by the
courts.162
The sanctions against a lawyer for violation of the rule against
from shopping impose upon him the duty to see to it that the
initiatory pleading he files for the client faithfully complies with the
requirements of the rule against forum shopping.
§5.24. Lawyer to temper client’s propensity to litigate.
It is the duty of a lawyer to resist the whims and caprices of
his client and to temper his client’s propensity to litigate.163 His
signature in every pleading constitutes a certificate by him that to
the best of his knowledge, information and belief there is a good
ground to support it and that it is not interposed for delay.164 This
rule imposes upon a lawyer the affirmative duty to check useless
litigations, willful violation of which may subject him to appropriate
disciplinary action166 or render him liable for costs of litigation.166
A lawyer must view the court as a sanctuary for those who seek
justice and redress legal wrong. He must not subvert the very ends
of justice nor encourage a litigant to do so.167 A litigant may seek his
legal assistance for reasons other than to vindicate a legal wrong,
prosecute a valid cause or resist a dubious claim. The purpose may
either be to harass a party168 or to pre-empt from an honest claimant
the initiative by filing the suit to delay unnecessarily the payment
of a just claim or to drain the resources of the poorer party by
162Ramos v. Potenciano, 74 SCRA 345 (1976); Gabriel v. Court of Appeals, 72
SCRA 173 (1976); Macias v. Uy Kim, 45 SCRA 251 (1972); Magat v. Santiago, 97
SCRA 1 (1980); Kalilid Wood Industries Corp. v. Court of Appeals, 197 SCRA 735
(1991); Tan v. Court of Appeals, 199 SCRA 212 (1991).
163Cobb-Perez v. Lantin, 23 SCRA 637 (1968); Castaneda v. Ago, 63 SCRA 505
(1975).
164Rule 7, Sec. 5, Rules of Court.
166Arambulo v. Perez, 78 Phil. 387 (1947).
166J.P. Juan & Sons, Inc. v. Lianga Industries, Inc., 28 SCRA 807 (1969); Pajares v. Abad Santos, 30 SCRA 748 (1969); Gilego v. Diaz, 39 SCRA 88 (1971).
167Cobb-Perez v. Lantin, supra.
168Salazar v. De Castrodes, G.R No. 25949, May 22,1969.
LAWYER’S DUTIES TO COURTS
169
way of compelling him to submit out of sheer exhaustion.169 While
a client may withhold from his counsel certain facts or give him
false information to attain his unlawful ends, a lawyer can easily
see through the client’s action either before or at the early stage
of the litigation. When that purpose becomes evident, the lawyer
should not allow himself to be a party to its realization.160 He should
withdraw from the case in accordance with the procedure laid down
for the purpose.
Unlike in a criminal action where a defense counsel is required
to render effective legal assistance irrespective of his personal opinion
as to the guilt of the accused, the rules of the profession demand
that a lawyer decline to conduct a civil cause or to make a defense
in a civil suit when convinced that it is intended merely to harass
or to injure the opposite party or to work oppression or wrong.161 If
after his appearance the lawyer discovers that his client has no case,
he may not, however, unceremoniously abandon the action without
being guilty of professional misconduct. He should, in that event,
advice his client to discontinue the action or to confess judgment,162
as the case may be, and if the client is determined to pursue it he
should ask that he be relieved of his professional responsibility.163
§5.25. A lawyer shall file his pleadings within the period.
Pressure of work or the need for more time to finish the job
often constrains a lawyer to ask the court for an extension of time
to file a pleading, memorandum or brief. For one reason or another,
some lawyers fail to file the same within the original or extended
period. Such negligence constitutes a breach of duty not only to the
court but also to the client, and many lawyers have been disciplined
for such infraction. Rule 12.03 of the Code reminds practitioners
that 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 of his failure to do so.
The lawyer’s failure to make an explanation constitutes discourtesy
to the court.”
169Samar Mining Co. v. Amado, 24 SCRA 402 (1968); Harrison Foundry & Machinery v. Harrison Foundry Workers Ass’n., 8 SCRA 430 (1964).
160Castaneda v. Ago, 65 SCRA 505 (1975).
161Canon 10, Canons of Professional Ethics.
162Pajares v. Abad Santos, 30 SCRA 748 (1969).
163Canon 44, Canons of Professional Ethics.
170
LEGAL AND JUDICIAL ETHICS
Where a lawyer’s motion for extension of time to file a pleading,
memorandum or brief has remained unacted by the court, the least
that is expected of him is to file it within the period asked for. And
if for some reason he failed to file the same within the period, he
should nonetheless file it with a motion for leave to admit the same,
explaining therein the reasons for the delay. He should not wait
until an adverse decision is rendered or until he is required to show
cause why no disciplinary action should be taken against him for
such negligence.164
§5.26. Duty to inform client’s death and change of counsel’s
address.
It is the duty of a lawyer to inform the court, within thirty
days, of the death of his client in a pending case and if the claim
is not extinguished by such death, of the name of the deceased’s
representatives, so that substitution of parties can be effected. The
court does no take judicial notice of the death of party. If no such
notice is made, the court will proceed to conclusion of the case as if
the party is alive and its decision thereon is binding upon the heirs
of the deceased.165
Similarly, it is his duty to inform the court of any change of his
address. Although his failure to do so will not prevent any notice sent
to his address of record to be effective, his conduct may delay the
disposition of the case and prejudice the interests of his client.166
The lawyer’s duty to give the court such notice is part of his
obligation to assist in the early termination of the case. His breach
of such duty entails disciplinary action against him. Moreover, such
failure will not prevent any notice sent to the lawyer at his address
of record to be effective and binding upon the client or the client’s
heirs, as the case may be.167
164Achacoso v. Court of Appeals, 57 SCRA 724 (1973); People v. Aguilar, 7
SCRA 468 (1963); Roxas v. Court of Appeals, 156 SCRA 252 (1987).
166Heirs of Elias Lorilla v. CA, 330 SCRA 429 (2000).
166City Sheriff, Iligan City v. Fortunato, 288 SCRA 190 (1998).
187City Sheriff, Iligan City v. Fortunato, 288 SCRA 190 (1998); Heirs of Elias
Lorilla v. CA, 330 SCRA 429 (2000).
LAWYER’S DUTIES TO COURTS
171
§5. 27. A lawyer shall not delay nor impede execution of
judgment.
“A lawyer shall not unduly delay a case, impede the execution
of judgment or misuse court processes.”168
The law makes it the lawyer’s duty to delay no man for money or
malice.169 It also provides that his signature in a pleading constitutes
a “certificate by him that he has read the pleading; that to the best
of his knowledge, information, and belief there is a good ground to
support it; and that it is not interposed for delay,” and for a willful
violation of this rule he “shall be subject to appropriate disciplinary
action.”1™
A lawyer should not file multiple actions arising from the same
cause. Seeking substantially identical reliefs as those that had
already been finally disposed of in a final judgment,171 nor enter his
appearance as counsel for a party in a case which had long been
terminated by final decision.172 A lawyer who prostitutes judicial
processes to secure for his client what is not justly and validly due
him173 or who appeals a decision manifestly for the purpose of delay
violates his oath and obstructs the administration of justice.174 He
may be held administratively accountable as well as liable for costs
of suit for such improper conduct. For where a lawyer insisted on the
client’s patently unmeritorious case or interposed an appeal merely
to delay litigation or thwart the prompt satisfaction of the prevailing
party’s just and valid claim, the court may adjudge the lawyer liable
to pay treble costs.175
The aim of a lawsuit is to render justice to the parties according
to law and free from the “law’s delay.” Procedural rules are precisely
168Rule
(1989).
12.04, Code of Professional Responsibility.
v. Javier, 37 Phil. 699 (1918); Artiaga v. Villanueva, 175 SCRA 237
169Renata
170Rule 7, Sec. 3, Rules of Court; Pajares v. Abad Santos, 30 SCRA 748 (1969);
Orbit Transportation Co. v. WCC, 58 SCRA 78 (1974); J. P. Juan & Sons, Inc. v. Lianga Industries, Inc. 28 SCRA 807 (1969).
171Macias v. Uy Kin, 45 SCRA 251 (1972); Gabrielf v. Court of Appeals, 72
SCRA 273 (1976).
172In re Soriano, 33 SCRA 801 (1970).
173Cobb-Perez v. Lantin, 23 SCRA 637 (1968).
174Samar Mining Co., Inc. v. Armando, 24 SCRA 402 (1968); Upangco v. Equitable Banking Corp., 27 SCRA 1272 (1969).
175Cobb-Perez v. Lantin, supra.
172
LEGAL AND JUDICIAL ETHICS
designed to accomplice such purpose.176 As an officer of the court
whose primary function is to assist the court administer impartial
justice, a lawyer should use those rules for the purpose and not for
its frustration.177 As has been aptly said, a litigation is not a game
of technicalities in which one, more deeply schooled and skilled in
the subtle art of movement and position, entraps and destroys the
other. It is rather a contest in which each contending party fully
and fairly lays before the court the facts in issue and then, brushing
aside as wholly trivial and indecisive all imperfections of forms and
technicalities in procedure, asks that justice be done upon the merits.
Lawsuits, unlike duels, are not to be won by a rapier’s thrust.178
A lawyer should present to the court “the truth, the whole truth
and nothing but the truth” regardless of whether a case is contested
or not.179 He should not hide behind a maze of technicalities to delay
if not defeat the recovery of what is justly due and demandable.180
Nor should he induce a court to act contrary to the dictates of justice
and equity or deliberately employ procedural maneuvers to deprive
the adverse party of every opportunity to properly defend himself
against a claim. Neither should he befuddle the issues. These and
similar ploys are not only unethical and degrading to the profession,
they also almost always betray the inherent weakness of the client’s
cause.181
§5.28. Lawyer to discourage appellate review.
If a lawyer is honestly convinced of the futility of an appeal in
a civil suit he should not hesitate to inform his disappointed client
that most likely the verdict would not be altered. He should advise
his client to accept the judgment of the trial court and thus accord
respect to the just claim of the opposite party. He should temper his
client’s desire to seek appellate review of such decision for, unless
he could show sufficient cause for reversal, he would only succeed
in planting false hopes in his client’s mind, increase the burden on
176Aguinaldo
177Manila
v. Aguinaldo, 36 SCRA 137 (1970).
Pest Control, Inc. v. WCC, 25 SCRA 700 (1968).
178Alonso v. Villamor, 16 Phil. 318 (1910); Pan American Airways, Inc. v. Espiritu, 69 SCRA 36 (1976).
179Sta. Ana v. Rivera, 18 SCRA 588 (1966).
•“Economic Ins. Co. v. Uy Realty Co., 34 SCRA 744 (1970); Manila Pest Control, Inc. v. WCC, 25 SCRA 700 (1968).
181Lim Tanhu v. Ramolete, 66 SCRA 425 (1975); Ledesma Overseas Shipping
Corp. v. Avelino, 82 SCRA 396 (1978).
LAWYER’S DUTIES TO COURTS
173
appellate tribunals, prolong litigation unnecessarily and expose his
client to useless expenses of suit.182
It has been held that a lawyer who interposes an appeal
manifestly for the purpose of delay does so with full awareness of
his responsibility as an officer of the court and of the risk of being
disciplined therefor.183 On the other hand, it has also been held that
the failure of counsel to appeal an adverse decision may subject him
to disciplinary action for negligence in the performance of his duties
to his client.184 How to strike a balance between these two loyalties
often confronts a practicing law. Nonetheless, a lawyer should not,
solely on his own judgment, let the decision become final by letting
the period to appeal lapse, without informing his client of the adverse
decision and of his candid advice in taking appellate review thereof,
well within the period to appeal, so that the client may decide
whether to pursue appellate review. If the lawyer does not hear from
the client, he should perfect an appeal within the period, otherwise
he may be held administratively liable, upon complaint of his client,
for negligence in the performance of his duties which resulted in
the finality of the decision against his client.186 His plea that he did
not appeal the adverse decision because he honestly believed in the
futility of an appeal and the absence of merit of the case may only
be taken to mitigate but not to exonerate him from administrative
liability.186
§5.29. A lawyer shall not talk to a witness during recess.
The duty of a lawyer to assist in the speedy and efficient
administration of justice includes the duty to refrain “from talking
to his witness during a break or recess in the trial, while the witness
is still under examination.”187 The purpose of the rule is to avoid any
suspicion that he is coaching the witness what to say during the
resumption of the examination.
182Arangco v. Beloso, 49 SCRA 296 (1973); Orbit Transportation Co. v. WCC, 58
SCRA 78 (1974); Castaneda v. Ago, 65 SCRA 505 (1975).
I83Uypangco v. Equitable Banking Corp., 27 SCRA 1272 (1969); Samar Mining
Co. v. Amado, 24 SCRA 402 (1968).
184Villaluz, Jr. v. Armenta, 285 SCRA 1 (1998).
185Tuason v. Court of Appeals, 256 SCRA 158 (1996).
186Reontoy v. Ibadlit, 302 SCRA 604 (1999).
187Rule 12.05, Code of Professional Ethics.
174
LEGAL AND JUDICIAL ETHICS
§5.30. A lawyer shall not assist a witness to misrepresent.
“A lawyer shall not knowingly assist a witness to misrepresent
himself or to impersonate another.”188 While he may interview
witnesses in advance of trial or attend to their needs if they are poor
and have no adequate means of defraying their own expenses or are
lukewarm to do so,189 the lawyer should avoid any such action as may
be misinterpreted as an attempt to influence the witness what to
say in court. Aside from the fact that the testimony of a witness who
admits having been instructed what to say may not be relied upon
by the court,190 a lawyer who presents a witness whom he knows will
give a false testimony may be subjected to disciplinary action.
§5.31. Lawyer shall not harass a witness.
Rule 12.07 of the Code, which provides that “A lawyer shall not
abuse, browbeat or harass a witness nor needlessly inconvenience
him,” imposes upon him the duty to always treat adverse witnesses
and suitors with fairness and due consideration.191 He should
advance no fact prejudicial to their honor or reputation unless
required by the justice of the cause with which he is charged.192 Nor
should he minister to the malevolence or prejudice of his client in
the trial or conduct of a case. The client cannot be made the keeper
of the lawyer’s conscience in professional matters. He has no right
to demand that his counsel abuse the opposite party or indulge in
offensive personalities. Improper speech is not excusable on the
ground that it is what the client would say if speaking in his own
behalf.193
§5.32. A lawyer shall avoid testifying for a client.
A lawyer may not properly support his contention as an
advocate with his testimony as a witness.194 This ethical principle
188Rule
12.06, ibid.
v. Elizaga, 86 Phil. 364 (1950).
190People v. Bautista, 76 Phil. 184 (1946).
191Canon 18, Canons of Professional Ethics; Ochida v. Cabaroguis, 71 SCRA
40 (1976).
192Rule 138, Sec. 20(f), Rules of Court; Surigao Mineral Reservation Board v.
Cloribel, 31 SCRA 1 (1970).
193Canon 18, Canons of Professional Ethics, Inchausti & Co. v. Wright, 47 Phil.
866 (1925).
194Jacobs v. Weissinger, 211 Mich. 47,178 NW 65 (1920).
189People
LAWYER’S DUTIES TO COURTS
175
is now enshrined in Rule 12.08 of the Code, which enjoins a lawyer
from testifying in behalf of his client, except (1) on formal matters,
such as the mailing, authentication or custody of an instrument, and
the like; or (2) 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. The rule
prohibits the practice of the lawyer taking the witness stand and
asking questions to him and answering them as a witness.
The question is one of propriety rather than of competency
to testify. While the law does not disqualify a lawyer from being a
witness and an advocate at the same time in a case, the practice is
violative of the rule on professional conduct.196
It has been held that it is improper for a lawyer to accept
employment in a case in which he knows he or his partner will be
a material witness for the party seeking to employ him. Having
accepted employment in ignorance of such fact, he should, upon
acquiring knowledge thereof, withdraw from the case where he
may do so without imperiling his client’s interests.196 It would also
be improper for a lawyer to accept employment in a case where it
would be his duty to attack the essential testimony to be given by his
partner on behalf of the opposite side.197
The underlying reason for the impropriety of a lawyer acting
in such dual capacity lies in the difference between the function of a
witness and that of an advocate. 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. The lawyer will find it hard to disassociate
his relation to his client as an attorney and his relation to the party
as a witness.198 Even if he can actually do so, the dual relationship
would invite embarrassing criticism. Although his zeal as a lawyer
may not influence his testimony as a witness, an ever critical public
196Phil. National Bank v. Uy Teng Piao, 57 Phil. 337 (1932); Gonzaga v. Canete,
3 Phil. 394 (1904).
196Robinson v. United States, 32 F2d 505, 66 ALR 465 (1928).
197A.B.A Op.
198Jacobs
12,1941).
185 (July 24,1938).
v. Weissinger, 211 Mich. 47,178 NW 65 (1920); A.B.A. Op. 220 (July
176
LEGAL AND JUDICIAL ETHICS
is only too apt to place such construction upon it.198 If the profession
is to occupy that position in the public esteem which will enable it
to be of the greatest usefulness, it should not only avoid all evil but
should likewise avoid the appearance of evil.200
D. AVOIDING IMPROPRIETY THAT TENDS
TO INFLUENCE THE COURT
§5.33. Lawyer should rely on merits of his case.
Canon 13 requires 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.”201 Improper acts
of a lawyer which give the appearance of influencing the court to
decide a case in a particular way lessen the confidence of the public
in the impartial administration of justice, and should be avoided.202
Courts as impartial administrators of justice are entitled to
dispose of their business in an orderly manner, free from outside
interference obstructive of their functions and tending to embarrass
the administration of justice, just as litigants are entitled to have
their causes tried fairly by an impartial tribunal, uninfluenced by
publication, public clamor, bias, prejudice or sympathies.203
§5.34. A lawyer shall not extend hospitality to a judge.
“A lawyer shall not extend extraordinary attention or hospitality
to, nor seek opportunity for cultivating familiarity with judges.”204
The unusual attention and hospitality on the part of a lawyer to a
judge may subject both the judge and the lawyer to suspicion. For
this reason, the common practice of some lawyers making judges and
prosecutors godfathers of their children to enhance their influence
and their law practice should be avoided by judges and lawyers
alike.206
199A.B.A.
Op. 50 (December 14,1931).
Op. 49 (December 12,1931).
““Canon 13, Code of Professional Responsibility.
“'“Comments of IBP Committee that drafted the Code, p. 70.
’“Nestle Phil., Inc. v. Sanchez, 154 SCRA 542 (1987).
204Rule 13.01, Code of Professional Responsibility.
^Comments of IBP Committee that drafted the Code, p. 70.
200A.B.A.
LAWYER’S DUTIES TO COURTS
177
A lawyer should avoid marked attention and unusual hospitality
to a judge, uncalled for by the personal relations of the parties, just
as a judge should not fraternizing with litigants or with the lawyer,
otherwise both lawyer and judge may be subjected disciplinary
sanction and to misconceptions of motives.206 He should not see
him in chamber and talk to him about a case pending in his court;
and a judge should not allow it to happen, without committing a
misconduct, except where the lawyers of both parties are present or
upon request of the judge for both lawyers to see him in chamber.207
Neither should he communicate with him as to the merits of a
pending case. The lawyer’s conduct in either instance is improper
and he deserves rebuke and denunciation for any attempt to gain
from a judge special personal consideration or favor. A self-respecting
independence in the discharge of professional duty, without denial
or diminution of the courtesy and respect due the judge’s station, is
the only proper foundation for cordial, personal and official relations
between bench and bar.208
It is not, however, incumbent on a lawyer to refuse professional
employment in a case because it may be heard by a judge who is his
relative, compadre or former colleague in office. The responsibility is
on the judge not to sit in a case unless he is both free from bias and
from the appearance thereof.209
§5.35. A lawyer shall not publicly discuss pending cases.
“A lawyer shall not make public statements in the media
regarding a pending case tending to arouse public opinion for
or against a party.”210 For newspaper publications by a lawyer
concerning a pending litigation may interfere with a fair trial in court
and otherwise prejudice the impartial administration of justice.211
The restriction does not prohibit issuance of statements by public
officials charged with the duty of prosecuting or defending actions in
206Canon 3,
(1978).
Canons of Professional Ethics.
“"Austria v. Masaquel, 20 SCRA 1247 (1967).
20eCanon 3, Canons of Professional Ethics.
209A.B.A. Op. 200 (January 27, 1940); Bautista v. Rebueno, 81 SCRA 535
210Rule
211See
106 (1970).
13.02, Code of Professional Responsibility.
Cruz v. Salva, 105 Phil. 1151 (1959); Martelino v. Alejandro, 32 SCRA
178
LEGAL AND JUDICIAL ETHICS
court. However, such statements should avoid any statement of fact
likely to create an adverse attitude in the public mind respecting the
alleged actions of the defendants to the pending proceedings.212
Picketing is a form of public expression by a group of sentiments
or opinions on a particular matter. It should not be held to influence
a court to decide a case in a particular way. Thus, pickets conducted
by members of a labor union which is a party to a pending case
before the court whose premises are being picketed are attempts to
pressure or influence the courts of justice and constitute contempt of
court. The duty and responsibility of advising the picketers and their
leaders that what they are doing is contemptuous rests primarily
and heavily upon their lawyers who, as officers of the court, are duty
bound to apprise them on proper decorum and attitude towards
courts of justice.213
§5.36. Criticism of pending and concluded litigation.
The right of a lawyer to comment on a pending litigation or to
impugn the impartiality of a judge to decide it is much circumscribed.
What he 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 or influence in its
all important duty of deciding the case. It must, therefore, insist on
being permitted to dispose of its business in an orderly manner, free
from outside interference obstructive of its function and tending to
embarrass the administration of justice.214
On the other hand, once a litigation is concluded the judge who
decided it is subject to the same criticism as any other public official216
because then his ruling becomes public property and is thrown open
to public consumption.216 In a concluded litigation, a lawyer enjoys
wider latitude of comment on or criticism of the judge’s decision or
his actuation. Thus, it has been held that a newspaper publication
tending to impede, obstruct, embarrass or influence the courts
212A.B.A.
Op. 199 (January 26,1940).
Phil., Inc. v. Sanchez, 154 SCRA 542 (1987).
2UIn re Almacen, 31 SCRA 562 (1970); In re Torres, 55 Phil. 799 (1931).
2167n re Gomez, 43 Phil. 376 (1922).
216Strebel v. Figueras, 96 Phil. 321 (1954); In re Almacen, supra.
zl3Nestl6
LAWYER’S DUTIES TO COURTS
179
in administering justice in a pending case constitutes criminal
contempt, but the rule is otherwise after the litigation is ended.217
§5.37. Limitations on right to criticize.
Like any other right, the right of a lawyer to comment on or
criticize the decision of a judge or his actuation is not unlimited. It
“is the cardinal condition of all such criticism that it shall be bona
fide, and shall not spell over the walls of decency and propriety.
A wide chasm exists between fair criticism, on the one hand, and
abuse and slander of courts and judges on the other.” A publication
in or outside of court tending to impede, obstruct, embarrass or
influence the courts in administering justice in a pending suit, or
to degrade the courts, destroy public confidence in them or bring
them in any way into disrepute, whether or not there is a pending
litigation, transcends the limits of fair comment. Such publication or
intemperate and unfair criticism is a gross violation of the lawyer’s
duty to respect the courts. It is a misconduct that subjects him to
disciplinary action.218
Moreover, where by law or resolution of the Supreme Court
proceedings, such as disciplinary actions against judges and
lawyers, must be conducted in secret or considered confidential for
the proper administration of justice until their final adjudication,
they should not be given publicity by the press. And no one may
publicly comment thereon during their pendency. For as important
as the maintenance of an unmuzzled press and the free exercise of
the rights of the citizens is the preservation of the independence
of the judiciary. Respect for the judiciary cannot be had if persons
are privileged to scorn the resolution of the court adopted for good
purposes and if such persons are to be permitted by subterranean
means to diffuse inaccurate accounts of confidential proceedings to
the embarrassment of the parties and the courts.219
§5.38. Right and duty of lawyer to criticize courts.
The rule is not, however, intended to prevent or preclude
criticism of the judicial acts of a judge. For the guarantees of a free
211In
re Abistado, 557 Phil. 668 (1932); In re Lozano, 54 Phil. 801.
re Almacen, 31 SCRA 562, (1970); In re Gomez, supra.
2l9In re Lozano, 54 Phil. 801 (1903); In re Abistado, 57 Phil. 668 (1932).
2mIn
180
LEGAL AND JUDICIAL ETHICS
speech and a free press include the right to criticize the judicial
conduct. The administration of the law is a matter of vital public
concern. Whether the law is wisely or badly enforced is, therefore, a
fit subject for proper comment. If the people cannot criticize a judge
the same as any other public official, public opinion will be effectively
muzzled. Attempted terrorization of public opinion on the part of
the judicial officer would be tyranny of the basest sort. The sword
of Damocles in the hands of a judge does not hang suspended over
the individual who dares to assert his prerogative as a citizen and
to stand up bravely before any official. The people are not obliged
to speak of the conduct of their officials in whispers or with bated
breath in a free government, but only in a despotism.220
As a citizen and officer of the court, a lawyer is expected not
only to exercise the right but also to consider it his duty to expose the
shortcomings and indiscretions of courts and judges. “Criticism of the
courts has, indeed, been an important part of the traditional work
of the lawyer. In the prosecution of appeals, he points out the errors
of lower courts. In articles written for law journals he dissects with
detachment the doctrinal pronouncement of courts and fearlessly lays
bare for all to see the flaws and inconsistencies of the doctrines.”221
For no “class of the community ought to be allowed freer scope in the
expression or publication of opinions as to the capacity, impartiality
or integrity of judges than members of the bar. They have the best
opportunities for observing and forming correct judgment. They are
in constant attendance in the courts x x x To say that an attorney
can only act or speak on this subject under liability to be called to
account and to be deprived of his profession and livelihood, by the
judge or judges whom he may consider it his duty to attack and
expose, is a position too monstrous to be entertained.”222
Courts and judges are not sacrosanct. They should expect
critical evaluation of their performance. For like the executive and the
legislative branches, the judiciary is rooted in the soil of democratic
society and nourished by the periodic appraisal of citizens whom it
should serve.223
220U.S. V.
Bustos, 37 Phil. 731 (1918).
re Almacen, 31 SCRA 562 (1970).
222Ex parte Steinman, 40 Rep. 641, quoted in In re Almacen, supra.
mIn re Almacen, 31 SCRA 562 (1970); Austria v. Marquel, 20 SCRA 1247
221Iri
(1967).
LAWYER’S DUTIES TO COURTS
181
§5.39. A lawyer shall not invite judicial interference.
“A lawyer shall not brook nor invite interference by another
branch or agency of the government in the normal course of judicial
proceedings.”224 The reason is that a lawyer who brooks or invites
interference by another branch or agency of government in the
normal course of judicial proceedings endangers the independence
of the judiciary.226
224Rule
13.03, Code of Professional Responsibility.
225Comments of
IBP Committee that drafted the Code, p. 71.
Chapter VI
NATURE AND CREATION OF
ATTORNEY-CLIENT RELATIONSHIP
A. NATURE OF RELATION
§6.01. Nature of client-relationship, generally.
Historically, the nature of lawyer-client relationship is
premised on the Roman Law concepts of locatio conductio operarum
(contract of lease of services) where one person lets his services for
compensation and another hires them without reference to the object
which the services are to be performed, and mandato (contract of
agency) whereby a friend on whom reliance could be placed makes a
contract in his name but gives up all that he grained by the contract
to the person who requested him. In modem day understanding
of the lawyer-client relationship, an attorney is more than a mere
agent or servant because he possesses special powers of trust and
confidence reposed on him by his client. He is also as independent as
a judge, with powers entirely different from and superior to those of
an ordinary agent. Moreover, he is an officer of the court.1
The relation of attorney and client is strictly personal and
highly confidential and fiduciary. There is no other human relation
which involves so delicate, exacting and confidential a nature and
character as that of attorney and client, which necessity and public
interest so require.2 It is only by characterizing the relation and
safeguarding it as such that a person will be encouraged to repose
his confidence in an attorney. It is based on the hypothesis that
’Regala v. Sandiganbayan, G.R. No. 105938, September 20, 1996.
2Regala
v. Sandiganbayan, G.R. No. 105938, September 20,1996, citing Agpalo,
Ruben, Legal Ethics (Manila: Rex Book Store, 1992), p. 136.
182
NATURE AND CREATION OF ATTORNEY-CLIENT RELATIONSHIP 183
abstinence from seeking legal advice in a good cause is an evil which
is fatal to the administration of justice.3
Most of the rules and ethics of the legal profession as well
as the duties of a lawyer are the result of or originate from the
nature or character of the relation of attorney and client. Before
the establishment of the relation, those rules, ethics and duties are
mere theoretical injunctions; its creation breathes life to them and
requires of an attorney who accepts a retainer a high standard of
conduct and an appreciation of his duties to his client, to the court,
to the bar and to the public.4 It moreover demands on the part
of a practitioner a sense of commitment to the ideals of the legal
profession and a strength of character to resist the many temptations
of the law to deviate from its exacting norms. For, in a real sense,
to actively engage in the practice of law is to tread a narrow path.
There are pitfalls from both sides. An attorney’s only safe guide is
high moral principle, as the torch to light his way;6 his best shield
is a clear conscience and an unblemished personal record;6 and his
just reward is to find his highest honor in a deserved reputation for
fidelity to private trust and to public duty, as an honest man and as
a patriotic and loyal citizen.7
§6.02. Relation as strictly personal.
The attomey-client relationship is strictly personal.6 It involves
mutual trust and confidence of the highest degree9 irrespective of
whether the client is a private person or a government functionary.10
Since it is a personal relation, a court or administrative tribunal
3Hilado v. David, 84 Phil. 569 (1949); Regala v. Sandiganbayan, G.R. No.
105938, September 20, 1996, citing Agpalo, Ruben, Legal Ethics, 1992 ed., p. 136;
Hernandez v. Villanueva, 40 Phil. 775 (1920); Canon 17, Code of Professional Responsibility.
4People ex rel. Chicago Bar Ass’n. v. Baker, 311 111 66,142 NE 554 31 ALR 737
(1924).
6SHARSWOOD. LEGAL ETHICS, 55 (1854).
6People v. Anden, CA-G.R. No. 3173-R, May 17, 1949, 47 O.G. 3552 (July,
1951).
7Canon 32, Canons of Professional Ethics; Daroy v. Legaspi, 65 SCRA 304
(1975).
8Daroy v. Legaspi, supra.-, In re Sycip, 92 SCRA 1 (1979)
9U.S. v. Laranja, 21 Phil. 500 (1912); Oparel, Sr. v. Abaria G.R. Adm. Case No.
959, July 30, 1971; Hernandez v. Villanueva, 40 Phil. 775 (1920); Daroy v. Legaspi,
supra.; Claudio v. Subido, 40 SCRA 481 (1971).
10Claudio v. Subido, supra.
184
LEGAL AND JUDICIAL ETHICS
cannot but recognize its creation on the faith of the client’s word.11
It should not be established as the result of pressure or deception.
This underlies, to some extent, the reason for the prohibition against
advertising or solicitation of employment.
The personal character of the relation prohibits its delegation
in favor of another attorney without the client’s consent.12 What may
not be delegated, as a rule, is the relationship itself.13 It terminates
upon the death of either the client or the attorney. Accordingly, the
personal representative of the deceased attorney has no right to
assign pending cases to counsel of his choice as the matter is for the
client to decide.14 Considering the nature of the relation, a client can
terminate it at any time with or without cause; an attorney however
enjoys no similar right as he is, above all, an officer of the court,
and he may be permitted to withdraw from the case only with the
consent of the client or that of the court.
The personal relation between attorney and client does not
require that an attorney adopt, and he should not so adopt, as his
own the troubles of his client. A lawyer who makes as his own the
problems of his client is likely to lose his composure and equanimity
to his client’s prejudice. Only a proper sense of personal detachment
will enable the attorney to adequately serve the interest of his client
and to keep his professional conduct within ethical bounds.16 For
this reason, it is often advisable for a lawyer, who is a party litigant,
not to appear for himself nor act as counsel for a close relative. His
personal involvement in the case or his close family relation with
the client may blur his sense of duty and purpose and affect his
performance to his or to his client’s detriment. He should, in that
situation, ask another lawyer who can act with more detachment
and with less emotional involvement, to undertake the active
prosecution or defense of the case.
“Pittsburgh Plate Glass Co. v. Director of Patents, 56 SCRA 243 (1974).
12Menzi
& Co. v. Bastida, 63 Phil. 16 (1936).
Boatman’s Nat. Bank, 163 SW2d 761; Re Kaemmerer, 178 SW2d
474, as distinguished from the legal work involved.
uRe Heirich, 140 NE2d 825, 67 ALRld 827 (1956).
15Cf. Curtis, The Ethics of Advocacy Trumbull, MATERIALS ON THE LAWYER’S PROFESSIONAL RESPONSIBILITY, 214, et seq. (1957).
13Laughlin v.
NATURE AND CREATION OF ATTORNEY-CLIENT RELATIONSHIP 185
§6.03. Relation as fiduciary and confidential.
The relation of attorney and client is highly fiduciary in
nature and of a very delicate, exacting and confidential character.16
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.17
The exacting responsibilities of an attorney to his client should,
however, be reconciled with his duties to the court of which he is an
officer, to the bar of which he is a member and to the public of which
he is very much a part. Each of them requires fidelity and loyalty
in varying degrees within limits. Deviation from such limits may
invite the exercise of disciplinary power by the court. It is in that
context that what is expected of an attorney by reason of the highly
fiduciary and confidential nature of his relation with his client must
be understood.
§6.04. Rules protective of relation.
The interest of the public requires that the personal, confidential
and fiduciary relation between attorney and client be preserved and
protected.18
The preservation and protection of that relation will encourage
a client to entrust his legal problems to an attorney, which is of
paramount importance to the administration of justice.19 Rules
have been promulgated for that purpose, which are in the nature
of injunctions peculiarly addressed to an attorney: he is to exert his
best effort and learning in the protection of the interest of his client;
he is to promptly account for any fund or property entrusted by or
received for his client; he is not to purchase or acquire any property
or interest of his client in litigation; he is to forever keep inviolate
16Daroy v. Legaspi, 65 SCRA 304 (1975); In re de la Rosa, 27 Phil. 258 (1914),
Canon 15, Code of Professional Responsibility.
17Daroy v. Legaspi, supra.) Oparel, Sr. v. Abara, 40 SCRA 128 (1971); Hernandez v. Villanueva, 40 Phil. 775 (1920); State Bar Ass’n. v. Connecticut Bank & Trust
Co., 140 A2d 963, 69 ALR2d 394 (1958).
18Hemandez v. Villanueva, 40 Phil. 775 (1920); Go Beltran v. Fernandez, 70
Phil. 248 (1940).
19Hilado v. David, 84 Phil. 569 (1949).
186
LEGAL AND JUDICIAL ETHICS
his client’s secrets or confidence and not to abuse them; and he is not
to represent a party whose interest is adverse to that of his client
even after the termination of the relation.
The interest of the legal profession as well as the safety of the
client demands a strict recognition and enforcement of the rules
protective of the relation of attorney and client.20 The trust and
confidence which a client must necessarily repose in an attorney can
only be attained by the attorney’s faithful adherence to them.21 To
serve those ends, the Supreme Court requires strict obedience to
those rules and subjects an attorney to discipline and administrative
liability for inexcusable breach thereof, to protect the public, the
court itself, and the client from dishonesty and incompetence of
unfaithful lawyers.22
B. RETAINER OR EMPLOYMENT
§6.05. Concept of term “retainer.”
The relation of attorney and client begins from the time an
attorney is retained.23 The term “retainer” may refer to either of two
concepts. It may refer to the act of a client by which he engages the
services of an attorney to render legal advice, or to defend or prosecute
his cause in court. It is either general or special. A general retainer
is one the purpose of which is to secure before hand the services
of an attorney for any legal problem that may afterward arise. A
special retainer has reference to a particular case or service.24
The word “retainer” may also refer to the fee which a client
pays to an attorney when the latter is retained, known as retaining
fee.25 A retaining fee is a preliminary fee paid to insure and secure
his future services, to remunerate him for being deprived, by being
retained by one party, of the opportunity of rendering services to the
“U.S. v. Laranja, 21 Phil. 500 (1912).
21Hemandez v. Villanueva, supra.; Hilado v. David, supra.; In re Carmen, 41
Phil. 899 (1920).
“Philippine Ass’n. of Free Labor Unions v. Binalbagan Isabela Sugar Co., 42
SCRA 302 (1971); Hilado v. David, 84 Phil. 569 (1949); Hernandez v. Villanueva, 40
Phil. 775 (1920).
“Stone v. Bank of Commerce, 174 US 412 (1899).
“Pickens Co. v. Thomas, 111 SE 27, 21 ALR 1438 (1922): Agnew v. Halden, 4
So 672 Ala (1887).
“Pickens Co. v. Thomas, supra.; Hilado v. David, supra.
NATURE AND CREATION OF ATTORNEY-CLIENT RELATIONSHIP 187
other party and of receiving pay from him, and the payment of such
fee, in the absence of an agreement to the contrary, is neither made
nor received in consideration of the services contemplated; it is apart
from what the client has agreed to pay for the services which he has
retained him to perform. Its purpose is to prevent undue hardship
on the part of the attorney resulting from the rigid observance of
the rule forbidding him from acting as counsel for the other party
after he has been retained by or has given professional advice to the
opposite party.26
§6.06. Necessity of retainer.
An attorney has no power to act as counsel or legal representative
for a person without being retained27 nor may he appear in court for
a party without being employed unless by leave of court.28 There
must be a contract of employment, express or implied, between him
and the party he purports to represent or the latter’s authorized
agent.29 If he corruptly or willfully appears as an attorney for a party
to a case without authority, he may be disciplined30 or punished for
contempt as an officer of the court who has misbehaved in his official
transaction.31 Moreover, neither the litigant whom he purports to
represent nor the adverse party may be bound or affected by his
appearance unless the purported client ratifies or is estopped to
deny his assumed authority.
§6.07. Sufficiency of professional employment.
The essential feature of the relation of attorney and client is
the fact of employment. While a written agreement for professional
services is the best evidence to show the relation, formality is not
an essential element of the employment of an attorney. It is not
necessary that a retainer should have been paid, promised or charged
for; nor is it material that the attorney consulted does not afterward
undertake the case about which he has been consulted. Neither is it
26Hilado
v. David, 84 Phil. 569 (1949).
27Lim Siok
Huey v. Lapuz, 103 Phil. 930 (1958).
138, Sec. 21, Rules of Court.
29Hilado v. David, supra.; Government v. Wagner, 54 Phil. 132 (1929); Municipality of Iloilo v. Evangelista, 55 Phil. 290 (1930).
30Garrido v. Quisumbing, 28 SCRA 614 (1969); Guerrero v. Hernando, 68 SCRA
76 (1975); Magno v. Gellada, 42 SCRA 549 (1971).
31Rule 138, Sec. 21, Rules of Court.
28Rule
188
LEGAL AND JUDICIAL ETHICS
important that a confidential communication has been confided to or
acquired by the attorney.32
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. If a person, in respect to his business affairs or 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 acquiesces 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.33
An attorney who received from a party documents relative
to the latter’s claim against another and prepared the necessary
pleading for institution of a suit for recovery thereof, has done more
than what is necessary to establish the confidential relation of
attorney and client, and the fact that the party failed to pay him his
fees or the circumstance that he merely acted as a matter of favor
and never affixed his signature to the pleading he prepared does
not render the relation so created any less than a professional one.34
There is an implied contract of professional employment where an
attorney appears on behalf of a party without the latter interposing
any objection thereto.36
That an attorney for a buyer of a piece of land wrote letters to
the tenants giving them a fixed period within which to exercise their
preferential right to buy the land, that he prepared the deed of sale
in favor of the buyer and that he charged the seller the fees for such
services do not make the attorney the counsel for the seller as those
32Hilado
v. David, 84 Phil. 569 (1949).
v. David, supra.; Dee v. Court of Appelas, 176 SCRA 651 (1989).
re Hamilton, 24 Phil. 100 (1913).
36Matias v. Valentin, CA-G.R. No. 34166-R, May 13,1968. See Corpus v. Court
of Appeals, 98 SCRA 424 (1980).
34In
33Hilado
NATURE AND CREATION OF ATTORNEY-CLIENT RELATIONSHIP 189
matters were wrapped up in the sale and could have been done as
counsel for the buyer in the furtherance of the latter’s interests.36
The fact that a lawyer signed a pleading for and on behalf of the
counsel of record for a party does not necessarily make that party a
client of the lawyer.37 And by helping an appellant perfect his appeal
but without entering his appearance or signing a pleading, a lawyer
does not by that circumstance alone become counsel of appellant in
the appealed case.38
In the absence of a written retainer, the establishment of the
attomey-client relationship depends upon the circumstances of the
case.39 In addition, the issue or issues whose resolution depends upon
the fact of professional relationship must be taken into account, such
as those involving the legality of purchasing a property in litigation
or the propriety of representing adverse interests, which are material
to the question as to whether an attomey-client relationship exists.
In case of doubt, the attorney should decide the question of attomeyclient relationship in favor of that resolution which will preclude
impropriety or the appearance thereof on his part.
In other words, the employment of counsel or the authority to
employ an attorney need not be proved in writing; such fact could be
inferred from circumstantial evidence.40
In Hadjula v. Madianda,*1 the Court ruled:
As it were, complainant went to respondent, a lawyer who
incidentally was also then a friend, to bare what she considered
personal secrets and sensitive documents for the purpose of
obtaining legal advice and assistance. The moment complainant
approached the then receptive respondent to seek legal advice,
a veritable lawyer-client relationship evolved between the two.
Such relationship imposes upon the lawyer certain restrictions
circumscribed by the ethics of the profession. Among the
burdens of the relationship is that which enjoins the lawyer,
respondent in this instance, to keep inviolate confidential
36Gregorio
37Garcia
Araneta, Inc. v. Patemo, 91 Phil. 786 (1952).
v. Flores, 101 Phil. 781 (1957).
Velasquez v. Barrera, 29 SCRA 312 (1969).
39Hilado v. David, 84 Phil. 569 (1949); Gibbs v. Commissioner of Internal Revenue, 15 SCRA 318 (1965).
40Santos v. NLRC, 254 SCRA 673 (1996).
41A.C. No. 6711, July 3, 2007
LEGAL AND JUDICIAL ETHICS
190
information acquired or revealed during legal consultations.
The fact that one is, at the end of the day, not inclined to handle
the client’s case is hardly of consequence. Of little moment, too,
is the fact that no formal professional engagement follows the
consultation. Nor will it make any difference that no contract
whatsoever was executed by the parties to memorialize the
relationship. As we said in Burbe v. Magulta —
A lawyer-client relationship was established from the
very first moment complainant asked respondent for legal advise regarding the former’s business. To constitute professional
employment, it is not essential that the client employed the
attorney professionally on any previous occasion.
It is not necessary that any retainer be paid, promised, or
charged; neither is it material that the attorney consulted did
not afterward handle the case for which his service had been
sought.
It a person, in respect to business affairs or troubles of
any kind, consults a lawyer with a view to obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces with the consultation, then the professional
employments is established.
Likewise, a lawyer-client relationship exists notwithstanding the close personal relationship between the lawyer
and the complainant or the non-payment of the former’s fees.
In Uy v. Gonzales,i2 the Court also held:
As a rule, an attomey-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.
42A.C.
No. 5280, March 30, 2004,
NATURE AND CREATION OF ATTORNEY-CLIENT RELATIONSHIP 191
§6.08. Employment of law firm.
The employment of a law firm is equivalent to the retainer
of the member thereof even though only one of them is consulted;
conversely, the employment of one member is generally considered
as employment of the law firm.43 Thus, when a client employs the
services of a law firm, he does not employ the services of the lawyer
who is assigned to personally handle the case. Rather, he employs
the entire law firm. In the event that the counsel appearing for the
client resigns or dies, the firm is bound to provide a replacement.44
A professional relation between a law firm and a client emerges
from the professional advice sought by a client and given by a
member of the law firm. The reason for the rule is that information
obtained from a client by a member of the law firm is information
imparted to the latter. The member acts in the name and interest of
the firm and information or knowledge he acquires, by the nature of
his connection with the firm, is available to the other members.46 For
this reason, where the counsel for a litigant is a law firm, the death
of a partner, who was the one handling the case for the law firm, did
not extinguish the lawyer-client relationship; the responsibility to
continue representation and file required pleadings devolves upon
the remaining lawyers of the firm, until they have withdrawn from
the case, and negligence of the latter binds the client.46
§6.09. Who can employ attorney.
Generally, any person who has the legal capacity to contract
can employ an attorney. A person suffering from some legal
disability cannot retain a lawyer to appear for him in court. Only a
general guardian or guardian ad litem has the authority to employ
an attorney to represent a minor or incompetent. Accordingly, the
appearance of a lawyer as authorized by a relative of the minor or
incompetent is officious and will have no effect except to show the
attorney’s good faith in appearing in court.47
“Hilado v. David, 84 Phil. 569 (1949); Ostrander v. Capitol Investment Bldg.
& Loan Ass’n. 130 Mich 312, 89 NW 964; Garden v. Riley, 183 SE 46, 143 ALR 662
(1935).
“Rillaroza, Africa, De Ocampo and Africa v. Eastern Telecommunications,
Phil., Inc., 309 SCRA 566 (1999).
“Hilado v. David, supra.
“B.R. Sebastian Enterprises, Inc. v. Court of Appeals, 206 SCRA 28 (1992).
47Guinto v. Lim Bonding, 48 Phil. 884 (1926); Gorostiaga v. Sarte, 68 Phil. 4
(1939); Jaranilla v. Gonzales, 96 Phil. 3 (1954); Lim Siok Huey v. Lapiz, 103 Phil.
930 (1958).
192
LEGAL AND JUDICIAL ETHICS
An agent clothed by his principal with the power to deal with
the latter’s property or interest has the authority to engage the
services of an attorney as counsel for the principal to protect or
preserve such property or interest.48 The agent’s authority to employ
an attorney for his principal need not be in writing; it may be inferred
from circumstantial evidence.49 An executor or administrator or
trustee may also retain an attorney to act as counsel for the estate
or beneficiary, as the case may be, and if the services of counsel are
necessary the attorney’s fees may properly be charged as expenses
of administration against the estate or beneficiary. A wife in any
of the instances where she may prosecute or defend an action
without the necessity of joining her husband as a party litigant
has the authority to engage the services of counsel even without
her husband’s consent.60 She cannot, however, bind the conjugal
partnership for the payment of the fees of her lawyer without the
husband’s authority,61 except in a suit between her and her husband
which she is compelled to institute or resist to protect her rights, to
a successful conclusion.62
As a rule, only the board of directors of a corporation has the
authority to employ an attorney to sue or defend an action for the
corporation as the authority to exercise corporate powers, including
the power to sue and be sued, is lodged in the board of directors.63
The board of directors may, however, delegate the power to employ
an attorney for the corporation in favor of any one of its corporate
officers either expressly or impliedly.64 A single stockholder may in a
proper case institute a derivative suit on behalf of a corporation and
employ an attorney for that purpose.56
“Government v. Wagner, 54 Phil. 132 (1929); Municipality of Iloilo v. Evangelista, 55 Phil. 290 (1930).
49Tan Lua v. O’Brien, 55 Phil. 53 (1930).
“Quitoriano v. Centeno, 59 Phil. 646 (1934); Casalla v. Enage, 6 Phil. 475
(1906); Recto v. Harden, 100 Phil. 427 (1956).
61Art. 113, Civil Code of the Philippines; Rules 3, Sec. 4, Rules of Court; Recto
v. Harden, supra.
“Seva v. Nolan, 64 Phil. 374 (1937); Art. 293, Civil Code.
“Republic v. Phil. Resources Dev. Corp., 102 Phil. 960 (1958).
“Vicente v. Geraldez, 52 SCRA 210 (1973).
“Republic v. Phil. Resources Dev. Corp., supra.
NATURE AND CREATION OF ATTORNEY-CLIENT RELATIONSHIP 193
C. ETHICAL NORMS AND RESTRICTIONS
§6.10. Generally.
A lawyer may only be as successful in the practice of his
profession as he has enough paying clientele. Without clients, a
lawyer though how talented he may be may not be able to make
a name as a practitioner. On the other hand, a lawyer cannot just
accept any case nor can he employ business methods to solicit
professional employment or to advertise his talent and skill to
attract prospective clients. He should observe the restrictions and
ethical norms that make the law a profession and not a commercial
venture.66
The dilemma thus posed often works hardship on the part of a
lawyer. It moreover exerts pressure on his part to deviate from the
ethical norms. That a lawyer finds himself in that difficult dilemma
does not, however, justify relaxation of or deviation from the rule. If
the bar is to be held in high esteem by the people, if it is to maintain
its utmost usefulness to the public and if it has to preserve its
honored tradition of public service with remuneration as a mere
incident thereof, then the ethical norms and restrictions that make
the law a profession must remain inflexible.
§6.11. Lawyer shall ascertain possible conflict of interests.
Rule 15.01 of the Code reads: “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.”
It is the duty of a lawyer to disclose and explain to a prospective
client all circumstances of his relations to the parties and any interest
in or connection with the controversy, which in his honest judgment
might influence the client in the selection of counsel.57 The disclosure
is more for the protection of the lawyer than that of the client. If,
for instance, a lawyer conceals the fact that the adverse party used
to be his client, the new client may have reason to suspect, in case
of an unfavorable judgment, that the circumstance prevented him
“Director of Religious Affair v. Bayot, 74 Phil. 479 (1944): In re Tagorda, 53
Phil. 37 (1929).
67Canon 16, Canons of Professional Ethics.
LEGAL AND JUDICIAL ETHICS
194
from the full discharge of his duty. Concealment of facts material to
employment may cause his client to lose confidence in him and may
even affect his fee. A client may presume from an attorney’s failure
to disclose matters material to his employment that the attorney
has no interest which will interfere with his devotion to the cause
confided to him or betray his judgment.68
§6.12. Duty to decline employment.
A lawyer should decline professional employment even though
how attractive the fee offered may be if its acceptance will involve
a violation of any of the rules of the legal profession. After giving
professional advice to a plaintiff concerning the latter’s claim, a
lawyer may not thereafter accept retainer from defendant to defeat
that claim.69 He may not accept employment from another in a
matter adversely affecting any interest of his former client with
respect to which confidence has been reposed.60 Nor may he handle a
case to nullify a contract which he prepared.61 It is his duty to decline
employment in any of these and similar matters in view of the rule
prohibiting representation of conflicting interests.
A lawyer should not accept employment as an advocate in
any matter in which he had intervened while in the government
service.62 Having once held public office or having been in the public
employ, a lawyer should not after his retirement accept employment
in connection with any matter which he has investigated or passed
upon while in such office.63 The canonical injunction is based upon
the necessity that professional integrity and public confidence in that
integrity be maintained. For if the legal profession is to occupy that
position in public esteem which will enable it to be of the greatest
usefulness, it must not only avoid all evil but must likewise avoid
the appearance of evil.64
Neither should a lawyer properly accept employment the
nature of which might easily be used as a means of advertising his
professional services or his skill. Accordingly, he may not accept
“All State Ins. Co. v. Keller, 149 NE2d 482, 70
ALR2dll90 (1958).
“Hilado v. David, 84 Phil. 569 (1949).
61Bautista v.
Barrios, 9 SCRA 695 (1963).
6.03, Code of Professional Responsibility.
“Canon 36, Canons of Professional Ethics.
“A.B.A. Op. 98 (August 29,1933).
62Rule
NATURE AND CREATION OF ATTORNEY-CLIENT RELATIONSHIP 195
employment from an organization to render legal services to
members thereof concerning questions submitted by the members,
the answers to which are printed for circulation.66 For the same
reason, he may not accept employment as a columnist to answer
inquiries for advice as to individual rights through the medium
of a newspaper column.66 Nor may he accept employment from a
collection agency which solicits business to collect its claims.67
While there is no statutory restriction for a lawyer to be an
advocate and a witness for a client in a case, the canons of the
profession forbid him from acting in that double capacity68 as he will
find it difficult to disassociate his relation to the client as a lawyer
and his relation to the litigant as a witness.69 An attorney may not
therefore accept employment in 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.70
A lawyer shall not, as a rule, refuse his services to the needy.
However, he may refuse to accept representation of an indigent client
if he is not in a position to carry it out effectively or competently or he
labors under a conflict of interest between him and the prospective
client or between a present client and the prospective client.71
§6.13. A lawyer shall preserve the secrets of a prospective
client.
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. Rule 15.02 of the Code makes the lawyer
“bound by the rule on privileged communication in respect of matters
disclosed to him by a prospective client.” The reason for the rule is
to make the prospective client free to discuss whatever he wishes
with the lawyer without fear that what he tells the lawyer will not
66A.B.A.
Op. 98 (August 29, 1933).
“A.B.A. Op. 270 (November 30, 1945).
67A.B.A.
1941).
Op. 255 (July 12,1941).
“Phil. National Bank v. Uy Teng Piao, 57 Phil. 337 (1932).
69A.B.A. Op. 220 (July 12,1941).
70A.B.A. Op. 50 December 14, 1931, modified by A.B.A. Op. 220 (July 12,
71Rule
14.03, Code of Professional Responsibility.
LEGAL AND JUDICIAL ETHICS
196
be divulged nor used against him, and for the lawyer to be equally
free to obtain information from the prospective client.72
§6.14. Ethical considerations in taking bad case.
The ethical question which laymen who often ask of the legal
profession is: “How can a lawyer take a case which he does not
believe in?”73
The classical answer to the question is the following familiar
dialogue: “Boswell. But what do you think of supporting a cause which
you know to be bad? Johnson: Sir, you do not know it to be good or
bad till the judge determines it. I have said that you are to state the
facts fairly; so that your thinking, or what you call knowing, a cause
to be bad must be from reasoning, must be from your supposing your
arguments to be weak and inconclusive. But, sir, that is not enough.
An argument which does not convince yourself may convince the
judge to whom you urge it; and if it does convince him, why then, sir,
you are wrong and he is right. It is his business to judge; and you are
not to be confident in your opinion that a cause is bad, but to say all
you can for your client, and then hear the judge’s opinion.”74
Another author gave a different answer to the ethical question:
“No, there is nothing unethical in taking a bad case or defending the
guilty or advocating what you don’t believe in. It is ethically neutral.
It’s free choice. There is a Daumier drawing of a lawyer arguing, a
very demure young woman sitting near him, and small boy beside
her sucking a lollipop. The caption says: ‘He defends the widow and
the orphan, unless he is attacking the orphan and the widow.’ And
for every lawyer whose conscience may be pricked, there is another
whose virtue is tickled. Every case has two sides, and for every
lawyer on the wrong side, there’s another on the right side.”75
Both answers to the ethical problem ignore some fundamental
points. A lawyer certainly knows whether a case is good or bad
because it is not only his function but his duty to find out. A criminal
72Comments of
73MALCOLM,
IBP Committee that drafted the Code, p. 81.
op. cit., at 110, quoting BRANDEL, BUSINESS A PROFES-
SION, 339.
"MALCOLM, op. cit., at 111, quoting BOSWELL, I LIFE OF SAMUEL JOHNSON, 330 (Ingpen’s ed. 1925).
75Curtis, The Ethics of Advocacy, TRUMBULL MATERIALS ON THE LAWYER’S PROFESSIONAL RESPONSIBILITY, 210 (157).
NATURE AND CREATION OF ATTORNEY-CLIENT RELATIONSHIP 197
action and a civil suit moreover require the application of different
ethical principles. While a lawyer may only have little choice in the
former, he may have a free choice in the later. And what is proper to
champion in one may be improper to defend in the other.
In a criminal action, the law makes it ethically easy for a lawyer
to take the defense of an accused whom he knows is guilty. Not only
does the law presume an accused to be innocent; he is also entitled
to acquittal unless his guilt is proved beyond a reasonable doubt
by procedure recognized by law. Apart from that, it is the “right of
the lawyer to undertake the defense of a person accused of crime,
regardless of his personal opinion as to the guilt of the accused;
otherwise innocent persons, victims only of suspicious circumstances,
might be denied proper defense.”76 And it is “improper for a lawyer to
assert in argument his personal belief in his client’s innocence or in
the justice of his cause.”77
In a civil action, the rules and ethics of the profession enjoin
a lawyer from taking a bad case. Firstly, 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 a
willful violation of such rule shall subject him to disciplinary
action.78 Secondly, it is the attorney’s 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.”79 Thirdly, he “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.”80 Finally, he “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.”81 If a lawyer were to take a bad civil suit
against a defendant, it will either be to exert his best efforts toward
a compromise or, if unsuccessful, to advice his client to confess
judgment.82 He will invite the exercise of disciplinary power by the
court if he were to take a different course of action that will cause
76Canon 5,
Canons of Professional Ethics.
Canons of Professional Ethics.
78Rule 7, Sec. 3, Rules of Court.
79Rule 138, Sec. 20(c), Rules of Court.
80Rule 138, Sec. 20(g), Rules of Court.
81Canon 30, Canons of Professional Ethics.
820rbit Transportation Co. v. Workmen’s Compensation Commission, 58 SCRA
78 (1974).
77Canon 15,
198
LEGAL AND JUDICIAL ETHICS
undue delay in the disposition of unmeritorious cases or the clogging
of the docket of defenseless suits.83
The reason why laymen often ask the ethical question — how
can a lawyer take a case which he does not believe in? — is due partly
to unfamiliarity with the rules and ethics of the legal profession and
partly to a lack of appreciation of the rights of an accused. That the
question is asked shows that the public has yet to know more about
the legal profession and its role in the administration of justice.
D. LAWYER MAY NOT REFUSE HIS SERVICES
§6.15. Lawyer as advocate, generally.
The primary task of a lawyer, as an advocate, is to represent
a party litigant in court, either as counsel for plaintiff or for
defendant, or as public prosecutor or as defense counsel. Except a
public prosecutor who cannot choose cases to prosecute, a private
practitioner, as a general rule, is not obligated to act as counsel for
any person who may wish to become his client. He has the right to
decline employment. He must on his own responsibility decide what
business he will accept as counsel, what causes he will bring to court
for plaintiffs or what cases he will contest for defendants.84
Canon 14 and its implementing Rules of the Code of
Professional Responsibility provide the exception to the general
rule and emphasize the lawyer’s public responsibility of rendering
legal services to the needy and the oppressed who are unable to pay
attorney’s fees. Canon 14 and its implementing rules read:
CANON 14 - A LAWYER SHALL NOT REFUSE HIS
SERVICES TO THE NEEDY.
Rule 14.01 — A lawyer shall not decline to represent a
person solely on account of the latter’s race, sex, creed or status
of life, or because of his own opinion regarding the guilt of said
person.
Rule 14.02 — A lawyer shall not decline, except for serious
and sufficient cause, an appointment as counsel de oficio or
83Cobb-Perez v. Lantin, 24 SCRA 291 (1968); Salazar v. De Castrodes, 28 SCRA
299 (1969); Samar Mining Co. v. Amado, 24 SCRA 402 (1968).
84Canon 31,
Canons of Professional Ethics.
NATURE AND CREATION OF ATTORNEY-CLIENT RELATIONSHIP 199
as amicus curiae, or a request from the Integrated Bar of the
Philippines or any of its chapters for rendition of free legal
aid.
Rule 14.03 — A lawyer may refuse to accept representation
of an indigent client if:
a)
e is not in a position to carry out the work effectively
or competently;
b)
he labors under a conflict of interests between him
and the prospective client or between a present client and the
prospective client.
Rule 14.04 — A lawyer who accepts the cause of a
person unable to pay his professional fees shall observe the
same standard of conduct governing his relations with paying
clients.
The above canon and rules underscore the duty of a lawyer to
accept employment insofar as the needy and the poor are concerned,
refusal to accept being made the exception.86 There are two reasons
for the rule. The poor and the needy are the persons who, when in
trouble, need most the services of a lawyer but hesitate to secure
such services because they cannot afford to pay counsel’s fees
or fear they will be refused for their inability to compensate the
lawyer. Moreover, one of the objectives of the IBP is to make legal
services fully available for those who need them and the fulfillment
of this objective requires that a lawyer should not lightly decline
employment from the poor and the needy.
§6.16. A lawyer shall not decline to represent unpopular
clients.
The law makes it the lawyer’s duty “never to reject, for any
consideration personal to himself, the cause of the defenseless or the
oppressed.”86 Rule 14.01 of the Code complements it by requiring that
a “lawyer shall not decline to represent a person solely on account of
his opinion regarding the guilt of said person.”
Regardless of his personal feelings, a lawyer should not decline
representation because a client or a cause is unpopular or community
“Comments of IBP Committee that drafted the Code, p. 75.
“Rule 138, Sec. 20(h), Rules of Court.
200
LEGAL AND JUDICIAL ETHICS
reaction is adverse. He should take comfort in the fact that history
is replete with instances of distinguished and sacrificial services by
lawyers who had represented unpopular clients and causes and who
had received the accolade for such services from his peers in the
bar.87
Rule 14.01 of the Code makes it ethically easy for a lawyer
to take the defense of an accused whom he knows, or the public
believes, is guilty of the crime. For Rule 14.01 makes it his duty not
to decline to represent the accused regardless of his opinion as to
his guilt. Apart from that, the law presumes him innocent, and he
is entitled to acquittal unless his guilt is proved beyond reasonable
doubt by procedure recognized by law. If the rule where otherwise,
innocent persons, victims of suspicious circumstances, might be
denied proper defense.
§6.17. A lawyer shall not decline appointment by the court
or by IBP.
The relation of attorney and client may be created not only by
the voluntary agreement between them but also by the appointment
of an attorney as counsel de oficio for a poor or indigent litigant, and
the attorney so appointed has as high a duty to the indigent as to his
paying client.88
A court may assign a lawyer to render professional aid, free of
charge, to any party in a case if upon investigation it appears that
the party is destitute and unable to employ a lawyer 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.89
In a criminal action, the court may appoint a counsel de oficio
in any of the following instances:
1.
Before arraignment, the court shall inform the accused
of his right to counsel and ask him if he desires to have one. Unless
the accused is allowed to defend himself in person, or has employed
87Comments of
IBP Committee that drafted the Code, pp. 75-76.
“People v. Estebia, 27 SCRA 106 (1969); People v. Ingco, 42 SCRA 170 (1971);
Ledesma v. Climaco, 57 SCRA 473 (1974).
“Rule 138, Sec. 31, Rules of Court.
NATURE AND CREATION OF ATTORNEY-CLIENT RELATIONSHIP 201
counsel of his choice, the court must assign a counsel de oficio to
defend him.90
2.
t shall be the duty of the clerk of the trial court, upon filing
of a notice of appeal, to ascertain from the appellant, if confined in
prison, whether he desires the Regional Trial Court, Court of Appeals
or the Supreme Court to appoint a counsel de oficio to defend him
and to transmit with the record on a form to be prepared by the clerk
of court of the appellate court, a certification of compliance with this
duty and the response of the appellant to his inquiry.91
3.
If it appears from the record of the case as transmitted
that (a) that the accused is confined in prison, (b) is without counsel
de parte on appeal, or (c) has signed the notice of appeal himself, the
clerk of the Court of Appeals shall designate a counsel de oficio.
An appellant who is not confined in prison may, upon request,
be assigned a counsel de oficio within ten (10) days from receipt of
the notice to file brief and he establishes his right thereto.92
The court may not assign a counsel de oficio to defend an
accused and require such counsel to proceed with the trial when the
accused has previously manifested his desire to secure the services
of counsel de parte\ if the court does so, it violates the defendant’s
right to counsel and his conviction may be set aside on that ground.93
To constitute a violation of his right to counsel of his choice, the
accused must inform the trial court of his desire to be defended by
a counsel de parte and, if a counsel de oficio is appointed, he must
protest such appointment and the action of the counsel de oficio,
otherwise he cannot rightly claim that his right has been violated.
Thus, where a counsel de oficio has been assigned to an accused on
trial and such counsel has acted without objection from the accused,
the latter’s conviction cannot be set aside on the sole ground that
said counsel was not of his own choice.94
§6.18. Frequent appointment of same counsel discouraged.
The burden of an attorney’s regular practice and the possibility
of the compensation for counsel de oficio being considered as a
“Sec. 6, Rule 116, Rules of Court.
91Sec.
13, Rule 122, Rules of Court.
“Sec. 2, Rule 124, Rules of Court.
“People v. Malunsing, 63 SCRA 493
“People v. Solis, 128 SCRA 217 (1984).
202
LEGAL AND JUDICIAL ETHICS
regular source of income,96 which is not envisioned by the rule,
should caution a trial court from frequently appointing the same
lawyer as counsel de oficio. The overburdened counsel may have too
little time to spare for his de oficio cases, in the first instance, or he
may be inordinately eager to finish such cases to be able to collect
his fees within the earliest possible time, in the second instance.
The accused stands to suffer as he is denied effective assistance of
counsel in both instances.96
§6.19. A lawyer may refuse to represent indigent on valid
grounds.
Ordinarily 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. He must on his own responsibility decide
what business he will accept as counsel, what causes he will bring
into court for plaintiffs or what cases he will contest in court for
defendants.97
There are exceptions to the rule. Generally, “a lawyer shall not
refuse his services to the needy.”98 He “shall not decline to represent
a person solely on account of the latter’s race, sex, creed or status of
life, or because of his own opinion regarding the guilt of said person.”
Neither shall he 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.”99 The reason is that one of the burdens of
the privilege to practice law which an attorney voluntarily assumed
when he took his oath as a lawyer is to render, when so required by
the court, free legal services to an indigent litigant.100 Unless he is
relieved from the responsibility as counsel de oficio, a lawyer may
not refuse to appear for an indigent client without being disciplined
for such refusal.101 Moreover, “a lawyer who accepts the cause of a
96Rule
138, Sec. 32, Rules of Court.
^People v. Daeng, 49 SCRA 221 (1973).
(1960).
97Canon 31,
Canons of Professional Ethics; Enriquez v. Gimenez, 107 Phil. 932
"Canon 14, Code of Professional Responsibility.
"Rule 14.02, ibid.
100Ledesma v. Climaco, 57 SCRA 473 (1974).
101People v. Isisuilo, 82 Phil. 1 (1948); Ledesma v. Climaco, supra.
NATURE AND CREATION OF ATTORNEY-CLIENT RELATIONSHIP 203
person unable to pay his professional fees shall observe the same
standard of conduct governing his relation with paying client.”102
A government lawyer who is called upon, as required by law,
to represent the government, any of its agencies or any officer in
his official capacity either as plaintiff or as defendant in a case may
not generally decline the assignment. Unless he is disqualified to
act as counsel, the government lawyer may not refuse to appear
as counsel without being held administratively liable therefor as a
public officer.103
The Solicitor General is the principal law officer and legal
defender of the Government. In the discharge of his duties, he has
the discretion in choosing whether to prosecute or not to prosecute
or 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 beliefs that justice will
be served by taking a different stand. But he cannot just refrain from
performing his duty as lawyer of the government. It is incumbent
upon him to present to the court what he considers would legally
uphold the best interest of the government. He cannot simply refuse
to do his duty nor can he withdraw from a case on flimsy ground,
otherwise, mandamus will lie to compel him to perform his duties
and responsibilities.104
When he is confronted with a situation where one government
office takes an adverse position against another government agency,
the Solicitor General should not refrain from performing his duty as
the lawyer of the government. It is incumbent upon him to present to
the court what he considers should legally uphold the best interest of
the government, although it may run counsel to the client’s position.
In such an instance, the government office adversely affected by the
position taken by the Solicitor General, if it still believes in the merit
of its case, may appear on its own behalf through its legal officer or
representative.106
I02Rule
103Cf.
14.04, Code of Professional Responsibility.
Enriquez, Sr. v. Gimenez, 107 Phil. 932 (1960); Reyes v. Comesta, 92
Phil. 838 (1953); Municipality of Bocaue v. Manotok 93 Phil. 173 (1953); Aguador v.
Enerio, 37 SCRA 140 (1971); Calleja v. Court of Appeals, 20 SCRA 895 (1967).
104Gonzales v. Chavez, 205 SCRA 816 (1992).
105Republic v. CA, 200 SCRA 226 (1991).
204
LEGAL AND JUDICIAL ETHICS
§6.20. A lawyer shall observe the same standard for all
clients.
Rule 14.04 of the Code requires that a “lawyer who accepts the
cause of a person unable to pay his professional fees shall observe
the same standard of conduct governing his relations with paying
clients.” The purpose of the legal profession is to render public
service and secure justice for those who seek its aid. The gaining of a
livelihood is only a secondary consideration. Consequently, neither
the amount of attorney’s fees nor the client’s financial ability to pay
such fees should serve as the test to determine the extent of the
lawyer’s devotion to his client’s cause.106 Thus, failure of the client
to pay the agreed fees does not warrant the lawyer’s abandoning his
client’s case.107 The fact that a lawyer merely volunteered his legal
services or that he was a mere counsel de oficio neither diminishes
nor alters the degree of professional responsibility owed to his
client.108
(1969).
106Operel
mIn re
v. Abaria, 40 SCRA 128 (1971); People v. Estebia, 27 SCRA 106
Montague & Dominguez, 3 Phil. 577 (1904).
v. Arcangel, 21 SCRA 7 (1967); People v. Estebia, supra.
108Blanza
Chapter VII
LAWYER’S DUTIES IN
HANDLING CLIENT’S CAUSE
A. ENTIRE DEVOTION WITHIN THE LAW
§7.01. Generally.
No lawyer is obliged to act either as adviser or advocate for
every person who may wish to secure his services. He has the right
to decline employment, subject, however, to Canon 14 of the Code of
Professional Responsibility. Once he agrees to take up the cause of
the client, the lawyer owes fidelity to such cause and must always be
mindful of the trust and confidence reposed in him. He owes entire
devotion to the interest of his client, warm zeal in the maintenance
and defense of his client’s rights, and the exertion of his utmost
learning and ability to the end that nothing be taken or withheld
from his client, save by the rules of law, legally applied.
No fear of judicial disfavor or public unpopularity should
restrain him from the full discharge of his duty. In the judicial
forum the client is entitled to the benefit of any and every remedy
and defense that is authorized by law, and he may expect his lawyer
to assert every such remedy or defense.1
■Canon 17, Code of Professional Responsibility; Santiago v. Fojas, 248 SCRA
68 (1995); People v. Ibasan, 129 SCRA 695 (1984), citing Agpalo, Legal Ethics, 1980,
p. 157, et seq.', Chavez v. Sandiganbayan, 193 SCRA 282 [1991], citing Agpalo, Legal
Ethics (1980), p. 147; Canon 15, Canons of Professional Ethics; Javier v. Cornejo, 63
Phil. 293 (1936); In re Tionko, 43 Phil. 191 (1922); In re Oliva, 103 Phil. 312 (1958);
Lualhati v. Albert, 57 Phil. 86 (1932); Toguib v. Tomol, Jr. (1969); People v. Macellones, 49 SCRA 529 (1975); Tan Kui v. Court of Appeals, 54 SCRA 199 (1973); Santiago v. Fojas, 248 SCRA 68 (1995).
205
206
LEGAL AND JUDICIAL ETHICS
The Court in Pangasinan Electric Cooperative v. Ayar Montemayor,2 citing cases, stressed:
As held in Aromin v. Atty. Boncavil:
Once he agrees to take up the cause of a client, the lawyer
owes fidelity to such cause and must always be mindful of the
trust and confidence reposed in him. He must serve the client
with competence and diligence, and champion the latter’s cause
with whole-hearted fidelity, care, and devotion. Elsewise stated,
he owes entire devotion to the interest of the client, warm zeal
in the maintenance and defense of his client’s rights, and the
exertion of his utmost learning and ability to the end that
nothing be taken or withheld from his client, save by the rules
of law, legally applied. This simply means that his client is
entitled to the benefit of any and every remedy and defense that
is authorized by the law of the land he may expect his lawyer to
assert every such remedy or defense. If much is demanded from
an attorney, it is because the entrusted privilege to practice
law carries with it the correlative duties not only to the client
but also to the court, to the bar, and to the public. 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 the respect of
the community to the legal profession.
In Redentor S. Jardin v. Atty. Deogracias Villar, Jr., the Court
also held that:
[T]he trust and confidence necessarily reposed by clients
requires in the attorney a high standard and appreciation
of his duty to his clients, his profession, the courts and the
public. Every case a lawyer accepts deserves his full attention,
diligence, skill and competence, regardless of its importance
and whether he accepts it for a fee or free. Certainly, a member
of the Bar who is worth his title cannot afford to practice the
profession in a lackadaisical fashion. A lawyer’s lethargy
from the perspective of the Canons is both unprofessional and
unethical.
2A.C.
No. 5739, September 12, 2007.
LAWYER’S DUTIES IN HANDLING CLIENT’S CAUSE
207
The court as guardian of the legal profession likewise expects
a lawyer to employ all the energies at his command.3 It demands
of him the most scrupulous performance of his duty, especially
when negligence in the discharge thereof will cause delay in the
administration of justice or prejudice to the rights of a litigant.4
His assertiveness in espousing with candor and honesty his client’s
cause should, therefore, be encouraged.6
Why much is demanded of a lawyer is explained in a case:
“Public interest requires that an attorney exert his best
efforts and ability in the prosecution or defense of his client’s
cause. A lawyer who performs that 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. This is so
because the entrusted privilege to practice law carries with it
the correlative duties not only to the client but also to the court,
to the bar and to the public. That circumstance explains the
public concern for the maintenance of an untarnished standard
of conduct by every attorney towards his client.”6 (Cantiller v.
Potenciano, 180 SCRA 246 [1989], citing Agpalo, Legal Ethics,
3rd ed., Law Publishing House, 1985, p. 153)
In the discharge of his duty of entire devotion to the client’s
cause, a lawyer should present every remedy or defense authorized
by law in support of his client’s cause, regardless of his personal
views. In the full discharge of his duties to his client, the lawyer
should not be afraid of the possibility that he may displease the
judge or the general public.1
The lawyer’s highest and most unquestioned duty is to protect
the client at all hazards and cost even to himself. The finest hours of
the legal profession were those where the lawyer stood by his client
even in the face and risk of danger to his person or fortune. And
3See Justice Fernando’s concurring opinion, Radio Communications of the Phil,
v. Phil. Communications & Electricity Workers’ Federation, 65 SCRA 82 (1975).
1971.
(1975).
*In re Lahesa, 4 Phil. 298 (1905); People v. Ingco, G.R. No. 32994, October 29,
6Cobb-Perez
6Francisco,
v. Lantin, 24 SCRA 291 (1968); Azor v. Beltran, 63 SCRA 210
Jr. v. Bosa, 205 SCRA 722, 726 (1992).
’Legarda v. Court of Appeals, 195 SCRA 418 (1991).
208
LEGAL AND JUDICIAL ETHICS
his client can take comfort in the thought that his lawyer will not
abandon him when his services are needed most.8
§7.02. A lawyer shall perform duty within the law.
The lawyer’s duty of entire devotion to his client’s cause must,
however, be performed within the bounds of law. For this reason,
Rule 15.07 of the Code requires him to “impress upon his client
compliance with the laws and principles of fairness.” He should also
impress upon his client that his duty is to counsel or maintain such
actions or proceedings only as appear to him to be just, and raise
such defenses only as he believes to be honestly debatable under
the law,9 and to secure for the client, through honorable means, only
what is justly due him.10
A lawyer is required to represent his client within the bounds
of law. The Code of Professional Responsibility enjoins him to
employ only fair and honest means to attain the lawful objectives of
his client. He may use any arguable construction of the law or rules
which is favorable to his client. But he is not allowed to knowingly
advance a claim or defense that is unwarranted under existing
law. He cannot prosecute patently frivolous and meritless appeals
or institute clearly groundless actions. Professional rules impose
limits on a lawyer’s zeal and hedge it with necessary restrictions
and qualifications.11
The great trust confided to an attorney by his client must be
performed within and not without the bounds of law. His office
does not permit, much less does it demand of him for any client,
violation of law or any manner of fraud or chicanery.12 He swore,
upon his admission to practice, to uphold the cause of justice, obey
the law and do no falsehood.13 He should impress upon his client
compliance with the laws and the principles of fairness.14 While he
8Comments of IBP
9Rule
Committee that drafted the Code, p. 93.
138, Sec. 20(c), Rules of Court.
10Canon 15, Canons of Professional Ethics.
“Millare v. Montero, 246 SCRA 1 (1995).
12Canon 15, Canons of Professional Ethics; Canon 19, Code of Professional Responsibility.
13Form 28, Appendix of Forms, Rules of Court; Guerrero v. Hernando, 68 SCRA
76 (1975).
14Rule 15.07, Code of Professional Responsibility.
LAWYER’S DUTIES IN HANDLING CLIENTS CAUSE
209
is not supposed to know all the laws,16 he is expected to take such
reasonable precaution in the discharge of his duty to his client and
for his professional guidance as will not make him, who is sworn to
uphold the law, a transgressor of its precepts.16
“Nothing operates more certainly to create or foster popular
prejudice against lawyers as a class, and to deprive the profession
of that full measure of public esteem and confidence which belongs
to the proper discharge of its duties than does the false claim, often
set up by the unscrupulous in defense of questionable transactions,
that it is the duty of the lawyer to do whatever may enable him to
succeed in winning his client’s cause.”17 There is nothing in the duty
to a client which makes it necessary for a lawyer to swear to that
which is false,18 to disregard the truth and defy the clear purpose
of the law19 or to obtain for his client something to which he is not
justly and fairly entitled. He appears in court in representation of
his client not only as an advocate but also as an officer of the court
trusted and authorized by the state to assist the court in determining what is right between the parties before it. The state is vitally
interested in seeking that justice is done and goes to great expense
and provides the machinery for that part of its governmental function. 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.
The lawyer’s duty in its last analysis requires that “no client,
corporate or individual, however powerful, nor any cause, civil or
political, however important, is entitled to receive nor should any
lawyer render a service or advice involving disloyalty to the law
whose” minister he is, “or disrespect to the judicial office, which” he
is “bound to uphold, or corruption of any person or persons exercising
a public office or private trust, or deception or betrayal of the public.
When rendering any such improper service or advice, the lawyer
invites and merits stem and just condemnation. Correspondingly,
16/n
re Filart, 40 Phil. 205 (1919).
Villanueva, 40 Phil. 775 (1920).
16Hemandez v.
(1973).
17Canon 15,
Canons of Professional Ethics; Munoz v. People, 53 SCRA 190
18People ex rel. Chicago Bar Ass’n. v. Artin, 124 NE 340 (1919); Munoz v. People, supra.
19Cosmos Foundry Shop Workers Union v. Lu Bo. 63 SCRA 313 (1975). Langen
v. Borkowski, 206 NW 181, 43 ALR 622 (1925). Re Macy, 196 P. 1095, 14 ALR 848
(1921); People ex rel. Atty. Gen. v. Beattie, 137 111. 553, 27 NE 1103.
210
LEGAL AND JUDICIAL ETHICS
he advances the honor of his profession and the best interest of his
client when he renders service or gives advice tending to impress
upon the client and his undertaking exact compliance with the
strictest principles of moral law. He must also observe and advice
his client to observe the statute law, though until a statute shall
have been construed and interpreted by competent jurisdiction, he
is free and is entitled to advice as to its validity and as to what he
conscientiously believes to be its just meaning and extent. But above
all a lawyer will find his highest honor in a deserved reputation for
fidelity to private trust and to public duty, as an honest man and as
a patriotic and loyal citizen.”20
§7.03. A lawyer shall give candid advice on merits of case.
One of the very first questions a client usually asks his
lawyer refers to the probable result of his contemplated or pending
litigation. Before answering his client’s question, a lawyer should
endeavor to obtain full knowledge of his client’s cause. It is only
after he shall have studied the case that he should advise his client
on the matter.21 His client, ordinarily a layman to the intricacies and
vagaries of the law, is entitled to and he is bound to give a candid
and honest opinion on the merit or lack of merit of his client’s case,22
neither overstating nor understating the prospect of the case.23 It is
likewise incumbent upon him to give his client an honest opinion on
the probable results of the case, with the end in view of promoting
respect for the law and the legal processes.24
As officers of the court, counsel are under obligation to advice
their clients against making untenable and inconsistent claims.
Lawyers are not merely hired employees who must unquestionably
do the bidding of the client, however unreasonable this may be when
tested by their own expert appreciation of the facts and applicable
law and jurisprudence. Counsel must counsel.25
“Canon 32, Canons of Professional Ethics; cf. Daroy v. Legaspi, 65 SCRA 304
(1975).
21Canon 8,
Canons of Professional Ethics.
22Cobb-Perez v. Lantin, 24 SCRA 291 (1968); Castaneda v. Ago, 65 SCRA 505
(1975) . Contelang v. Medina, 91 SCRA 403 (1979).
“Rule 15.05, Code of Professional Responsibility.
“Choa v. Chingson, 253 SCRA 371 (1996).
“Periquet v. NLRC, 186 SCRA 724 (1990).
LAWYER’S DUTIES IN HANDLING CLIENT’S CAUSE
211
If a lawyer finds that his client’s contemplated civil suit is
totally devoid of merit or that the pending action against him is
wholly defenseless, he should so inform his client and dissuade
him, in the first instance, from filing the case or advise him, in the
second instance, to compromise or submit rather than traverse the
incontrovertible.26 If on the other hand he finds that his client’s cause
is fairly meritorious and ripe for judicial adjudication, he should
refrain from making bold and confident assurances of success. He
shall not state or imply that he is able to influence any judge or public
official.27 The miscarriages to which justice is subject, by reason of
surprises and disappointments in evidence and witnesses and
through mistakes and errors of courts, even though only occasional,
admonish lawyers to beware of bold and confident assurances to
clients, especially where the employment may depend upon such
assurance.28 A lawyer who guarantees the successful outcome of a
litigation is under a heavy pressure to employ any means to win the
case at all costs or under a cloud of suspicion of having betrayed the
client when the case is lost. In either instance he puts himself in a
trying situation.
§7.04. Duty to comply with client’s lawful request.
A lawyer should endeavor to seek instruction from his client on
any substantial matter concerning the litigation, which may require
decision on the part of the client, such as whether to compromise the
case29 or to appeal an unfavorable judgment.30 He should, moreover,
give his client the benefit of sound advice on any such and similar
matters31 and comply with the client’s lawful instructions relative
thereto.32
While it is the lawyer’s duty to comply with the client’s lawful
request, he should resist and should never follow any unlawful
26Cobb-Perez v. Lantin, supra.; Castaneda v. Ago, supra; Gillego v. Diaz, 39
SCRA 88 (1971); Samar Mining Co. v. Amado, 24 SCRA 402 (1968); Orbit Transp. Co.
v. WCC, 58 SCRA 78 (1974); Pajares v. Abad Santos, 30 SCRA 748 (1969); Harrison
Foundry and Machinery Harrison Foundry Workers’ Assn., 8 SCRA 430 (1863).
27Rule 15.06 Code of Professional Responsibility.
28Canon 8, Canons of Professional Ethics.
29Caballero v. Deiparine, 60 SCRA 136 (1974).
30Cf. Alcala v. De Vera, 56 SCRA 30 (1974).
31Canon 8, Canons of Professional Ethics.
:aCf. Crespo v. Amurao, 95 Phil. 646 (1954).
212
LEGAL AND JUDICIAL ETHICS
instruction of his client.33 In matters of law, it is the client who
should yield to the lawyer and not the other way around.34 He “shall
not allow his client to dictate the procedure in handling the case.”36
The lawyer’s duty to the court, no less than the dignity of the legal
profession, requires that he should not act like an errand-boy at
the beck and call of his client, ready and eager to do his bidding.36
“In short, a lawyer is not a gun for hire.”37 He should obey his own
conscience and not that of his client.38
The “responsibility for advising as to questionable transactions,
for bringing questionable suits, for urging questionable defenses,
is the lawyer’s responsibility. He cannot escape it by urging as an
excuse that he is only following his client’s instruction.”39 The client’s
insistence that a lawyer should do a particular act and the lawyer’s
compliance therewith cannot in any manner justify the lawyer’s
violation of the rules and ethics of the legal profession.40
A lawyer who files a pleading which contains contemptuous
allegations cannot evade responsibility by saying that he is merely
the “mouthpiece” of his client and that his client verified the same.
As a lawyer, he is not just an instrument of his client. While he owes
him wholesouled devotion, he cannot overstep the bounds set by his
responsibility as a lawyer. For his duty to the court is not secondary
to that of his client.41
A lawyer must judge for himself “as to incidental matters
pending trial, not affecting the merits of the cause or working
substantial prejudice to the rights of the client, such as forcing the
opposite lawyer to trial when he is under affliction or bereavement,
forcing the trial on a particular day to the injury of the opposite
lawyer when no harm will result from a trial at a different time;
agreeing to an extension of time for signing a bill of exceptions, cross
interrogatories and the like.” In such and similar matters, “no client
33Crespo
v. Amurao, supra.
34Con. op. of Justice Fernando, Radio Communications of the Phil. v. Phil.
Communications Electronics & Electricity Workers Federation, 65 SCRA 82 (1975).
36Rule 19.03, Code of Professional Responsibility; Millare v. Montero, 246
SCRA 1 (1995).
“Cosmos Foundry Shop Worker’s Union v. Lo Bu, 63 SCRA 313 (1975).
37Millare v. Montero, 246 SCRA 1, 6 (1995).
“Canon 15, Canons of Professional Ethics.
39Canon 31, Canons of Professional Ethics.
40Sumangil v. Sta. Romana, 84 Phil. 777 (1949).
41Wicker v. Arcangel, 252 SCRA 444 (1996).
LAWYER’S DUTIES IN HANDLING CLIENT’S CAUSE
213
has a right to demand that counsel be illiberal, or that he do anything
therein repugnant to his own sense of honor and propriety.”42
§7.05. Duty to restrain client from impropriety.
A lawyer should use his best efforts to restrain and to prevent
his client from doing those things which he himself ought not to do,
particularly with reference to the conduct toward the court, judicial
officer, witness and suitor; and if the client persists in such wrong
doing, the lawyer should terminate their relation.43 A lawyer should
not advise his client to do, nor should he approve of, his impropriety.
He may not therefore sanction his client’s act of compromising the
action with the adverse party without the knowledge of the latter’s
attorney.44 Neither should he advise his client to escape from prison
nor tell him what to do after such escape.46
§7.06. A lawyer shall not undertake influence-peddling.
The practice of law does not include influence-peddling.46 Rule
15.06 of the Code, which provides that a “lawyer shall not state or
imply that he is able to influence any public official, tribunal or
legislative body,” reminds lawyers and clients alike that influencepeddling is highly unethical and may constitute violation of the
provisions of the Anti-Graft and Corrupt Practices Act.
B. EMPLOYMENT OF HONORABLE MEANS
§7.07. Duty to employ honorable means only.
The acceptance of a retainer in a civil suit implies that a lawyer
honestly believes that his client has a fairly good cause or defense
which is ripe for judicial adjudication.47 It then becomes his duty to
insist upon the judgment of the court as to the legal merits of his
client’s claim or defense.48 His duty of entire devotion to his client’s
42Canon 24,
Canons of Professional Ethics.
“Canon 16, Canons of Professional Ethics; Surigao Mineral Reservation Board
v. Cloribel, 31 SCRA 1 (1970).
44A.B.A. Op. 75 (August 27,1932).
46A.B.A. Op. 150 (February 15,1936).
^Comments of IBP Committee that drafted the Code, p. 83.
47Canon 30, Canons of Professional Ethics; Rule 7, Sec. 5, Rules of Court.
■“Canon 30, Canons of Professional Ethics.
214
LEGAL AND JUDICIAL ETHICS
cause not only requires but entitles him to employ every honorable
means to secure for his client what is justly due him or to present
every defense provided by law to enable his client to succeed.49
“A lawyer shall employ only fair and honest means to attain
the lawful objectives of his client and shall not present, participate
in presenting or threaten to present unfounded criminal charges
to obtain an improper advantage in any case or proceeding.”50 A
lawyer should employ such means only as are consistent with truth
and honor.61 Thus, he should not offer in evidence any document
which he knows is false62 nor present any witness whom he knows
will perjure.53 He should make such defense only as he believes to
be honestly debatable under the law.64 He should abstain from all
offensive personality and 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.55 Nor should he state as a fact what
he merely expects or hopes to accomplish.56
In espousing his client’s cause, a lawyer should not state his
personal belief as to the soundness or justice of his case.57 A number
of reasons underlie such ethical injunction. Firstly, the lawyer’s
personal belief has no real bearing on the case.58 Secondly, if
expression of belief were permitted, it would give improper advantage
to the older and better known lawyer whose opinion would carry
more weight. Finally, if such were permitted, omission to make such
assertion might be taken as an admission of the lack of belief in the
soundness of his client’s cause.59
49Canon 15, Canons of Professional Ethics; Miraflor v. Hagad, 244 SCRA 106
(1995); Gamalinda v. Alcantara, 206 SCRA 468 (1992); Economic Ins. Co. v. Uy Realty Co., 34 SCRA 744 (1970).
“Rule 19.01, Code of Professional Responsibility.
61Rule 138, Sec. 20(d), Rules of Court; Lacsamana v. De la Pena, 58 SCRA 22
(1974); Munoz v. People, 53 SCRA 190 (1973); Cosmos Foundry Shop Worker’s Union
v. Lu Bo, 63 SCRA 313 (1975).
62Lacsamana v. De la Pena, supra.; Berrenguer v. Carranza, 26 SCRA 673
(1969); Valencia v. Cabanting, 496 SCRA 302 (1991).
53A.B.A. Op. 150 (February 15, 1936).
“Rule 138, Sec. 20(c), Rules of Court.
55Rule 138, Sec. 20(f), Rules of Court; Surigao Mineral Reservation Board v.
Cloribel, 31 SCRA 1 (1970).
“Republic v. Cloribel, 9 SCRA 453 (1963).
57Canon 15, Canons of Professional Ethics.
68People v. Prieto, 80 Phil. 138 (1948).
“Drinker, op. cit., at 147.
LAWYER’S DUTIES IN HANDLING CLIENTS CAUSE
215
§7.08. Technical defense.
There are some defenses which, when employed to defeat
clearly valid claims, may raise questions of propriety. Thus, some
hold the view that the defenses of infancy or lack of capacity to be
sued, statute of frauds and statute of limitations may not, in the
absence of some other defense, be properly raised to frustrate honest
and just demands.60 Much can be said against the soundness of that
view. The fact that those defenses have been provided by law shows
that a litigant may avail of them and his counsel may assert and make
them effective.61 Considerations of public policy must have prompted
the enactment of such law, as its repeal or abolition may spawn more
intolerable injustices than occasional prejudice to honest claimants
who, after all, are not entirely blameless for putting themselves in
that situation.62 The statute of fraud is designed to prevent fraud.63
And the law denies relief to a party who sleeps on his rights.64
The negative defense of lack of knowledge or information as
permitted by the rules must be availed of with sincerity and in good
faith; it must neither be used to confuse the adverse party as to
what allegations are really put in issue nor employed to delay the
litigation.66 While that form of denial may amount to an admission of
the material allegations when the fact as to which want of knowledge
is asserted is plainly and necessarily within the party’s knowledge,66
“Hoffman’s Resolution XII and RII read: “I will never plead the Statute of
Limitations when based on the mere efflux of time; for if my client is conscious he
owes the debt, and has no other defense than the legal bar, he shall never make me
a partner in his knavery.” “I will never plead or otherwise avail of the bar of Infancy,
against an honest demand. If may client possesses the ability to pay, and has no other
legal or moral defense than that it was contracted by him when under age of twentyone, he must seek for other counsel to sustain him in such a defense. And although in
this, as well as in that of limitation, the law has given the defense, and contemplates,
in one case, to induce claimants to a timely prosecution of their rights, and in the
other designs to protect a class of persons, who by reason of tender age are peculiarly
liable to be imposed on, — yet, in both cases. I shall claim to be the sole judge (the
pleas not being compulsory) of the occasions proper for their use.”
61See
Canon 15, Canons of Professional Ethics.
law requires the court to be vigilant for the protection of a party on account of tender age (Art. 24, Civil Code).
“National Bank v. Phil. Vegetable Oil Co., 49 Phil. 857 (1927).
MCf. Tijam v. Sibonghanoy, 23 SCRA 29 (1968); Z.E. Lotho, Inc. v. Ice and Cold
Storage Industries of the Phil., 3 SCRA 744 (1961).
“Sy-Guia v. Marsman, 22 SCRA 927 (1968).
“Equitable Banking Corp. v. Liwanag, 32 SCRA 293 (1970).
62The
216
LEGAL AND JUDICIAL ETHICS
which may justify rendition of judgment on the pleadings,67 a lawyer
who employs it solely for the purpose of delay puts in issue his
standing in the bar and invites disciplinary action from the court.68
§7.09. Prosecuting or defending matrimonial cases.
In an annulment of marriage or legal separation proceeding,
the circumstance that the state is vitally interested in the
maintenance of the marriage relation69 does not necessarily render
improper the lawyer’s appearance for a party in such proceeding and
securing for him what is due him under the law. What is unethical
is the lawyer’s participation in any collusion between the parties,
such as in pursuance thereof by encouraging the commission of a
matrimonial offense, by fabricating evidence of such offense not
actually committed or by suppressing evidence of a valid defense.70 A
lawyer should not only avoid being a party to such collusion; he must
also avoid any act which may invite or raise suspicion of collusion.71
A delicate problem confronts a lawyer who is in possession
of confidential information acquired from his client who is not in
collusion with the other party, the disclosure of which may defeat
the action for dissolution of marriage or for legal separation which
outcome his client does not want. The question is whether he as
counsel for the plaintiff should reveal the information to the court
or whether he as attorney for the respondent should plead it as a
defense. The question involves conflicting goals and loyalties. To his
client he owes the duty to lawfully secure for him what he desires
67Capitol
Motors v. Yabut, 32 SCRA 1 (1970).
“Equitable Banking Corp. v. Liwanag, supra.; J. P. Juan & Sons, Inc. v. Lianga Industries, Inc., 28 SCRA 807 (1969).
“Arts. 52, 88, 101, 222, Civil Code of the Philippines; Brown v. Yambao, 102
Phil. 168 (1957); Adong v. Cheng Seng Gee, 43 Phil. 43 (1922); Ramirez v. Gmur, 42
Phil. 855 (1918).
70Collusion in matrimonial cases is “the act of married persons in procuring a
divorce by mutual consent, whether by preconceived commission by one of a matrimonial offense, or by failure in pursuance of agreement to defend divorce proceedings.”
Brown v. Yambao, 102 Phil. 168 (1957). “Collusion in the law of divorce is a corrupt
agreement between a husband and a wife whereby one of them, for the purpose of
enabling the other to obtain a divorce, commits a matrimonial offense, or whereby
for the same purpose evidence is fabricated of an offense not actually committed or
evidence of a valid defense issuppressed.” 27 C.J.S. 620 (1941).
71See Panganiban v. Borromeo, 58 Phil. 367 (1933); Biton v. Monogan, 62 Phil.
7 (1935); Malnon v. De Leon, 94 Phil. 277 (1954); Miranda v. Fuentes, 16 SCRA 802
(1966).
LAWYER’S DUTIES IN HANDLING CLIENTS CAUSE
217
— the dissolution of the marriage or the legal separation from his
spouse — and to keep inviolate the client’s confidence, both of which
may be served by keeping silent about the damaging information. To
the court he must act with honesty and candor, which requires that
he divulge it. Moreover, public policy considers marriage a social
institution in the maintenance of which the public is committed72
and to which a lawyer must accord fealty. If he were to disclose the
information or plead it as a defense, he will be more than candid
to the court but less than faithful to his client who expects him
not only to safeguard his interest but to forever keep inviolate his
confidence as well, the maintenance of which the public is equally
interested. A lawyer in that situation should incline the scale of
his decision in favor of that solution which will best serve all his
loyalties, by declining the professional employment or terminating
the professional relationship.73 His duty to maintain undisclosed
his client’s confidence, which outlasts his professional employment,
should inhibit him, however, from volunteering such information to
any interested party.
§7.10. A lawyer shall rectify client’s fraud.
Rule 19.02 of the Code 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.” On the other hand, Canon 41 of the Canons of
Professional Ethics states that “when a lawyer discovers that some
fraud or deception has been practiced, which was unjustly imposed
upon the court or party, he should endeavor to rectify it; at first by
advising his client and if his client refuses to forego the advantage
thus unjustly gained he should properly inform the injured person
or his counsel so that they may take appropriate steps.” Canon 41
may collide with the lawyer’s duty to keep the client’s confidence
inviolate,74 which may be the reason why the Code of Professional
Responsibility merely requires the lawyer to terminate his
relationship with the client in the event the latter fails or refuses to
(1957).
1946).
72Adong
v. Cheng Seng Gee, 43 Phil. (1922); Brown v. Yambao, 102 Phil. 168
13Cf.
74Canon 21,
A.B.A. Ops. 268 (June 21, 1954), 187 (June 27, 1953), 274 (October 25,
Code of Professional Responsibility.
LEGAL AND JUDICIAL ETHICS
218
rectify the fraud.76 He may not volunteer the information concerning
the client’s commission of fraud to anybody, as it will violate his
obligation to maintain his client’s secrets undisclosed.76
C. WHAT ARE REQUIRED TO PROTECT
CLIENT’S INTERESTS
§7.11. Generally.
A lawyer who accepts professional employment from a
client agrees that he “shall serve his client with competence and
diligence.”77 By accepting a retainer, he impliedly represents that
(a) he possesses the requisite degree of learning, skill and ability
which is necessary to the practice of his profession and which others
similarly situated possess; (b) he will exert his best judgment in
the prosecution or defense of the litigation entrusted to him; (c) he
will exercise reasonable and ordinary care and diligence in the use
of his skill and in the application of his knowledge to his client’s
cause;78 and (d) he will take such step as will adequately safeguard
his client’s interest.79
Every case a lawyer accepts deserves his full attention, skill and
competence, regardless of its importance and whether he accepts it for
a fee or for free. Rule 18.03 of the Code of Professional Responsibility
enjoins a lawyer not to “neglect a legal matter entrusted to him, and
his negligence in connection therewith shall render him liable.”80
He must constantly keep in mind that his actions or omissions or
nonfeasance would be binding upon his client. He is expected to be
acquainted with the rudiments of law and legal procedure, and a
client who deals with him has the right to expect not just a good
76Rule 19.02 of the Code of Professional Responsibility is silent as to the matter, but opens one course which a lawyer may take, which is to terminate the relationship.
76Rule 15.08, Code of Professional Responsibility.
77Canon 18,
Code of Professional Responsibility.
v. Carter, 80 SE2d 144, 45 ALR2d 1 (1954); McCullough v. Sullivan,
132 A. 102, 43 ALR 928 (1926); In re Woords, 13 SW2d 800, 662 ALR 904 (1929);
Cantiller v. Potenciano, 180 SCRA 246 (1989).
™Islas v. Platon, 47 Phil. 162 (1924); Yangco v. Millan, 57 Phil. 761 (1932); Javellana v. Lutero, 20 SCRA 717 (1967); Azor v. Beltran, 63 SCRA 210 (1975); Ventura
v. Santos, 59 Phil. 123 (1933).
“Santigo v. Fojas, 248 SCRA 69 (1995).
78Hodges
LAWYER’S DUTIES IN HANDLING CLIENT’S CAUSE
219
amount of professional learning and competence but also a wholehearted fealty to the client’s cause.”81
By agreeing to be his client’s counsel, a lawyer represents
that he will exercise ordinary diligence or that reasonable degree
of care and skill having reference to the character of the business
he undertakes to do, to protect his client’s interests and take all
steps or do all acts necessary therefor, and his client may reasonably
expect him to discharge his obligations diligently.82 Thus, a lawyer
who delayed filing an action to revive a judgment and thereafter
filed a complaint which was so defective that it did not suspend the
prescriptive period to file said action betrayed his client’s trust and
did not champion his cause with that wholehearted fidelity, care
and devotion that a lawyer is obligated to give to every case that he
accepts from a client.83
A client may reasonably expect that his counsel will make good
his representations that he will represent his client with competence
and diligence. In the absence of evidence to the contrary, however, a
lawyer is presumed to be prompt and diligent in the performance of
his obligations and to have employed his best efforts, learning and
ability in the protection of his client’s interests and in the discharge
of his duties as an officer of the court.84
§7.12. Duration and extent of lawyer’s duty to safeguard
client’s interest.
The attorney’s duty to safeguard the client’s interests commences from his retainer until his effective release from the case85
or the final disposition of the whole subject matter of the litigation.86
During that period he is expected to take such reasonable steps and
such ordinary care as his client’s interests may require. His pending
release by the client from professional responsibility does not justify
81Torres
v. Orden, 330 SCRA 330 SCRA 1 (2000).
v. Court of Appeals, 220 SCRA 274 (1993), citing Ruben E. Agpalo,
Legal Ethics, 4th ed., pp. 157,169,175.
83Alisbo v. Jalandoon, 199 SCRA 321 (1991).
84People v. Mantawar, 80 Phil. 817 (1948); Galvez v. Court of Appeals, 42
SCRA 278 (1971); In re Tionko, 43 Phil. 191 (1922); Johnlo v. Trading Co. v. Flores,
88 741 (1951).
“Wack Wack Golf & Country Club v. Court of Appeals, 106 Phil. 501 (1959).
86Visitacion v. Manit, 27 SCRA 523 (1969); Ward v. Todd 103 US 327, 26 L ed.
339 (1881).
82Suarez
220
LEGAL AND JUDICIAL ETHICS
relaxing his guard.87 Neither does the failure of his client to pay him
his fees warrant his abandoning the case.88
The fact that a lawyer merely volunteered his services or the
circumstance that he was a counsel de oficio neither diminishes nor
alters the degree of professional responsibility owed to his client.89
The canons of the profession require that counsel display warm zeal
and great dedication to duty irrespective of the client’s capacity to
pay him his fees.90
§7.13. A lawyer shall render service only when qualified to
do so.
A lawyer shall not accept employment in a specific area
of law nor undertake a particular legal service which he knows
or should know he is not quantified to render. For by accepting
professional employment, he holds himself out to his client that he
is knowledgeable, competent and skillful to handle the case. Some
cases involve specialized fields of law and require special training,
of which a lawyer may not be knowledgeable. In such a case, he
should follow Rule 18.01 of the Code which provides that he “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.”91
§7.14. A lawyer shall not handle a case without adequate
preparation.
A lawyer owes his client and the court the duty to be adequately
prepared to try the client’s case. Rule 18.02 of the Code requires
that he “shall not handle any legal matter without adequate
preparation.”
87Gamalinda v. Alcantara, 206 SCRA 468 (1992), citing Agpalo, Legal Ethics,
4th ed., 1989, p. 163.Wack Wack Golf & Country Club v. Court of Appeals, 106 Phil.
501 (1959); Guanzon v. Aragon, 107 Phil. 315 (1960).
88/n re Montague & Dominguez, 3 Phil. 577 (1904).
89Blanza v. Arcangel, 21 SCRA 1 (1967); People v. Estebia, 27 SCRA 106
(1969).
90Oparel, Sr. v. Abaria, 40 SCRA 128 (1971).
91Rule 18.01, Code of Professional Responsibility.
LAWYER’S DUTIES IN HANDLING CLIENT’S CAUSE
221
The key to the problem of how best a lawyer can safeguard his
client’s rights and interests is thorough study and preparation. The
full protection of the client’s interests requires no less than a mastery
of the applicable law and the facts involved in a case, regardless of
the nature of the assignment.92 He must keep constantly abreast of
the latest jurisprudence and developments in all branches of the
law.93 For only by keeping himself well-informed of the latest rulings
of the Supreme Court on the issues and problems confronting his
client will he be able to fully advance his client’s cause.94 A lawyer
owes that duty not only to his client but to the court, to the bar
and to himself. That most cases are won within the four walls of
the attorney’s study room and before he goes to court requires
no elaboration. Moreover, to be able to put up a good fight in the
courtroom, hard work and intensive study and preparation are the
only guarantees of coming out unscathed.96
On the other hand, inadequate preparation spawns adverse
effects that go far beyond the personal interest of the client. Any
attempted presentation of a case without adequate preparation
distracts the administration of justice and discredits the bar.96 And
when the merits of one side of a case are not properly presented
because of inadequate legal representation as against the merits of
the other well-presented side, the court may be and often is misled
into looking at the case in an uneven light.97 Careless preparation,
moreover, may cast doubt upon the lawyer’s intellectual honesty
and capacity.98 Apart from that, it may not only prove embarrassing
to himself; it may also, for ethical lapses occasioned thereby, furnish
ground for and subject him to disciplinary action or contempt of
court.99
92Javellana v. Lutero, 20 SCRA 717 (1967); See Cabalag v. Roxas y Cia, G.R.
No. 20011, December 17,1966.
93Phil. Assn. of Free Labor Union v. Bureau of Labor, 69 SCRA 132 (1976);
Bautista v. Rebueno, 81 SCRA 535 (1978); De Roy v. Court of Appeals, 157 SCRA
757 (1988).
‘“Argueleda v. Phil. Veterans Bank, 329 SCRA 536 (2000).
96Justice Salvador Esquera on admission to the bar of 1973 successful candidates, 56 SCRA 885, 887 (March-April, 1974).
“New York Central Railroad Co. v. Johnson, 297 U.S. 310, 73 L ed 706
(1929).
97Fred Ruiz Castro, “The Consummate Jurist,” quoting Chief Justice Querube
C. Makalintal, Journal of the Integrated Bar, 249,252 (Vol. 3, No. 4, Fourth Quarter,
1975).
mCf. Cuaresma v. Daguio, 63 SCRA 257 (1975).
"Lim Se v. Argel, 70 SCRA 378 (1976). See Atienza v. Evangelista, 80 SCRA
338 (1977).
222
LEGAL AND JUDICIAL ETHICS
Thorough study and preparation will not, of course, ensure
winning the litigation, there being always two sides in a controversy.
However, a lawyer shall have the deep satisfaction of having lost a
case but won the esteem and respect of his client and the approbation
of the court in the manner he espoused his client’s cause with skill,
diligence, ability and candor. He shall have, moreover, accorded
fealty and meaning to one of the ideas expressive of the law as a
profession — learning — which should be the hallmark of his
professional career.
§7.15. Preparation of pleadings.
A lawyer’s pleading, aside from its legal function, shows the
extent of his study and preparation, articulates his ideas as an
officer of the court, mirrors his personality and reflects his conduct
and attitude toward the court, the opposing party and his counsel. It
is a document embodying the result of his work and furnishing the
basis on which to judge his competence.100 All these considerations
emphasize the need for utmost care in the preparation of a
pleading.101
A lawyer should prepare his pleading with great care and
circumspection. A pre-condition to a writing a pleading is thorough
knowledge of the substantive and procedural laws and the facts
involved in the case, and mastery of specific law applicable to the
particular facts of the case. A pleader should bear in mind the
substantive and procedural requirements of the pleading to be filed
in court, whether in the municipal, metropolitan or city courts,
the Regional Trial Courts, the Court of Appeals, or the Supreme
Court. What is embarrassing to a trial lawyer is when the case he
is handling is dismissed on technical grounds or on non-compliance
with substantive and procedural requirements of the law.
In his memorandum or brief, for instance, he should thoroughly
discuss the issues raised, for a skimpy discussion betrays want of
industry in the discharge of his duties to the client and to the court.102
He should refrain from using abrasive and offensive language,103
100Cy. Perez v. Scottish Union & National Ins. Co., 76 Phil. 320 (1946).
Cuaresma v. Daguio, 63 SCRA 257 (1975).
102GSIS v. Court of Appeals, 296 SCRA (1998).
103Yangson v. Salandanan, 68 SCRA 42 (1975); Salcedo v. Hernandez, 61 Phil.
724 (1935); In re Almacen, 31 SCRA 562 (1970), Montecillo v. Gica, 60 SCRA 34
(1974); Rheem of the Phil. v. Ferrer, 20 SCRA 441 (1967).
wlCf.
LAWYER’S DUTIES IN HANDLING CLIENT’S CAUSE
223
for it merely weakens rather than strengthens the force of legal
reasoning104 and detracts from its persuasiveness.106 He should
not suppress or distort material and vital facts nor omit relevant
documents which bear on the merit or lack of merit of his petition.106
The best interest of his client and candor and honesty toward the
court require that nothing of consequence be left out in his pleading
to enable the court to better appraise its merit or deficiency.107 Timepressure,108 inexperience of counsel,109 assertiveness in espousing
his client’s cause110 or even good faith and honest intention111 may
not excuse a lawyer from complying with the preemptory tenets of
ethical conduct in the preparation of a pleading.”2
To prepare a good pleading requires a thorough study of the
applicable law and jurisprudence, mastery of the facts as disclosed
to the lawyer by his client and as shown by the documents, and clear
understanding of its substantive and procedural requirements. The
law defines the substantive requirements. The Rules of Court prescribe the procedural requirements, such as in the verification and
in the certification against forum shopping. A lawyer should comply
with these requirements in preparing a pleading. For instance, in
verifying a pleading required by law or rule to be under oath, the
affiant has to say that he has read the pleading and that the allegations therein made are true and correct of his personal knowledge
or based on authentic records, otherwise the verification is defective and treated as an unsigned pleading which produces no legal
effect.113 In the verified certification against forum shopping, it may
only be generally signed by the party himself and not his lawyer;114
and if the party is a juridical entity, it may only be executed by a
I04Perkins
v. Perkins, 57 Phil. 223 1932.
105Lagumbay
v. Commission on Elections, 16 SCRA 175 (1966).
Transp. Co. v. Workmen’s Compensation Commission, 58 SCRA 78
(1974); Scott v. Inciong, 68 SCRA 473 (1975); Phil. Assn. of Free Labor Union v. Bureau of Labor Relations, 69 SCRA 132 (1976).
107Scott v. Inciong, supra.
108Orbit Transp. Co. v. Workmen’s Compensation Commission, supra.
109Munoz v. People, 53 SCRA 190 (1973).
U0Lualhati v. Albert, 57 Phil. 86 (1932); Surigao Mineral Reservation Board v.
Cloridel, 31 SCRA 1 (1970).
•"Salcedo v. Hernandez, 61 Phil. 724 (1935).
112Munoz v. People, supra.
u3Sec. 4, Rule 7, 1997 Rules of Civil Procedure, as amended effective May 1,
2000; Sec. 3, Rule 7,1997 Rules of Civil Procedure.
114Far Eastern Shipping Co. v. CA, 297 SCRA 30, 51-52 (1998).
106Orbit
224
LEGAL AND JUDICIAL ETHICS
corporate officer who has been duly authorized by its board of directors. If the there are two or more parties, all of them should sign the
certification, as only one of them is insufficient, except when he has
been duly authorized to do so by his co-party116 or except where the
petitioners are husband and wife involving their property, in which
case only one of them may sign.116 In verifying a pleading, the certification of the notary public must state that the affiant personally appeared before him, that he affiant is personally known to the notary
public or that the affiant exhibited to him an official identification issued by a government agency showing his picture and signature. As
required by the notarial law and rule issued by the Supreme Court.
If a lawyer fails to comply with these requirements, the complaint
may be dismissed or his client may lose the case. It would indeed
be embarrassing to inform the client that his complaint or petition
was dismissed because of failure to follow the requirements of the
law or the Rules of Court. And the “client is bound by the action of
his counsel, as well as by his mistake or negligence,”117 and may even
subject the lawyer to disciplinary sanction.
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. An allegation and prayer that
plaintiff be awarded such amounts as may be proved during the trial
will not only deprive the court of jurisdiction over the case but will
also subject the lawyer to disciplinary action because it is a design
to avoid payment of the correct docket fees.118
Pleadings filed in court are privileged, and lawyers are exempt
from liability for libelous statements therein contained, provided
that they are material, relevant or pertinent to the cause or subject
of inquiry. The purpose of the privilege is to enable lawyers to freely
speak their minds and exercise their functions in the prosecution
or defense of their clients’ causes without incurring the risk of a
criminal prosecution or an action for damages.119
116Loquias
u6Dar
v. Office of Ombudsman, 338 SCRA 62 (2000).
v. Alonzo-Legasto, 339 SCRA 306 (2000).
117Barangay 24 of Legaspi City v. Imperial, 338 SCRA 694 (2000), citing Agpalo, The Code of Professional Responsibility for Lawyers, 207 (1991).
118Manchester Dev. Corp. v. Court of Appeals, 149 SCRA 562 (1987); Prudential Bank v. Castro, 155 SCRA 604 (1987).
119See §15.05, infra., for discussion on the subject.
LAWYER’S DUTIES IN HANDLING CLIENTS CAUSE
225
§7.16. Interviewing witnesses.
A lawyer may interview a witness in advance of trial to guide
him in the management of the litigation. A witness is the human
instrumentality through which the law and its ministers, the
judges and lawyers, endeavor to ascertain the truth and to dispense
justice to the contending parties. An attorney violates no ethical
rule when he ascertains from a witness what the latter knows and
does not know about the facts in controversy.120 What is unethical
is to tell the witness to say something which is false. In fact, the
proper discharge of his duty to his client requires that he take that
action.121 The witness, however, must be warned, when asked on
cross-examination as to whether counsel has conferred with him, a
cheap subterfuge employed by some lawyers to entrap a witness into
falsehood, to be truthful and frank of admitting it and explaining
that what the lawyer asks him was to tell truth.
A lawyer may also interview a “prospective witness for the
opposing side in any civil or criminal action without the consent
of opposing counsel or party. In doing so, however, he should
scrupulously avoid any suggestion calculated to induce the witness
to suppress or deviate from the truth, nor in any degree to affect his
free and untrammeled conduct when appearing at the trial or on the
witness stand.”122 Pursuant to this rule, a lawyer may properly obtain
statements from witnesses whose names were furnished by the
opposing counsel123 or interview the employees of the opposing party124
even though they are under subpoena to appear as witnesses for the
opposite side.126 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
honorably to obtain such witness’ retraction, even without advising
the public prosecutor of his purpose and even though the case is
pending appeal. The attorney’s honest efforts, like the physician’s,
should not cease so long as there is hope and should leave no stone
unturned to save his client from an unrighteous judgment.126 And
120A.B.A.
121A.B.A.
Op. 131 (March 15,1935); Canon 39, Canons of Professional Ethics.
Op. 12 (January 4,1928) and 117 (August 27,1934).
122Canon 39, Canons of Professional Ethics.
123A.B.A. Op. 14 (January 10,1929); cf. A.B.A. 66 (March 19,1932).
124A.B.A. Op. 117 (August 27,1934).
126A.B.A. Op. 127 (March 15,1935).
126A.B.A. Op. 12 (January 4,1928).
226
LEGAL AND JUDICIAL ETHICS
the attorney for the other party, who tries to prevent the honest
endeavor of his adversary by using his influence or authority to close
the mouth of a disinterested witness, acts improperly.127
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 party even
without the consent of the opposing counsel.128 The reason for this
is that a lawyer is forbidden from communicating upon the subject
of controversy with the opposite party, except with the latter’s
counsel.129
§7.17. What to do in case of conflict in trial dates.
A lawyer who has two or more cases in different courts set for
trial on the same date without his previous knowledge should lose
no time in asking for postponement of the case or cases set later, as
he should not give undue preference for the work in one as against
the other130 except in favor of that case wherein the court has served
warning, in view of previous repeated postponements of trial, not
to delay the hearing any further.131 He should, however, present his
motion for postponement at such time as is practicable to prevent
the adverse party from coming to court with his witnesses on the
date of trial as to spare the latter of unnecessary expense; he should,
moreover, not assume that his motion will be granted even if it
bears the conformity of the adverse party as the court is not bound
thereby.132
Exceptional situations may develop which may require a
different course of action, as when his motion for postponement has
been denied or when the case has been set for trial for the last time.
Under these or similar circumstances, the lawyer must take such
precautionary measures required by the situation as will safeguard
127A.B.A.
Op. 131 (March 15,1935).
128A.B.A.
Op. 187 (July 24, 1938).
Canons of Professional Ethics; cf. Vda. de Zubiri v. Zubiri, 18 SCRA
129Canon 9,
1157 (1966).
130Siojo v. Tecson, 88 Phil. 531 (1951); cf. Javellana v. Lutero, 20 SCRA 717
(1967).
131De Los Reyes v. Capule, 102 Phil. 464 (1957); cf. Montelibano v. Banares,
103 Phil. 106 (1958).
132Deluao v. Casteel, G.R. No. 211906, December 24,1968; Linis v. Rovira, 61
Phil. 137 (1935).
LAWYER’S DUTIES IN HANDLING CLIENT’S CAUSE
227
his client’s interests, such for instance as notifying the court and his
clients of his predicament, asking the client concerned to secure the
services of another lawyer or requesting another attorney to appear
for him.133
In a situation where an attorney retained in a case the trial of
which is set for a date on which he knows he cannot appear because
of his engagement in another trial previously set for the same date,
he has no right to presume that the court will necessarily grant him a
continuance. The most ethical thing for him to do in such a situation
is to inform the prospective client of all the facts so that the latter
may retain another attorney. If the client, having full knowledge of
all the facts, still retains the attorney, he assumes the risk himself
and cannot complain of the consequences if postponement is denied
and finds himself without an attorney to represent him at the
trial.134
§7.18. Adoption of system to insure receipt of mails.
Service of notice by registered mail is complete upon actual
receipt thereof by the addressee. However, if he fails to claim his
mail within five days from date of first notice of the postmaster,
service shall take effect at the expiration of such time.135 This rule
imposes upon a lawyer the duty to maintain a system that will
insure his prompt receipt of notices and communications sent to him
by registered mail at his address of record.136
The rule that if counsel fails to claim his mail from the post office
within five (5) days from the date of first notice of the postmaster
service shall take effect at the expiration of such time requires that
there is sufficient proof that the first notice was received by the
addressee, which is generally evidenced by a certification to that
effect by the postmaster. The fact that the envelope containing the
notice bears the notation, “unclaimed,” is not a sufficient proof.137
(1980).
133Siojo
134Siojo
v. Tecson, 88 Phil. 531 (1951); Que v. Court of Appeals, 101 SCRA 13
v. Tecson, supra.
13, Sec. 8, Rules of Court.
136Enriquez v. Bautista, 79 Phil. 220 (1947); Isias v. Platon, 47 Phil. 162 (1924);
Yangco v. Millan, 57 Phil. 761 (1932); Marquez v. Panganiban, 109 Phil. 1121 (1960);
Baring v. Cabahug, 20 SCRA 696 (1967).
13,Abrajano v. CA, 343 SCRA 68 (2000).
135Rule
228
LEGAL AND JUDICIAL ETHICS
The failure or refusal of a lawyer to claim registered mails
addressed to him may prove prejudicial to his client’s interests, as
when as a consequence thereof he fails to attend a hearing,138 file a
responsive pleading on time,139 pay the docket fee for an appeal,140
or appeal an adverse judgment.141 That a lawyer could not afford to
hire a regular clerk to claim his mail;142 that his clerk failed to call
his attention to it;143 that the demands of his work required him to
be in different places;144 and that he changed his address without
notice to the court thereof,146 are circumstances that will not warrant
reopening of the litigation148 nor prevent the service by registered
mail from being effective after five days from notice thereof by the
postmaster.147 It is such type of omission or negligence that gives life
to the rule and makes it operative.148
§7.19. Notice of change of address.
A lawyer owes his client and the court the duty to make of
record his correct address in the case in which he appears for a
suitor and to inform the court in writing of his change of address.149
Without his address being recorded in the case, a lawyer will not be
entitled to be served with judicial notice.150 And without informing
the court in writing of the change of address, a notice served at
the attorney’s original address is binding upon the client who, by
reason of his negligence, will have to suffer the consequences arising
therefrom.161
138Martinez v.
139Yangco
Martinez, 90 Phil. 697 (1952).
v. Millan, 57 Phil. 761 (1932).
140Dujon v. Villarosa, 92 Phil. 400 (1952).
I41Gorospe v. Court of Appeals, 106 Phil. 1144 (1959); Pielago v. Generosa 73
654 (1942).
142Babala v. Court of Appeals, 31 SCRA 397 (1970).
143Colcol v. Phil. Bank of Commerce, 21 SCRA 890 (1967).
144Enriquez v. Bautista, 79 Phil. 220 (1947); Yangco v. Millan, supra.
146Marquez v. Panganiban, 109 Phil. 1121 (1960).
146Pielago v. Generosa, supra; Martinez v. Martinez, 90 Phil. 697 (1952).
147Gorospe v. Court of Appeals, supra.
148Pielago v. Generosa, supra.
149Juane v. Garcia, 25 SCRA 801 (1968); Ortalis v. Court of Appeals, 51 SCRA
1 (1973).
160Dirigo v. Biranya, 17 SCRA 840 (1966); Magpayo v. Court of Appeals, 61
SCRA 115 (1974); Esquivas v. Sison, 61 Phil. 211 (1935).
l61Juane v. Garcia, 25 SCRA 801 (1968); Marquez v. Panganiban, 109 Phil.
1121 (1960); Lopez v. De los Reyes, 31 SCRA 214 (1970); Tiozon v. Court of Appeals,
70 SCRA 284 (1976).
LAWYER’S DUTIES IN HANDLING CLIENTS CAUSE
229
The service at the lawyer’s old address is considered valid,
otherwise no process can be served to a client through his lawyer if
the latter simply disappeared without leaving a forwarding address.
Insofar as the court is concerned, the last address on record is the
place where all notices shall be served until the court is official
informed to the contrary.162 And the negligence of counsel in not giving
notice of his change of address is binding upon his client, and both
the client and his counsel must suffer the consequences,163 such as
by the former losing the case or by the latter being administratively
disciplined for breach of duty to his client.
§7.20. Notice of death of client.
It is the duty of a lawyer to inform the court, within thirty days,
of the death of his client, and if the claim survives such death, also
to inform of the names of the legal representatives of the deceased
so that the latter can be substituted as parties. The court does not
take judicial notice of the death of a party in a case and will render
decision therein as if the party is alive. The failure of the lawyer to
give such notice binds his client as well as the latter’s heirs of any
adverse judgment in the case for the client is bound by the conduct,
negligence and mistake of his counsel.164
§7.21. Requiring clerk of court to do his duty.
The duty of an attorney does not end with the making of his
appearance and then relying on government employees to look after
his case but includes the taking of such precaution as will safeguard
his client’s interests.166 Thus, while it is the duty of the clerk of
court to calendar the case for pre-trial and hearing,166 that duty does
not relieve an attorney of his obligation to prosecute his case with
diligence. If the clerk of court is negligent, it is the lawyer’s duty
to call the attention of the court to that fact or to file the necessary
motion to set the case for pre-trial or trial, so that the administration
of justice will not suffer any delay. His failure to take such step may
justify the dismissal of the action for failure to prosecute.167
162Thermochem,
163Villa
Inc. v. Naval, 344 SCRA 76 (2000).
Transport Services, Inc. v. Court of Appeals, 193 SCRA 25 (1991).
164Heirs of Elias Lorilla v. CA, 330 SCRA 429 (2000).
165Yangco v. Millan, 57 Phil. 761 (1932).
166Rule 20, Sec. 1, Rules of Court.
167Smith Bell & Co. v. American President Lines, 94 Phil. 879 (1954); Montejo
v. Uretia, 48 SCRA 41 (1971); E. E. Elser, Inc. v. Macondray, 96 Phil. 396 (1955).
230
LEGAL AND JUDICIAL ETHICS
Similarly, an appeal may be dismissed for failure to prosecute
the same, as when there is an unreasonable delay on the part of
the clerk of the trial court to transmit the record on appeal and
the evidence to the appellate court. While an appellant may expect
the clerk of court to do his duty, it does not discharge appellant’s
counsel from the responsibility of seeing that the record on appeal
and the evidence are elevated to the appellate court.158 It is the duty
of appellant’s counsel, in the event of neglect of duty on the part of
the clerk of court, to compel him to act and, if necessary, to procure
a court order or invoke the contempt power of the court for that
purpose. He may not sit idly by and wait until the clerk of court does
his duty. He must spur on the slothful. The reason is that a lack of
proper regard on the part of a defeated litigant or his counsel to have
the case promptly submitted to the appellate court for disposal may
result in a situation where a litigation may become more intolerable
than the wrong it is intended to redress.159
§7.22. Duty to keep client fully informed.
It is the duty of an attorney to advise his client promptly
whenever he has any information to give which it is important that
the client receive.160 He should notify his client of an adverse decision
well within the period to appeal to enable his client to decide whether
to seek an appellate review thereof.161 He should communicate
with him concerning the withdrawal of appeal with all its adverse
consequences, as decided by the client’s family.162
The client is entitled to the fullest disclosure of the mode or
manner by which his interest is defended or why certain steps
are taken or omitted.163 His client should likewise be informed of
and asked to be present at the hearing of his case, so that in the
event of his failure to appear at the trial for one reason or another
his client may have no reason to complain and can either ask for
postponement himself or look for another lawyer to represent him in
168Buenaventura
104 Phil. 889 (1958).
v. Echavez, 69 Phil. 86 (1939); Gonzales v. Court of Appeals,
169Fagtanas v. Court of Appeals, 22 SCRA 1227 (1968); Loyola v. Court of Appeals, 40 SCRA 562 (1971); Government v. Abrio, 38 Phil. 679 (1918).
160Baker v. Humphrey, 101 US 494, 25 L ed 1065 (1879).
161 Alcala v. De Vera, 56 SCRA 30 (1974).
162People v. Tiglo, 45 SCRA 1 (1972); People v. Blancas, 45 SCRA 405 (1972).
1630parel, Sr. v. Abaria, 40 SCRA 128 (1971); Tavera v. Go (1965).
LAWYER’S DUTIES IN HANDLING CLIENTS CAUSE
231
court.164 Keeping the client fully informed of important developments
of his case will minimize occasions for misunderstanding or loss of
trust and confidence in the attorney.165
The client should not, however, sit idly by. It is also his duty
to make proper inquiries from his counsel concerning his case, in
keeping with that standard of care which an ordinarily prudent
man bestows upon his important business.166 He is bound to contact
his counsel from time to time in order that he may be informed of
the progress of his case.167 But a lawyer who repeatedly disdains to
answer the inquiries or communications of his client violates the
rules of professional courtesy and neglects his client’s interest.168 It
is as unwarranted for a lawyer to willfully fail to advise his client
of the progress of his litigation169 as to give his client erroneous
information concerning the status of the case.170 Both are productive
of unpleasant relations between attorney and client.171
§7.23. What is required when moving for time to file pleading
or to postpone hearing.
Pressure of work or some other unavoidable reasons may
constrain a lawyer to file a motion for extension of time to file
pleadings. However, counsel should not assume that his motion for
extension of time to file a pleading will be granted. He should inquire
from the clerk of court of the court’s action thereon. He runs the risk
of time running out on him, should he fail to make such inquiry and
he will have nobody to blame but himself.172
Where a motion for extension of time to file a pleading, motion,
brief or memorandum has remained unacted by the court, the least
164Avelino v. Palana, 39 SCRA 129 (1971); People’s Homesite & Housing Corp.
v. Tiongco, 12 SCRA 471 (1964).
1650parel v. Abaria, 40 SCRA 128 (1971); Rule 18.04, Code of Professional Responsibility.
166Florendo v. Florendo, 27 SCRA 432 (1969); Fernandez v. Tan Tiong Tick, 1
SCRA 1138 (1961).
167Reyes v. Court of Appeals, 189 SCRA 46 (1989).
mIn re Tiongco, 43 Phil. 191 (1932).
169Oparel, Sr. v. Abaria, supra.; Avelino v. Palana, supra.
170Katindig v. Brillantes, 12 SCRA 190 (1964); In re Rustia, 73 Phil. 1662
(1941); Liwag v. Neri, 107 Phil. 852 (1960).
171Oparel, Sr. v. Abaria, supra.
172Diman v. Alumbres, 229 SCRA 459 (1998).
232
LEGAL AND JUDICIAL ETHICS
that is expected of a lawyer in the meanwhile is to file it within the
time asked for.173 And if for some reason a lawyer failed to present it
within the reglementary period, he should nonetheless file the same
accompanied with a motion for leave to admit it, stating therein the
reasons for the delay. He should not wait until an adverse judgment
is rendered or he is required to explain why no disciplinary action
should be taken against him for such negligence.174
The Court underscored the responsibility of a lawyer when it
ruled:
“The
Code
of
Professional
Responsibility
requires
lawyers, after obtaining extensions of time to file pleadings,
memoranda or briefs, shall not let the period lapse without
submitting the same or offering an explanation for the failure
to do so (Rule 12.03). Moreover, they should avoid any action
that would unduly delay a case, impede the execution of a
judgment or misuse court process (Rule 12.04.).” “The Court
frowns on lawyers’ practice of repeatedly seeking extensions of
time to file pleadings and thereafter simply letting the period
lapse without submitting any pleading or even explanation
or manifestation of their failure. The same principle applies
more forcefully to motions for continuance. Postponement is
not a matter of right, but of sound judicial discretion. Actions
thereon will not be disturbed by appellate courts in the absence
of clear or manifest abuse of discretion, resulting in a denial of
substantial justice.”176
§7.24. Diligence in handling case.
The legal profession is a jealous mistress which requires of
a lawyer that degree of vigilance and attention expected of a good
father of a family.176 He must exercise ordinary diligence or that
reasonable degree of care and skill having reference to the character
173See Antonio v. Jacinto, 14 SCRA 364 (1965); Roxas v. Court of Appeals, 156
SCRA 252 (1987).
174Achacoso v. Court of Appeals, 51 SCRA 724 (1973); People v. Aguilar, 7 SCRA
468 (1963); People v. Vicente, Co v. Republic, G.R. No. 25478, October 23,1967, G.R.
No. 35243, May 25,1973; People v. Cawili, 34 SCRA 728 (1970).
176Edrial v. Quilat-Quilat, 339 SCRA 760, 771, 770 (2000).
176Phil. Bank of Commerce v. Aruego, CA-G.R. No. 28274, June 18,1965.
LAWYER’S DUTIES IN HANDLING CLIENT’S CAUSE
233
of the business he undertakes to do, as any other member of the
bar similarly situated commonly possesses and exercises. He is not,
however, bound to exercise extraordinary diligence.177
What amounts to carelessness or negligence in the lawyer’s
discharge of his duty to client is incapable of exact formulation.
That question depends upon the circumstances of the case. It has
been held that, under the circumstances of the case, there is want
of the required diligence where the lawyer failed, without sufficient
justification, to bring an action immediately,178 file the answer to
the complaint within the reglementary period,179 notify his client of
the date of hearing,180 attend the scheduled pre-trial conference181
or hearing,182 prosecute the action for a reasonable period,183 inform
the client of an adverse judgment within the reglementary period
to appeal,184 take steps to have the adverse decision reconsidered186
or appealed,186 ascertain the correct date of receipt of the decision,187
acquaint himself with what has happened to the litigation,188 pay the
177Alcala v. De Vera, G.R. Adm. Case No. 620, March 21,1974; Antonio v. Ramos, 56 SCRA 30 (1961); Adame v. Aldaba, 83 SCRA 734 (1978); Pajarillo v. WCC,
95 SCRA 582 (1980).
(1967).
17SVentura
v. Santos, 59 Phil. 113 (1933); Blanza v. Arcangel, 21 SCRA 1
179Mapua v. Mendoza, 45 Phil. 424 (1923); Hernandez v. Clapiz, 87 Phil. 437
(1950); Gordulan v. Gordulan, 3 SCRA 205 (1961); Malipol v. Tan, 55 SCRA 202
(1974).
180Avelino v. Palafia, 39 SCRA 129 (1971); People’s Homesite & Housing Corp.
v. Tiongko, 81 SCRA 350 (1964).
181Saulog v. Custombuilt Manufacturing Corp., 26 SCRA 1 (1968).
182Gaerlan v. Bernal, 90 Phil. 869 (1952); Castaneda v. Ago, 2 SCRA 658 (1961);
Antonio v. Ramos, 2 SCRA 731 (1961); J. M. Tuazon & Co. v. De Leon, 4 SCRA 275
(162); Rivera v. Vda. de Cruz, 26 SCRA 58 (1968); Dirige v. Biranya, 17 SCRA 840
(1966).
183De los Reyes v. Capule, G.R. No. 8022,102 Phil. 466 (1957); Montejo v. Urotia, 48 SCRA 41 (1971).
184Alcala v. De Vera, 56 SCRA 30 (1974); Palanca v. American Food Manufacturing Co., 24 SCRA 819 (1968); Duran v. Paguirigan, 106 Phil. 907 (1960).
l86People’s Homesite & Housing Corp. v. Tiongco, 81 SCRA 350 (1964); Roque
v. Gunigundo, 89 SCRA 178 (1979).
186Toquib v. Tomol, Jr., 26 SCRA 601 (1969); Bautista v. Ydia, 69 SCRA 391
(1976).
187Joven-De Jesus v. Phil. National Bank, G.R. No. 19299, November 28,
1964.
188Tan Kui v. Court of Appeals, 544 SCRA 199 (1973); People v. Manangon, 56
SCRA 817 (1974).
234
LEGAL AND JUDICIAL ETHICS
docket fee on appeal,189 claim judicial notice sent to him by mail, or
file the appellant’s brief.190
If the clarification or definition of the client’s rights depends
upon an early adjudication of the case entrusted to him, a lawyer
should prosecute it with reasonable dispatch and urge its termination
without waiting for the court to prod him to do so.191 He should
attend to his client’s cause with due diligence.192 He should not sit
idly by and leave the rights of his client in a state of uncertainty.193
Neither should he prolong litigation as an excuse to exploit his client
for personal interest or to collect bigger fees.194 If for one reason or
another he cannot appear at the scheduled hearing, he should either
request another lawyer to appear for him196 and see to it that the
lawyer do so196 or ask for its postponement.197 He should not, however,
assume that his motion for postponement will be granted198 and
should, for that reason, provide contingency measures in the event
of its denial. He should immediately check with the court regarding
the outcome of the hearing at which he failed to appear.199 He should
moreover acquaint and familiarize himself with everything that has
happened to the litigation.200
A new counsel, who enters his appearance in midstream, has
the duty not only to thoroughly study the case but also to inquire as
to the status of the case, as his failure to do so which prevents him
189PaIteng v. Court of Appeals, 26 SCRA 736 (1969); Dorego v. Perez, 22 SCRA
8 (1968); Capulong v. Alifio, 22 SCRA 491 (1968).
190Espere v. Santos, 96 Phil. 987 (1955); People v. Tan, 15 SCRA 252 (1965);
People v. Blancas, 45 SCRA 405 (1972); People v. Vicente, 51 SCRA 94 (1973); People
v. Aguilar, 7 SCRA 468 (1963); People v. Cawili, 34 SCRA 728 (1970); People v. Macellones, 49 SCRA 529 (1975); People v. De Leon, 62 SCRA 536 (1975); People v. De
Jesus, 66 SCRA 410 (1975); People v. Venzon, 66 SCRA 407 (1975); People v. Copro,
58 SCRA 307 (1974).
191Ventura v. Santos, 59 Phil. 123 (1933).
192Javellana v. Lutero, 20 SCRA 717 (1967).
193Blanza v. Arcangel, 21 SCRA 1 (1967).
I94/n re Carmen, 41 Phil. 899 (1920).
195Gaerlan v. Bernal, 90 Phil. 869 (1952).
196See Bautista v. Federico O. Borromeo, Inc., 30 SCRA 119 (1969).
197/ra re Oliva, 103 Phil. 312 (1958); Flores v. Phil. Alien Property Administrator, 107 Phil. 773 (1960); Viviero v. Santos, 98 Phil. 500 (1956).
198Montelibano v. Banares, 103 Phil. 106 (1958); Wack Wack Golf & Country
Club v. Court of Appeals, 106 Phil. 501 (1959).
199Galvez v. Court of Appeals, 42 SCRA 278 (1971).
200Tan Kui v. Court of Appeals, 54 SCRA 199 (1973).
LAWYER’S DUTIES IN HANDLING CLIENT’S CAUSE
235
from taking certain steps required to be done, may adversely affect
his client’s interest.201
Since a party who fails or whose counsel fails to appear at the
scheduled pre-trial may be non-suited or considered in default, an
attorney should see to it that his client also attend the pre-trial
conference.202 If his client cannot appear, he should secure from him
a written authority to compromise the action and to submit the case
to arbitration, these matters being among those to be discussed
in the pre-trial proceeding and beyond his authority to decide in
the absence of special power from his client.203 The lawyer’s failure
to take either step may not only prejudice his client who may be
non-suited or considered in default but may likewise subject him to
disciplinary action and grave administrative liability as a member
of the bar.204
Pressure and large volume of legal work provide no excuse for
the lawyer’s inability to exercise due diligence in the performance
of his duty to take the necessary legal steps to protect his client’s
interest. Every case a lawyer accepts deserves his full attention,
skill and competence, regardless of its importance and whether he
accepts it for a fee or for free. Canon 18 of the Code of Professional
Responsibility requires the lawyer to do no less, short of which he
may be disciplined therefor, which may be a fine, suspension from
practice, or even disbarment, depending upon the circumstances of
each case.206
A lawyer who finds it impracticable to continue representing a
client should inform the latter of his predicament and ask that he be
allowed to withdraw from the case to enable the client to engage the
services of another counsel who can study the situation and work
out a solution.206 Where a client refuses to cooperate207 or is nowhere
201ViIlasis v. Court of Appeals, 60 SCRA 120 (1974); Arambulo v. Court of Appeals, 226 SCRA 589 (1993).
202See Rule 20, Sec. 2, Rules of Court; American Ins. Co. v. Manila Port Service,
22 SCRA 482 (1968); Home Ins. Co. v. United States Lines Co., 21 SCRA 865 (1967);
Taroma v. Sayo, 67 SCRA 508 (1975).
203Home Ins. Co. v. United States Lines Co., 21 SCRA 865 (1967); Taroma v.
Sayo, 67 SCRA 508 (1975).
204Taroma v. Sayo, 67 SCRA 508 (1975).
^Francisco, Jr. v. Bosa, 205 SCRA 722, 726 (1992); Santiago v. Fojas, 248
SCRA 68 )1995).
206Ventura v. Santos, 59 Phil. 123 (1933).
207Blanza v. Arcangel, 21 SCRA 1 (1967).
236
LEGAL AND JUDICIAL ETHICS
to be found, which will thereby render the performance of his duties
difficult or impossible, a lawyer should ask that he be discharged
from his professional responsibility or should apply to the court
that he be released therefrom.208 For until his retirement from the
case is made of record, a lawyer continues to assume professional
responsibility, and neither his impending release from professional
obligation209 nor the difficulty of discharging his duties excuses him
from non-performance thereof.210
D. STANDARD OF DUTY IN CRIMINAL ACTIONS
§7.25. Duty to render effective legal service.
The duty to make the accused’s right to counsel meaningful and
its enjoyment effective rests largely on the defense counsel. While a
lawyer may, in accordance with the canons of the profession and his
duty to aid in the administration of justice, properly decline to handle
a civil suit when he is convinced that it is intended to harass or injure
the opposite party or to work oppression or wrong,211 an attorney
for the defense in a criminal action, whether as counsel de parte or
counsel de oficio, has the right and the duty to render effective legal
assistance to the accused, irrespective of his personal opinion as to
the guilt of his client.212 It is only by performing his duties faithfully
and well will the right to counsel becomes meaningful. The Court
held:
“The right to counsel must be more than just the presence
of a lawyer in a courtroom or the ere 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 of the defense an acts
accordingly. The right assumes an active involvement by the
lawyer in the proceedings, particularly at the trial of the case,
208Republic
209Wack Wack Golf
v. Court of First Instance of Lanao del Norte, 53 SCRA 317 (1973).
& Country Club v. Court of Appeals, 106 Phil. 501 (1959);
Guanzon v. Aragon, 107 Phil. 315 (1960).
210Ventura v. Santos, 59 Phil. 123 (1933); People v. Casimiro, 45 SCRA 554
(1972); People v. Macellones, 49 SCRA 529 (1975); People v. Cawili, 34 SCRA 728
(1970).
211Canon 30, Canons of Professional Ethics.
212Canon 5, Canons of Professional Ethics; Rule 139, Sec. 20, (h) and (i), Rules
of Court; People v. Irisuillo, 82 Phil. 1 (1948).
LAWYER’S DUTIES IN HANDLING CLIENT’S CAUSE
237
his bearing constantly in mind of the basic rights of the accused, his being well-versed on the case and his knowing the
fundamental procures, essential laws and existing jurisprudence. The right of an accused to counsel finds substance in the
performance by the lawyer of his sworn duty of fidelity to his
client. Tersely put, it means an efficient and truly decisive legal assistance and not a simply perfunctory representation.”213
It is not advisable to lay down in detail what an advocate
defending a client accused of a crime may legitimately do in the
course of his defense. In the courtroom where he has to make quick
thinking and quick decision for his client, and to think fast on his feet
and to have the psychologist’s feel for the witness’ mood and motive,214
which are required in trial work in any civil or criminal case, writing
in detail what he should legitimately do may restrict rather than
insure his maneuverability. A defense counsel is, however, expected
to spare no effort to save his client from an unrighteous conviction215
and to present, by all fair and honorable means, every defense and
mitigating circumstance that the law permits to the end that his
client may not be deprived of life or liberty but by due process of law
legally applied.216 He should render effective legal assistance and
not mere perfunctory representation.217 He should jealously watch
against any attempt to restrict his privilege to assert and defend his
client’s right by the presentation of every fact and the use of every
legitimate argument.218
A lawyer should not, in the defense of his client, put a witness
on the stand whom he knows will give a false testimony.219 He should
213People v. Nadera, Jr., 324 SCRA 490, 506 [2000]; People v. Bermas, 306
SCRA 135 [1999].
214Reyes v. Court of Appeals, 267 SCRA 543 (1997).
215C/. People v. Cariaga, 64 Phil. 390 (1937); Resolution on Motion for Reconsideration; A.B.A. Op. 12 (June 4, 1928).
216Rule 138, Sec. 20(i), Rules of Court; Canon 15, Canons of Professional Ethics;
Lames v. Lascieras, 89 SCRA 186 (1979).
217People v. Estebia, 27 SCRA 106 (1969).
218The General Council of the Bar of England, in a statement in 1933, says as
to the English Barristers: “Counsel has the same privilege as his client of asserting
and defending the client’s rights, and of protecting his liberty or life by the free and
unfettered statement of every fact, and the use of every argument and observation,
that can legitimately, according to the principles and practice of law, conduce to this
end; and any attempt to restrict this privilege should be jealously watched. (An. Sat.
1919, P).” DRINKER, op. cit., at 143-144.
219A.B.A. Op. 150 (February 15,1936).
238
LEGAL AND JUDICIAL ETHICS
not distort the facts in disregard of the truth and the law220 nor make
improvident arguments based thereon221 or on facts not on record.222
Neither should he attribute to another person the crime with which
his client is charged nor, unless the facts given in evidence or the
rational inference drawn from them so justify, raise suspicion that
the crime may have been committed by the person to whom the guilt
is so imputed.223
A lawyer may not cause the transfer, through misrepresentation,
of a case pending in one sala to another of the same court without the
knowledge and consent of the judge taking cognizance of said case,
for the purpose of obtaining from the second sala a more satisfactory
remedy or a lighter penalty for his client.224 Nor may he, in seeking
a reversal of a lower court’s conviction of his client, attribute to the
trial judge personal motives, or attack him acrimoniously behind his
back in the appeal brief.226 The interest of the public requires that
every verdict be rendered only on the issues raised and evidence
presented, uninfluenced by appeals of counsel to passion, prejudice
or distorted sense of justice.226 Thus, it is a disgrace to the bar and
an affront to the court for a lawyer to plead, on behalf of an accused
charged with having killed a person for a monetary consideration,
that his client was a “poor, ignorant man blinded by the promise of
wealth, protection and stability” and “a cold fifty thousand bucks
in exchange for a man’s life was too great a temptation for him to
resist.”227
In the same manner that a lawyer may not employ improper
or dishonorable means to secure the acquittal of an accused known
to him to be guilty, he may not also abandon him or withdraw from
the case even if he is convinced of his client’s guilt.228 Nor may he
likewise admit the guilt of his client or the truth of the facts on
tion.
220Munoz
v. People, 53 SCRA 190 (1973).
221People
v. Cariaga, 64 Phil. 390 (1937), Resolution on Motion for Reconsidera222People
v. Manobo, 18 SCRA 30 (1966); People v. Carillo, 77 Phil. 572 (1946).
cit., at 146.
224People v. Mapa, Jr., CA-G.R. No. 30 R, March 3, 1947.
226People v. Manobo, 18 SCRA 30 (1966); Perkins v. Perkins, 57 Phil. 223
(1932); People v. Carillo, 77 Phil. 572 (1946).
226See New York Central Railroad Co. v. Johnson, 279 U.S. 310, 73 L ed. 706
(1929); People v. Young, 83 Phil. 702 (1949).
227People v. Young, 83 Phil. 702 (1949).
228See Canons 4 and 5, Canons of Professional Ethics; A.B.A. Op. 90 (December
3,1932).
223DRINKER, op.
LAWYER’S DUTIES IN HANDLING CLIENT’S CAUSE
239
which the guilt of his client depends.229 He is not called upon to
assert in argument his personal belief in his client’s innocence or
in the justice of his cause;230 he is only called upon, by all fair and
honorable means, to present every defense that the law permits to
the end that no person may be deprived of life or liberty but by due
process of law.231
§7.26. What is required of counsel de oficio.
A counsel de oficio is expected to render effective service and to
exert his best efforts on behalf of an indigent accused. As a lawyer
sworn to uphold justice and the law, he has the bounden duty to
exert utmost efforts to defend his client and protect his rights, no
matter how guilty or evil he appears to be. The performance of this
duty is all the more imperative because the life of the accused hangs
in the balance.232 He has as high a duty to a poor litigant as to a
paying client. He should as a vanguard in the bastion of justice have
a bigger dose of social conscience and a little less of self-interest.
He should ever be conscious of his duty to the indigent whom he
defends.233
Only by faithful performance by counsel of his duty towards
his client can give meaning and substance to the accused’s right to
due process and to be presumed innocent until proven otherwise.
His duty must not be taken lightly. It must be performed with all
the zeal and vigor at his command to protect and safeguard the
accused’s fundamental rights. He failed in the performance of such
duty, where he refused to cross-examine the offended party in a
rape case because he believed she was telling the truth and did not
present evidence for the accused234 or where he were barely nine days
after accused pleaded “not guilty” he filed a manifestation in open
court that his client was changing his plea to that of “guilty.”236
229U.S. v. Gimenez, 34 Phil. 74 (1916); U.S. Estrana, 16 Phil. 520 (1910); People
v. Fresco, 63 Phil. 526 (1936).
“‘’Canon 15, Canons of Professional Ethics.
231Canon 5, Canons of Professional Ethics; Rule 128, Sec. 20(i), Rules of Court.
^People v. Nadara, Jr., 324 SCRA 490 (2000); People v. Sta. Teresa, G.R. No.
130663, March 20, 2001.
^People v. Estebia, 27 SCRA 106 (1969); Ledesma v. Climaco, 57 SCRA 473
(1974); Lames v. Lascieras, 89 SCRA 186 (1979).
^People v. Nadera, Jr., 324 SCRA 490 (2000).
^People v. Sta. Teresa, G.R. No. 130663, March 20, 2001.
240
LEGAL AND JUDICIAL ETHICS
The court requires of a lawyer strict accountability in the
performance of his duty to the impoverished litigant.236 It has not
hesitated to exercise summarily disciplinary power to reprimand,
fine or even suspend an attorney from the practice of law for his
failure to live up to his duty to protect the rights of his client or to
render effective legal assistance to him, the most common of which
nonperformance of duty being the failure to file the appellant’s
brief.237
A counsel de oficio ought not to ask to be excused from his
responsibility for any trivial reason.238 The court frowns upon any
move on his part to excuse himself from his obligation as a courtappointed counsel for an accused on any trivial ground.239 Thus,
the circumstance that a counsel de oficio, after examination of the
records of an appealed case, found no error committed by the trial
court, furnishes no sufficient justification to release him from his
assignment, since he is not necessarily expected to sustain the
appellant’s innocence whenever he is otherwise convinced and
may ask for the affirmance of the trial court’s verdict.240 Nor does
his appointment as an election registrar justify his release from his
responsibility as counsel de oficio.2*1 He may, of course, be permitted
to withdraw as counsel de oficio on valid grounds.242
§7.27. Duty of defense counsel when accused intends to
plead guilty.
A plea of guilty is an admission by the accused of his guilt
of the crime as charged in the information and of the truth of the
facts therein alleged, including the qualifying and aggravating
circumstances.243 The imposition of sentence that follows its entry
proceeds from the premise that the plea is truthful, made voluntarily
'“People v. Ingco, 42 SCRA 170 (1971); In re Lahesa, 4 Phil. 298 (1905); People
v. Estebia, supra; Ledesma v. Climaco, supra.
237People v. Estebia, supra.; In re, Jo, 1 SCRA 31 (1961); People v. Aguilar, 7
SCRA 468 (1963); People v. Pascual, 28 SCRA 822 (1969); People v. Cawili, 34 SCRA
728 (1970).
238Canon 4, Canons of Professional Ethics.
239Ledesma v. Climaco, supra.
“''People v. Irisucillo, 82 Phil. 1 (1948).
“‘Ledesma v. Climaco, supra.
u2Cf. U.S. v. Laranja, 21 Phil. 500 (1912).
^People v. Balisacan, 17 SCRA 1119 (1966); People v. Chavez, 9 SCRA 780
(1966) ; People v. Ama, 111 Phil. 882 (1961); People v. Boyles, 4 SCRA 88 (1964);
People v. Tenorio, 114 Phil. 631 (1962).
LAWYER’S DUTIES IN HANDLING CLIENT’S CAUSE
241
by the accused and with full awareness of its consequences and of
his rights.244 The defense counsel plays a vital role in that regard.
The effectiveness of the guilty plea system as a mode of disposing
criminal cases depends, to a great extent, upon the competence and
conscientiousness of the defense counsel.246
It is the duty of defense counsel when his client desires to enter
a plea of guilty, to (a) fully acquaint himself with the records and
surrounding circumstances of the case, (b) confer with the accused
and obtain from him his account of what had happened, (c) advise
him of his constitutional rights, (d) thoroughly explain to him the
import of a guilty plea and the inevitable conviction that will follow,248
and (e) see to it that the prescribed procedure which experience has
shown to be necessary to the administration of justice is strictly
followed and disclosed in the court records.247 In a prosecution for
a grave offense, the prudent and proper course to follow is for the
trial court to require the taking of testimony after a plea of guilty
on the part of the accused so as to establish the precise degree of his
culpability.248 A defense counsel should prod the court to apply and
follow that procedure and leave no room for doubt that there is no
mistake or misunderstanding as to nature of the charges to which
the accused pleads guilty.249
The review by the Supreme Court of a lower court’s judgment260
would permit a judicial inquiry as to the extent a defense counsel
^Conviction follows only when the information charges an offense. A plea of
guilty to an information which charges no offense does not warrant conviction of the
accused. People v. Digoro, 16 SCRA 376 (1966).
^Conviction follows only when the information charges an offense. A plea of
guilty to an information which charges no offense does not warrant conviction of the
accused. People v. Digoro, 16 SCRA 376 (1966). Whether or not plea bargaining is a
fair and effective method of disposing of criminal cases depends heavily on whether
or not defendants are provided early with competent and conscientious counsel.”
PRESIDENT’S (U.S.) COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY, 76
(1968) ; See Albert W. Alschuler, The Defense Attorney’s Role in Plea Bargaining, 84
YALE L.J., 1179 (May 1975).
246People v. Silvestre, 51 SCRA 286 (1973); People v. Apduhan, Jr., 24 SCRA
798 (1968); People v. Espina, 45 SCRA 614 (1972).
247U.S. v. Custan, 28 Phil. 15 (1914); People v. Espina, supra.
^People v. Apduhan, J., supra.; People v. Silvestre, supra.; People v. Espina,
supra., People v. Saligan, 53 SCRA 190 (1973); People v. Daeng, 49 SCRA 221 (1973);
People v. Ricalde, 49 SCRA 228 (1973); People v. Alamada, 53 SCRA 103 (1973);
People v. Villafuerte, 52 SCRA 204 (1973); People v. Domingo, 68 SCRA 50 (1975).
“"People v. Busa, 51 SCRA 317 (1973).
250Rule 122, Sec. 9, Rules of Court; Judiciary Act of 1948, Sec. 9.
242
LEGAL AND JUDICIAL ETHICS
has performed his duty to an accused who pleaded guilty to a capital
offense and would thus minimize occasions for denial of an accused’s
right to an effective assistance of counsel.261 Moreover, the safeguard
required by the high tribunal — the taking of testimony after a plea
of guilty — could prevent the imposition of an incorrect penalty.262
That is not so, however, in a prosecution for a less grave offense. In
the first place, seldom are appeals taken from a conviction following
a plea of guilty to such offense. And in the second place, even if
an appeal is taken, much reliance is placed on the presumption of
regularity in the performance of duty not only on the part of the trial
judge,263 but also on the part of defense counsel.264 Such presumption
could camouflage the indifference of the trial judge to the rights of an
accused as well as the ineptitude of defense counsel in the discharge
of his duty.
There is, moreover, in the guilty plea system that is not conducive to a sound attorney-client relationship. It has been asserted
that there are some “professional writrunners and pleaders” — lawyers who handle large volume of cases for less than spectacular fees
by advising, influencing, cajoling or even coercing clients to plead
guilty, irrespective of their guilt or innocence.266 That there must be
some grain of truth to that assertion is shown by the fact that the
Supreme Court, after noting that the same lawyer has been thrice
appointed counsel de oficio in three cases appealed to the high tribunal, cautioned trial courts in general from frequently appointing
the same attorney as counsel de oficio to prevent the possibility of
having the compensation for services rendered in de oficio cases266
considered as a regular source of income, as counsel might be inordinately eager to finish the cases to be able to collect his fees at
261In a prosecution for robbery in band with homicide, the lawyer’s spending
only a few minutes from the time he went over the records of the case to the time he
announced to the trial court that the accused was ready to be arraigned and would
enter a plea of guilty provoked the Supreme Court in making the observation that
that is the kind of counseling that can conceivably send innocent men to prison, if
not to their death, or doom guilty persons to suffer more than their just measure of
punishment and retribution, People v. Silvestre, 51 SCRA 286 (1973).
262See People v. Apduhan, Jr., 24 SCRA 798 (1968).
““People v. Javier, 64 Phil. 413 (1937); People v. Abejero, 111 Phil. 403 (1961);
Alberca v. Superintendent of Correctional Inst, for Women, 119 Phil. 365 (1964).
264People v. Ymson, G.R. No. 14189, October 25,1960.
““See Albert W. Alschuler, The Defense Attorneys Role in Plea Bargaining, 84
YALE L. J., (May, 1975).
““Rule 138, Sec. 32, Rules of Court.
LAWYER’S DUTIES IN HANDLING CLIENT’S CAUSE
243
the earliest possible time.257 And the quickest and easiest way to accomplish that purpose is to ask an accused to plead guilty. It is, of
course, unprofessional and a violation of the lawyer’s oath to induce
a client to plead guilty to an offense which counsel knows his client
did not commit.258 But the guilty plea system can preclude a judicial
inquiry into such problem.269
Furthermore, the guilty plea system puts even the most
reputable lawyer into a trying situation. Where a guilty plea would
be to the client’s advantage in view of the evidence of guilt and in
view of the prosecution’s offer or willingness to charge him with
a lesser offense if the accused will enter a plea of guilty thereto,
notwithstanding which the accused insists that he is innocent, the
lawyer may find it difficult to make a choice — whether to ask his
client to plead guilty to the lesser offense or to advise him to enter a
plea of not guilty to the graver offense. If he were to advise his client
to enter a plea of not guilty, he may be less than true to his duty
of extending the best legal assistance to the accused. On the other
hand, if he were to counsel him to plead guilty to the lesser offense,
he may be confronted with the problem of division of responsibility as
to the correctness of the step taken, especially where, when evidence
is adduced by the prosecution as may be required by the trial court
or by the defense to establish additional mitigating circumstances,
the accused appears to be innocent.260
There appears to be no immediate solution in sight to the
ethical as well as to the economic problems posed by the guilty
plea system.261 Such problems, however, underscore the need for a
257People
v. Daeng, 49 SCRA 221 (1973).
258Topacio
Nueno v. Santos, 58 Phil. 557 (1933).
would be desirable if a research study is undertaken to determine, in a
given period, how many de oficio cases have been disposed of by trial courts, the nature of the crimes charged, the number of guilty pleas, the amounts paid as compensation in favor of counsel de oficio, the identity of the lawyers concerned, etc. Such a
research study will certainly show interesting results which will be of immense help
in the administration of criminal justice.
260See People v. Balicasan, 17 SCRA 1119 (1966); People v. Dimdiman, 100
Phil. 391 (1959); People v. Boyles, 11 SCRA 88 (1964).
261Albert v. Alschuer has extensively discussed the serious problems and incongruities that the guilty plea system has created, among the more serious of which
are the economic and ethical problems. From his own view point, nothing short of the
abolition of the guilty plea system as a mode of dispensing justice promises as satisfactory resolution of the problems. See Albert W. Alschuer, The Defense Attorney’s
Role in Plea Bargaining, 84 YALE L. J.,1179 (May, 1975).
259It
244
LEGAL AND JUDICIAL ETHICS
defense counsel to be conscientious and diligent in the discharge of
his duties to an accused who desires to enter a guilty plea as the best
insurance for a clear conscience.
E. CONSEQUENCES OF FAILURE
TO PERFORM DUTIES
§7.28. Generally.
The failure of a lawyer to exercise the diligence required of him
to safeguard the client’s interests or his abandonment of the client’s
cause may render him administratively liable therefor, which may
be a reprimand, warning, suspension from the practice of law, and
even disbarment depending upon the surrounding circumstances
and the prejudice caused the client. The lawyer may also be held
civilly liable in favor of his client.
infra.
For detailed discussion on the subject, see §15.02 and §16.20,
§7.29. Consequences to client for lawyer’s breach of duties.
The client may lose his case due to the negligence or misconduct
of his counsel because the client is generally bound by his lawyer’s
omission or mistake in the handling of his case. Thus, the client
may lose his cause or his right to appeal an adverse judgment,
where the lawyer failed, without sufficient justification, to bring an
action immediately,262 file the answer to the complaint within the
reglementary period,263 notify his client of the date of hearing,264
attend the scheduled pre-trial conference266 or hearing,266 prosecute
(1967).
(1974).
262Ventura
v. Santos, 59 Phil. 113 (1933); Blanza v. Arcangel, 21 SCRA 1
263Mapua v. Mendoza, 45 Phil. 424 (1923); Hernandez v. Clapiz, 87 Phil. 437
(1950); Gordulan v. Gordulan, 3 SCRA 205 (1961); Malipol v. Tan, 55 SCRA 202
264Avelino v. Palafia, 39 SCRA 129 (1971); People’s Homesite & Housing Corp.
v. Tiongko, 81 SCRA 350 (1964).
266Saulog v. Custombuilt Manufacturing Corp., 26 SCRA 1 (1968).
266Gaerlan v. Bernal, 90 Phil. 869 (1952); Castaneda v. Ago, 2 SCRA 658 (1961);
Antonio v. Ramos, 2 SCRA 731 (1961); J. M. Tuazon & Co. v. De Leon, 4 SCRA 275
(162); Rivera v. Vda. de Cruz, 26 SCRA 58 (1968); Dirige v. Biranya, 17 SCRA 840
(1966).
LAWYER’S DUTIES IN HANDLING CLIENT’S CAUSE
245
the action for a reasonable period,267 inform the client of an adverse
judgment within the reglementary period to appeal,268 take steps to
have the adverse decision reconsidered269 or appealed,270 ascertain the
correct date of receipt of the decision,271 acquaint himself with what
has happened to the litigation,272 pay the docket fee on appeal,273 claim
judicial notice sent to him by mail, or file the appellant’s brief.274
267De los Reyes v. Capule, G.R. No. 8022, 102 Phil. 466 (1957); Montejo v. Urotia, 48 SCRA 41 (1971).
““Alcala v. De Vera, 56 SCRA 30 (1974); Palanca v. American Food Manufacturing Co., 24 SCRA 819 (1968); Duran v. Paguirigan, 106 Phil. 907 (1960).
^People’s Homesite & Housing Corp. v. Tiongco, 81 SCRA 350 (1964); Roque
v. Gunigundo, 89 SCRA 178 (1979).
270Toquib v. Tomol, Jr., 26 SCRA 601 (1969); Bautista v. Ydia, 69 SCRA 391
(1976).
271Joven-De Jesus v. Phil. National Bank, G.R. No. 19299, November 28,
1964.
272Tan Kui v. Court of Appeals, 544 SCRA 199 (1973); People v. Manangon, 56
SCRA 817 (1974).
273Palteng v. Court of Appeals, 26 SCRA 736 (1969); Dorego v. Perez, 22 SCRA
8 (1968); Capulong v. Alifio, 22 SCRA 491 (1968).
274Espere v. Santos, 96 Phil. 987 (1955); People v. Tan, 15 SCRA 252 (1965);
People v. Blancas, 45 SCRA 405 (1972); People v. Vicente, 51 SCRA 94 (1973); People
v. Aguilar, 7 SCRA 468 (1963); People v. Cawili, 34 SCRA 728 (1970); People v. Macellones, 49 SCRA 529 (1975); People v. De Leon, 62 SCRA 536 (1975); People v. De
Jesus, 66 SCRA 410 (1975); People v. Venzon, 66 SCRA 407 (1975); People v. Copro,
58 SCRA 307 (1974).
Chapter VIII
LAWYER’S FIDUCIARY OBLIGATIONS
A. EFFECTS OF FIDUCIARY RELATION
§8.01. Generally.
The position of an attorney enables him to put in his power, and
opens him to the temptation to avail himself, not only of the necessity
of his client but of his good nature, liberality and credulity to obtain
undue advantages, bargains and gratuities.1 The well-established
rule that the relation of attorney and client is highly fiduciary and
strictly confidential requiring utmost good faith, loyalty, fidelity and
disinterestedness on the part of the attorney is designed to remove
all such temptation and to prevent everything of that kind from
being done for the protection of the client.2 Principles of expediency
and those of justice demand that the attorney derive no advantage
whatsoever from such act, when done by him, as may operate to the
prejudice of or occasion a loss to client, and that all the advantages
which otherwise would have arisen therefrom to the attorney inure
to the benefit of the client.3
§8.02. Dealings with client closely scrutinized.
A fiduciary relationship exists as a matter of law between
attorney and client, which requires all dealings growing out of such
■STORY, 1 EQUITY JURISPRUDENCE, Sec. 433 (14th ed., 1918).
v. Uy, Jr., 330 SCRA 6, 17 (2000), citing Agpalo, Legal Ethics, 1992
ed., p. 188. Bell v. Ramirez, 299 SW 655 (1927); Stockton v. Ford, 52 U.S. 232 (1850);
Galbraith v. Elder, 8 Watts (Pa) 81 (1839); Angeles v. Uy, Jr., 330 SCRA 6 (2000),
citing Agpalo, Legal Ethics, 1992 ed., 188.
3Galbraith v. Elder, supra.; Gaffney v. Harmon, 90 NE2d 785,20 ALR2d 1275
(1950); Cf. Diaz v. Kapunan, 45 Phil. 482 (1923); Imbuido v. Manganon, 114 Phil. 695
(1962).
2Angeles
246
LAWYER’S FIDUCIARY OBLIGATIONS
247
relationship to be subject to the closest judicial scrutiny.4 It is the
court’s duty to look into dealings between attorneys and their clients
and to guard and protect the latter from any undue consequences
resulting from a situation in which they may stand unequal.6 The law
in fact requires that “in all contractual, property or other relations,
when one of the parties is at a disadvantage on account of his moral
dependence, ignorance, indigence, mental weakness, tender age or
other handicaps, the courts must be vigilant for his protection.”6
As a rule, a lawyer is not barred from dealing with his client
but the business transaction must be characterized with utmost
honesty and good faith. The measure of good faith which an attorney
is required to exercise in his dealings with his client is a much higher
standard than is required in business dealings where the parties
trade at “arms length.” Business transactions between an attorney
and his client are disfavored and discouraged by the policy of the
law. Hence, courts carefully watch these transactions to assure
that no advantage is taken by a lawyer over his client. This rule is
founded on public policy for, by virtue of his office, an attorney is in
an easy position to take advantage of the credulity and ignorance
of his client. Thus, no presumption of innocence or improbability of
wrongdoing is considered in his favor.7
While a lawyer is not barred from dealing with his client in
business transaction, the same is disfavored and his business
dealings must be characterized with utmost honesty and good faith.
His fidelity to the cause of his client requires him to be ever mindful
of the responsibilities expected of him as a lawyer.8
A lawyer may not be allowed to profit from an ingenious scheme
to circumvent the statutory prohibition against the acquisition of
the client’s property in litigation.9 Neither may he be permitted, in
his relation with his client or third party, to take advantage of his
being a lawyer or to plead ignorance of or lack of familiarity with the
4Hilado v. David, 84 Phil. 569 (1949); Gaffney v. Hannon, supra.', Littleton v.
Kincaid, 179 F2d 848, 27 ALR2d 572 (1950).
6Hilado v. David, 84 Phil. 569 (1949); Angeles v. Uy, Jr., 330 SCRA 6 (2000).
6Art. 24, Civil Code of the Philippines.
7Nakpil v. Valdez, 186 SCRA 758 (1998).
8Cruz v. Jacinto, 328 SCRA 636 (2000).
9Matias v. Valentin, CA-G.R. No. 34166-R, May 13,1968. See infra., Sec. 7.06,
et seq.
248
LEGAL AND JUDICIAL ETHICS
intricacies of the law.10 And even when the transaction between an
attorney and his client is not prohibited by law, the burden of proof
rests upon the attorney to show that the transaction is fair, that it
was equitable and just, that it did not proceed from undue influence
and that the property so acquired does not belong constructively to
the client.11
§8.03. Abuse of client’s confidence.
A “lawyer should refrain from any action whereby for his
personal benefit or gain he abuses or takes advantage of the
confidence reposed in him by his client.”12 And any advantage derived
by a lawyer as a result of abuse of the client’s confidence generally
inures to the benefit of the client.13
A lawyer may not retain the money of one client to force
a settlement of the disputed claim of another client against the
former.14 Nor may he obtain money from his client through false
pretense16 or misrepresentation.16
An attorney, confronted with the situation of drawing a will
for a friend or a relative who wishes to make a bequest to him or to
a member of his family, should take into consideration the conflict
of interests, the incompetence of a lawyer beneficiary to testify
because of a transaction with the deceased, the possible jeopardy of
the will if its admission to probate is contested, the possible harm
to the other beneficiaries and the undermining of the public trust
and confidence in the integrity of an attorney. The mere existence
of a confidential relation between a testator and his lawyer who is
a beneficiary under the will does not per se raise an inference of
undue influence, but the inference arises where the attorney acts as
draftsman of the will and there are other persuasive circumstances,
such as preferential treatment of the attorney in relation to others,
the inclusion of a bequest of more than a token or modest amount
10Dacanay v. Leonardo, 83 SCRA 335 (1978); Joaquin v. Mitsumine, 34 Phil.
958 (1916); Cf. Pascua v. Copoyoc, 77 SCRA (1977).
"Gaffney v. Harmon, 90 NE2d 785, 20 ALR2d 1273 (1950).
12Canon 11, Canons of Professional Ethics.
13See Imbuido v. Manganon, 114 Phil. 695 (1962); Diaz v. Kapunan, 45 Phil.
482 (1932).
14A.B.A. Op. 123 (December 15, 1934).
16/ra re Paraiso, 41 Phil. 24, (1920).
ieIn re Rustia, 73 Phil. 162 (1941); Liwag v. Neri, 107 Phil. 852 (1960).
LAWYER’S FIDUCIARY OBLIGATIONS
249
from a personal friend or a suggestion by the attorney for a bequest
to him or a member of his family. The attorney should not ordinarily
draw a will under a circumstance which gives rise to an inference of
undue influence; he may draw a will in that situation where undue
influence may not be inferred and what he may receive by way of
bequest is reasonable and no more than what would be received
under the law.17
An attorney may draw a will containing a provision, desired by
his client, appointing him as executor or directing the executor to
name him as counsel for the estate because in the former instance
his appointment as executor is not final but subject to the approval
of the probate court,18 and in the latter instance the executor is not
bound to retain him as counsel for the estate.
§8.04. Rebates and commissions.
“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.”19
This rule is designed to secure the attorney’s wholehearted fidelity to
the client’s cause and to prevent that situation in which the receipt
by him of a rebate or commission from another in connection with
the client’s business may interfere with the full discharge of his duty
to his client.20
A corollary of the foregoing rule is the principle that whatever
a lawyer receives from the opposite party in the service of his
client belongs to the client, in the absence of his client’s consent
made after full disclosure of the facts.21 Thus, the money received
from the judgment creditor by the lawyer of the judgment debtor
as consideration for the lawyer’s desisting from participating in
execution sale of the debtor’s property is owned by and must be
turned over to the client.22 A lawyer may not claim the attorney’s fees
17State
v. Horan, 123 NW2d 488, 96 ALR2d 1227 (1963).
18Mercado
v. Jaen, 64 Phil. 75 (1937); Ozaeta v. Pecsin, 93 Phil. 416 (1953);
Advincula v. Teodoro, 99 Phil. 429 (1956).
I9Rule 20.03, Code of Professional Responsibility.
2°Cf. A.B.A. Ops. 78 (27 Phil. 1932) and 196 (October 20,1939).
21See Diaz v. Kapunan, 45 Phil. 848 (1932); Canon 38, Canons of Professional
Ethics.
“Diaz v. Kapunan, 45 Phil. 484 (1923).
250
LEGAL AND JUDICIAL ETHICS
in the concept of damages awarded by the court in favor of his client,
the latter and not the former being entitled thereto,23 except when
he and his client have agreed that whatever amount the court may
award as attorney’s fees would form part of his compensation.24
§8.05. A lawyer shall not borrow from, nor lend money to,
client.
Rule 16.04 of the Code provides that a “lawyer shall not borrow
money from his client unless the client’s interests are fully protected
by the nature of the case or by independent advice. Neither shall a
lawyer lend money to a client except, when in the interest of justice,
he has to advance necessary expenses in a legal matter he is handling
for the client.” The rule consists of two parts. The first part, which
prohibits a lawyer from borrowing money from his client, is intended
to prevent the lawyer from taking advantage of his influence over the
client.25 While the lawyer may borrow money from his client where
the client’s interests are fully protected by the nature of the case
he is handling for the client or by independent advice from another
lawyer, he should not abuse the client’s confidence by delaying
payment.26
The second part of the rule, which prohibits a lawyer from
lending money to the client, except when, in the interest of justice, he
has to advance necessary expenses in a legal matter he is handling, 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.27 If
the lawyer lends money to the client in connection with the client’s
case, the lawyer in effect acquires an interest in the subject matter
of the case or an additional stake in its outcome, either of which may
lead the lawyer to consider his own recovery rather than that of his
client or to accept a settlement which might take care of his interest
in the verdict to the sacrifice of that of the client in violation of his
duty of undivided fidelity to the client’s cause.28 If such be what he
“Polyetrade Corp. v. Blanco, 30 SCRA 187 (1969); Gan Tion v. Court of Appeals, 28 SCRA 235 (1969).
“Recto v. Harden, 100 Phil. 427 (1956); De Jesus v. Tan, 106 Phil. 554 (1959).
“Comments of IBP Committee that drafted the Code, p. 90.
™Cf. Alindogan v. Gerona, G.R. Adm. Case No. 221, May 21,1958.
27Comments of IBP Committee that drafted the Code, p. 90.
wCf. O’Connell v. Superior Court of San Francisco, 97 ALR 918.
LAWYER’S FIDUCIARY OBLIGATIONS
251
takes, he will violate his oath to conduct himself as a lawyer with
all good fidelity to his clients and make lawyering a money-making
venture and not a profession.29
B. ACCOUNTING OF CLIENT’S FUNDS
§8.06. A lawyer shall account for client’s funds.
In light of the fiduciary relationship between attorney and client,
Canon 16 requires that a “lawyer shall hold in trust all moneys and
properties of his client that may come into his possession” and Rule
16.1 states that a “lawyer shall account for all money or property
collected or received for or from the client.”
A lawyer may receive money or property for or from his client in
the course of his professional relationship with his client. The lawyer
holds such money or property in trust and he is under obligation to
make an accounting thereof. Such money or property may include
the following:
The money collected by a lawyer in pursuance of a judgment in
favor of his client is held in trust.30 So is money of a client not used
for the purpose for which it was entrusted to his counsel.31 Thus, the
client’s money given to his lawyer intended as filing fees and other
legal fees for the counterclaims in the answer he filed for his client,
which was not paid for such purpose because the counterclaims
were compulsory and required no payment of fees, is money of the
client which the lawyer should account.32 A lawyer also holds for the
benefit of his client any property redeemed with the client’s money
and registered in the lawyer’s name33 or any fund received by him
from a judgment creditor as consideration for his desisting from
participating in the public sale of the client’s property.34
The highly fiduciary and confidential relation of attorney and
client requires that the attorney should promptly account for all
29Canlas
30Aya
v. Court of Appeals, 164 SCRA 160 (1988).
v. Bigomia, 57 Phil. 8 (1932); Daroy v. Legaspi, supra.
31Cabigao v. Rodrigo, 57 Phil. 20 (1932); Capulong v. Alino, 22 SCRA 491
(1968); In re Paraiso, 41 Phil. 24 (1920); In re David, 84 Phil. 627 (1949).
32Gonoto v. Adaza, 328 SCRA 694 (2000).
33Imbucido v. Manganon, 114 Phil. 695 (1962).
34Diaz v. Kapunan, 45 Phil. 482 (1923).
252
LEGAL AND JUDICIAL ETHICS
funds and property received or held by him for the client’s benefit.35
Where a client gives money to his lawyer for a specific purpose, such
as to file an action,36 appeal an adverse judgment37 or consummate a
settlement,38 pay the purchase price of a parcel of land,39 the lawyer
should account for the money. If he fails to accomplish the purpose
for which the money is intended, he should immediately return the
money to his client.40 His failure to make an accounting or to return
the money if the purpose for which the money is intended has failed,
constitutes blatant disregard of Rule 16.01 of the Code.41
In Celaje v. Soriano,42 the Court held that a lawyer entrusted
by his client of amounts for specific purpose but did not spend the
money for such purpose and instead misappropriated the same for
his personal use is guilty of violation of Canon 16, for which he may
be suspended or disbarred, and ordered to restitute the same within
a specified period. The Court held:
The Code ofProfessional Responsibility (CPR), particularly
Canon 16 thereof, mandates that a lawyer shall hold in trust
all moneys and properties of his client that may come into his
possession. He shall account for all money or property collected
or received from his client and shall deliver the funds and
property of his client when due or upon demand.
As found by Commissioner Funa, it was established that
respondent could not account for P5,800.00 which was part of
the sum given by complainant to him for the purpose of filing
an injunctive bond. Respondent admitted having received from
complainant P17,800.00 on April 19, 2002 for the preliminary
injunction and admitted to having a balance of P9,000.00 in
his promissory note to the Manila Insurance Co., Inc. dated
April 23, 2002, which was reduced to P5,800.00 by reason
of an additional payment of P4,000.00, leaving an amount
of P5,800.00 unaccounted for. The affidavit of the insurance
36Daroy v.
Legaspi, supra.; In re Bamberger, 49 Phil. 962 (1924).
^Malabed, Jr. v. Nanca, 60 SCRA 253 (1974).
37Medina
v. Bautista, G.R. Adm. Case No. 190, September 26, 1964.
v. Bautista, 12 SCRA 1 (1964).
390bia v. Catimbang, 196 SCRA 23 (1991).
i0In re Nueno, 84 Phil. 178 (1949); In re Rillaroza,G.R. Adm. Case No. 256, May
31, 1956; Capulong v. Alino, supra.; Malabed, Jr. v. Nanca, supra.
41Navarro v. Meneses, 285 SCRA 586 (1998); Businos v. Ricafort, 283 SCRA
(1998).
42A.C. No. 7418, October 9, 2007.
38Medina
LAWYER’S FIDUCIARY OBLIGATIONS
253
agent, Valentina Ramos, dated December 8, 2005 also states
that even up to said date, respondent had not yet paid the
balance of P5,800.00.
Respondent’s failure to return the money to complainant
upon demand gave rise to the presumption that he misappropriated it for his own use to the prejudice of, and in violation of
the trust reposed in him by his client.43 It is a gross violation of
general morality and of professional ethics and impairs public
confidence in the legal profession which deserves punishment.
As the Court has pronounced, when a lawyer receives
money from the client for a particular purpose, the lawyer
is bound to render an accounting to the client showing that
the money was spent for a particular purpose. And if he does
not use the money for the intended purpose, the lawyer must
immediately return the money to his client.
The Court has been exacting in its demand for integrity
and good moral character of members of the Bar who are
expected at all times to uphold the integrity and dignity of the
legal profession and refrain from any act or omission which
might lessen the trust and confidence reposed by the public
in the fidelity, honesty, and integrity of the legal profession.
Indeed, membership in the legal profession is a privilege.
The attomey-client relationship is highly fiduciary in
nature. As such, it requires utmost good faith, loyalty, fidelity
and disinterestedness on the part of the lawyer.
In Small v. Banares, the respondent was suspended for
two years for violating Canon 16 of the CPR, particularly
for failing to file a case for which the amount of P80,000.00
was given him by his client, and for failing to return the said
amount upon demand. Considering that similar circumstances
are attendant in this case, the Court finds the Resolution of
the IBP imposing on respondent a two-year suspension to be
in order.
Money received by a lawyer from a person who is not his client
is also held by him in trust and he is under obligation to account for
“Almendarez, Jr. v. Langit, A.C. No. 7057, July 25, 2006, 496 SCRA 402, 407;
Espiritu v. Ulep, A.C. No. 5808, May 4, 2005, 458 SCRA 1, 9; Aldovino v. Pujalte, Jr.
A.C. No. 5082, February 17, 2004, 423 SCRA 135,140.
254
LEGAL AND JUDICIAL ETHICS
it. Thus, a lawyer who has been entrusted by a person not his client,
with money for payment of SSS contributions and who did not remit
the same until a complaint for disbarment has been filed against him
may not be considered strictly as a lawyer handling the client’s fund,
but the rule requiring a lawyer to promptly account for his client’s
money is applicable to him, and his failure to immediately remit
the amount to the SSS gives rise to the presumption that he has
misappropriated it for his own use; it is a gross violation of general
morality as well as professional ethics; it impairs public confidence
in the legal profession and deserves punishment.44
The circumstance that an attorney has a lien for his attorney’s
fees on the money in his hands collected for his client does not relieve
him from the obligation to make a prompt accounting.46 The fact that
a lawyer needs the client’s money to protect him against claims of
bondsmen on the bond he secured for his client or that his client owes
him attorney’s fees does not entitle him to unilaterally appropriate
his client’s money for himself.46 However, if duly authorized, an
attorney may cash a money order belonging to his client and retain
part of it in payment of his fees.47 He may not, in the absence of
authority from his client, disburse the money collected for his client
in favor of persons who may be entitled thereto, he owing fidelity to
the former and not to the latter.48 His act of collecting unreasonable
fees may amount to a retention of his client’s funds and constitute
professional indiscretion or misconduct.49
A lawyer who fails to account his client’s money or return
the same may be disciplined, which may range from suspension to
disbarment depending upon the surrounding circumstances of each
case.60
44Penticostes v. Ibanez, 304 SCRA 281 (1999), citing R. Agpalo, Legal Ethics,
194 (4th ed., 1989).
45In re Bamberguer, 49 Phil. 962 (1942); Daroy v. Legaspi, supra.', Domingo v.
Domingo, 42 SCRA 131 (1971); Tambueko v. De Dumo, 172 SCRA 760 (1989).
46Cabigao v. Rodrigo, 57 Phil. 20 (1932); Manaloto v. Reyes, 113 Phil. 915
(1965); Capulong v. Alino, 22 SCRA 491 (1968).
41 In re Rillaroza, G.R. Adm. Case No. 256, May 31, 1956.
48/n re Abad, 98 Phil. 899 (1956).
49/n re Tuason, 11 SCRA 562 (1964).
“Dumandag v. Lumaya, 197 SCRA 303 (1991); Obia v. Catimbang, 196 SCRA
23 (1991); Navarro v. Meneses, 285 SCRA 586 (1998); Businos v. Ricafort, 283 SCRA
(1998).
LAWYER’S FIDUCIARY OBLIGATIONS
255
In Angeles v. Uy, Jr.,51 the Court summed up the lawyer’s duty
to promptly account for the client’s money or property, thus:
“The relationship between a lawyer and a client is highly
fiduciary; it requires a high degree of fidelity and good faith.
It is designed to ‘remove all such temptation and to prevent
everything of that kind from being done for the protection of
the client.’”52
Thus, Canon 16 of the Code of Professional Responsibility
provides that ‘a lawyer shall hold in trust all moneys and properties
of his client that may come into his possession.’ Furthermore, Rule
16.1 of the Code also states that ‘a layer shall account for all money
or property collected or received for or from the client.’ The Canons
of Professional Ethics are even more explicit:
The lawyer should refrain from any action whereby for
his personal benefit or gain he abuses or takes advantage of the
confidence reposed in him by his client.
Money of the client collected for the client or other trust
property coming into the possession of the lawyer should be
reported and accounted for promptly and should not under any
circumstances be commingled with his own or be used by him.
xxx
The records do not clearly show whether Attorney Uy had
in fact appropriated the said amount; in fact, Mrs. Del Rosario
acknowledged that she had received it on February 12, 1999.
They do show, however, that respondent failed to promptly
report that amount to her. This is clearly a violation of his
professional responsibility. Indeed, in Aya v. Bigornia, the Court
ruled that money collected by a lawyer in favor of his clients
must be immediately turned over to them. In Daroy v. Legaspi,
the Court held that ‘lawyers are bound to promptly account for
money or property received by them on behalf of their clients
and failure to do so constitutes professional misconduct.’
Verily, the question is not necessarily whether the rights
of the clients have been prejudiced, but whether the lawyer
61330
SCRA 6,17, et seq.
“Citing Agpalo, Legal Ethics, 1992 ed., p.
188.
256
LEGAL AND JUDICIAL ETHICS
has adhered to the ethical standards of the bar. In this case,
respondent has not done so. Indeed, we agree with the following
observation of the Office of the Bar Confident:
‘Keeping the money in his possession without his client’s
knowledge only provided Atty. Uy the tempting opportunity to
appropriate for himself the money belonging to his client. This
situation should, at all times, be avoided by members of the
bar. Like judges, lawyers must not only be clean; they must
also appear clean. This way, the people’s faith in the justice
system would remain undisturbed.’
In this light, the Court must stress that it has the duty to
look into dealings between attorneys and their clients and to
guard the latter from any undue consequences resulting from
a situation in which they may stand unequal. The present
situation calls for the exercise of this duty.
For misappropriating and failing to promptly report and
deliver money they received on behalf of their clients, some
lawyers have been disbarred and others have been suspended
for six months. In the present case, the records merely show
that respondent did not promptly report that he received
money on behalf of his client. There is no clear evidence of
misappropriation. Under the circumstances, we rule that he
should be suspended for one month.53
§8.07. A lawyer shall not commingle client’s funds.
Another obligation which flows from the highly fiduciary
relation between attorney and client is that a “lawyer shall keep
the funds of each client separate and apart from his own and those
of others kept by him.”64 He should not commingle a client’s money
with that of other clients and with his private funds, nor use the
client’s money for his personal purposes without the client’s consent.
He should report promptly the money of his client that has come to
his possession. He should maintain a reputation for honesty and
fidelity to private trust.66
“330 SCRA, pp. 17-21.
“Rule 16.02,
Code of
P f i
l
LAWYER’S FIDUCIARY OBLIGATIONS
257
§8.08. A lawyer shall deliver funds to client, subject to his
lien.
Rule 16.03 of the Code of Professional Responsibility provides
that “A lawyer shall deliver the funds and property of his client
when due or upon demand. However, he shall have a lien over the
funds and may apply so much thereof as may be necessary to satisfy
his lawful fees and disbursements, giving notice promptly thereafter
to his client. He shall also have a lien to the same extent on all
judgments and executions he has secured for his client as provided
for in the Rules of Court.”66
The failure of an attorney to return the client’s money upon
demand gives rise to the presumption that he has misappropriated it
for his own use to the prejudice of and in violation of the trust reposed
in him by the client.67 It is a gross violation of general morality as
well as of professional ethics; it impairs the public confidence in the
legal profession and deserves punishment.68
Rule 16.03 of the Code, however, allows the lawyer to “apply
so much thereof as may be necessary to satisfy his lawful fees and
disbursements, giving notice promptly thereafter to his client.” This
provision assumes that the client agrees with the lawyer as to the
amount of attorney’s fees and as to the application of the client’s
fund to pay his lawful fees and disbursement, in which case he may
deduct what is due him and remit the balance to his client, with full
disclosure on every detail.69 Without the client’s consent, the lawyer
has no authority to apply the client’s money for his fees, but he
should in instead return the money to his client, without prejudice
to his filing a case to recover his unsatisfied fees.60
Where there is disagreement as to the lawyer’s fees, or when
the client disputes the amount claimed by the lawyer for being
unconscionable, the lawyer should not arbitrarily apply the funds
in his possession to the payment of his fees for it would be violative
of the trust relationship between the attorney and client and would
open the door to possible abuse by those who are less than mindful
“/re re Booram, 39 Phil. 247 (1918).
67Manaloto v. Reyes, 113 Phil. 915 (1965); In re David, 84 Phil. 627 (1949);
Capulong v. Alino, 22 SCRA 491 (1968).
“Daroy v. Legaspi, 65 SCRA 304 (1975).
“Marquez v. Meneses, Jr., 321 SCRA 1 (1999).
"Gonoto v. Adaza, 328 SCRA 694 (2000).
258
LEGAL AND JUDICIAL ETHICS
of their fiduciary duty; instead, he may file the necessary action to
fix and recover the amount of his fees.61
The provision grants the lawyer a lien over the client’s funds
in his possession as well as on all judgments and executions he has
secured for his client, to satisfy his lawful fees and disbursements.
C. RESTRICTION AGAINST BUYING
CLIENT’S PROPERTY
§8.09. Purchase of client’s property in litigation.
One of the rules protective of the fiduciary relation between
lawyer and client is the law prohibiting a lawyer from purchasing,
even at a public or judicial auction, either in person or through
the mediation of another, any property or interest involved in any
litigation in which he may take part by virtue of his profession.
The law expressly prohibits a lawyer from purchasing, even at
a public or judicial auction, either in person or through the mediation
of another, any property or interest involved in any litigation in
which he may take part by virtue of his profession.62 The canons of
the legal profession provide a similar restriction.63
The prohibition which rests on considerations of public policy
and interest64 is intended to curtail any undue influence of the
lawyer upon his client on account of his fiduciary and confidential
relation with him.66 The law makes the incapacity of the attorney to
acquire his client’s property in litigation absolute and permanent.®
The fear that greed may get the better of the sentiments of loyalty
and disinterestedness which should animate an attorney in his
relation with his client underlies the incapacity. The law does not
trust human nature to resist the temptation likely to arise out of the
61J. K. Mercado and Sons Agricultural Enterprises, Inc. v. De Vera, 317 SCRA
339 (1999).
62Art. 1491, Civil Code of the Philippines.
“Canon 10, Canons of Professional Ethics; Del Rosario v. Millado, 26 SCRA
700 (1969).
“Rubias v. Batiller, 51 SCRA 120 (1973); Go Beltran v. Fernandez, 70 Phil.
248(1940)
“Sotto v. Samson, 115 Phil. 710 (1962).
“Rubias v. Batiller, supra.
LAWYER’S FIDUCIARY OBLIGATIONS
259
antagonism between the interest of the client as seller and that of
his attorney as buyer.67
The prohibition is entirely independent of any fraud that might
have intervened. No fraud in fact need be shown and no excuse will
be heard. It is to avoid the necessity of any such inquiry that the
prohibition is made absolute. It stands on the moral obligation
of an attorney to refrain from placing himself in a position which
ordinarily excites conflict between self-interest and integrity. It
seeks to remove the temptation that might arise out of such relation
to serve himself at the expense of his integrity and duty to his client,
by making it impossible to profit by yielding to such temptation.68
§8.10. Application of rule.
The rule forbidding an attorney from purchasing his client’s
property or interest in litigation involves four elements: (a) there
must be an attomey-client relationship; (b) the property or interest
of the client must be in litigation; (c) the attorney takes part as
counsel in the case; and (d) the attorney by himself or through
another purchases such property or interest during the pendency of
the litigation.69
The presence of all the foregoing elements makes the acquisition
by a lawyer of his client’s property in litigation violative of the law
and renders his conduct ethically improper.70 It is immaterial that
the deed of sale is executed at the instance of the client or at the
behest of the attorney. In either case, the attorney occupies a vantage
position to press upon or dictate his terms to a harassed client in
breach of the rule so amply protective of confidential relation which
must necessarily exist between attorney and client, and of the rights
of both.71
Any scheme which has the effect of circumventing the law
comes within the prohibition. Thus, the prohibition applies even if
the purchase or lease of the property in litigation is in favor of a
67Gregorio
Araneta, Inc. v. De Patemo, 91 Phil. 786 (1952).
“Severino v. Severino, 44 Phil. 343 (1923).
69Art. 1491, Civil Code of the Philippines: Laig v. Court of Appeals, 82 SCRA
294 (1978); Capayas v. Lladoc, CA-G.R. No. 2990, December 2, 1950.
70Hemandez v. Villanueva, 40 Phil. 755 (1920); In re Ruste, 70 Phil. 243 (1940);
Rubias v. Batiller, 51 SCRA 120 (1973).
71Go Beltran v. Hernandez, 70 Phil. 248 (1940); Hernandez v. Villanueva, supra.; In re Ruste, supra.
260
LEGAL AND JUDICIAL ETHICS
partnership, of which counsel is a partner, for to rule otherwise is to
circumvent the law.72 The purchase by the wife of an attorney for the
estate of a decedent, of an interest belonging to the estate73 or the
acquisition by the guardian’s lawyer of the ward’s property violates
the prohibition.74 Where the value of the property in litigation deeded
by a client in favor of his attorney in payment of the latter’s fees is
greatly more than the worth of the attorney’s services, the transfer
contravenes the law.76 A lawyer who makes financial advances to his
client for the latter’s living or family expenses to be reimbursed out
of the prospective verdict acquires thereby an interest in the subject
matter of the litigation in violation of the restriction.76
A lawyer who executed with his client a transfer of right over a
parcel of land involved in a pending litigation as his attorney’s fees
violates the rule prohibiting the purchase of property in litigation
by a lawyer from his client. The purchase or transfer of rights
constitutes malpractice.77
§8.11. Where rule inapplicable.
The absence of any of the elements constitutive of the rule
forbidding a lawyer from purchasing his client’s property in litigation
renders the prohibition inapplicable. Thus, it has been held that the
prohibition does not apply where the property purchased by a lawyer
was not involved in litigation,78 where the sale took place before it
became involved in the suit,78 where the attorney at the time of the
purchase was not counsel in the case,80 where the purchaser of the
property in litigation was a corporation even though the attorney was
an officer thereof,81 or where the sale took place after the termination
72Mananquil v.
73/n re
(1960).
Villegas, 189 SCRA 335 (1990).
Galderon, 7 Phil. 427 (1907).
74Junquera v. Vano, 72 Phil. 293 (1941); Cf. Fernandez v. Belo, 107 Phil. 1142
76Matias
v. Valentin, CA-G.R. No. 34166 R, May 13,1968.
Op. 298 (October 11,1954).
77Bautista v. Gonzales, 182 SCRA 151 (1990).
78Buencamino, Jr. v. Bantug, 58 Phil. 521 (1933); Go Beltran v. Fernandez, 70
Phil. 248 (1940).
79Del Rosario v. Millado, G.R. Adm. Case No. 724, January 31,1969; See Palma
v. Cristobal, 77 Phil. 712 (1946),
^Gregorio Araneta, Inc. v. De Patemo, 91 Phil. 786 (1952).
81Tuason v. Tuason, 88 Phil. 42 (1951).
76A.B.A.
LAWYER’S FIDUCIARY OBLIGATIONS
261
of the litigation.82 If at the time of the purchase the attomey-client
relationship has terminated, the prohibition does not apply in the
absence of fraud or the use or abuse of confidential information
acquired during the previous employment.83 The severance of the
relation must be in good faith and not for the purpose of evading the
restriction, otherwise the prohibition applies.84 The measure of the
lawyer’s good faith in his dealings with his client is a much higher
standard than that of the market place where the parties trade at
arms’ length.86
An attorney may properly bid on behalf of his client at the
auction sale of the client’s property in litigation, the restriction not
being applicable as his participation is not for his own benefit.86
A lawyer may accept an assignment from his client of a money
judgment rendered in the latter’s favor in a case in which he was not
counsel, in payment of professional services performed in another
case.87 After completion of a successful litigation, he may take on
account of his fees an interest in the assets realized by the litigation88
or attach them to secure payment thereof and bid at the auction sale
to the extent of his claim.
The prohibition does not apply to the sale by the client to his
attorney of a parcel of land, acquired by the client to satisfy the
judgment in his favor, as long as the property was not the subject of
the litigation.89
Neither is the prohibition applicable to a contract for attorney’s
fees contingent upon the outcome of the litigation. A contingent fee
contract neither gives nor purports to give to the attorney an absolute
right, personal or real, in the subject matter during the pendency of
the litigation. The measure of compensation therein provided is a
mere basis for the computation of the fees and payment thereof from
82Laig v. Court of Appeals, 82 SCRA 294 (1978); Valencia v. Cabanting, 186
SCRA 302 (1991).
83Capayas v. Lladoc, CA-G.R. No. 2990, December 2, 1950; Fahey v. Pell,
310 Mich. 280, 17 NW2d 183 (1945); Harrison v. Murphey, 39 Okla 548, 135 P
1137(1913).
“Gaffney v. Harmon, 90 NE2d 785, 20 ALR2d 1273 (1950); Cf. Capayas v.
Lladoc, supra.; Rubias v. Batiller, 51 SCRA 120 (1973).
“See Calo, Jr. v. Degano, 20 SCRA 447 (1967).
“Benedicto v. Yulo, 26 Phil. 160 (1913); Diaz v. Kapunan, 45 Phil.482 (1923).
87Municipal Council of Iloilo v. Evangelista, 55 Phil. 290 (1930).
“Director of Lands v. Ababa, 88 SCRA 513 (1979); Magno v. Viola, 61 Phil. 80
(1934).
89Daroy v. Abecia, 298 SCRA 239 (1998).
262
LEGAL AND JUDICIAL ETHICS
out of the proceeds realized in the litigation is effected only after its
successful termination.90 There is a distinction between purchasing
an interest in the litigation as a device to enable the lawyer to litigate
on his own account or to abuse his client’s confidence, which is what
the prohibition seeks to prevent, on the one hand, and agreeing in
his professional capacity to accept compensation contingent upon
the result of the litigation, on the other hand. However, a contingent
fee contract which is unreasonable ceases to be a measure of due
compensation for services rendered and makes the lawyer a partner
or proprietor in the lawsuit.91 That kind of contingent fee agreement
will be disregarded by the court.
§8.12. Effects of prohibited purchase.
The purchase by an attorney of his client’s property or interest
in litigation is a breach of professional ethics.92 The attorney, in an
appropriate case, may be disciplined for such misconduct.
The transaction being categorically prohibited by law is null
and void ab initio. Its nullity is definite and permanent and cannot
be cured by ratification. Public interest and public policy remain
paramount and do not permit compromise or ratification of the
prohibited contract even after the attomey-client relationship has
ceased. This principle, enunciated in Rubias v. Batiller,93 overruled
the doctrine laid down in Walfson v. Estate of Martinez,9* to the effect
that the sale “is not void but voidable at the election of the vendor.”
The lawyer holds the property or interest so purchased in trust for
his client.96 The client is entitled to recover it from his attorney,
together with its fruits. He should, however, return the purchase
price and the legal interests thereon to the attorney, as he may not
unjustly enrich himself at the expense of his counsel.96
"Recto v. Harden, 100 Phil. 42 (1956); Director of Lands v. Ababa, supra.; Favillo v. Intermediate Appellate Court, 195 SCRA 28 (1991).
91Gair v. Peck, 1660 NE2d 43, 77 ALR2d 390 (1959).
92Go Beltran v. Fernandez, 70 Phil. 248 (1940); Hernandez v. Villanueva, 40
Phil. 774 (1920) and constitutes malpractice; Hernandez v. Villanueva, 40 Phil. 774
(1920).
93Rubias v. Batiller, 51 SCRA 120 (1973).
M20 Phil. 340 (1911).
96Palma v. Cristobal, 77 Phil. 712 (1946).
“Sotto v. Samson, G.R. No. 16917, July 31,1962.
LAWYER’S FIDUCIARY OBLIGATIONS
263
§8.13. Purchase of choses in action.
The question as to whether the purchase of a chose in action
by an attorney is improper calls for application the spirit of the rule
against the acquisition of a client’s property in litigation and the
injunction against stirring up of strife.97 The purpose of the legal
maxim is to prevent a lawyer from the temptation to litigate in his
own account as a business proposition. A lawyer may not accumulate
distinct causes of action in himself by assignment from hundreds of
small claimants and sue in his name for the benefit of the clients
directly interested.98 While there is yet no litigation at the time the
assignment took place, litigation is its primary reason. Moreover,
by resorting to such a device, the attorney has placed himself in
the category of a voluntary litigant for a profit, which renders his
conduct improper. It is also improper for a lawyer in his professional
capacity to buy judgment notes or other choses in action for much
less than their face value, with intent to collect them at large profit
for himself.99 Similarly, it is improper for a lawyer to enter into an
arrangement with one who purchases future interests in estates,
by the terms of which in consideration of his work in securing the
interests, he becomes part owner thereof and shares in the profit
obtained therefrom.100
An attorney may, however, properly acquire choses in action not
in his professional capacity but as a legitimate investment.101 He may
also make investments in a collection agency which solicits business
under its name provided that he does not participate in the agency’s
collection activities or in the handling of its claims in court.102 The
fact that a person happens to be a lawyer does not deprive him of
the privilege to engage in business activities as enjoyed by any other
person, but his being a lawyer in the practice of law enjoins him
from doing any such act as may bring dishonor to the profession or
violate any of its ethical rules concerning advertising or solicitation
of business.
97A.B.A.
Ops. 51 (December 14, 1931) and 176 (February 19, 1938).
98Maxiom v.
1939).
Manila Railroad Co., 44 Phil. 597 (1928).
"A.B.A. Op. 51 (December 14,1931).
100A.B.A. Op. 176 (December 19,1938).
101A.B.A. Op. 225 (July 12,1941).
102A.B.A. Ops. 225 (July 12, 1941); 57 (March 19, 1932); 198 (October 21,
Chapter IX
LAWYER’S DUTY TO PRESERVE
CLIENT’S CONFIDENCE
A. PRESERVATION OF CLIENT’S CONFIDENCE
§9.01. Duty to preserve client’s confidence, generally.
Canon 21 of the Code of Professional Responsibility provides
that “A lawyer shall preserve the confidence and secrets of his client
even after the attomey-client relationship is terminated.”
The rule applies to matters disclosed to him by prospective
clients.1 It is the glory of the legal profession that its fidelity to its
client can be depended on and that a man may safely go to a lawyer
and converse with him upon his rights or supposed rights in any
litigation with absolute assurance that the lawyer’s tongue is tied
from ever disclosing it.2
To attain such end, the Rules implementing such Canon
require:
Rule 21.01 — A lawyer shall not reveal the confidence or
secrets of his client except:
a)
When authorized by the client after acquainting him
of the consequences of the disclosure;
b)
When required by law;
c)
When necessary to collect his fees or to defend
himself, his employees or associates or by judicial action.
^ule 15.02, Code of Professional Responsibility.
2Baird
v. Koemer, 279 F2d 623, 95 ALR2d 303 (1960); People v. Gerold, 265 111
448,107,165 (1914).
264
LAWYER’S DUTY TO PRESERVE CLIENT’S CONFIDENCE
265
Rule 21.02 — 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 advantage or
that of a third person, unless the client with full knowledge of
the circumstances consents thereto.
Rule 21.03 — 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
similar purpose.
Rule 21.04 — A lawyer may disclose the affairs of a client
of the firm to partners or associates thereof unless prohibited
by the client.
Rule 21.05 — A lawyer shall adopt such measures as may
be required to prevent those whose services are utilized by him,
from disclosing or using confidences or secrets of the client.
Rule 21.06 — A lawyer shall avoid indiscreet conversation
about a client’s affairs even with members of his family.
Rule 21.07 — A lawyer shall not reveal that he has been
consulted about a particular case except to avoid possible
conflict of interests.
It is the duty of an attorney to “maintain inviolate the confidence,
and at every peril to himself, to preserve the secret of his client.”3
The performance of such duty involves the application of rules of
evidence4 and of professional ethics,5 both of which seek to safeguard
the client’s confidence. An “attorney cannot, without the consent
of his client, be examined as to any communication made by the
client to him; 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.”6 This rule makes the confidential communication
between attorney and client privileged, the essence of which is that
neither attorney nor client nor any one who stands in a peculiar
3Rule 138, Sec. 20(e), Rules of Court; People v. Sy Juco, 64 Phil. 667 (1927);
Hilado v. David, 84 Phil. 569 (1949); Art. 208, Revised Penal Code.
4Rule 130, Sec. 21(b), Rules of Court.
6Canon 21, Code of Professional Responsibility.
6Rule 130, Sec. 21(b), Rules of Court.
266
LEGAL AND JUDICIAL ETHICS
relation of confidence with either of them can be compelled to disclose
any privileged communication.7
§9.02. Duration of duty.
The lawyer’s duty to maintain inviolate his client’s confidence
is perpetual. It outlasts his professional employment8 and continues
even after the client’s death9 for professional confidence once reposed
cannot be divested by the expiration of the professional relationship
or by the death of the client.10 For that reason, an attorney is forbidden
even after the severance of the relation to do either of two things. He
may not do anything which will injuriously affect his former client
nor may he at any time disclose or use against him any knowledge
or information acquired by virtue of the professional relationship.11
Similarly and as a general rule, the protection of the attorney
and client privilege is perpetual. The seal of the law once fixed upon
communications between attorney and client remains forever unless
removed by the client himself12 or, after his death, by his heir or legal
representative.13 However, some privileged communications lose
their privileged character by some supervening act done pursuant to
the purpose of the communication. Thus, a communication intended
by the client to be sent to a third person through his attorney loses
its confidential character after it has reached the third party.14
The contents of a pleading prepared by an attorney on the basis
of communications made by his client are privileged before but not
after the pleading is filed.16
7Grand Lake Drive Inn v. Superior Court of Alameda, 179 Cal App2d 122, 86
ALR2d 129 (1960); San Francisco v. Superior Court of San Francisco, 231 P2d 26, 25
ALR2d 1418 (1951).
8Canon 37,
Canons of Professional Responsibility.
Pattern, 165 U.S. 394, 41 L ed 766 (1897); Buuck v. Truckberg, 95
NE2d 304, 22 ALR2d 1145 (1950).
10Hilado v. David, 84 Phil. 569 (1949); Buuck v. Truckberg, supra.
nNatam v. Capule, 91 Phil. 644 (1952).
12Chirac v. Reinicker, 11 Wheat (U.S.) 280, 6 L ed 474 (1866); Baldwin v. Commissioner of Internal Revenue, 125 F2d 812,141 ALR 548 (1942).
13Scott v. Harris, 113 111 447 (1895); Downey v. Owen, 90 NYS 280 (1904); Emerson v. Scott, 87 SW 369 (1905).
14Uy Chico v. Union Life Assurance Society, 29 Phil. 163 (1915).
16Snow v. Gould, 74 Me 540.
9Glover v.
LAWYER’S DUTY TO PRESERVE CLIENT’S CONFIDENCE
267
§9.03. Reason for the rule.
Adequate legal representation in the ascertainment and
enforcement of rights or the prosecution or defense of litigation
requires a full disclosure of the facts by the client to his attorney.
Unless the client knows that his attorney cannot be compelled to
reveal what is told to him, he will suppress what he thinks to be
unfavorable facts and the advice which follows will be useless, if
not misleading; lawsuit will be conducted along improper lines,
trial will be full of surprises and much useless litigation may arise.16
The purpose of the attorney-client privilege is to encourage a client
to make full disclosure to his attorney and to place unrestricted
confidence in him in matters affecting his rights or obligations.17
The privilege which is founded on grounds of public policy proceeds
on the premise that the benefits derived therefrom justify the risk
that unjust decisions may sometimes result from the suppression of
relevant evidence.18
The prohibition against disclosure of confidential communications is, moreover, designed to preserve the confidential and trust
relation which exists between attorney and client. It derives its validity from sources higher than written laws and principles. Information secured or acquired by an attorney from his client is sacred
to the employment to which it pertains, and to permit it to be used
in the interest of the attorney and other persons or, worse, in the
interest of the adverse party, is to strike at the element of confidence
which lies at the bottom of, and affords the essential security in the
relation of attorney and client. A contrary rule will discourage a client from reposing his trust and confidence in an attorney, which is
detrimental to the administration of justice.19
§9.04. A lawyer shall not use client’s secrets without his
consent.
The lawyer’s duty to preserve the confidence and secrets of his
client requires that he “shall not, to the advantage of his client, use
16San Francisco v. Superior Court, 25 ALR2d 1418 (1951); Baird v. Koemer,
279 F2d 229, 95 ALR2d 303 (1960).
17Grand Lake Drive Inn v. Superior Court of Alameda County, 179 Call App2d
122, 86 ALR2d 129 (1960); Blackburn v. Crawford, 3 Crawford, 3 all (U.S.) 175, 18 L
ed 186 (1865).
18San Francisco v. Superior Court of San Francisco, supra.
19Hilado v. David, 84 Phil. 569 (1949); In re De la Rosa, 27 Phil. 258 (1914); U.S.
v. Lamaja, 21 Phil. 506 (1912).
268
LEGAL AND JUDICIAL ETHICS
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.”20
The revelation by a lawyer of the client’s confidence or secret without
the client’s consent is, by itself improper; but the use by a lawyer of
the client’s information or secret to the client’s disadvantage or to
the advantage of the lawyer or a third person without the client’s
consent is more reprehensible as it strikes deeply against the
attomey-client relationship.21
A lawyer becomes familiar with all the facts connected with his
client’s case. He learns from his client the weak points of the action
as well as the strong ones. Such knowledge must be considered
sacred and guarded with care. No opportunity must be given the
lawyer to take advantage of the client’s secrets. A lawyer must have
the fullest confidence of his client. If the confidence is abused, as by
the use by the lawyer of the client’s secrets against his client, the
profession will suffer by the loss thereof.22 He should not, therefore,
do anything which will injuriously affect his present or former client
in any matter in which he represented him,23 nor use any of the
client’s information to the client’s disadvantage, except with the
client’s consent or when necessary to collect his fees or to defend
himself, his employee or associate.24
§9.05. A lawyer shall not give information from his files.
Another corollary obligation arising from the lawyer’s duty to
preserve his client’s confidences or secrets is that expressed in Rule
21.03 of the Code. It provides that “A lawyer shall not, without the
written consent of his client, given information from his files to an
outside agency seeking such information for auditing, statistical,
bookkeeping, accounting, data processing, or any similar purpose.”
The reason for the rule is that the work product of a lawyer, such
as his effort, research, and thought, and the records of his client,
contained in his files are privileged matters.26 Neither the lawyer nor,
20Rule
(1949).
21.02, Code.
21Nombrado v.
22U.S.
Hernandez, 26 SCRA 13 (1968); Hilado v. David, 84 Phil. 573
v. Laranja, 21 Phil. 500 (1912).
v. Capule, 91 Phil. 640 (1952),
“Rule 21.01, Code.
“Hickman v. Taylor, 91 L ed 451 (1947); Grand Lakes Inn v. Superior Court,
85 ALR2d 129 (1960).
23Natam
LAWYER’S DUTY TO PRESERVE CLIENT’S CONFIDENCE
269
after his death, his heir or legal representative may properly disclose
the contents of such file cabinet without the client’s permission. The
purchase of the goodwill of a deceased attorney by another lawyer
may likely involve a violation of such rule.26
§9.06. A lawyer may disclose affairs of client to partners.
The rule is that the professional employment of a law firm is
equivalent to the retainer of the members thereof even though only
one of them is consulted; conversely, the employment of one member
of a law firm is generally considered as employment of the law firm.27
Rule 21.04 of the Code complements this principle. It provides that
“A lawyer may disclose the affairs of a client of the firm to partners
or associates thereof unless prohibited by the client.” The disclosure
is not to a third person because members or associates in the law
firm are considered as one person.
§9.07. A lawyer shall adopt measures against disclosures of
client’s secrets.
In the discharge of his professional duties to a client, a lawyer
may avail of the clerical aids of secretaries, stenographers or clerks
as well as the expertise of accountants, physicians, investigators,
engineers or technicians. The client’s secrets learned by these persons
in the performance of their services to the lawyer or to the latter’s
client and the reports of these persons or experts are privileged
communications.28 To prevent such privileged communications from
being leaked out, Rule 21.05 of the Code requires the lawyer to
“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” as part of his duty to preserve the client’s
confidences and secrets.
§9.08. A lawyer shall avoid indiscreet conversation about
client’s affairs.
Rule 21.06 of the Code provides that “A lawyer shall avoid
indiscreet conversation about a client’s affairs even with members
26A.B.A.
27Hilado
Op. 226 (June 21, 1945). See Re Heirch, 67 ALR2d 827 (1956).
v. David, 84 Phil. 569 (1949).
“United States v. Kovel, 96 ALR2d 116 (1961); San Francisco v. Superior
Court, 25 ALR2d 1418 (1951).
270
LEGAL AND JUDICIAL ETHICS
of his family.” This rule is intended to better preserve the client’s
confidences and secrets. For indiscreet conversation can result in
prejudice to the client and will lessen the respect due the legal
profession.29
§9.09. A lawyer shall not reveal his having been consulted.
The rule on privileged communication applies to matters
disclosed to a lawyer by a prospective client. The reason is that the
disclosure and the lawyer’s opinion thereon create an attomey-client
relationship, even though the lawyer does not eventually accept the
employment.30 Hence, Rule 21.07 of the Code appropriately provides
that “A lawyer shall not reveal that he has been consulted about
a particular case except to avoid possible conflict of interests.” In
conferring with a prospective client, the lawyer should ascertain as
soon as practicable whether the matter would involve a conflict of
interest with his other client or with his own, and if so, he should
forthwith inform the prospective client that he cannot accept the
employment on such ground.31
B. SCOPE OF ATTORNEY-CLIENT PRIVILEGE
§9.10. Requisites of privilege.
The attomey-client privilege exists where legal advice of any kind
is sought from an attorney in his professional capacity with respect
to communications relating to that purpose, made in confidence by
the client so as permanently to protect such communications at the
instance of the client from disclosure by himself or by the attorney,
unless the protection is waived.32 All of the elements inherent in the
rule must concur to make the communication privileged against
disclosure.33 This is known as the evidentiary privilege.
“Comments of the IBP Committee that drafted the Code, p. 120.
30Hilado
v. David, 84 Phil. 569 (1949).
14.03, Code.
32Brown v. Saint Paul City R. Co., 62 NW2d 688,44 ALR 2d 535, (1954); United
States v. Kovel, 2966 F2d 918, 96 ALR2d 116 (1961).
33People v. Sleeepr, 46 Phil. 625 (1924); Barton v. Leyte Asphalt & Mineral Oil
Co., 46 Phil. 988 (1924).
3IRule
LAWYER’S DUTY TO PRESERVE CLIENT’S CONFIDENCE
271
The Court, in Mercado vs. Vitriolo,M synthesizes the rule on
attomey-client privilege, lists the factors that complainant who
claims that the lawyer has violated the attomey-client privilege,
must prove for the rule to apply, as follows:
“Now, we go to the rule on attomey-client privilege. Dean
Wigmore cites the factors essential to establish the existence of
the privilege, viz:
(1) Where legal advice of any kind is sought (2) from
a professional legal adviser in his capacity as such, (3) the
communications relating to that purpose, (4) made in confidence
(5) by the client, (6) are at his instance permanently protected
(7) from disclosure by himself or by the legal advisor, (8) except
the protection be waived.
In fine, the factors are as follows:
(1) There exists an attomey-client relationship, or a
prospective attomey-client relationship, and it is by reason of
this relationship that the client made the communication.
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. 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.
On the other hand, a communication from a (prospective)
client to a lawyer for some purpose other than on account of
the (prospective) attomey-client relation is not privileged.
Instructive is the case of Pfleider v. Palanca, where the
client and his wife leased to their attorney a 1,328-hectare
agricultural land for a period of ten years. In their contract,
the parties agreed, among others, that a specified portion of
the lease rentals would be paid to the client-lessors, and the
remainder would be delivered by counsel-lessee to client’s
listed creditors. The client alleged that the list of creditors
which he had “confidentially” supplied counsel for the purpose
of carrying out the terms of payment contained in the lease
^A-C. No. 5108, May 2, 2005.
272
LEGAL AND JUDICIAL ETHICS
contract was disclosed by counsel, in violation of their lawyerclient relation, to parties whose interests are adverse to those
of the client. As the client himself, however, states, in the
execution of the terms of the aforesaid lease contract between
the parties, he furnished counsel with the “confidential” list of
his creditors. We ruled that this indicates that client delivered
the list of his creditors to counsel not because of the professional
relation then existing between them, but on account of the lease
agreement. We then held that a violation of the confidence that
accompanied the delivery of that list would partake more of a
private and civil wrong than of a breach of the fidelity owing
from a lawyer to his client.
(2) The client made the communication in confidence.
The mere relation of attorney and client does not raise
a presumption of confidentiality. The client must intend the
communication to be confidential.
A confidential communication refers to information transmitted by voluntary act of disclosure between attorney and client in confidence and by means which, so far as the client is
aware, discloses the information to no third person other than
one reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it was
given.
Our jurisprudence on the matter rests on quiescent
ground. Thus, a compromise agreement prepared by a lawyer
pursuant to the instruction of his client and delivered to the
opposing party, an offer and counter-offer for settlement, or a
document given by a client to his counsel not in his professional
capacity, are not privileged communications, the element of
confidentiality not being present.
(3) The legal advice must be sought from the attorney in
his professional capacity.
The communication made by a client to his attorney must
not be intended for mere information, but for the purpose of
seeking legal advice from his attorney as to his rights or obligations. The communication must have been transmitted by a
client to his attorney for the purpose of seeking legal advice.
If the client seeks an accounting service, or business or
personal assistance, and not legal advice, the privilege does not
attach to a communication disclosed for such purpose.”
LAWYER’S DUTY TO PRESERVE CLIENT’S CONFIDENCE
273
The question of privilege is for the court to determine and
may not be passed upon in advance by the appellate court in a
certiorari proceeding.35 In ascertaining whether the information
or communication is privileged, the nature of the suit, the
circumstances and conditions of the questions or of the affirmative
or negative answers thereto are what, in each case, determine the
question.36 The party who asserts the privilege has the burden of
proof to establish the privilege unless it appears from the face of
the document itself that it is privileged. His mere assertion that the
matter is confidential is insufficient.37
§9.11. Relation of attorney and client.
The person from whom legal advice is sought must be
an attorney. The attomey-client privilege does not attach to
communications made by a client to a person who is not a lawyer,38
even if such person undertakes to perform legal services39 and is
authorized to appear in the municipal trial court,40 as his appearance
therein is in the character of an agent.41 However, if a person poses
as a lawyer for some ulterior purpose and a client confides to him
confidential communications in reliance upon the supposed relation
of attorney and client, the mantle of the attomey-client privilege
protects such communications.42
There must be a relation of attorney and client by reason of
which the client made the communication. A communication from
a client to a lawyer for some purpose other than on account of the
attomey-client relation is not privileged.43 A client who asserts the
existence of the relation which a lawyer denies must prove that fact
by competent evidence, and proof of such fact may not be founded
35Tan
Chico v. Concepcion, 43 Phil. 141 (1922).
36Jones
v. Harding, 9 Phil. 279 (1907).
supra.) Brown v. Sanit Paul City R. Co., supra.
38Wartell v. Novograd, 137 A 776 ALR 365 (1927); Haves v. State, 88 Ala. 37,
7 So 302 (1889).
39Machette v. Wanless, 2 Colo 169 (1873); Sample v. Front, 10 Iowa 266
(1759).
“Under Batas Pambansa Big. 129, Municipal Court has been changed to Municipal Trial Court.
41MacLaughlin v. Giomore, 1 111 Avp 563 (1878); State v. Burkrardt, 7 Ohio Dee
Reprint 537, 3 WL Bull 845 (1878).
"People v. Barker, 60 Mich 277, 27 NW 539 (1886); State v. Lender, 124 NW2d
355 (1963).
“Pfleider v. Palanca, 35 SCRA 75 (1970).
37People v. Sleeper,
274
LEGAL AND JUDICIAL ETHICS
upon mere conjecture or inference.44 Moreover, the legal advice must
be sought from the attorney in his professional capacity.45 If what
the client seeks is not legal advice but only accounting service46
or business or personal assistance,47 the privilege does not attach
to a communication disclosed for such purpose. A letter sent by a
lawyer to a person soliciting professional employment from him and
volunteering information is not a confidential communication within
the meaning of the privilege.48
In Geneto v. Silapan,49 the Court ruled:
“It must be stressed, however, that the privilege against
disclosure of confidential communications or information is
limited only to communications which are legitimately and
properly within the scope of a lawful employment of a lawyer.
It does not extend to those made in contemplation of a crime
or perpetration of a fraud. If the unlawful purpose is avowed,
as in this case, the complainant’s alleged intention to bribe
government officials in relation to his case, the communication
is not covered by the privilege as the client does not consult
the lawyer professionally. It is not within the profession of a
lawyer to advise a client as to how he may commit a crime as a
lawyer is not a gun for hire. Thus, the attomey-client privilege
does not attach, there being no professional employment in the
strict sense.”
It is well-settled that in order that a communication between
a lawyer and his client may be privileged, it must be for a lawful
purpose or in furtherance of a lawful end. The existence of an
unlawful purpose prevents the privilege from attaching.60 As the
Supreme Court of the United States aptly remarks, “a client who
consults an attorney for advice that will serve him in the commission
of a fraud will have no help from the law. He must let the truth be
told.”51
■“People v. Sleeper, 46 Phil. 625 (1924).
4601ender
(1963).
v. United States, 210 F2d 795, 42 ALR2d 736 (1954).
United States v. Kovel, 296 F2d 918, 96 ALR2d 116 (1961).
47Radiant Burners, Inc. v. American Gas Assn., 320 F2d 314, 98 ALR2d 228
re Ha' lilton, 24 Phil. 100 (1913).
No. 4078, July 14, 2003.
“People vs. Sandiganbayan, 275 SCRA 520.
“Clark v. United States, 289 US 1,15 (1933).
aIn
49A.C.
LAWYER’S DUTY TO PRESERVE CLIENT’S CONFIDENCE
275
§9.12. Confidentiality.
The mere relation of attorney and client does not raise
a presumption of confidentiality.52 The client must intend the
communication to be confidential.53 The essence of the veil of secrecy
which surrounds communication between attorney and client is that
the communication is intended by the client not for the information
of a third person but for the purpose of seeking legal advice from his
attorney as to his rights or obligations.54
A communication intended to be delivered to a third person
through the client’s attorney after reaching the third person ceases to
be privileged, such communication being a communication between
the client and the third person with the attorney simply occupying
the role of an intermediary or agent.55 The client may not authorize
the attorney to speak for him in dealing with a third party, and then
undertake to seal his lips as to what has transpired by invoking the
privilege.56
A confidential communication refers to information transmitted by voluntary act of disclosure between attorney and client in
confidence and by means which, so far as the client is aware, discloses the information to no third person other than one reasonably
necessary for the transmission of the information or the accomplishment of the purpose for which it was given.57 The attomey-client
privilege is not destroyed by the fact that a third person may have
overheard a communication intended to be confidential58 nor by the
circumstance that other attorneys represented the client.59 But as to
a third person who may have overheard a confidential communication, the privilege does not as a rule apply.60
52Hiltpold
53Uy
v. Stern, 82 A2d 123, 26 ALR2d 852 (1951).
Chico v. Union Life Assurance Society, 29 Phil. 163 (1915); Allen v. Ross,
255 NW 831, 64 ALR 180 (1929); San Francisco v. Superior Court of San Francisco,
231 P2d 26, 25 ALR2d 1418 (1951).
54Uy Chico v. Union Life Assurance Society, supra.; Pfleider v. Palanca, 35
SCRA 75 (1970).
55Uy Chico v. Union Life Assurance Society, supra.; Hiltpold v. Stern, 82 A2d
123, 26 ALR2d 852 (1951).
56Uy Chico v. Union Life Assurance Society, supra.; Hiltpold Stern, supra.
57Brown v. Saint Paul City R. Co., 62 NW2d 688, 44 ALR 535 (1954).
“People v. Decina, 138 NE2d 799, 63 ALR2d 970 (1956); United States v. Kovel, 296 F2d 918, 96 ALR2d 116 (1961).
59Baird v. Koemer, 279 F2d 623, 95 ALR2d 303 (1960).
“'Barton v. Leyte Asphalt Mineral Oil Co., 46 Phil. 938 (1924); Fuller v. State,
39 So2d 24, (1948); Vanhorn v. Commonwealth, 40 SW2d 372 (1931).
276
LEGAL AND JUDICIAL ETHICS
§9.13. Form or mode of communication.
The attomey-client privilege embraces not only oral or written
statements but actions, signs or other means of communication. The
only question, in the circumstances of each case, is whether they
have been intended to be part of the communication from the client
to the attorney in confidence in connection with legal advice sought
or given.61
There is no particular mode by which a confidential communication shall be made by a client to his attorney. The privilege is not
confined to verbal or written communications made by the client to
his attorney but extends as well to information communicated by
the client to the attorney by other means.62
A communication may be transmitted by any form of agency,
such as through a messenger, an interpreter or any other form of
transmission. It is no less the client’s communication to the attorney
when it is given by the client to an agent for transmission to the
attorney as when the communication is directly given by the client
to the counsel, and it is immaterial whether the agent is the agent
of the attorney, the client or both.63
§9.14. Persons entitled to claim privilege.
Generally, the attomey-client privilege extends to the attorney
and his client as well as to the attorney’s secretary, stenographer
or clerk with reference to any fact acquired in such capacity.64 It
also extends to an interpreter, a messenger or any other agent of
transmitting the communication, originating from the client’s agent
and made to the attorney or from the attorney’s agent to the attorney
because the attorney’s agent is also the client’s subagent and is
acting as such for the client.65 An expert such as an accountant, a
scientist, an engineer or a physician, who has been hired either by
61San Francisco v. Superior Court of San Francisco, 37 Cal2d 227, 231, P2d 26,
25 ALR2d 1418 (1951).
“People v. Sandiganbayan, 275 SCRA 505 (1997).
“San Francisco v. Superior Court of San Francisco, supra.
“Rule 130, Sec. 21(b), Rules of Court; Canon 37, Canons of Professional Ethics.
“San Francisco v. Superior Court of San Francisco, 37 Cal2d 227, 231 P2d 26,
25 ALR2d 1418 (1951); Hilary v. Minneapolis Street R. Co., 116 NW 933 (1908); Cold
Menthol Process Co. v. Aluminum Co. of America, 7 FRD 694 (1947).
LAWYER’S DUTY TO PRESERVE CLIENTS CONFIDENCE
277
a client or an attorney for effective consultation or communication
between attorney and client, is covered by the privilege and is
precluded from testifying as to any information acquired in the
course of his employment.66 The fact that a person to whom the
privilege extends will be presented as a witness does not, however,
render a communication, otherwise privileged and acquired by him,
not privileged.67
The attomey-client privilege is intended primarily for the
protection of the client68 and incidentally in consideration for
the oath and honor of the attorney.69 Hence, the client is entitled
primarily to assert the privilege, and any other person to whom the
privilege extends cannot be compelled to disclose any confidential
communication without his consent.70 The lawyer or the client’s
employee may also claim the privilege in the absence of waiver on
the part of the client.71 The attorneys secretary, stenographer or
clerk, who acquired confidential communication in such capacity,
may likewise assert the privilege, except when the client and the
attorney jointly waive the privilege.72
The assignee of the client’s interest may assert the privilege
as far as the communication affects the realization of the assigned
interest. After the death of the client, the latter’s heir or legal
representative is entitled to assert the attomey-client privilege as
against a stranger to the estate.73 But where the controversy is among
the claimants of the estate of the client, both parties claiming as
successors to the deceased, neither can set up the claim of privilege
against the other.74
“United States v. Kovel, 296 F2d 918, ALR2d 116 (1961); Lewis v. United Air
Lines Transp. Corp., 32 F Supv 21 (1940); Hilson v. Superior Court of California,
307 P2d 37 (1957); State ex rel. State Highway Dept. v. Acres of Land, 193 A2d 79
(1963).
67Grand Lake Drive Inn v. Superior Court of Alameda, 179 Cal App2d 122, 86
ALR2d 129 (1960). United v. Kovel, 296 F2d 918, 96 ALR2d 116 (1961).
“People v. Decina, 138 NE2d 799, 63 ALR2d 270 (1956); ALR2d 228 (1963).
"Radiant Burners v. American Gas Assn., 98 ALR2d 228 (1963).
70Brown v. Saint Paul City R. Co., 62 NW2d 688, 44 ALR2d 535 (1954); United
States v. Kovel, supra.
nIn re Hamilton, 24 Phil. 100 (1913).
72Rule 139, Sec. 21(b), Rules of Court.
73Buuck v. Truckberg, 95 NE2d 304, 22 ALR2d 1145 (1950).
74Philipps v. Chase, 201 Mass 444, 87 NE 755 (1909); Warner v. Kerr, 184 NW
425 (1921); Johnson v. Antry, 5 SW2d 405 (1928).
LEGAL AND JUDICIAL ETHICS
278
§9.15. Application of rule.
The knowledge or information acquired by a lawyer in his
professional capacity from his client may either be privileged or
not privileged within the meaning of the evidentiary rule against
compelling the disclosure of privileged communications. Insofar
as a lawyer is concerned, the distinction is important only when
he is subpoenaed as a witness to disclose any such knowledge or
information for he may legally refuse, in the absence of the client’s
waiver, to testify as to any privileged but not as to unprivileged
communication. But while a lawyer may be compelled, as a witness,
to disclose any unprivileged communication of his client, which
involves a question of evidence,75 he may not, as counsel for a
party, voluntarily reveal or use to his benefit any communication
of his client, regardless of its unprivileged character, except those
exceptions thereto, which involves a question of propriety and ethics,
which is wider in scope than the evidentiary rule.76
§9.16. Privileged matters.
The work product of a lawyer, such as his effort, research
and thought, contained in his files is privileged.77 His file cabinet
containing his client’s records and documents may not be ordered
opened because that would be tantamount to compelling him to
divulge the client’s confidence in violation of the law imposing
upon him the duty to strictly preserve the client’s secret.78 Neither
a lawyer nor, after his death, his heir or legal representative may
properly disclose the contents of such file cabinet without the client’s
permission. The purchase of the practice and goodwill of a deceased
attorney by another lawyer not his partner may likely involve a
violation of that rule.79
A document privileged upon delivery to an attorney retains
its privileged character in the hands of his client.80 A privileged
76Rule
130, Sec. 21(b), Rules of Court.
Canons of Professional Ethics.
76Canon 37,
77Hickman v. Taylor, 329 US 495, 91 L ed 451 (1947); Grand Lakes Inn v. Superior Court, 179 Cal App2d 122, 85 ALR2d 129 (1960).
78People v. Sy Juco, 64 Phil. 66 (1937).
79A.B.A. Op. 226 (June 21, 1945); Cf Re Heirich, 10 IU2d 357, 140 NE2d 825,
67 ALR2d 827 (1956).
80Brown v. St. Paul City R. Co., 62 NW2d 688, 44 ALR2d 535 (1954).
LAWYER’S DUTY TO PRESERVE CLIENT’S CONFIDENCE
279
document may include a report of a physician,81 an accountant,82 an
engineer63 or a technician,84 whose services have been secured by a
client as part of his communication to his attorney or by the attorney
to assist him render effective legal assistance to his client.86 Records
concerning an accident in which a party is involved, which are by
custom of such party turned over to his attorney, are privileged.86
Communications made by an insured for the purpose of providing
information on which a lawyer for the insured’s insurer could
meet a claim of the injured party against the insured are likewise
privileged.87 A consultation which has to do with the preparation of a
client to take the witness stand is covered by the privilege.88
A distinction should be drawn between a crime or fraud
already committed by a client on the one hand and a crime or fraud
being committed or is about to be committed on the other hand. Any
communication by a client to his counsel in his professional capacity
with respect to former comes within the privilege89 but not with
reference to the latter.
If the identification of a client conveys information which
ordinarily would be part of the usual privileged communication
between attorney and client, the privilege extends to such
identification in the absence of such factors as (a) the commencement
of litigation on behalf of the client, (b) the identification relating to
an employment of a third person, (c) the employment of an attorney
with respect to future criminal or fraudulent transaction, or (d) the
prosecution of a lawyer for a criminal offense.90 Thus, a lawyer may
81San Francisco v. Superior Court of San Francisco, 231 P2d 26, 25 ALR2d
1418 (1951).
“United States v. Kovel, 296 F2d 918, 96 ALR2d 116 (1961).
“Lewis v. United Air Lines Transp. Corp., 32 F Supp 21 (1940).
“Cold Metal Process Co. v. Aluminum Co. of America, 7 FRD, 684 (1947).
“United States v. Kovel, supra.; Lewis v. United Air Lines Transp. Corp., supra.; Wilson v. Superior Court of California, 307 P2d (1957).
mRe Story, 111 EN2d 385, 36 ALR2d 1312 (1953).
87Westminster Airways, Ltd. v. Kuwait Oil Co., 1 KB 134, 22 ALR2d 648
(1951).
“Grand Lake Drive Inn v. Superior Court of Alameda Country, Country, 179
Cal App2d 122, 86 ALR2d 129 (1960); Cf. Orient Ins. Co. v. Revilla, 54 Phil. 919
(1930).
"Alexander v. United States, 138 C.S. 353, 34 L ed 954 (1891); Gerhardt v.
United R. Co., 220 SW 677, 9 ALR 1176 (1920).
“Baird v. Koemer, 279 F2d 623, 95 ALR2d 303 (1960); Cf. Duncan v. CFI of
Rizal, G.R. No. 30576, February 10,1976.
280
LEGAL AND JUDICIAL ETHICS
not disclose the identity of his client who found a lost property which
the lawyer, upon request of his client, turned over to the police
authority except when the attorney himself is sued for the loss of
such property.91
The attomey-client privilege extends to non-disclosure of the
name of the client, where a strong possibility exists that revealing
the client’s name would implicate the client in the very activity for
which he sought the client’s advice; or where the disclosure would
open the client to civil liability. Suing the lawyer to force him to
disclose the identity of his client in any of these instances is improper
and the suit, upon motion, may be dismissed on such ground.92
Relevant statements made in a pleading or in open court in
connection with a case the lawyer is handling are absolutely privileged
in the sense that no liability therefrom may arise, regardless of their
defamatory tenor.93
§9.17. Matters not privileged.
Generally, any communication between attorney and client
which lack any one of the elements that make the attomey-client
privilege is not privileged. Thus, a compromise agreement prepared
by a lawyer pursuant to the instruction of his client and delivered
to the opposing party,94 an offer and counter offer for settlement,95
a letter written by a client to his attorney in the possession of the
adverse party96 or a document given by a client to his counsel not in
his professional capacity,97 are not privileged communications, the
element of confidentiality not being present.
A letter written by counsel which has not been made in the
course of judicial proceedings is not privileged.98
Where the administrator sold the property of the estate of
a decedent, with the participation or advice of his counsel, who
91See
Baird v. Koemer, supra.,
9ZRegala
v. Sandiganbayan, G.R. No. 105938, September 20,1996.
“Deles v. Aragona, Jr., 27 SCRA 633 (1969); Kalubiran v. Court of Appeals,
300 SCRA 320 (1998).
“Uy Chico v. Union Life Assurance Society, 29 Phil. 163 (1915).
“Hiltpold v. Stem, 82 A2d 123, 26 ALR2d 852 (1951).
“Barton v. Leyte Asphalt & Mineral Oil Co., 46 Phil. 938 (1924).
97Pfleider v. Palanca, 35 SCRA 75 (1970).
“Kalubiran v. Court of Appeals, 300 SCRA 320 (1998).
LAWYER’S DUTY TO PRESERVE CLIENT’S CONFIDENCE
281
notarized the deed of sale, the information requested by the coadministrator of the estate for the administrator and his counsel to
disclose the amount of the sale or to account for the proceeds thereof
is not privileged, the co-administrator having the right to ask for
such information, and consequently the counsel could not refuse
divulge such information and hide behind the cloak of the attomeyclient privilege."
The transmission alone of a physical object by a client to his
attorney, even if the client intended it to be confidential, does not
create an attomey-client privilege if none in fact exists.100 Similarly,
the mere delivery to an attorney of an unprivileged document existing
before the attomey-client relation is created does not establish
a privilege.101 The communication must have been transmitted
by a client to an attorney for the purpose of seeking legal advice.
Consequently, papers and documents handed to an attorney for
custodial purposes only102 or for some business or personal services
and assistance103 do not acquire the character of a privileged
communication, and neither the client nor the attorney can invoke
the privilege to prevent their disclosure.104
The privilege does not, as a rule, attach to communications
concerning the creation of the attomey-client relationship and the
name of the client105 except as they may have been conveyed as part
of the usual privileged communication in the absence of any factor
justifying their disclosure.106 An attorney may in fact be required
by the court, on motion of either party and on reasonable ground
therefor being shown, to produce or prove the authority under
which he appears and to disclose, whenever pertinent to any issue,
"Saura, Jr. v. Agdeppa, 325 SCRA 682 (2000).
100Suezaki
v. Superior Court of Santa Clara Country, 373 P2d.
Paul City R. Co., 62 NW2d 688,44 ALR2d 535, 359 P2d 925, 82
ALR2d 1156 (1961).
102Radiant Burners v. American Gas Ass’n., 320 F2d 314, 98 ALR2d 228
(1963).
10301ender v. United States, 210 F2d (1954); United States v. Kovel, 296 F2d
918, 96 ALR2d 116 (1961).
104Radiant Burners v. American Gas Ass’n., supra.; Cf. Brown v. St. Paul City
R. Co., 62 NW2d 688, 44 ALR2d 535 (1954); San Francisco Unified School Dist. v.
Superior Court, 359 P2d 925, 82 ALR2d 1156 (1961). 432, 95 ALR2d 1083 (1962).
I05Tomlinson v. United States, 97 F2d 652, 9114 ALR 1315 (1937);
106Baird v. Koemer, 279 F2d 623, 95 ALR2d 303 (1960).
101Brown v. St.
282
LEGAL AND JUDICIAL ETHICS
the name of the person who employed him.107 Contracts relating to
attorney's fees are essentially not privileged.108
§9.18. A lawyer shall not reveal client’s confidence.
“A lawyer shall not reveal the confidences or secrets of his
client except when authorized by the client after acquainting him of
the consequences of the disclosure; when required by law; and when
necessary to collect his fees or to defend himself, his employees or
associates or by judicial action.”109 The rule also applies to matters
disclosed to the lawyer by a prospective client.110
A lawyer may not disclose or reveal any information concerning
the client’s case, which he acquired from the client in confidence,
other than what may be necessary to prosecute or defend his client’s
cause. For this reason, it is improper for a lawyer to send the files
of a case to the opposing counsel and thereby reveal the weakness
of the action. Where, upon request of a lawyer in a case for some
records, the opposing counsel obliged and inadvertently sent even
confidential files of the case, candor and fairness require that the
attorney who made the request should withdraw from the action to
preserve inviolate the secrets thus obtained.111
An opposing counsel in a case, who knows that a third
person illegally acquired knowledge or possession of a privileged
communication of the other party, may not properly call such third
persons to testify as to what the latter learned. The fact that the
testimony of the third person is admissible in evidence does not
render the adverse counsel's conduct less unethical. The question
is one of propriety rather than of admissibility of evidence. For that
reason, it is improper for a public prosecutor to use in evidence a
photographic record of a conversation between an accused in custody
and his attorney illegally obtained by police officers.112
A lawyer may not disclose his client’s funds to the client’s
creditor to enable the latter to attach them.113 He may not, after his
107Rule
138, Sec. 21, Rules of Court.
108Orient Ins.
Co. v. Revilla, 54 Phil. 919 (1930).
21.01, Code of Professional Responsibility.
U0Rule 15.03, ibid.
mA.B.A. Op. 47 (September 18, 1931).
1I2A.B.A. Op. 150 (February 15, 1936).
113A.B.A. Op. 163 (August 22,1936).
109Rule
LAWYER’S DUTY TO PRESERVE CLIENTS CONFIDENCE 283
client has secured the services of another lawyer, reveal to the new
counsel or to the court any matrimonial offense committed by the
client contemplating the filing of an action for legal separation.114
Neither may he disclose statements of his client, a wife, as to
the prior commission of an offense by her husband, given in a
preliminary conference in a legal separation suit.115 A lawyer cannot,
by voluntarily disclosing a privileged communication of his client
to a third person, destroy the privilege either as to himself or as to
the third person.116 Only the client can do that. But a client cannot
silence a witness by having him reveal his knowledge of a fact
involved in a case to the client’s lawyer.117 Nor can the client silence
the opposite counsel by making communications to the latter, such
communications not being privileged.118
A lawyer who acquired confidential communications from
a corporate client concerning past wrongful acts of its corporate
officers may disclose them to its directors but not to others except to
prevent the commission of fraud or to defend himself against unjust
charges. Since a corporate client acts through its board of directors,
disclosure to the latter would be to the client itself and not to a third
party.119
If a client after his testimony confides to his counsel that he has
committed perjury, the question as to whether the attorney should
disclose the perjury to the court or to the prosecuting attorney involves
a balancing of loyalties. One ethical rule states that “counsel upon
the trial of a cause in which perjury has been committed owes it to
the profession and the public to bring the matter to the knowledge
of the prosecuting authorities.”120 Another ethical rule provides that
when “a lawyer discovers that some fraud or deception has been
practiced, which unjustly imposed upon the court or a party, he
should endeavor to rectify it; at first by advising his client, and if
his client refuses to forego the advantage thus unjustly gained, he
should promptly inform the injured person or his counsel, so that
1HA.B.A.
n5A.B.A.
Op. 268 (June 21, 1945).
Op. 274 (October 25, 1946).
U6See Justice Malcolm’s dissenting opinion, Barton v. Leyte Asphalt & Mineral
Oil Co., 46 Phil. 938 (1924).
117San Francisco United Dist. v. Superior Court, 359 P2d 925, 82 ALR2d 1156
(1961).
118Suezaki v. Superior Court, 373 P2d 432, 95 ALR2d (1962).
119A.B.A. Op. 202 (May 25,1940).
120Canon 29, Canons of Professional Ethics.
284
LEGAL AND JUDICIAL ETHICS
they may take appropriate steps.”121 A literal application of these
ethical injunctions requires the disclosure of the perjury thus
committed by the client. On the other hand, the attorney’s duty to
keep inviolate the client’s confidence demands that he refrain from
revealing the client’s perjury, the wrongdoing being a past offense.
The apparent conflict may be reconciled by confining the disclosure
only to unprivileged communications or to those exceptions to the
privilege.
Nor should the duty of candor and fairness to the court be
sufficient to override the purpose, policy and obligation involved in
the doctrine of attomey-client privilege by requiring the disclosure
of the peijury committed by the client. Loyalty to the court does
not consist merely of respect for the judicial office and candor and
frankness to the judge; it also involves steadfast maintenance of
principles which the courts themselves have evolved for the effective
administration of justice, one of the most firmly established of
which is the preservation undisclosed of the client’s confidences
communicated to the lawyer in his professional capacity.122 The
attorney should, however, retire from the case not only because his
effectiveness as an advocate for his client’s cause is thereby affected
but also because his continuing to represent the client may be
construed as a sign of conformity with the client’s perjury.123
Unless the revelation by a lawyer of his client’s confidence falls
under any of the exceptions, the disclosure by a lawyer of his client’s
confidence or its use to his advantage or to the disadvantage of the
client without the latter’s consent constitutes breach of trust sufficient
to warrant imposition of disciplinary sanction against him.124 Thus,
a lawyer who prepared an affidavit for his client as supporting
evidence in a criminal complaint, which was not presented because
it did not include the name of the person complainant claimed was
one of the respondents, and who thereafter gave it to the adverse
party, enabling the latter to use it as evidence against complainant,
violates the trust and confidence reposed in him by his client.125
However, the disclosure by a lawyer of a confidential communication
121Canon 41,
mA.B.A.
Canons of Professional Ethics.
Op. 287 (June 27,1953).
U3Cf. Gebhardt v. United R. Co., 22 SW 677, 9 ALR 1076 A.B.A. Op. 287 (June
27, 1953).
124Canon 37, Canons of Professional Ethics; Rule 138, Sec. 20(e), Rules of Court;
Nation v. Capule, 91 Phil. 640 (1952); Bautista v. Barrios, 9 SCRA 695 (1963).
125Ngayan v. Tugade, 193 SCRA 779 (1991).
LAWYER’S DUTY TO PRESERVE CLIENT’S CONFIDENCE
285
made by a client not because of the attomey-client relation but on
account of some business or other transaction would partake more
of a private and civil wrong than of a breach of fidelity owing from a
lawyer to a client.126
Article 209 of the Revised Penal Code provides that “in
addition to the proper administrative action, the penalty of prision
correctional in its minimum period, or a fine ranging from 200 to
1,000 pesos, or both, shall be imposed upon any attorney-at-law
or solicitor (procurador judicial) who, by any malicious breach of
professional duty or inexcusable negligence or ignorance, shall
prejudice his client, or reveal any of the secrets of the latter learned
by him in his professional capacity.” A prosecution for violation of
this provision is distinct from the disbarment proceedings against
an erring lawyer.127
C. EXCEPTIONS TO RULE ON PRIVILEGE
§9.19. Exceptions to rule against disclosure of client’s
secrets.
Rule 20.01 of the Code provides that a “lawyer shall not reveal
the confidences or secrets of his clients, except a) when authorized by
the client after acquainting him of the consequences of the disclosure;
b) when required by law; c) when necessary to collect his fees or to
defend himself, his employees or associates or by judicial action.”
The additional exceptions refer to the commission of a contemplated
crime or the perpetuation of a fraud, the relation of attorney and
client being for lawful and honest purposes only.
§9.20. Client’s waiver of privilege.
Since the attomey-client privilege against disclosure of the
client’s confidence is intended primarily for the client’s protection,
only the client as a rule can waive the privilege.128 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
126Pfleider v.
127/n re
Palanca, 35 SCRA 75 (1970).
Montague, 3 Phil. 577.
128Rule 130, Sec. 21(b), Rules of Court; Canons 37, Canons of Professional Ethics; In re Hamilton, 24 Phil. 100 (1913); Jones v. Harding, 9 Phil. 279 (1907); Orient
v. Revilla, 54 Phil. 919 (1930).
LEGAL AND JUDICIAL ETHICS
286
the attorney’s secretary, stenographer or clerk, in respect to which
the consent, too, of the attorney is necessary.129
A client may waive the protection of the privilege either
personally or through his attorney. His attorney, retained in a case,
has the implied authority to waive the privilege concerning any
procedural matter involved in the case, as by calling his client to
testify on a privileged communication130 or by introducing in evidence
part of a privileged document.131 Where, however, the controversy
involves the attorney’s relation with his client, as in cases of breach
of the client’s confidence on the part of the attorney, only the client
may waive the privilege.132 In a disbarment proceeding a lawyer may
not be permitted to invoke the privilege when the client does not
waive it.133 Nor may a lawyer waive the privilege as an excuse to
justify his disclosure or use, in favor of a third party, of his client’s
secrets.134 However, by filing a complaint against his attorney135 or by
unreasonably refusing to pay him his attorney’s fees, a client waives
the privilege in favor of his lawyer who may disclose or use so much
of his client’s confidences as may be necessary to protect himself or
to collect his fees.136
The waiver of the privilege cannot be made partially. A client
may either waive it in its entirety or not at all. Hence, by introducing
in evidence part of a privileged document, a client waives the
protection of the privilege as to the other part of the document.
A waiver in part is a waiver in whole for a client may not remove
the seal of confidentiality as makes for his advantage and insist
that it be privileged as to so much as makes to the disadvantage
of his adversary.137 A client who voluntarily delivers a privileged
document to a third party or allows the latter to hear his confidential
communication lifts the veil of its confidentiality and thereby waives
the protection of the privilege,138 and neither he nor his attorney can
129Rule
130, Sec. 21(b), Rule of Court.
130Tomlinson v.
131Orient Ins.
Court.
(1963).
133/n
United States, 93 F2d 652, 114 ALR 1315 (1937).
Co. v. Revilla, 54 Phil. 919 (1930).
132Canon 37, Canons of Professional Ethics; Rule 130, Sec. 2(b), Rules of
re Hamilton, 24 Phil. 100 (1913).
Natam v. Capule, 91 Phil. 640 (1952); Bautista v. Barrios, 9 SCRA 695
13*Cf.
135Canon 37, Canons of Professional Ethics; A.B.A. Op. 250 (June 26, 1943).
Ops. 19 (January 23,1930) and 250 (June 26,1943).
1370rient Ins. Co. v. Revilla, 54 Phil. 919 (1930).
138Uy Chico v. Union Life Assurance Society, 29 Phil. 163 (1915); Jones v. Harding, 9 Phil. 279 (1907).
136A.B.A.
LAWYER’S DUTY TO PRESERVE CLIENT’S CONFIDENCE
287
prevent its disclosure, nor can either of them refuse to be examined
in relation thereto.139
§9.21. Disclosure to protect attorney’s rights.
The privileged relation of attorney and client exists only for
lawful and honest purposes.140 It cannot be used as a shield against
wrongdoing nor can it be employed as an excuse to deny a lawyer the
right to protect himself against abuse by the client or false charges
by third persons.
If an attorney is accused by his client of misconduct in the
discharge of his duty, he may disclose the truth in respect to the
accusation, including the client’s instructions or the nature of
the duty which his client expected him to perform.141 Similarly, if
an attorney is charged by a third person in connection with the
performance of his duty to his client, he may also disclose his client’s
confidence-relative thereto.142 The attorney in that event is released
from so much of the obligation of secrecy as is necessary to protect
his rights.143
An attorney suing a client for attorney’s fees may also disclose
or use the confidential communication of his client, if such disclosure
or use is necessary to enable him to secure his rights. The client may
not be permitted to take advantage of the attomey-client privilege to
defeat the just claim of his lawyer growing out of the attomey-client
relationship. The attorney should, however, avoid any disclosure
which is not necessary to protect his rights.144
§9.22. Communications as to crime.
The privileged communication between attorney and client
may be a shield of defense as to crimes already committed.145 The
139Jones
v. Harding, 9 Phil. 279 (1907).
v. Tannahil, 37 Am December 287 (1841); People v. Van Alstine, 23
140Coveney
NW 594 (1885).
141Canon 37, Canons of Professional Ethics; A.B.A. Op. 250 (June 26,1943).
Baird v. Koemer, 279 F2d 623, 95 ALR2d 303 (1960); A.B.A. Op. 202
(May 25, 1940).
143Canon 37, Canons of Professional Ethics; Baird v. Koemer, 279 F2d 623, 95
ALR2d 303 (1960); A.B.A. Op. 250 (June 26,1943).
144A.B.A. Op. 19 (January 23, 1930) and 250 (June 26,1943).
145Alexander v. United States, 138 C.S. 353, 34 L ed 954 (1891); Gerhardt v.
United R. Co., 220 SW 677, 9 ALR 1076 (1920).
142Cy.
LEGAL AND JUDICIAL ETHICS
288
law in fact encourages a client to make full disclosure to his lawyer
of the circumstances relating to the crime for which he is or may be
charged; he may even confess his guilt to his counsel and be secured
in the thought that his counsel is not only precluded from disclosing
it148 but is likewise duty-bound to render effective legal assistance in
his defense.147
The protection of the attomey-client privilege has reference
to communications which are legitimately and properly within
the scope of a lawful employment and does not extend to those
made in contemplation of a crime or perpetuation of a fraud. If the
unlawful purpose is avowed, the client does not consult the lawyer
professionally because it is not within the profession of a lawyer to
be advising persons as to how they may commit crimes or frauds
or how they may escape the consequences of the contemplated
wrongdoings.148 If the client does not reveal his illegal motive, he
reposes no confidence in the attorney because the state of facts which
is the foundation of confidence does not exist.149 In either case the
attomey-client privilege does not attach, there being no professional
employment properly speaking.160
The privilege cannot be used as a weapon of offense to enable a
person to carry out a contemplated crime against society. A person
who is committing a crime or is about to commit a wrong can have
no privileged witness.161 The law does not make a law office a nest of
vipers in which to hatch crimes or frauds.162
To bring the client’s communication within the exception —
that a communication from a client to his attorney about a crime or
146Gerhardt
v. United R. Co., 220 SW 677, 9 ALR 1076 (1920).
138, Sec. 20(i), Rules of Court; Canon 5, Canons of Professional Ethics;
People v. Esteban, G.R. No. 26868, February 27, 1969; People v. Brisuillo, 82 Phil. 1
147Rule
(1948).
14SStandard F. Ins. Co. v. Smithhart, 211 SW 441, 5 ALR 972 (1919); Strong
v. Abner, 105 SW2d 599 (1937); Matthews v. Hoagland, 21 A 1054 (1891); People v.
Van Alstine, supra.
149Matthews v. Hoagland, supra.; Carney v. United R. Co., 226 SW 308 (1920).
““Standard F. Ins. Co. v. Smith, supra.; Strong v. Abner, supra.; People v. Van
Alstine, supra; Hamil & Co. v. England, 50 Mo App 338 (1892); People ex rel. Vogelstein v. Warden, 270 NYS 62 (1934).
16lAlexander v. United States, 138 U.S. 353, 34 L ed 954 (1891); United States
v. Lee, 107 F 702 (1901); United States v. Bob, 106 F2d 37 (1939); State v. Wildox, 132
P 982,9 ALR 1091 (1913); Ridner v. Com., 75 SW2d 737 (1934); People v. Hunter, 249
NYS 66 (1931); Gemoch v. State, 81 SW2d 520 (1935).
162Gerhardt v. United R. Co., 22 WS 677, 9 ALR 1076 (1935).
LAWYER’S DUTY TO PRESERVE CLIENT’S CONFIDENCE
289
fraud to be committed is not privileged — the party seeking to apply
the exception must show a prima facie evidence that it has some
foundation in fact.153 Such evidence must come from other than the
testimony of the client or the attorney. The seal of secrecy cannot be
broken by allowing inquiries into the confidential relation of attorney
and client for the purpose of proving that the client contemplated
the commission of a crime or the perpetuation of a fraud.164 It is only
after there shall have been an independent showing of the client’s
unlawful conduct that the examination of the attorney or the client
as to the communications relating to the client’s contemplated crime
or fraud may be justified.166
For the application of the attomey-client privilege, the period
to be considered is the date when the privileged communication
was made by the client to the attorney in relation to either a
crime committed in the past or with respect to a crime intended
to be committed in the future. If the client sees his lawyer’s advice
with respect to a crime that the former has therefore committed,
he is given the protection of a virtual confessional seal which the
attomey-client privilege declares cannot be broken by the attorney
without the client’s consent. The same privileged confidentiality,
however, does not attach to a crime which a client intends to commit
thereafter or in the future and for purposes of which he seeks the
lawyer’s advice.166
Statements and communications regarding the commission
of a crime already committed, made by a party who committed it,
to an attorney, consulted as such, are privileged communications.
Contrarily, communications between attorney and client having to do
with the client’s contemplated criminal acts, or in aid or furtherance
thereof, are not covered by the cloak of the privilege ordinarily
existing in reference to communications between attorney and
client, and in this instance, the lawyer may testify thereon without
violating the attomey-client privilege. In order for the privilege to
attach, the communication must be for a lawful purpose.167
163Clark v. United States, 289 U.S. 1, 77 Leed 993 (1933); United States v. Bob,
106 F2d 37 (1930); Higbee v. Dresser, 103 Mass 523 (1870); Nadler v. Warner, 184 A
3 (1936); Williams v. Williams, 108 SW2d 297 (1937).
154Suplee v. Hall. 52 A 407, 96 Am St Rep. 188 (1902); Foster v. Hall, 22 Am
December 400 (1831).
166United States v. Bob, 106 F2d 37, 125 ALR 502 (1939).
166People v. Sandiganbayan, 275 SCRA 505 (1997)
167People v. Sandiganbayan, 275 SCRA 505 (1997).
290
LEGAL AND JUDICIAL ETHICS
Public policy and the lawyer’s duty to counsel obedience to
the laws forbid that an attorney should assist in the commission
of a crime or permit the relation of attorney and client to conceal
a wrongdoing.168 He owes it to himself and to the public to use his
best efforts to restrain his client from doing any unlawful act and if,
notwithstanding such advice, his client proceeds to execute the illegal
deed, he may disclose it or be examined as to any communication
relating thereto.169 However, if a client not knowing a contemplated
action to be wrong or having some doubt in that respect desists from
executing it upon advice of his counsel that the contemplated act is
wrongful, the communication and the advice given are privileged.160
It is the duty of an attorney to divulge the communication of
his client as to his announced intention to commit a crime to the
proper authorities to prevent the act or to protect the person against
whom it is threatened.161 His duty to the public obliges him to disclose
it.162 Thus, where an attorney has knowledge of the whereabouts of
his client who jumped bail pending trial, living elsewhere under an
assumed name, the attorney may be disciplined for failing to disclose
that information to the proper authority.163
§9.23. Communications as to fraud.
While a communication relating to a fraud already committed
is privileged, a communication seeking advice as to the commission
of a fraud or the establishment of a false claim is an exception to the
privilege.164 The principle rendering a communication of a client as
to his announced intention to commit a crime unprivileged is equally
applicable to a communication seeking the accomplishment of a
158Standard Fire Ins. Co. v. Smithhart, 211 SW 441, 5 ALR 972 (1919); Gerhardt v. United R. Co., supra.
169Ridner v. Com., supra.; People v. Van Alstine, 223 NW 594 (1885); State v.
Kirkpatrict, 263 NW 52 (1935); Cole v. State, 298 P 892 (1931); State v. Richards, 167
P. 47 (1917).
“"Williams v. Williams, 103 SW2d 297 (1937).
16ICanon 37, Canons of Professional Ethics; People v. Van Alstine, 23 NW 594
(1885).
162Will v. Tomabells & Co., 3 Puerto Rico Fed Rep. 125 (1907).
183A.B.A. Op. 155 (May 4,1936); Cf. A.B A Op. 156 (May 4,1936).
164Clark v. United States, 28 9 U.S. 1, 77 L ed 993 (1933); States v. Bob, 106
F2d 37 (1939); Gerhardt v. United R. Co., 220 SW 677, 9 ALR 1976 (1920).
LAWYER’S DUTY TO PRESERVE CLIENTS CONFIDENCE
291
fraud.166 Thus, a client who burned his house to secure the insurance
proceeds of the policy thereon166 or who filed a suit to recover damages
for physical injuries he did not actually sustain167 may not invoke the
attomey-client privilege to seal the lips of his attorney, whom he
retained to accomplish his objective.168
Illustrative case of attorney-client privilege
People v. Sandiganbayan169 illustrates the rule on attomeyclient privilege. The issue raised in this case is whether a lawyer
for a client who had been charged with falsification along with the
client may be discharged to testily as prosecution witness against
the accused client. The Sandiganbayan ruled that the lawyer cannot
testify, as the attomey-client privilege prohibits him from doing so.
The prosecution elevated the issue to the Supreme Court, where it
discussed the attomey-client privilege, its scope, and exemptions
therefrom, and ruled that the lawyer can testify, without violating
the attomey-client privilege, as an exception to the rule. The High
Court ruled:
As already stated, respondent Sandiganbayan ruled that
due to the lawyer-client relationship which existed between
herein respondents Paredes and Sansaet during the relevant
periods, the facts surrounding the case and other confidential
matters must have been disclosed by respondent Paredes,
as client, to respondent Sansaet, as his lawyer. Accordingly,
it found “no reason to discuss it further since Atty. Sansaet
cannot be presented as a witness against accused Ceferino S.
Paredes, Jr. without the latter’s consent.”
The Court is of a contrary persuasion. The attomey-client
privilege cannot apply in these cases, as the facts thereof and the
actuations of both respondents therein constitute an exception
to the rule. For a clearer understanding of that evidential rule,
we will first sweep aside some distracting mental cobwebs in
these cases.
165Hamil
& Co. v. England, 50 Mo App 338 (1892); Williams v. Quebrada R.
Land & Cooper Co., 2 Ch (Eng.) 751 (1895).
166 Standard F. Ins. Co. v. Smithhart, 211 441, 5 ALR 972 (1919).
167Gerhardt v. United R. Co., 220 SW 677, 9 ALR 1976 (1920).
168Strong v. Abner, 105 SW2d 599 (1937); Standard F. Ins. Co. v. Smithhart,
supra.
169275 SCRA 505 (1997).
292
LEGAL AND JUDICIAL ETHICS
1.
It may correctly be assumed that there was a
confidential communication made by Paredes to Sansaet in
connection with Criminal Cases Nos. 17791-93 for falsification
before respondent court, and this may reasonably be expected
since Paredes was the accused and Sansaet his counsel
therein. Indeed, the fact that Sansaet was called to witness
the preparation of the falsified documents by Paredes and
Honrada was as eloquent a communication, if not more, than
verbal statements being made to him by Paredes as to the
fact and purpose of such falsification. It is significant that
the evidentiary rule on this point has always referred to “any
communication,” without distinction or qualification.
In the American jurisdiction from which our present
evidential rule was taken, there is no particular mode by which
a confidential communication shall be made by a client to his
attorney. The privilege is not confined to verbal or written
communications made by the client to his attorney but extends
as well to information communicated by the client to the
attorney by other means.
Nor can it be pretended that during the entire process,
considering their past and existing relations as counsel and
client and, further, in view of the purpose for which such
falsified documents were prepared, no word at all passed
between Paredes and Sansaet on the subject matter of that
criminal act. The clincher for this conclusion is the undisputed
fact that said documents were thereafter filed by Sansaet in
behalf of Paredes as annexes to the motion for reconsideration
in the preliminary investigation of the graft case before the
Tanodbayan. Also, the acts and words of the parties during
the period when the documents were being falsified were
necessarily confidential since Paredes would not have invited
Sansaet to his house and allowed him to witness the same
except under conditions of secrecy and confidence.
2.
It is postulated that despite such complicity of
Sansaet at the instance of Paredes in the criminal act for which
the latter stands charged, a distinction must be made between
confidential communications relating to past crimes already
committed, and future crimes intended to be committed, by the
client. Corollarily, it is admitted that the announced intention of
a client to commit a crime is not included within the confidences
which his attorney is bound to respect. Respondent court
LAWYER’S DUTY TO PRESERVE CLIENT’S CONFIDENCE
293
appears, however, to believe that in the instant case it is dealing
with a past crime, and that respondent Sansaet is set to testify
on alleged criminal acts of respondents Paredes and Honrada
that have already been committed and consummated.
The Court reprobates the last assumption which is flawed
by a somewhat inaccurate basis. It is true that by now, insofar
as the falsifications to be testified to in respondent court are
concerned, those crimes were necessarily committed in the past.
But for the application of the attomey-client privilege, however,
the period to be considered is the date when the privileged
communication was made by the client to the attorney in relation
to either a crime committed in the past or with respect to a crime
intended to be committed in the future. In other words, if the
client seeks his lawyer’s advice with respect to a crime that the
former has theretofore committed, he is given the protection of
a virtual confessional seal which the attomey-client privilege
declares cannot be broken by the attorney without the client’s
consent. The same privileged confidentiality, however, does not
attach with regard to a crime which a client intends to commit
thereafter or in the future and for purposes of which he seeks
the lawyer’s advice.
Statements and communications regarding the commission of a crime already committed, made by a party who committed it, to an attorney, consulted as such, are privileged communications. Contrarily, the unbroken stream of judicial dicta
is to the effect that communications between attorney and client having to do with the client’s contemplated criminal acts,
or in aid or furtherance thereof, are not covered by the cloak of
privileges ordinarily existing in reference to communications
between attorney and client.
3.
In the present cases, the testimony sought to be
elicited from Sansaet as state witness are the communications
made to him by physical acts and/or accompanying words of
Paredes at the time he and Honrada, either with the active
or passive participation of Sansaet, were about to falsify, or
in the process of falsifying, the documents which were later
filed in the Tanodbayan by Sansaet and culminated in the
criminal charges now pending in respondent Sandiganbayan.
Clearly, therefore, the confidential communications thus made
by Paredes to Sansaet were for purposes of and in reference
to the crime of falsification which had not yet been committed
294
LEGAL AND JUDICIAL ETHICS
in the past by Paredes but which he, in confederacy with his
present co-respondents, later committed. Having been made for
purposes of a future offense, those communications are outside
the pale of the attomey-client privilege.
4.
Furthermore, Sansaet was himself a conspirator in
the commission of that crime of falsification which he, Paredes
and Honrada concocted and foisted upon the authorities. It
is well settled that in order that a communication between a
lawyer and his client may be privileged, it must be for a lawful
purpose or in furtherance of a lawful end. The existence of
an unlawful purpose prevents the privilege from attaching.
In fact, it has also been pointed out to the Court that the
“prosecution of the honorable relation of attorney and client
will not be permitted under the guise of privilege, and every
communication made to an attorney by a client for a criminal
purpose is a conspiracy or attempt at a conspiracy which is not
only lawful to divulge, but which the attorney under certain
circumstances may be bound to disclose at once in the interest
of justice.”
It is evident, therefore, that it was error for respondent
Sandiganbayan to insist that such unlawful communications
intended for an illegal purpose contrived by conspirators are
nonetheless covered by the so-called mantle of privilege. To
prevent a conniving counsel from revealing the genesis of a
crime which was later committed pursuant to a conspiracy,
because of the objection thereto of his conspiring client, would
be one of the worst travesties in the rules of evidence and
practice in the noble profession of law.
CHAPTER X
LAWYER’S DUTIES OF FAIR DEALINGS AND
AVOIDING CONFLICT OF INTERESTS
A. FAIRNESS IN DEALINGS WITH CLIENT
§10.01. Duty to be candid, fair and loyal in all dealings with
client, generally.
Canon 15 which requires that a lawyer shall observe candor,
fairness and loyalty in all his dealings and transactions with his
clients flows from the nature of attomey-client relationship.
Generally, the relation of attorney and client is strictly personal and
highly confidential and fiduciary. There is no other human relation
which involves so delicate a nature than that of attorney and client.
Necessity and public interest require that it be so considered. It is
only by characterizing the relation and safeguarding it as such that
a person will be encouraged to repose confidence in an attorney. It
is based on the hypothesis that abstinence from seeking legal advice
in a good cause is an evil which is fatal to the administration of
justice.1
Among the implementing rules regarding the lawyer’s duty to
be candid, fair and loyal in all his dealings with the client include
the following:
Rule 15.01 — A lawyer, in conferring with a prospective
client, shall ascertain as soon as practicable whether the matter
would involve a conflict with another client or his own interest,
and if so, shall forthwith inform the prospective client.
(1920).
'Hilado v. David, 84 Phil. 569 (1949); Hernandez v. Villanueva, 40 Phil. 775
295
296
LEGAL AND JUDICIAL ETHICS
Rule 15.02 — A lawyer shall be bound by the rule on
privileged communication in respect of matters disclosed to
him by a prospective client.
Rule 15.03 — A lawyer shall not represent conflicting
interests except by written consent of all concerned given after
a full disclosure of the facts.
Rule 15.04 — A lawyer may, with the written consent
of all concerned, act as mediator, conciliator or arbitrator in
settling disputes.
§10.02. A lawyer shall ascertain possible conflict of interests.
Rule 15.01 of the Code reads: “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.”
It is the duty of a lawyer to disclose and explain to a prospective
client all circumstances of his relations to the parties and any interest
in or connection with the controversy, which in his honest judgment
might influence the client in the selection of counsel.2 The disclosure
is more for the protection of the lawyer than that of the client. If,
for instance, a lawyer conceals the fact that the adverse party used
to be his client, the new client may have reason to suspect, in case
of an unfavorable judgment, that circumstance prevented him from
the full discharge of his duty. Concealment of facts material to
employment may cause his client to lose confidence in him and may
even affect his fee. A client may presume from an attorney’s failure
to disclose matters material to his employment that the attorney
has no interest which will interfere with his devotion to the cause
confided to him or betray his judgment.3
§10.03. Duty to decline employment.
A lawyer should decline professional employment even though
how attractive the fee offered may be if its acceptance will involve
a violation of any of the rules of the legal profession. After giving
professional advice to a plaintiff concerning the latter’s claim, a
lawyer may not thereafter accept retainer from defendant to defeat
2Canon 16,
3A11
Canons of Professional Ethics.
State Ins. Co. v. Keller, 149 NE2d 482, 70 ALR2dll90 (1958).
LAWYER’S DUTIES OF FAIR DEALINGS AND AVOIDING 297
CONFLICT OF INTERESTS
that claim.4 He may not accept employment from another in a matter
adversely affecting any interest of his former client with respect
to which confidence has been reposed.5 Nor may he handle a case
to nullify a contract which he prepared.6 It is his duty to decline
employment in any of these and similar matters in view of the rule
prohibiting representation of conflicting interests.
A lawyer should not accept employment as an advocate in
any matter in which he had intervened while in the government
service.7 Having once held public office or having been in the public
employ, a lawyer should not after his retirement accept employment
in connection with any matter which he has investigated or passed
upon while in such office.8 The canonical injunction is based upon the
necessity that professional integrity and public confidence in that
integrity be maintained. For if the legal profession is to occupy that
position in public esteem which will enable it to be of the greatest
usefulness, it must not only avoid all evil but must likewise avoid
the appearance of evil.9
Neither should a lawyer properly accept employment the
nature of which might easily be used as a means of advertising his
professional services or his skill. Accordingly, he may not accept
employment from an organization to render legal services to
members thereof concerning questions submitted by the members,
the answers to which are printed for circulation.10 For the same
reason, he may not accept employment as a columnist to answer
inquiries for advice as to individual rights through the medium
of a newspaper column.11 Nor may he accept employment from a
collection agency which solicits business to collect its claims.12
While there is no statutory restriction for a lawyer to be an
advocate and a witness for a client in a case, the canons of the
profession forbid him from acting in that double capacity13 as he will
find it difficult to disassociate his relation to the client as a lawyer
4Hilado
v. David, 84 Phil. 569 (1949).
sCanon 6,
Canons of Professional Ethics.
Barrios, 9 SCRA 695 (1963).
7Rule 6.03, Code of Professional Responsibility.
8Canon 36, Canons of Professional Ethics.
9A.B.A. Op. 98 (August 29,1933).
10A.B.A. Op. 98 (August 29,1933).
11A.B.A. Op. 270 (November 30,1945).
12A.B.A. Op. 255 (July 12,1941).
13Phil. National Bank v. Uy Teng Piao, 57 Phil. 337 (1932).
6Bautista v.
LEGAL AND JUDICIAL ETHICS
298
and his relation to the litigant as a witness.14 An attorney may not
therefore accept employment in 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.16
As previously noted, a lawyer shall not, as a rule, refuse his
services to the needy. However, he may refuse to accept representation
of an indigent client if he is not in a position to carry it out effectively
or competently or he labors under a conflict of interest between
him and the prospective client or between a present client and the
prospective client.16
§10.04. A lawyer shall preserve the secrets of a prospective
client.
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. Rule 15.02 of the Code makes the lawyer
“bound by the rule on privileged communication in respect of matters
disclosed to him by a prospective client.” The reason for the rule is
to make the prospective client free to discuss whatever he wishes
with the lawyer without fear that what he tells the lawyer will not
be divulged nor used against him, and for the lawyer to be equally
free to obtain information from the prospective client.17
§10.05. A lawyer may act as mediator.
Rule 15.04 of the Code allows a lawyer, with the written consent
of all concerned, to “act as mediator, conciliator or arbitrator in
settling disputes.” His knowledge of the law and his reputation for
fidelity may make it easy for the disputants to settle their differences
amicably. However, the lawyer shall not act as counsel for any of
them, otherwise the rule prohibiting representation of conflict of
interests will apply.
14A.B.A.
1941).
Op. 220 (July 12, 1941).
16A.B.A.
16Rule
Op. 50 December 14, 1931, modified by A.B.A. Op. 220 (July 12,
14.03, Code of Professional Responsibility.
"Comments of IBP Committee that drafted the Code, p. 81.
LAWYER’S DUTIES OF FAIR DEALINGS AND AVOIDING
CONFLICT OF INTERESTS
299
B. REPRESENTING CONFLICTING INTERESTS
§10.06. A lawyer shall not represent conflicting interests.
Rule 15.03 of the Code provides that “A lawyer shall not
represent conflicting interests except by written consent of all
concerned given after a full disclosure of the facts.”
Generally, there is inconsistency of interests within the meaning
of the prohibition when, on behalf of one client, it is the attorney’s
duty to contend for that which his duty to another client requires
him to oppose,18 or when the possibility of such situation develops.19
This rule covers not only cases in which confidential communications
have been confided but also those in which no confidence has been
bestowed or will be used.20
Another test of the inconsistency of interests is whether the
acceptance of a new relation will prevent an attorney from the
full discharge of his duty of undivided fidelity and loyalty to his
client or invite suspicion of unfaithfulness or double-dealing in the
performance thereof,21 and also whether he will be called upon in his
new relation to use against his first client any knowledge acquired in
the previous employment.22 The first part of the rule refers to cases
in which the opposing parties are present clients either in the same
action or in a totally unrelated case; the second part pertains to those
in which the adverse party against whom the attorney appears is his
former client in a matter which is related, directly or indirectly, to
the present controversy. Thus, a lawyer who represents one party in
a case and at the same time represents the opposing party, or who
represents a party and at the same time handles the legal problems
of the opposing party, whether the cases are related or not, violates
the rule against representation of conflicting interests.23
18Canon 6, Canons of Professional Ethics; Lamen v. Alejandro, CA-G.R. No.
34638-R, January 20, 1965.
19U.S. v. Laranja, 21 Phil. 500 (1912); People v. Davis, 210 Cal. App 2d 721
(1962) ; People v. Ware, 39 I112d 993, ALR3d 1426 (1967).
20Hilado v. David, 84 Phil. 569 (1949); Nombrado v. Hernandez, 26 SCRA 13
(1968) ; Bautista v. Barrios, 9 SCRA 695 (1963).
2iIn re De la Rosa, 27 Phil. (1914); Grievance Committee v. Rottner, 152 Conn
59, 203 A2d 82 (1954); Tiania v. Ocampo, 200 SCRA 472 (1991).
22Canons 6 and 37, Canons of Professional Ethics; Natam v. Capule, 91 Phil.
640 (1952).
“Tiania v. Ocampo, 200 SCRA 472 (1991).
300
LEGAL AND JUDICIAL ETHICS
Where a lawyer appeared for a defendant in a case and
thereafter entered his appearance for plaintiff in same case, he
represented conflicting interests, which precluded him from serving
either of them, as his duty to plaintiff necessarily conflicted with
that of the defendant and subjected him to disciplinary action.24
Where a lawyer is counsel for the estate of a deceased person
and at the same time his accounting firm prepared the list of assets
and liabilities of the estate and at the same time computed the
claims of two creditors of the estate, there is conflict between the
interest of the estate which stands as the debtor and that of the two
claimants who are creditors of the estate. When a creditor files a
claim against the estate, his interest is per se adverse to the estate.
As counsel for the estate, the lawyer is to contest the claims of the
creditors, but his accounting firm which prepared such claims is to
sustain them. Even if the claim is valid and does not prejudice the
estate, the set-up is still undesirable. The test to determine whether
there is a conflict of interest is probability, not certainty of conflict.
The fact that the representation by his accounting firm on behalf
the creditors and that of his law firm on behalf of the estate refers
to different capacities — one as an accountant and the other as a
lawyer — does not render the rule against representing conflicting
interests inapplicable. The proscription against representation of
conflicting interests arises with respect to the same subject matter
and is applicable however slight such adverse interest may be. It
applies although the attorney’s intentions and motives were honest
and he acted in good faith.26
The rule against representing conflicting interests applies
even if the conflict pertains to the lawyer’s private activity or in the
performance in a non-professional capacity, and his presentation as
a lawyer regarding the same subject matter. For settled is the rule
that a member of the bar may be suspended or disbarred for any act
which shows him to be wanting in moral character, honesty, probity
or good demeanor.26
In Samala v. Valencia,21 the Court has reiterated the rule in
conflict of interests, and has cited instances of such conflict thus:
24Sibulo v.
Cabrera, 336 SCRA 237 (2000).
26Nakpil v.
Valdez, 286 SCRA 758 (1998).
Valdez, supra.
27Admin. Case No. 5439, January 22,
26Nakpil v.
LAWYER’S DUTIES OF FAIR DEALINGS AND AVOIDING
CONFLICT OF INTERESTS
301
Rule 15.03, Canon 15 of the Code of Professional
Responsibility provides that a lawyer shall not represent
conflicting interests except by written consent of all concerned
given after a full disclosure of the facts.
A lawyer 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. He may not also
undertake to discharge conflicting duties any more than he may
represent antagonistic interests. This stem rule is founded on
the principles of public policy and good taste. It springs from
the relation of attorney and client which is one of trust and
confidence. Lawyers are expected not only to keep inviolate the
client’s confidence, but also to avoid the appearance of treachery
and double-dealing for only then can litigants be encouraged to
entrust their secrets to their lawyers, which is of paramount
importance in the administration of justice.
One of the tests of inconsistency of interests is whether the
acceptance of a new relation would prevent the full discharge of
the lawyer’s duty of undivided fidelity and loyalty to the client
or invite suspicion of unfaithfulness or double-dealing in the
performance of that duty.
The stem rule against representation of conflicting interests is founded on principles of public policy and good taste. It
springs from the attorney’s duty to represent his client with
undivided fidelity and to maintain inviolate the client’s confidence as well as from the injunction forbidding the examination of an attorney as to any of the privileged communications
of his client.
An attorney owes loyalty to his client not only in the case
in which he has represented him but also after the relation of
attorney and client has terminated. The bare attomey-client
relationship with a client precludes an attorney from accepting
professional employment from the client’s adversary either
in the same case or in a different but related action. A lawyer
is forbidden from representing a subsequent client against a
former client when the subject matter of the present controversy
is related, directly or indirectly, to the subject matter of the
previous litigation in which he appeared for the former client.
We held in Nombrado v. Hernandez that the termination
of the relation of attorney and client provides no justification
302
LEGAL AND JUDICIAL ETHICS
for a lawyer to represent an interest adverse to or in conflict
with that of the former client. The reason for the rule is that
the client’s confidence once reposed cannot be divested by the
expiration of the professional employment.
Consequently, a lawyer should not, even after the severance of the relation with his client, do anything which will
injuriously affect his former client in any matter in which he
previously represented him nor should he disclose or use any of
the client’s confidences acquired in the previous relation.
In this case, respondent’s averment that his relationship
with Alba has long been severed by the act of the latter of not
turning over the proceeds collected in Civil Case No. 98-6804,
in connivance with the complainant, is unavailing. Termination
of the attomey-client relationship precludes an attorney from
representing a new client whose interest is adverse to his former
client. Alba may not be his original client but the fact that he
filed a case entitled “Valdez and Alba v. Bustamante and her
husband,” is a clear indication that respondent is protecting the
interests of both Valdez and Alba in the said case. Respondent
cannot just claim that the lawyer-client relationship between
him and Alba has long been severed without observing Section
26, Rule 138 of the Rules of Court wherein the written consent
of his client is required.
In Gonzales v. Cabucana, Jr., citing the case of Quiambao v.
Bamba, we held that:
The proscription against representation of conflicting
interests applies to a situation where the opposing parties are
present clients in the same action or in an unrelated action. It
is of no moment that the lawyer would not be called upon to
contend for one client that which the lawyer has to oppose for
the other client, or that there would be no occasion to use the
confidential information acquired from one to the disadvantage
of the other as the two actions are wholly unrelated. It is enough
that the opposing parties in one case, one of whom would lose
the suit, are present clients and the nature or conditions of the
lawyer’s respective retainers with each of them would affect the
performance of the duty of undivided fidelity to both clients.
Respondent is bound to comply with Canon 21 of the Code
of Professional Responsibility which states that “a lawyer shall
LAWYER’S DUTIES OF FAIR DEALINGS AND AVOIDING
CONFLICT OF INTERESTS
303
preserve the confidences and secrets of his client even after the
attomey-client relation is terminated.”
The reason for the prohibition is found in the relation of
attorney and client, which is one of trust and confidence of the
highest degree. A lawyer becomes familiar with all the facts
connected with his client’s case. He leams from his client the
weak points of the action as well as the strong ones. Such
knowledge must be considered sacred and guarded with care.
From the foregoing, it is evident that respondent’s representation of Valdez and Alba against Bustamante and her
husband, in one case, and Valdez against Alba, in another case,
is a clear case of conflict of interests which merits a corresponding sanction from this Court. Respondent may have withdrawn
his representation in Civil Case No. 95-105-MK upon being
warned by the court, but the same will not exculpate him from
the charge of representing conflicting interests in his representation in Civil Case No. 2000-657-MK.
Respondent is reminded to be more cautious in accepting
professional employments, to refrain from all appearances and
acts of impropriety including circumstances indicating conflict
of interests, and to behave at all times with circumspection
and dedication befitting a member of the Bar, especially
observing candor, fairness and loyalty in all transactions with
his clients.
Where the lawyer respondent represented complainant’s
nephew and other members of his family in the ejectment case,
and in the criminal complaint, filed by complainant against
them. In which the lawyer had only notarized the deed of
sale of the land involved, it does not necessarily follow that
respondent lawyer obtained any information from complainant
that can be used to the detriment of the latter in the ejectment
case.28
Summary of tests of conflicting interests.
In Pomento v. Ponteverde,“ the Court has summarized the tests
to determine the existence of conflict of interests, as follows:
“Pomento v. Ponteverde, A.C. No.
5128, March 31, 2005.
MA C N 5128 M
h 31 2005
304
LEGAL AND JUDICIAL ETHICS
Jurisprudence instructs that there is a representation
of conflicting interests if the acceptance of the new retainer
will require the attorney to do anything which will injuriously
affect his first client in any matter in which he represents
him and also whether he will be called upon in his new
relation, to use against his first client any knowledge acquired
through their connection. Another test to determine if there
is a representation of conflicting interests is whether the
acceptance of a new relation will prevent an attorney from the
full discharge of his duty of undivided fidelity and loyalty to his
client or invite suspicion of unfaithfulness or double dealing in
the performance thereof.
A lawyer is forbidden from representing a subsequent
client against a former client when the subject matter of the
present controversy is related, directly or indirectly, to the
subject matter of the previous litigation in which he appeared
for the former client. Conversely, he may properly act as counsel
for a new client, with full disclosure to the latter, against a
former client in a matter wholly unrelated to that of the
previous employment, there being in that instance no conflict
of interests. Where, however, the subject matter of the present
suit between the lawyer’s new client and his former client is
in some way connected with that of the former client’s action,
the lawyer may have to contend for his new client that which
he previously opposed as counsel for the former client or to use
against the latter information confided to him as his counsel.
As we have held in Maturan vs. Gonzales:
The reason for the prohibition is found in the relation of
attorney and client, which is one of trust and confidence of the
highest degree. A lawyer becomes familiar with all the facts
connected with his client’s case. He learns from his client the
weak points of the action as well as the strong ones. Such
knowledge must be considered sacred and guarded with care.
No opportunity must be given him to take advantage of the
client’s secrets. A lawyer must have the fullest confidence of his
client. For if the confidence is abused, the profession will suffer
by the loss thereof.
The proscription against representation of conflicting
interests finds application where the conflicting interests arise
with respect to the same general matter and is applicable
however slight such adverse interest may be. In essence, what
LAWYER’S DUTIES OF FAIR DEALINGS AND AVOIDING
CONFLICT OF INTERESTS
305
a lawyer owes his former client is to maintain inviolate the
client’s confidence or to refrain from doing anything which will
injuriously affect him in any matter in which he previously
represented him.
§10.07. Effect of termination of relation.
The termination of the relation of attorney and client provides
no justification for a lawyer to represent an interest adverse to or
in conflict with that of the former client.30 The reason for the rule is
that the client’s confidence once reposed cannot be divested by the
expiration of the professional employment.31 Consequently, a lawyer
should not, even after the severance of the relation with his client, do
anything which will injuriously affect his former client in any matter
in which he previously represented him nor should he disclose or use
any of the client’s confidences acquired in the previous relation.32
An attorney owes loyalty to his client not only in the case in
which he has represented him but also after the relation of attorney
and client has terminated, and it is not a good practice to permit
him afterwards to defend in another case other persons against his
former client under the pretext that the case is distinct from and
independent of the former case.33
An attorney is not permitted, in serving a new client as against
a former one, to do anything which will injuriously affect the former
client in any manner in which the attorney formerly represented
him, though the relation of attorney and client has terminated, and
the new employment is in a different case; nor may the attorney
use against his former client any knowledge or information gained
through their former connection.34
§10.08. Materiality of confidential information.
The bare attomey-client relationship with a client precludes an
attorney from accepting professional employment from the client’s
30Nombrado v. Hernandez, supra; Natam v. Capule, supra., San Jose v. Cruz,
57 Phil. 79 (1949).
31Hilado
v. David, 84 Phil. 569 (1949).
32Natam v. Capule, 91 Phil. 640 (1952); San Jose v. Cruz, 57 Phil. 792 (1933).
33Lorenzana Food Corp. v. Daria, 197 SCRA 428 (1991); Buted v. Hernando,
203 SCRA 1 (1991).
“Buted v. Hernando, 203 SCRA 1 (1991).
306
LEGAL AND JUDICIAL ETHICS
adversary either in the same case36 or in a different but related
action.36 The prohibition applies irrespective of whether or not
the lawyer has acquired confidential information from his former
client.37
If the prohibition against representation of conflicting interests is made to depend upon whether the attorney has acquired
confidential information from his former client, it will of necessity
call for investigation of that question and thereby only lead to the
revelation in advance of trial of matters that may further prejudice
the former client. A client may then be afraid to consult a lawyer or
to make a full disclosure of facts to him, which will be detrimental
to the administration of justice.38 In addition, the inquiry will violate
the confidential relation which should exist between attorney and
client39 as well as the attomey-client privilege.
§10.09. Foundation of, and reason for, the rule.
The stem rule against representation of conflicting interests is
founded on principles of public policy and good taste. It springs from
the attorney’s duty to represent his client with undivided fidelity
and to maintain inviolate the client’s confidence as well as from the
injunction forbidding the examination of an attorney as to any of the
privileged communications of his client.40
The reason for the prohibition is found in the relation of attorney
and client, which is one of trust and confidence of the highest degree.
A lawyer becomes familiar with all the facts connected with his
client’s case. He leams from his client the weak points of the action
as well as the strong ones. Such knowledge must be considered
sacred and guarded with care. No opportunity must be given him
to take advantage of the client’s secrets. A lawyer must have the
fullest confidence of his client. For if the confidence is abused, the
profession will suffer by the loss thereof.41
36Hilado v. David, 84 Phil. 569 (1949); Sumangil v. Sta. Romana, 84 Phil. 777
(1949) ; Zubiri v. Zubiri, 18 SCRA 1157 (1966).
36Nombrado v. Hernandez, 26 SCRA 13 (1968); Natam v. David, supra.; Nombrado v. Hernandez, supra.
37Hilado
38Hilado
v. David, supra.; Nombrado v. Hernandez, supra.
v. David, supra.
39Packer v. Rapoport, 88 NYS2d 118 (1949); Tilley v. King, 9 SE2d 670 (1940).
40Hilado v. David, 84 Phil. 569 (1949); Tiania v. Ocamp, 200 SCRA 472 (1991).
41U.S. v. Laranja, 21 Phil. 500 (1912); Nakpil v. Valdez, 286 SCRA 758 (1998).
LAWYER’S DUTIES OF FAIR DEALINGS AND AVOIDING
CONFLICT OF INTERESTS
307
The rule is a rigid one designed not alone to prevent the
dishonest practitioner from fraudulent conduct but as well to
preclude the honest practitioner from putting himself in a position
where he may be required to choose between conflicting duties, and
to protect him from unfounded suspicion of professional misconduct.
The question is not necessarily one of right of the parties but of
adherence to proper professional standards. An attorney should not
only keep inviolate his client’s confidence but should likewise avoid
the appearance of treachery and double-dealing.42
§10.10. Opposing clients in same or related suits.
A lawyer who accepts employment from his client’s adversary
in a case involving related subject matter is guilty of representing
conflicting interests. The Court explains:
“It is improper for a lawyer to appear as counsel for one
party against the adverse party who is his client in a related
suit, as a lawyer is prohibited from representing conflicting
interests or discharging inconsistent duties. He 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.43 That the representation of conflicting interest
is in good faith and with honest intention on the part of the
lawyer does not make the prohibition inoperative.”44
The lawyer’s acting for complainant and defendant in the same
or related suits is brazenly unethical.46 Such representation will
inevitably involve the discharge by the lawyer of conflicting duties
because the opposing parties as his clients, such as a husband and
a wife in a matrimonial action,46 contending claimants to the same
42Hilado v. David, 84 Phil. 569 (1949); People v. Gerold, 265 111 448,107 NE 165
(1914); See also Velasquez v. Barrera, 29 SCRA 312 (1969).
“Citing Agpalo, Legal Ethics [1992], p. 219.
«Maturan v. Gonzales, 287 SCRA 443, 446 [1998].
45Vda. de Zubiri v. Zubiri, 18 SCRA 1197 (1966); Cantome v. Ducasin, 57 Phil.
23 (1932); In re Hamilton, 24 Phil. 100 (1913); Medina v. Bautista, 12 SCRA 1 (1964);
Laxamana v. Court of Appeals, 87 SCRA 48 (1978).
46People v. Salby, 156 Colo 17, 396 P2d 598 (1964); Re Oparak, 257 Mnn 600,
101 NW2d 606 (1960); Re Brand, 242 Or 562, 410 P2d 824 (1966).
308
LEGAL AND JUDICIAL ETHICS
property,47 a creditor and a debtor in a recovery suit,48 a seller and a
purchaser of a property,49 an insurer and an insured60 or an accused
and an offended party in a criminal action,61 have antagonistic
interests.
An attorney who appears for opposing clients in the same or
related actions puts himself in that awkward position where he will
have to contend on behalf of one client that which he will have to
oppose on behalf of the other client. He cannot in that situation give
disinterested advice to both clients.62 He will, moreover, be called
upon, in view of the identicalness or relatedness of the subject matters
involved, to use confidential information against one client in favor
of the other client in violation of his duty to maintain inviolate the
client’s confidence.63
A lawyer may not, therefore, as counsel for a plaintiff in a
case advise defendant as to his rights or prepare the answer to the
complaint64 nor file, on behalf of the defendant a motion to dismiss
the complaint which he drafted for the plaintiff.66 As counsel for an
accused, a lawyer may not make the complainant believe that he is
acting for the latter’s interest and instruct him not to appear at the
hearing in order that the case could be dismissed for non-appearance
of complainant.66 He may not represent in an accident case two
defendants whose respective interests require opposite conclusions
from conflicting facts.67 As lawyer for a trust company, stakeholder
of funds deposited in it, he may not represent a third party claiming
funds against the depositor.58 A salaried officer of a trust company
47/n re De la Rosa, 27 Phil. 258 (1914); Committee on Professional Ethics &
Grievance v. Christian, 191 F Supp 87 (1961).
“Fairfield County Bar v. Taylor, 60 Conn. 11, 22 A 411 (1891); People ex rel.
Scholes v. Keithley, 225 111 30, 80 NE 50 (1906).
4SRe Grorud, 84 Mont 221, 275 P 1098 (192); Re Elam. 357 Non 922, 211 SW2d
710 (1948).
MRe Paders, 250 App Div 418, 294 NYS 252 (1937); Re Conrad, 19 App Div
2d 644, 241 NYS2 291 (1963).
61U.S. v. Laranja, 21 Phil. 500 (1912); Cantome v. Ducasin, 57 Phil. 23 (1932);
People v. Ware, 233 NE2d 421 (1968).
62In re De la Rosa, 27 Phil. 258 (1914).
“Natam v. Capule, 91 Phil. 640 (1952).
MVda. de Zuburi v. Zubiri, 18 SCRA 1157 (1966); Medina v. Bautista, 12 SCRA
1 (1964).
55/n re Hamilton, 24 Phil. 100 (1913).
66Cantome v. Ducasin, 57 Phil. 23 (1932).
67A.B.A. Op. 222 (July 12, 1941).
68A.B.A. Op. 218 (March 15,1941).
LAWYER’S DUTIES OF FAIR DEALINGS AND AVOIDING 309
CONFLICT OF INTERESTS
may not appear as counsel for an estate of which the trust company
is the trustee.59
Even though the opposing clients, after full disclosure of the
fact, consent to the attorney’s dual representation, the lawyer should,
when his clients cannot see their way clear to settling the controversy
amicably, retire from the case.60 Similarly, when acting as counsel
for co-plaintiffs or co-defendants in a case, he should withdraw from
the action when a co-plaintiff or codefendant joins common cause
with the opposite party and assumes a position adverse to that of his
remaining client.61 He cannot, without undermining the confidential
relation of attorney and client, discharge his duty of undivided
fidelity to his clients in such situation.62
§10.11. Opposing clients in unrelated actions.
A lawyer owes loyalty to his client not only in the case in which
he has represented him but also after the relation of attorney and
client has terminated because it is not good practice to permit him
afterwards to defend in another case other person against his former
client under the pretext that the case is distinct from, and independent
of the former case. It behooves a lawyer not only to keep inviolate the
client’s confidence, but also to avoid the appearance of treachery and
double dealing for only then can litigants be encouraged to entrust
their secrets to their attorneys which is of paramount importance in
the administration of justice.63
It is thus improper for a lawyer to appear as counsel for one
party against the adverse party who is his client in another totally
unrelated action. He may not properly represent plaintiff in a suit for
recovery of a sum of money against defendant whom he defends as
accused in a criminal complaint for physical injuries filed by another
person.64 While the lawyer will not be called upon to contend for one
client that which he will oppose for the other client, nor will there
59A.B.A.
Op. 10 (July 13,1926).
re De la Rosa, 27 Phil. 258 (1914).
eiCf. People v. Davis, 210 Cal App 2d 721 (1962); People v. Ware, 39 I112d 66,
NE2d 421 (1968); Tucker v. United States, 235 F2d 238 (1956).
62Cf. A.B.A. Ops. 222 (July 12,1941) and 218 (March 15,1941); People v. Davis,
210 Cal App2d 721 (1962); People v. Ware, 39 I112d 66, 233 NE2d 421 (1968); Tucker
v. United States, 235 F2d 238 (1956).
“Rosacia v. Bulalacao, 248 SCRA 664 (1995).
“See Grievance Committee v. Rottner, 152 Conn. 59, 203 A2d 82 (1964).
mIn
310
LEGAL AND JUDICIAL ETHICS
be occasion to use confidential information acquired from one to the
disadvantage of the other as the two actions are wholly unrelated,
the fact that the opposing parties in one case, one of whom will
lose the suit, are present clients and the nature or conditions of his
respective retainers with each of them will affect the performance of
his duty of undivided fidelity to both clients.66
The attorney in that situation will not be able to pursue, with
vigor and zeal, the client’s claim against the other and to properly
represent the latter in the unrelated action; or, if he can do so, he
cannot avoid being suspected by the defeated client of disloyalty
or partiality in favor of the successful client.66 The foregoing
considerations will strongly tend to deprive the relation of attorney
and client of those special elements which make it one of trust and
confidence.67
§10.12. New client against former client.
A lawyer is forbidden from representing a subsequent client
against a former client only when the subject matter of the present
controversy is related, directly or indirectly, to the subject matter of
the previous litigation in which he appeared for the former client.68
Conversely, he may properly act as counsel for a new client, with full
disclosure to the latter,69 against a former client in a matter wholly
unrelated to that of the previous employment, there being in that
instance no conflict of interests.70 What a lawyer owes his former
client is to maintain inviolate the client’s confidence or to refrain
from doing anything which will injuriously affect him in any matter
in which he previously represented him.71 That duty does not arise
where the present litigation involving a former client is in no way
related to the subject matter of the former client’s action.72
“C/1. Memphis & Shelby County Bar Ass’n v. Sanderson, 52 Tenn App. 684; 378
SW2d 173 (1963); See A.B.A. Op. 132 (March 15,1935).
“Memphis & Shelby County Bar Ass’n. v. Sanderson, supra.; Re Goldberg, 321
Pa 109,184 A 74 (1936); Cf. In re De la Rosa, 21 Phil. 258 (1914).
61 In re De la Rosa, 27 Phil. 258 (1914).
mln re Hamilton, 24 Phil. 100 (1913); Cantome v. Ducasin, 57 Phil. 23 (1913);
San Jose v. Cruz, 57 Phil. 79 (1933); Sumangil v. Sta. Romana, 84 Phil. 777 (1949);
Natam v. Capule, 91 Phil. 640 (1952); Nombrado v. Hernandez, 26 SCRA 13 (1968).
69Canon 6, Canons of Professional Ethics.
™Pardy v. Ernst, 143 P 429 (1914); Peckhani v. Ramsey, 94 NE 290 (1911); Re
Wilson, 180 NY Supp. 725 (1918).
71Natam v. Capule, 91 Phil. 640 (1952).
72Pardy v. Ernst, supra.; Peckhani v. Ramsey, supra.
LAWYER’S DUTIES OF FAIR DEALINGS AND AVOIDING
CONFLICT OF INTERESTS
311
Where, however, the subject matter of the present suit
between the lawyer’s new client and his former client is in some
way connected with that of the former client’s action, the lawyer
may have to contend for his new client that which he previously
opposed as counsel for the former client or to use against the latter
information confided to him as his counsel. The prohibition against
representing conflicting interests then applies. Thus, a lawyer for
a party may not subsequently appear as counsel for the opposite
party in an action which is somehow related to the former client’s
case, even though the lawyer acquired no confidential information
from his former client73 or his services to him were gratuitous74 or
the former client illegally terminated his professional employment.
He may not represent a third party claimant to defeat an execution
sale of a property for the satisfaction of a judgment secured by him
as counsel for the judgment creditor.75 Having appeared for a party
opposed to the probate of a will, he may not go to the opposite side
and champion its cause against his former client.76 After representing
an administrator in an ejectment suit, he may not appear for a party
seeking possession of the property under administration of his former
client.77 Similarly, a lawyer who acted as counsel for a complainant in
a mauling incident triggered by a land dispute between complainant
and the accused’s father may not represent the latter in an action
for forcible entry involving the same land against his former client.78
And a lawyer may not appear as counsel for one of the heirs in his
suit against the other heirs over a division of property settled in an
extrajudicial partition which the lawyer prepared for all of them.79
Where a lawyer is counsel for plaintiff in an action against
several defendants, one of whom is his former client in a matter
related to the present litigation, he may upon objection of his former
client be disqualified from representing the plaintiff.80 However, a
lawyer for several plaintiffs, one of whom declined to proceed with
the case and was accordingly impleaded as a nominal co-defendant
73Hilado
v. David, 84 Phil. 569 (1949).
re Hamilton, 24 Phil. 100 (1913). Myers v. Croohet, 14 Tex 257 (1855).
76San Jose v. Cruz, 57 Phil. 792 (1933).
76Sumangil v. Sta. Romana, 84 Phil. 777 (1949).
77Natam v. Capule, 91 Phil. 640 (1952).
78Nombrado v. Hernandez, 26 SCRA 13 (1968).
79Gesuden v. Ferrer, 128 SCRA 357 (1984).
“Consolidated Theatre, Inc. v. Warner Bros. Cir. Management Corp. 216 F2d
920, 52 ALR2d 1231 (1954).
74In
312
LEGAL AND JUDICIAL ETHICS
against whom no relief was asserted, may continue representing the
remaining plaintiffs.81
§10.13. Conflicting duties.
A lawyer may not undertake to discharge conflicting duties any
more than may he represent antagonistic interests. Pursuant to this
rule, he may not, as an employee of a corporation whose duty is to
attend to its legal affairs, join a labor union of employees in that
corporation because the exercise of the union’s right is incompatible
with his duty as a lawyer for his corporate client.82 A lawyer who
investigated an accident as counsel for an insurance company may
not thereafter represent the injured person in an action by another
against the insured.83 Neither he who has been appointed receiver
for a corporation nor his partner may accept employment from a
creditor of the corporation.84
The prohibition against representation of adverse interests
precludes a lawyer from accepting employment as an advocate in
any matter upon the merits of which he has previously intervened
as a public official. Having once held a public office or having been
in the public employ, a lawyer should not, after his retirement or
resignation, accept professional employment in connection with
any matter he has investigated or passed upon in such office or
employ.86
A lawyer may not, as counsel for a client, attack the validity
of the instrument prepared by him.86 For that reason, he may not
represent an obligor against an obligee in the event of the obligor’s
refusal to perform his obligations on the ground that the agreement,
prepared by him as counsel, is a nullity.87 While he may act as counsel
for a party to enforce the agreement against another not formerly his
client in the drafting of the instrument, he may not do so as against
another party who was his client in the preparation thereof.88 After
81A.B.A.
82A.B.A.
Op. 165 (August 23, 1936).
Op. 275 (September 20, 1947).
“A.B.A. Op. 247 (December 19,1942).
“A-B.A. Ops. 103 (December 15,1933) and 40 (September 15,1931).
“Canon 36, Canons of Professional Ethics; Pasay Law and Conscience, Inc. v.
Paz, 95 SCRA 24 (1984).
“Bautista v. Barriors, 9 SCRA 695 (1963).
mCf. Sumangil v. Sta Romana, 84 Phil. 777 (1949).
“Bautista v. Barrios, 9 SCRA 695 (1963); Velasquez v. Barrera, 29 SCRA 312
(1969).
LAWYER’S DUTIES OF FAIR DEALINGS AND AVOIDING
CONFLICT OF INTERESTS
313
representing a client in a patent infringement suit and helping
effect a compromise under the terms of which his client was granted
a license under the patent, a lawyer may not subsequently represent
another client who seeks to nullify the patent.89
§10.14. Attorney’s interest versus client’s interest.
An attorney should not put himself in a position where selfinterest tempts him to do less than his best for his client. For this
reason, it is improper for a lawyer to continue representing a client
in a suit against a party even with the client’s consent after the
lawyer brings suit in his own behalf against the same defendant
if it is uncertain whether the defendant will be able to satisfy both
judgments.90 It is likewise improper to have financial stakes in the
subject matter of the suit brought on behalf of his client.91 In either
case the possibility of a conflict between self-interest and that of
his client exists which may affect the performance of his duty of
undivided fidelity to his client.
§10.15. Rule applicable to law firm.
Where a lawyer is disqualified or forbidden from appearing as
counsel in a case because of conflict of interests, the law firm of which
he is a member as well as any member, associate or assistant therein
is similarly disqualified or prohibited from so acting.92 Such principle
is a corollary of the rule that the employment of one member of a law
firm is considered as an employment of the law firm and that the
employment of a law firm is equivalent to a retainer of the members
thereof. A law firm may not, therefore, represent a client whose
interests are adverse to those of the employer of a member of the
firm.93 It may not also represent a co-receiver when one receiver is a
member of the firm.94 Nor may it accept employment in a litigation
involving the same facts that were passed upon by a member while
serving in the government.96
89A.B.A.
90A.B.A.
Op. 177 (February 18, 1938).
Op. 132 (March 15, 1935).
Op. 288 (October 11, 1954).
92Hilado v. David, 84 Phil. 569 (1949); Laskey Bros, of W. Wa. v. Warner Bros.
Pictures, Inc. 224 F2d 824 (1955).
93A.B.A. Op. 192 (February 18, 1939).
^A.B.A. Op. 181 (May 10,1938).
96A.B.A. Op. 49 (December 12, 1931), Sec. 21(b), Rules of Court; In re De la
Rosa, 27 Phil. 258 (1914): Magno v. Gellada, supra.
91A.B.A.
314
LEGAL AND JUDICIAL ETHICS
The fact that a lawyer, who is a member of a law firm, appears
as counsel for a client not as a member of the law firm and uses
an address different from that of the latter and the law firm, by
any of its members, is counsel for the same client or in any matter
related to that of the client, does not render the rule on conflict of
interest inapplicable. Neither does the privilege given a member of
a law firm free practice excuse him from representation of conflict of
interests.
§10.16. Limitations on general rule.
The rule against representation of conflicting interests is subject to certain limitations. Where no conflict of interests exists,
where the clients knowingly consent to the dual representation or
where no true attomey-client relationship is attendant, the prohibition does not apply.
§10.17. Where no conflict of interests exists.
A lawyer may properly represent a subsequent client against
a former client in a matter which is not, in any way, related to the
previous controversy in which he appeared for the former client.
In forwarding the interest of the present client, the lawyer will
be called neither to oppose what he had espoused on behalf of his
former client nor to use any confidential information against him
in view of the unrelatedness of the subject matters involved. The
lawyer represents no conflicting interests in that situation.96
A lawyer may properly represent an administrator of the
estate of a deceased wife and subsequently the administrator of
that of the deceased husband, both administrators having similar
duties and asserting no interest adverse to that of the heirs of the
spouses.97 After complainant has desisted from further prosecution
in a criminal action, counsel for the accused may properly prepare,
upon request of complainant, a motion to dismiss the action and
intervene on the latter’s behalf during the hearing of the motion.98
Similarly, a lawyer for an accused in a prosecution for rape may,
“Pardy v. Ernst, 143 P 429 (1914); Peckkhani v. Ramsey, 94 NE 290 (1911);
Schall v. Ely, 5 NW 651 (1880); Wilber v. Wilber 105 A 664 (1918); Re Wilson 170 NY
Supp 725 (1918).
97Magno v. Gellada, 42 SCRA 549 (1971).
"Nombrado v. Hernandez, 26 SCRA 13 (1968).
LAWYER’S DUTIES OF FAIR DEALINGS AND AVOIDING
CONFLICT OF INTERESTS
315
after the accused’s marriage with the offended party, act as counsel
for the latter in seeking a dismissal of the criminal complaint on
that ground." The conflict of interests having ceased, the prohibition
against representing conflicting interests no longer applies.
§10.18. Where clients knowingly consent.
Generally, a lawyer may at a certain stage of the controversy
and before it reaches the court represent conflicting interests
with the express written consent of all parties concerned given
after full disclosure of the facts.100 The disclosure should include a
thorough explanation of the nature and extent of the conflict and
the possible adverse effects of the dual representation,101 such as the
possible revelation or use of confidential information.102 A common
representation may work to the advantage of the 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.103 Where, however, the circumstances of the case
apparently show that the parties require independent counsel, the
lawyer should so advise them and withdraw from employment.104
With the written consent of a former client, a lawyer may with
full disclosure to a prospective client accept employment from the
latter against the former. The consent of the former client constitutes
a release of the attorney from his obligation to keep inviolate the
client’s confidences or to desist from injuriously affecting him in
any matter in which he previously represented him.106 Upon request
of the contracting parties, a lawyer may prepare an agreement for
their signatures,106 and, with full disclosure and knowing consent of
"People v. Velasco, 55 SCRA 217 (1974).
100Rule 15.03, Code of Professional Responsibility; Canon 6, Canons of Professional Ethics; Rule 130, Sec. 2(b).
101Nakpil v. Valdez, 286 SCRA 758 (1998); A.B.A. Op. 160 (May 5, 1936); See
also A.B.A. Op. 243 (June 20, 1942).
102See Canon 37, Canons of Professional Ethics.
103Dee v. Court of Appeals, 176 SCRA 651 (1989).
104/n re De la Rosa, 27 Phil. 258 (1914).
105Canons 6 and 37, Canons of Professional Ethics; Rule 130, Sec. 2(b), Rules of
Court; Bautista v. Gonzales, 182 SCRA 151 (1990).
106A.B.A. Op. 243 (June 20, 1942); See Bautista v. Barrios, 9 SCRA 695
(1963).
316
LEGAL AND JUDICIAL ETHICS
the parties, represent the obligee against the obligor to enforce the
contract.107 He may, of course, draft a contract upon request of only
one party as his client, but he should refrain from advising the other
contracting party of his rights.108
There may be occasions when common representation of
opposing parties with their consent is advisable before but not after
their controversy has reached the court.109 The lawyer, acting as a
sort of a good office, mediator, conciliator or arbitrator, may be able
to work out an acceptable settlement of the clients’ differences. If,
however, the conflict of interests between the contending clients
has reached such a point that, notwithstanding their consent to the
common representation, the lawyer may be suspected of disloyalty
by one client, he should immediately discontinue representing both
of them. While the clients’ consent to the dual representation may
exempt him from administrative liability, his continuing to act in a
double capacity strikes deeply at the foundation of the attomey-client
relationship.110 He should, in such a case, withdraw as counsel.
The general rule that a lawyer may be allowed to represent
conflicting interests, where the parties consent to the representation,
may apply only when one client is a former client, and not where
both clients are current clients in the case, where each asserts an
interest adverse to that of the other. In this situation, the lawyer
cannot represent both clients at the same time, even if they give
their written consent, for it is not only awkward for him to sustain
the claim or argument of one and oppose and refute the same in
favor of the other, but it is also impermissible and highly unethical.
The lawyer cannot with undivided fidelity serve two masters with
opposing interests at the same time.
A lawyer may not properly represent conflicting interests even
though the parties concerned agree to the dual representation where
the conflict is between the attorney’s interest and that of a client or
between a private client’s interest and that of the government or any
of its instrumentalities. Self-interest, in the first instance, should
Bautista v. Barrios, 9 SCRA 695 (1963).
A.B.A. Ops. 102 (December 15,1933) and 224 (July 12,1941); See Vda. de
Zubiri v. Zubiri, 18 SCRA 1157 (1966).
lmCf
10SCf.
109Dee
110Rule
258 (1914).
v. CA, 176 SCRA 651 (1989).
15.04, Code of Professional Responsibility; In re De la Rosa, 27 Phil.
LAWYER’S DUTIES OF FAIR DEALINGS AND AVOIDING
CONFLICT OF INTERESTS
317
yield to the client’s interest;111 public policy and public interest, in
the second instance, forbid the dual representation even with the
clients’ consent.112
§10.19. Where no true attorney-client relationship exists.
The rule forbidding a lawyer from representing an interest adverse to that of a former client assumes, as a general proposition,
that a true attomey-client relationship previously existed. Consequently, the absence of such relationship either with the attorney
or with the law firm of which he is a member makes the prohibition
inapplicable.113
A lawyer for a litigant in an action against multiple parties is
not disqualified as to those who were not his former clients, but the
presence of a former client among them in a related suit bars the
attorney from participating as counsel in the litigation.114 A lawyer
for a protestant in one election case and for a protestee in another
election case, both cases having arisen from the same election of
officials within a province and the protestee in the first case and the
protestee in the second case belonging to the same political party,
represents no conflicting interests where neither the political party
as a separate entity nor the parties adverse to his clients had ever
engaged the services of the attorney.115 A public prosecutor may
ethically sustain an information against an accused who is the
complainant in another information filed by the same prosecutor
because the latter represents not the private complainant but the
people of the Philippines as the real offended party.116
The attorney’s secretary, stenographer or clerk who, in such
capacity, has acquired confidential information from the attorney’s
client may not accept employment or, after becoming a member of
the bar, represent an interest adverse to that of the attorney’s client.
The general prohibition applies to such person, notwithstanding the
mA.B.A.
Op. 132 (March 15, 1935).
A. & B. 209 A2d 101,17 ALR3d 827 (1965): A.B.A. Op. 16 (June 11,1929).
See Batoy v. Blanco, 84 SCRA 585 (1978).
u3Cf. Hilado v. David, 84 Phil. 569 (1949); Lester v. Gay 117 So 211, 59 ALR
1561 (1928); Hicks v. Drew, 49 P 189 (1897); Meehan v. Hopps, 301 P2d 10 (1956).
U4Consolidated Theatre, Inc. v. Warner Bros. Cir. Management Corp., 216 F2d
920, 52 ALR2d 1231 (1954).
115Lamen v. Alejandro, CA-G.R. No. 34638-R, January 20,1965.
116People v. Mediavilla, 52 Phil. 94 (1928).
n2Re
318
LEGAL AND JUDICIAL ETHICS
absence of a true attorney-client relationship at the time confidential
information was acquired, because of the nature of his work and his
access to confidential communications during his employment.117
§10.20. Effects of representation of conflicting interests.
The representation by a lawyer of conflicting interests, in the
absence of written consent of all parties concerned given after a full
disclosure of the facts,118 constitutes professional misconduct which
subjects the lawyer to disciplinary action.
The attorney may also be disqualified from representing the
new client upon petition of his former client.119 The fact that the
former client took several months from the date of first trial to move
for the attorney’s disqualification does not operate as a waiver of his
right to object to the lawyer’s appearance for the adverse party.120
Where the representation of conflicting interests is unknown
and works prejudice to the new client, a judgment against the latter
may, on that ground, be set aside.121 Such principle is based on the
theory that if a lawyer is disqualified from appearing as counsel for
a party on account of inconsistency of duties, he is presumed to have
improperly and prejudicially advised and represented the party in
the conduct of the litigation from beginning to end.122
Two questions must, therefore, be asked: Firstly, did the attorney change or have the opportunity to change his previous position
as counsel for a party in championing the cause of the new client? In
other words, did he discharge or have the opportunity to discharge
conflicting duties? Secondly, did the new client suffer prejudice? An
affirmative answer to both questions may justify the setting aside of
the adverse judgment against the new client. Thus, where a lawyer
for plaintiff prepared, for the signature of defendant, the answer to
117Rule 130, Sec. 21(b), Rules of Court; Canon 37, Canons of Professional Ethics; Consolidated Theatre, Inc. v. Warner Bros. Cir. Management Corp., 216 F2d 920,
52 ALR2d 1231 (1954).
>mIn re De la Rosa, 27 Phil. 258 (1914); Canons 6 and 37, Canons of Professional Ethics.
119Hilado v. David, 84 Phil. 569 (1949); Sumangil v. Sta. Romana, 84 Phil. 777
(1949).
120Hilado v. David, 84 Phil. 569 (1949).
121U.S. v. Laranja, 21 Phil. 500 (1912); Vda. de Zubiri v. Zubiri, 18 SCRA 1157
(1966).
122U.S. v. Laranja, 21 Phil. 500 (1912).
LAWYER’S DUTIES OF FAIR DEALINGS AND AVOIDING
CONFLICT OF INTERESTS
319
the complaint which practically confessed judgment, or where a lawyer connived at his client’s defeat or sold out his client’s interest, the
judgment against the defendant was set aside.123 Where a defense
counsel for an accused, who previously acted as private prosecutor
against a co-accused in a criminal prosecution involving the same
offense, presented the testimonies of witnesses taken in the prosecution of the first case as defense evidence to prove self-defense in
the second case, he discharged or had the opportunity to discharge
conflicting duties to the client’s prejudice, and the judgment of conviction against his client was set aside on that ground.124 However,
if no prejudice is shown and the lawyer has displayed zeal and vigor
in the defense of the accused, the dual representation, although improper or erroneous, may not be a sufficient cause to warrant the
setting aside of the judgment of conviction.125
The attorney’s right to be paid for his services rendered in
favor of his former client may be affected by the representation
of conflicting interests only if the two matters are related and the
former client objected to such representation.126 The new client may
not defeat the attorney’s right to fees in the absence of concealment
and prejudice by reason of the attorney’s previous professional
relationship with the opposite party.127
123Vda. de Zubiri v. Zubiri, 18 SCRA 1157 (1966); Laxamana v. Court of Appeals, G.R. No. 37317, November 24, 1978.
124U.S. v. Laranja, 21 Phil. 500 (1912).
125People v. Manigbas, 109 Phil. 469 (1960); People v. Nierra, 96 SCRA 1 (1980);
Olshen v. McMann, 378 F2d 993, 27 ALR3d 1426 (1967).
126Wright v. Webb, 278 SW 335 (1925); Deupree v. Garnett, 277 P2d 168 (1954);
Re Rorem’s Estate, 66 NW2d 292, 47 ALR2d 1089 (1954).
127Grauberger v. Light, 16 P2d 188 (1932).
Chapter XI
AUTHORITY OF ATTORNEY
A. IN GENERAL
§11.01. Power to bind client, generally.
A lawyer must perform his duties to his client within the scope
of his authority. The extent of his authority is defined by what is
expected of him as provided by law and the Rules of Court and/or
by the written authority granted him by his client. The former is a
general and implied authority, while the latter is a special authority
granted by the client to bind him on substantial matter.
Generally, the professional employment of an attorney confers
upon him the general authority to do on behalf of his client such acts
as are necessary or incidental to the prosecution or management of
the suit entrusted to him or the accomplishment of its purpose for
which he was retained.1 The authority embraces matters of ordinary
procedure only. Within the scope of such authority, the attorney can
bind the client by any act performed pursuant thereto,2 such as to take
such legal steps as he deems necessary file the required pleadings as
plaintiffs or petitioner’s counsel or to take such actions as may be
necessary to protect the interests of the defendant or respondent as
a defense counsel. The client has the right to expect that his lawyer
will protect his interests during the trial of the case.3
(1952).
1Rodriguez
v. CFI of Rizal, 88 Phil. 417 (1951); Salazar v. Jarabe, 91 Phil. 596
2Rule 138, Sec. 23, Rules of Court; Etorma v. Ravelo, 78 Phil. 145 (1947); Belandres v. Lopez Sugar Central Mill Co., 97 Phil. 100 (1958); Isaac v. Mendoza, 89
Phil. 279 (1951); Phil. Land-Air Sea Labor Union v. Cebu Portland Cement Co., 14
SCRA 424 (1965); Cruz v. Jugo, 66 Phil. 102 (1938).
3Apex Mining, Inc. v. CA, 319 SCRA 456 (1999).
320
AUTHORITY OF ATTORNEY
321
The general rule is that the negligence or mistake of counsel
binds the client. This rule is based on the principle that any act
performed by a counsel within the scope of his general or implied
authority is regarded as the act of his client. Consequently, the
mistake or negligence of counsel may result in the rendition of an
unfavorable judgment against the client.4
The employment by itself confers upon the attorney no implied
or apparent authority to bind the client on substantial matters.5
The cause of action, the claim or demand sued upon and the subject
matter of the litigation are substantial matters which the attorney
may not impair, novate, compromise, settle, surrender or destroy
without the client’s consent or authority.6 The test by which the
validity of the attorney’s commitment on substantial matters may
be judged is a written agreement7 or a special authority.8
§11.02. Attorney as agent of client.
The relation of attorney and client is in many respects one
of agency, and the general rules of ordinary agency apply to such
relation.9 As the attorney is an agent of the client, the latter is, in
accordance with the rules of agency, bound by the act or omission
of its attorney within the scope of his authority.10 A lawyer signing
an appeal bond11 or a notice on behalf of a client is acting as agent
of the client12 and can lawfully act on his behalf in any matter in
4Salonga v. CA, 269 SCRA 534 [1997], citing Agpalo, Legal Ethics, pp. 278-279
[1989]; Apex Mining, Inc. v. CA, 319 SCRA 456 [1999],
5Belandres v. Lopez Sugar Central Mill Co., 97 Phil. 100 (1958); Salazar v.
Jarabe, 91 Phil. 596 (1952); Natividad v. Natividad, 51 Phil. 613 (1928); Rodriguez v.
Santos, 55 Phil. 721 (1931); Monte de Piedad v. Rodrigo, 56 Phil. 310 (1931); People v.
Maceda, 73 Phil. 679 (1942); Rodriguez v. CFI of Rizal, 88 Phil. 417 (1951).
6Natividad v. Natividad, 51 Phil. 613 (1928); Belandres v. Lopez Sugar Central
Mill Co., 97 Phil. 100 (1958); Caballero v. Deiparine, 60 SCRA 136 (1974).
7Rodriguez v. CFI of Rizal, 88 Phil. 417 (1951).
8Home Ins. Co. v. United States Lines Co., 21 SCRA 865 (1967); Vicente v.
Geraldez, 52 SCRA 210 (1973).
9Art. 1868, et seq., Civil Code of the Philippines.
10Cruz v. Jugo, 66 Phil. 102 (1938); Viviero v. Santos, 98 Phil. 500 (1956); U.S.
v. Umali, 15 Phil. 33 (1910); Flores v. Phil. Alien Property Administrator, 107 Phil.
773 (1960); Montes v. CFI of Tayabas, Phil. (1926); Isaac v. Mendoza, 89 Phil. 279
(1951).
nNator v. Ramolete, 101 SCRA 716 (1980).
12Buldog Concrete Forms Sales Corp. v. Taylor, 195 F2d 417, 49 ALR2d 1.
322
LEGAL AND JUDICIAL ETHICS
which the client has a right or interest to be protected.13 The extent
of authority of a lawyer, when acting on behalf of his client outside
of court, is measured by the same test as that which is applied to an
ordinary agent.14
An attorney representing a client in court is, however, more
than an agent and has powers different from and superior to those
of an ordinary agent,16 he being an officer of the court with rights,
privileges and duties peculiar only to a lawyer.
§11.03. Collection of claims.
An attorney retained by a creditor to enforce a claim has the
authority to take all steps necessary to collect it, such as sending
a letter of demand requiring payment of the obligation within a
specified period16 or filing the corresponding action in court in the
event of the debtor’s refusal to pay.17 He has also the authority to
release the debtor from his obligation upon full payment thereof in
cash and to issue a receipt therefor.18 The client’s remedy, in case
he has not received the amount due him, is not against the obligor
who has already been discharged from his obligation but against his
attorney who holds the money in trust for his benefit.19
However, an attorney cannot, without special authority,
discharge his client’s claim for less than the amount thereof or for
the full amount in kind.20 Nor can he, without special authority,
encash or endorse a check or draft payable to his client21 or deliver
the proceeds of a claim to a person other than to his client.22
13Benguet
Consolidated, Inc. v. Montemayor, 14 SCRA 581 (1965).
14Carrol v. Pratt, 247 Minn. 198, 76 NW2d 693; Brown v. Hebb, 175 A 602, 97s
ALR 366 (1934).
16Hoppe v. Klapperich, 28 NW2d 780 173 ALR 819 (1947).
16Javier v. Cornejo, 63 Phil. 293 (1936).
11 Cf. German & Co. v. Donaldson, Sim & Co., 1 Phil. 63 (1901).
18Rule 138, Sec. 23, Rules of Court; Commercial Credit Co. v. Crone, 270 SW
209 (1925); Weidenfeld v. Olson, 271 NW 806 (1937).
19Lee Kim Pio v. Dy Chin, G.R. No. 18852, December 29,1962; Aya v. Bigomia,
57 Phil. 8 (1932); Cf. Grey v. Insular Lumber Co., 97 Phil. 833 (1955).
20Rule 138, Sec. 23, Rules of Court; Rodriguez v. CFI of Rizal, 88 Phil. 417
(1951); Natividad v. Natividad, 51 Phil. 612 (1928).
2lIn re Rillaroza, 99 Phil. 1041 (1956).
22/ra re Abad, 98 Phil. 899 (1956), or to his client’s authorized agent; Singco v.
Montenegro, 59 Phil. 419 (1932).
AUTHORITY OF ATTORNEY
323
§11.04. Acceptance of service of summons.
Ordinarily, an attorney has no power to receive or accept on
behalf of his client the service of summons in his bare professional
capacity. He is not, in the absence of other circumstances indicating
the contrary, an agent within the meaning of the rule authorizing
service of summons upon an agent of a corporation.23
An attorney may, however, be regarded as an agent upon whom
service of summons intended for his corporate client may be made
and binding on the latter, where there are circumstances showing
that he has been conferred or is exercising additional power than
what is implied from the professional employment.24 Thus, where a
foreign corporation without any agent or officer in this country other
than its counsel who is also its sole representative for setting claims
is sued for a sum of money and damages, the service of summons
made upon its counsel binds the corporation because, as the sole
representative charged with the duty of setting claims against it,
the attorney is presumed to have communicated to his client the
service of process upon him and as counsel he is also presumed to be
prompt in the protection of his client’s interest and diligent in the
discharge of his duty.25 And an attorney who acted as counsel for a
corporate taxpayer in the administrative stage of a tax deficiency
assessment proceeding and replied on his client’s behalf to a letter
of demand for payment of the deficiency tax, is deemed to be the
corporate taxpayer’s agent on whom summons concerning the civil
action for collection of the tax against the taxpayer may be served.26
Section 11 of Rule 14 of the 1997 Rules of Civil Procedure
provides that “when the defendant is a corporation, partnership
or association organized under the laws of the Philippines with a
juridical personality, service (of summons) may be made on the
resident, managing partner, general manager, corporate secretary,
treasurer, or in-house counsel.” By specifying “in-house counsel” as
one of those who may be legally served with summons on behalf of
the corporation, the implication is that the new rule excludes outside
or retained or settling lawyer who may be served with summons
on behalf of the corporation and who, under the law rule, was
“Rule 14, Sec. 13, Rules of Court.
24Republic v. Ker & Co., Ltd., 18 SCRA 208 (1966); Johnlo Trading Co. v. Flores,
88 Phil. 741 (1951).
25Johnlo Trading Co. v. Flores, supra.
“Republic v. Ker & Co., supra.
LEGAL AND JUDICIAL ETHICS
324
considered an agent upon whom service of summons was binding
on his principal, in accordance with the maxim, exclusio unius est
exclusio alerius.21
§11.05. Delegation of authority.
Since the relation of attorney and client is one of utmost trust,
an attorney may not without the client’s consent, express or implied,
delegate the confidence and the authority that goes with it to another
lawyer.28 Nor may an attorney assign a contract of professional
services still to be rendered in favor of another lawyer without the
client’s conformity.29 However, the client may ratify an unauthorized
delegation or the circumstances of the professional employment
may furnish sufficient basis to assign the retainer, including the
authority implied therefrom.30
§11.06. Delegation of legal work.
It should be stressed that what a lawyer may not delegate in
the absence of the client’s consent is the confidence reposed in him,
as distinguished from the work involved therein. A lawyer has the
implied power to delegate to his associate or assistant attorney,
under his supervision and responsibility, part or the whole of the
legal work required to be performed in the prosecution or defense
of the client’s cause.31 In the absence of an express agreement with
the client to the contrary, he may authorize another lawyer on his
behalf to appear in court,32 and the lawyer so acting is presumed to
be empowered to act in that capacity.33
The fact that the attorney has delegated part or the whole of
the legal work in favor of another lawyer does not, by such fact alone,
21E.
(1999).
B. Villarosa & Partner Co., Ltd. v. Benito, 110 SCAD 466; 312 SCRA 65
28Laughlin v. Boatman’s Nat. Bank, 163 SW2d 761; Re Kaemmerger, 178 SW2d
474; Nelson v. Smith, 154 P2d 643 157 ALR 512 (1944); Re Heirch, 10 IU2d 357, 140
NE2d 825, 67 ALR2d 827 (1956).
29Menzi & Co. v. Bastida, 63 Phil. 16 (1936).
“See Pittsburgh Plate Glass Co. v. Director of Patents, 56 SCRA 243 (1974);
Cudahy Packing Co. v. Director of Patents, 40 SCRA 137 (1971).
31Garcia v. Flores, 101 Phil. 781 (1951); Chavez v. Guanzon, 108 Phil. 6 (1960);
Sison v. Suntay, 102 Phil. 769 (1957).
32Singson v. Aragon, 92 Phil. 514 (1953); sign a pleading; Garcia v. Flores, supra; or receive a notice; Chainani v. Tancinco, 98 Phil. 862 (1952).
33Garcia v. Flores, supra; Singson v. Aragon, supra.
AUTHORITY OF ATTORNEY
325
make the latter the counsel of the attorney’s client nor necessarily
create an attomey-client relationship between them.34 Hence,
neither of them owes the other any obligation. The client may not
therefore be held liable for the fees of the associate counsel hired by
the client’s lawyer in the absence of an agreement to that effect.36
A lawyer may not, however, delegate to a layman any work
which involves a study of the law or its application, such as the
computation and determination of the period within which to appeal
an adverse judgment.36 These matters involve the practice of law
which may be undertaken only by a lawyer.
B. AUTHORITY TO APPEAR
§11.07. Generally.
An attorney may not, without being retained or authorized by
the court, represent another in court. His authority to appear for a
client commences only from the time he is retained by the client37
or by the latter’s agent.38 The authority of the attorney continues
until the termination of the litigation unless sooner revoked or
withdrawn by the client.39 And in cases where a judge is made a
respondent in a petition challenging the judge’s ruling, the counsel
for private respondent who is interested in having the questioned
act sustained has the authority, as he is obligated, to appear for the
judge concerned.40
No written authority from the client is necessary to enable a
lawyer to represent him in court.41 His appearance in whatever form
is an assertion that he has been duly authorized to prosecute or
defend the client’s cause.42 However, an administrative agency, when
^Garcia v. Flores, supra.
36De
la Vina v. Deopano, 51 Phil. 935 (1926).
v. Rodriguez, 107 Phil. 612 (1960), the examination of witnesses or the
presentation of evidence; Robinson v. Villafuerte, 18 Phil. 121 (1911).
37Stone v. Bank of Commerce, 174 U.S. 412, 43 L ed 1028 (1899).
^Government v. Wagner, 54 Phil. 132 (1929); Municipality of Iloilo v. Evangelista, 55 Phil. 290 (1930); Guerrero v. Hernando, 68 SCRA 76 (1975).
39Visitacion v. Manit, G.R. No. 27231, March 27, 1969; Wack Wack Golf &
Country Club v. Court of Appeals, 106 Phil. 501 (1959).
"Taroma v. Sayo, 67 SCRA 508 (1975).
41Rule 133, Sec. 21, Rules of Court; Obras Pias v. Regidor, 2 Phil. 151 (1905).
42Cebu Stevedoring Co. Inc. v. Ramolete, 106 SCRA 638 (1981).
36Eco
326
LEGAL AND JUDICIAL ETHICS
authorized by law, may require that a lawyer appearing for a client
in a particular case before it submit a written power of attorney
from the client.43
§11.08. Appearance.
An “appearance” means the coming into court as a party
either as a plaintiff or as a defendant and asking relief therefrom.44
An attorney for a plaintiff initially appears in court when he files
a complaint or petition on behalf of his client.45 Thereafter, an
attorney for either plaintiff or defendant may enter his appearance
in any form, as by filing a pleading or motion or attending a hearing
in court.46 Appearance as counsel is a voluntary submission to the
court’s jurisdiction by a legal advocate or lawyer professionally
engaged to represent and plead the cause of another,47 such as by
actual physical appearance or by filing pleadings in court.48
The orderly conduct of judicial proceedings, however, requires
that counsel for a party should file with the court his formal
written appearance in the case.49 The formal method of entering
an appearance in a case is to file with the court a pleading usually
entitled “Appearance,” with the signature of the client conforming
thereto, asking the clerk of court to enter his name as counsel for a
party and requesting that copies of orders, processes, decision and
pleadings be henceforth sent to him at the address therein clearly
"Rule 19 of the Revised Rules of Practice before the Philippines Patent Office
provides that “before any attomey-at-law be allowed to take action in any case or
proceeding, ex parte or inter artes, a written power of attorney or authorization must
be filed in the particular case or proceeding.” This requirement is not, however,
jurisdictional in nature, especially in regard to mere motion for extension; a cable
authorization from the agent of the trademark owner is sufficient when followed by a
formal power of attorney from the client. Cudahy Packing Co. v. Director of Patents,
G.R. No. 22647, July 30, 1971.
■“Everett Ry., Light & Power Co. v. United States, 236 F 806; Thompson v.
Michigan Mut. Ben. Ass’n., 18 NW 247, 52 Mich 522.
45De Midgely v. Femandos, G.R. No. 34315, May 13,1975; Manila Railroad Co.
v. Attorney-General, 20 Phil. 523 (1911).
“Ong Ching v. Ramolete, 51 SCRA 13 (1973); Flores v. Zurbido, 37 Phil. 746
(1918); Ramos v. Manalac, 89 Phil. 270 (1951); Republic v. Ker & Co., Ltd., 18 SCRA
208 (1966); Marquez Lim Cay v. Del Rosario, 55 Phil. 962 (1931); Monteverde v. Jaranilla, 60 Phil. 297 (1934).
47Villegas v. Legaspi, 113 SCRA 39 (1982).
48Santos v. NLRC, 254 SCRA 673 (1996).
490ng Ching v. Ramolete, 51 SCRA 13 (1973).
AUTHORITY OF ATTORNEY
327
indicated, with copy of his appearance furnished the adverse party.60
Without such formal appearance, counsel is not generally entitled to
notice.61 Judicial administration cannot afford to suffer uncertainty
because of uncertainty concerning the lawyer upon whom service
is to be made.62 However, the fact that a lawyer has not entered his
formal appearance does not warrant the conclusion that the pleading
filed by him has no legal effect whatsoever.53
§11.09. General and special appearance.
Prior to the 1997 Rules of Civil Procedure, a distinction is
made between a general appearance and a special appearance on
their effects regarding the court’s acquisition of jurisdiction over
the person of the defendant. Thus, it has been held that any action
on the part of defendant or his counsel, except to object solely to
the jurisdiction of the court over the person of the defendant, which
recognizes the case in court, constitutes a general appearance and
amounts to a voluntary submission to the court’s jurisdiction.54 An
appearance although qualified by the word “special” in which the
jurisdiction over the person is not expressly impugned or if impugned
other relief is sought, is also equivalent to a general appearance.56
A special appearance is one which seeks to contest solely the
jurisdiction of the court over the person of the defendant and which
seeks no relief other than the dismissal of the action exclusively on
that ground, and which does not operate as a voluntary submission
to the jurisdiction of the court over the person of the defendant.56
In other words, prior to the adoption of the 1997 Rules of Civil
Procedure, the rule is that unlike a special appearance, a general
appearance operates as a voluntary submission to the jurisdiction
of the court over the person of the defendant and takes the place of
50Flores
v. Zurbido, 37 Phil. 746 (1918).
51Dirigo v. Biranya, 17 SCRA 840 (1966); Esquivias v. Sison, 61 Phil. 211
(1935) ; Magpayo v. Court of Appeals, 61 SCRA 115 (1974).
62Dirigo v. Biranya, 17 SCRA 840 (1966).
530ng Ching v. Ramolete, 51 SCRA 13 (1973); Mandac v. Gumarod, 87 Phil.
278 (1950).
“Central Azucarera de Tarlac v. De Leon, 56 Phil. 169 (1931).
66Catala v. Monteverde, 63 Phil. 503 (1936); Republic v. Ker & Co., Ltd., 18
SCRA 208 (1966) Menghra v. Tarachand, 67 Phil. 286 (1939); Bank of P.I. v. De
Coster, 47 Phil. 594 (1924).
“Flores v. Zurbido, 37 Phil. 746 (1918); Central Azucarera de Tarlac v. de Leon,
56 Phil. 169 (1931); Manila Railroad Co. v. Attorney-General, 20 Phil. 523 (1911).
328
LEGAL AND JUDICIAL ETHICS
or cures any defect in the service of summons upon him.67 Hence,
an attorney employed by a defendant to defend an action has the
authority to waive the jurisdiction of the court over the person of
his client by making a general appearance in the pending litigation58
but not by entering a special appearance solely for the purpose of
impugning the jurisdiction of the court over the person of his client.
Section 20 of Rule 14 of the 1997 Rules of Civil Procedure has
amended the rule. It provides that the “inclusion in a motion to dismiss
of other grounds aside from lack of jurisdiction over the person of
the defendant shall not be deemed a voluntary appearance.” This
amendment removes the distinction between special appearance
and general 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.
§11.10. Presumption of authority.
An attorney is presumed to be properly authorized to represent
any cause in which he appears in all stages of the litigation and
no written authority is required to authorize him to appear.59 His
appearance is presumed to be with the previous knowledge and
consent of the litigant whose representation he assumes until the
contrary is shown.60
The presumption is a strong one. A mere denial by a party that
he has authorized an attorney to appear for him, in the absence of
a compelling reason, is insufficient to overcome the presumption,61
especially when the denial comes after the rendition of an adverse
(1954)
(1936).
67Flores
v. Zurbido, 37 Phil. 746 (1918); Jaranilla v. Gonzales, 96 Phil. 3
“Ramos v. Manalac, 89 Phil. 270 (1951); Catala v. Monteverde, 63 Phil. 503
69Rule 138, Sec. 21, Rules of Court; Commissioner of Customs v. K.M.K. Gani,
182 SCRA 591 (1990); Ramos v. Manalac, 89 Phil. 270 (1951); People v. Mendoza,
93 Phil. 581 (1953); De Jesus-Alano v. Tan, 106 Phil. 554 (1958); Republic v. Phil.
Resources Dev. Corp., 102 Phil. 960 (1958); Visitacion v. Manit, 27 SCRA 523 (1969);
Azotes v. Blanco, 78 Phil. 739 (1947).
“Mercado v. Ubay, 187 SCRA 719 (1990); Azotes v. Blanco, 78 Phil. 739
(1947).
61Azotes v. Blanco, 78 Phil. 739 (1947); De Jesus-Alano v. Tan, 106 Phil. 554
(1959) ; Gibbs v. Commissioner of Internal Revenue, 155 SCRA 318 (1965).
AUTHORITY OF ATTORNEY
329
judgment.62 The fact that a second attorney has entered his appearance on behalf of a litigant does not authorize a presumption that
the authority of the first attorney has been withdrawn;63 it merely
means that the litigant has employed an additional counsel.64
An attorney who appears de parte in a case before a lower court
is presumed to continue representing his client on appeal.66 If a
lawyer other than the counsel de parte perfected the appeal, the two
attorneys are considered to be the counsel of record on appeal, in the
absence of a withdrawal of appearance, a notification to the contrary
or a proper substitution of counsel.66 And a lawyer who appears as
counsel for a party in a case whose records have been endorsed to
another court for further proceedings is presumed to be the attorney
of the party in the latter court.67
The rule that an attorney who appears de parte in a case before
the lower court is presumed to continue to represent his client on
appeal does not apply where the attorney entered his representation
merely in the nature and character of “special appearance” and only
for a specific purpose, as when he appeared upon request of the
counsel of record to ask for postponement of the trial as the latter
could not, for some unavoidable reason, attend the hearing on the
scheduled date. In this instance, notice to him of a copy of a decision
is not a valid notice.68
The presumption of authority in favor of an attorney to represent
any cause in which he appears exists only as to matters of ordinary
judicial procedure and not as to substantial matters affecting the
cause of action of the litigation, with reference to which the attorney
needs a special power to bind the client.69 Moreover, a lawyer has no
62Ramos v. Manalac, 89 Phil. 270 (1951); Lopez v. Gonzaga, G.R. No. 18788,
January 31,1964.
“Aznar v. Morris, 3 Phil. 636 (1904); Olivares v. Leola, 97 Phil. 253 (1955);
Ong Ching v. Ramolete, 51 SCRA 13 (1973); Magpayo v. Court of Appeals, 61 SCRA
115 (1974).
MOng Ching v. Ramolete, 51 SCRA 13 (1973), as he has the right to have as
many lawyers as he can afford.; Monzon v. Reyes, 67 SCRA 402 (1975).
“Rule 138, Sec, 22, Rules of Court; Hernandez v. Clapiz, 87 Phil. 437 (1950).
“Palteng v. Court of Appeals, 26 SCRA 736 (1969); Don Lino Gutierrez & Sons,
Inc. v. Court of Appeals, 61 SCRA 87 (1974); Baquira v. Court of Appeals, 2 SCRA
873 (1961).
67Epang v. De Leyco, 97 Phil. 24 (1955).
“Pendot v. Court of Appeals, 172 SCRA 20 (1989).
“Home Ins. Co. v. United States Lines, (1967); Rodriguez v. CFI of Rizal, 88
Phil. 417 (1951); Natividad v. Natividad, 51 Phil. 613 (1928); Belandres v. Lopez
Sugar Central Mill Co., 97 Phil. 100 (1958).
330
LEGAL AND JUDICIAL ETHICS
implied authority to represent a party in a proceeding incidental to
the main litigation in which he appears for a litigant. Thus, a lawyer
for an accused has no implied power to receive a notice intended for
bondsmen who put up the bond for the provisional release of his
client.70
§11.11. Presumption disputable.
The presumption that an attorney is duly authorized to
manage a litigation is a disputable one and may be overcome by a
clear evidence to the contrary.71 For instance, a judicial declaration
that a litigant is incompetent72 or a finding that he is a citizen and
resident of a foreign country who has no knowledge that a lawyer is
representing him in a case is sufficient to overcome the presumption.73
In either instance the litigant could not have possibly authorized the
attorney to represent him.
The authority of an attorney to appear in a case may be
challenged by the party adversely affected by the attorney’s
representation. That party may be the purported client himself.74 The
petition questioning the authority must be seasonably presented; it
may not be entertained generally on appeal75 or after the rendition
of a judgment unfavorable to the petitioner.76 Public interest and
the security of judicial proceedings require that a litigant, with
knowledge of the attorney’s assumed authority, should not wager
on the outcome of the litigation by permitting him to question the
attorney’s authority when the decision is adverse or to benefit
therefrom when the judgment is favorable.77
™Mayuga v. Abeto, 42 Phil. 946 (1921).
71Gorostiaga v. Sarte, 68 Phil. 4 (1939); Lim Siok Huey v. Lapiz, 103 Phil. 930
(1958); Azotes v. Blanco, 78 Phil. 739 (1947).
72Gorostiaga v. Sarte, 68 Phil. 4 (1939).
73Lim Siok Huey v. Lapiz, 103 Phil. 930 (1958); De Guerrero v. Hernandez, 68
SCRA 76 (1975).
74Guinto v. Bonfing, 48 Phil. 884 (1926); Tan Lua v. O’Brien, 55 Phil. 53 (1930),
or the opposite litigant; Republic v. Phil. Resources Dev. Corp., 102 Phil. 960 (1958);
Lim Siok Huey v. Lapiz, 103 Phil. 930 (1958); Dimayuga v. Court of Industrial Relations, 101 Phil. 590 (1957).
75Republic v. Phil. Resources Dev. Corp., 102 Phil. 960 (1958).
76Jaranilla v. Gonzales, 96 Phil. 3 (1954); Lopez v. Gonzaga, 10 SCRA 167
(1964).
71Cf. Ramos v. Manalac, 89 Phil. 270 (1951); People v. Mendoza, 93 Phil. 581
(1953) ; Tsui Lua v. O’Brien, 55 Phil. 53 (1930); Etorma v. Ravelo, 78 Phil. 145 (1947);
Lopez v. Gonzaga, supra.
AUTHORITY OF ATTORNEY
331
§11.12. Disclosure of authority.
Notwithstanding the fact that an attorney is presumed to be
duly authorized to represent a party in a case, the presiding judge
may, on motion of either party and on reasonable ground therefor
being shown, require him who assumes the right to appear in the
case to produce or prove his authority and to disclose, whenever
pertinent to any issue, the name of the person who employed him.78
Moreover, the trial or appellate court, motu proprio, has the power
at any stage of the litigation to require an attorney, as one of its
officers and on valid grounds, to show his authority to appear.79 But
the court may not disregard the attorney’s authority on the faith of
the client’s word, especially when no substantial rights of a third
party are thereby prejudiced.80
The requirement for the production of authority is essential
because the client will be bound by his acquiescence resulting from
his knowledge that he was being represented by said attorney. His
failure to present such authority from the client when his authority
to appear is challenged gives rise to the inference that he has no
such authority.81
§11.13. Effects of unauthorized appearance.
A party who has not authorized an attorney to represent
him is not bound by the attorney’s appearance in the case nor by
the judgment rendered therein.82 The unauthorized appearance of
counsel for a plaintiff or a defendant who has not been served with
summons, as the case may be, confers upon the court no jurisdiction
over the person of either party. And 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.83
If the unauthorized appearance is willful, the attorney may be
cited for contempt as an officer of the court who has misbehaved
78Rule 138, Sec. 21, Rules of Court; Lim Siok Huey v. Lapiz, 103 Phil. 930
(1958); Dimayuga v. Court of Industrial Relations, 101 Phil. 950 (1957).
79Sta.
Rosa v. Fall, 273 U.S. 315, 71 L ed 658 (1927).
“Pittsburg Plate Glass Co. v. Director of Patents, 56 SCRA 243 (1974).
81Commissioner of Customs v. K.M.K. Gasmi, 182 SCRA 591 (1990).
82Lim Siok Huey v. Lapiz, 103 Phil. 930 (1958); Gorostiaga v. Sarte, 68 Phil. 4
(1939); Guinto v. Bonfing, 48 Phil. 884 (1926).
83Lim Siok Huey v. Lapiz, supra.
332
LEGAL AND JUDICIAL ETHICS
in his official transactions.84 In addition, he may be disciplined for
professional misconduct.85 Prudence, therefore, dictates that an
attorney, for his professional protection, should enter into a written
retainer or secure from his client a written authority to represent
him in court. A written retainer will enable a lawyer, when his
authority is challenged, to easily justify his appearance in court or
to show his good faith in appearing for a litigant.86
§11.14. Ratification of unauthorized appearance.
The unauthorized appearance of an attorney in a case may
be ratified by the party concerned either expressly87 or impliedly.88
Ratification retroacts to the date of the attorney’s first appearance
and validates the action taken by him.89 It also removes the taint of
impropriety in the attorney’s conduct as an officer of the court.90
An express ratification is a categorical assertion by the client
that he has authorized the attorney or that he is confirming his
authority to represent him in the case. The court or administrative
tribunal cannot but recognize the attorney’s authority, when so
ratified, on the faith of the client’s word.91 There is implied ratification
where a party, with knowledge of the fact that an attorney has been
representing him in a case, accepts the benefit of the representation92
or fails to promptly repudiate the assumed authority.93 Ratification
by inaction is based on the premise that the security of judicial
proceedings requires that evasions and tergiversations of an
unsuccessful litigant should not be received with favor.94
“Rule 133, Sec. 21, Rules of Court.
86Monzon v. Reyes, 67 SCRA 402 (1975); Vda. de Guerrero v. Hernando, 68
SCRA 76 (1975).
“C/I Garrido v. Quisumbing, 28 SCRA 614 (1969); Guinto v. Lim Bonfing, 48
Phil. 884 (1926).
87Pittsburg Plate Glass Co. v. Director of Patents, 56 SCRA 243 (1974).
88Tan Lua v. O’Brien, 55 Phil. (1930); Ramos v. Manalac, 89 Phil. 270 (1951);
People v. Mendoza, 93 Phil. 581 (1953).
"See Art. 1396, Civil Code of the Philippines.
mCf. Garrido v. Quisumbing, 28 SCRA 614 (1969).
91Pittsburg Plate Glass Co. v. Director of Patents, 56 SCRA 243 (1974); Cuday
Packing Corp. v. Director of Patents, 40 SCRA (1971).
92See Acuna v. Batac Producers Marketing Ass’n., Inc. 20 SCRA 526.
93Tan Lua v. O’Brien, 55 Phil. 53 (1930); Ramos v. Manalac, 89 Phil. 270 (1951);
People v. Mendoza, 93 Phil. 581 (1953).
94Tan Lua v. O’Brien, 55 Phil. 53 (1930); Ramos v. Manalac, 89 Phil. 270
(1951).
AUTHORITY OF ATTORNEY
333
The principle of implied ratification by silence requires the concurrence of three requisites, namely: (a) that 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; (b)
that the party or his guardian, as the case may be, is aware of the
attorney’s representation; and (c) that he fails to promptly repudiate
the assumed authority.95 The absence of any one of such requisites
renders implied ratification inoperative.96
C. CONDUCT OF LITIGATION
§11.15. Generally.
The line of demarcation between the respective powers of an
attorney and his client is clearly defined. 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; and an attorney may
not impair, compromise, settle, surrender or destroy them without
the client’s consent.97 Generally, a client may waive, surrender,
dismiss or compromise any of his rights involved in a litigation in
favor of the other party even without or against the consent of his
attorney.98
A lawyer has authority to bind the client in all matters of
ordinary judicial procedure. He has the implied authority to do all
acts necessary or incidental to the prosecution and management of
the suit in behalf of his client. He has the exclusive management of
the procedural aspect of the litigation, including the enforcement
of the rights and remedies of his client.99 All proceedings in court to
enforce the remedy, to bring the claim, demand, cause of action or
subject matter of the suit to hearing, trial, determination, judgment
96Tan Lua v. O’Brien, 55 Phil. 53 (1930); Guinto v. Bonfing, 48 Phil. 84 (1926);
Lim Huey v. Lapiz, 103 Phil. 930 (1958); Gorostiaga v. Sarte, 68 Phil. 4 (1939).
96Lim Siok Huey v. Lapiz, 103 Phil. 930 (1958); Gorostiaga v. Sarte, 68 Phil.
4 (1939).
97Belendres v. Lopez Sugar Central Mill Co., 97 Phil. 100 (1955); Caballero v.
Deiparine, 60 SCRA 136 (1974); Natividad, v. Natividad, 51 Phil. 613 (1928).
98PSCFC Financial Corp. v. Court of Appeals, 216 SCRA 838 (1992); Mobil Oil
Phil., Inc. v. CFI of Rizal, 208 SCRA 523 (1992).
"Aro v. Nanawa, 27 SCRA 1090 (1969); Samonte v. Samonte, 64 SCRA 524
(1975); Rustia v. CFI of Batangas, 44 Phil. 62 (1922); De Mondia v. Public Service
Commission, 65 Phil. 708 (1938).
334
LEGAL AND JUDICIAL ETHICS
and execution are within the exclusive control of the attorney.100
The implied or apparent power of an attorney with respect to the
management of the litigation is limited to those matters of judicial
procedure with reference to which he needs no special authority to
bind his client.101 As long as an attorney remains counsel of record
in a case, the client may be heard or notified in the enforcement of
the remedy only through his counsel. The client may not himself
take the necessary procedural steps to prosecute or defend his
action in disregard of his attorney without impliedly terminating
the authority of his counsel.102
An attorney can bind his client on substantial matter only with
the client’s express or implied consent. Generally, an attorney needs
a special power from his client to compromise an action, settle a
claim for less than the amount thereof, confess judgment, admit the
accused’s guilt of a minor offense,103 novate or materially change a
judgment,104 submit questions to arbitration,106 waive objections to
the venue of a suit,106 abandon a prescription already acquired,107
dismiss an action with prejudice, renounce the right to appeal108 or
withdraw an appeal.109 The limitations to the power of an attorney
are particularly designed to safeguard the client’s interests against
malicious or improvident actions of his counsel who, in the complexity
of judicial litigations and by the highly technical nature of his
work and the primarily confidential relation between him and his
principal, handles his client’s case without the client’s intervention
or knowledge.110
100Belendres v. Lopez Sugar Central Mill Co., 97 Phil. 100 (1955); Samonte v.
Samonte, 64 SCRA 524 (1975).
101Rule 138, Sec. 23, Rules of Court; Rodriguez v. Santos, 55 Phil. 721 (1931).
v. CFI of Batangas, 44 Phil. 62 (1922); Aro v. Nanawa, 27 SCRA 1090
(1969); De Mondia v. Public Service Commission, 65 Phil. 708 (1938); Samonte v.
Samonte, 64 SCRA 524 (1975).
103U.S. v. Gimenez, 34 Phil. 74 (1916); People v. Fresco, 63 Phil. 526 (1936);
U.S. v. Estrana, 16 Phil. 520 (1910).
104Rodriguez v. CFI of Rizal, 88 Phil. 417 (1951).
106Art. 1878(3), Civil Code of the Philippines.
106Art. 1878(3), Civil Code of the Philippines.
107Art. 1878(3), Civil Code of the Philippines.
108Acenas v. Sison, 8 SCRA 711 (1963); Vicente v. Geraldez, 52 SCRA 210
(1973).
109People v. Macellones, 49 SCRA 529 (1973); People v. Lafuente, 37 Phil. 671
(1918).
U0Rodriguez v. CFI of Rizal, 88 Phil. 417 (1951).
102Rustia
AUTHORITY OF ATTORNEY
335
§11.16. Determination of procedural questions.
A lawyer who has been retained to prosecute or defend an
action has the implied authority to determine what procedural steps
to take which, in his judgment, will best serve the interests of his
client.111 Such questions as what action or pleading to file, where and
when to file it, what are its formal requirements, what should be
the theory of the case, what defenses to raise, how may the claim or
defense be proved, when to rest the case, as well as those affecting
the competency of a witness, the sufficiency, relevancy, materiality
or immateriality of certain evidence and the burden of proof are
within the authority of the attorney to decide.112 Whatever decision
an attorney may make on any of those procedural questions, even
if it affects adversely the client’s cause, will generally bind the
client and the latter may not be heard to complain that the result
of the litigation might have been different had counsel proceeded
differently.
§11.17. Making admissions.
The authority of an attorney to manage the client’s cause
includes the power to make admissions of facts for the purpose of
the litigation. He does not need a special authority from his client
to admit the truth of certain facts.113 The admission may be express
or implied; it may be made in a pleading or motion or orally in open
court.114 An implied admission by counsel may take the form of his
failure to deny specifically the material allegations of the adverse
party116 or to traverse under oath the due execution and authenticity
■“People v. Manzanilla, 43 Phil. 167 (1922); Collector of Internal Revenue v.
Bohol Land Trans. Co. 107 Phil. 963 (1960).
112Viviero v. Santos, 98 Phil. 500 (1956); Isaac v. Mendoza, 89 Phil. 279 (1951);
Cruz v. Jugo, 66 Phil. 102 (1938); Robles v. San Jose, 99 Phil. 659 (1956); People v.
Manzanilla, 43 Phil. 167 (1922); Miravite, Jr. v. People, 54 SCRA 420 (1973).
113Rodriguez v. Santos, 55 Phil. 721 (1931); Phil. Land-Air-Sea Labor Union v.
Cebu Portland Cement Co., 14 SCRA 424 (1965); De Garcia v. Court of Appeals, 37
SCRA 129 (1971).
114Libutan v. Gil, 45 SCRA 17 (1972); Santiago v. De los Santos, 61 SCRA 146
(1974).
116Sy-quia v. Marsman, 22 SCRA 927 (1968); Talastas v. Abella, 25 SCRA 579
(1974) ; Cortes v. Bautista, 90 Phil. 167 (1951); People v. Casiano, 111 Phil. 73 (1961);
Asia Banking Corp. v. Olsen, 48 Phil. 529 (1925).
336
LEGAL AND JUDICIAL ETHICS
of actionable documents116 or the claim of usury;117 or of his submission
of the case for decision upon the verified complaint and verified
answer without the introduction of evidence.118
The general rule is that request for admission under Section 1,
Rule 26 of the Rules of Court should be served upon the party and
not upon his counsel. The client may, however, engage the services
of counsel to respond to the request for admission on the client’s
behalf and the response is valid and binding, except where the
lawyer oversteps his authority which can only be impugned by the
client, not the adverse party.119
Admissions made by counsel are imputed to and are generally
conclusive against the client.120 However, the court may relieve a
party of the adverse consequences of his attorney’s admission upon a
showing of palpable mistake.121 Until such time, a party or his counsel
may not be permitted to contradict or refute by contrary evidence
what the attorney has admitted, and proof submitted contrary
thereto or inconsistent therewith should be ignored, whether or not
objection is interposed by the other party.122
Generally, the authority of an attorney to make admissions is
limited to the action in which he is retained; consequently, admissions
made by him on behalf of a client in one case are not binding upon
the same client in another suit, except when the attorney has been
expressly authorized to make the admission123 or the subsequent
litigation is related to the previous controversy.124
The authority of an attorney to bind his client as to any
admission of facts made by him is, moreover, limited to matters
U6Asia Banking Corp. v. Olsen, 48 Phil. 529 (1925); J.P. Juan & Sons, Inc. v.
Lianga Industries, Inc., 28 SCRA 807 (1969).
117Rule 9, Sec. 1, Rules of Court of his filing a motion for judgment on the pleadings; Rodriguez v. Llorente, 49 Phil. 823 (1926).
118Aquino v. Blanco, 79 Phil. 647 (1947).
119PSCFC Financial Corp. v. Court of Appeals, 216 SCRA 838 (1992).
120Rule 129, Sec. 2, Rules of Court; Cunanan v. Amparo, 80 Phil. 227 (1948);
Rodulfa v. Alfonso, 76 Phil. 225 (1946); Garcia v. Court of Appeals, 37 SCRA 129
(1971).
121Irlanda v. Pitargue, 22 Phil. 383 (1912); Granada v. Phil. National Bank, 18
SCRA 1 (1966).
122Santiago v. De los Santos, 61 SCRA 146 (1974).
123Son of Rama v. Benedicto, 5 Phil. 513 (1906); In re Estate of De Farinas, 13
Phil. 63 (1909).
124Bagsa v. Nagramada, 11 Phil. 174 (1908); In re Estate of De Farinas, 13 Phil.
63 (1909).
AUTHORITY OF ATTORNEY
337
of judicial procedure. An admission which operates as a waiver,
surrender or destruction of the client’s cause is beyond the scope
of the attorney’s implied authority.125 For this reason, a lawyer as
private prosecutor cannot, without special power, admit that his
client, the offended party, suffered no damages arising from the
crime as it deprives his client of that special interest which entitles
him to intervene in the criminal action.126 Neither can he, as counsel
for plaintiff in an ordinary damage suit in connection with the death
of a person, admit that his client’s cause is in the nature of a claim
for workmen’s compensation, said admission being tantamount to
denying the civil court of the jurisdiction to entertain the action.127
In a criminal proceeding, counsel for the accused may not, on
arraignment, enter a plea of guilty on the accused’s behalf even if
he is so authorized.128 Nor will the attorney’s admission of the facts
on which the guilt of the accused is based preclude a review of the
facts on appeal, especially when the accused has maintained his
innocence in a letter sent to the appellate court.129 The attorney’s
admission cannot take the place or have the force of evidence of
guilt, nor can such admission be accepted as competent proof to cure
the fatal defects in the information and as the basis upon which
the guilt must solely depend.130 A counsel de oficio may, however,
if otherwise convinced recommend the affirmance by the appellate
court of the trial court’s verdict.131
§11.18. Entering into stipulations.
A lawyer has the general or implied authority to agree or
stipulate upon the facts involved in a litigation even without the prior
knowledge or consent of his client.132 His signature in a stipulation
is an admission of the truth of all the facts therein stated, including
125Belandres v. Lopez Sugar Central Mill Co., 97 Phil. 100 (1958); People v.
Maceda, 73 Phil. 679 (1942); Caballero v. Deiparine, 60 SCRA 136 (1974).
126People v. Maceda, 73 Phil. 679 (1942).
121Belandres v. Lopez Sugar Central Mill Co., 97 Phil. 100 (1958).
128Rule 116, Sec. 1,1984 Rules of Criminal Procedures.
129People v. Fresco, 63 Phil. 526 (1936).
130U.S. v. Estrana, 16 Phil. 520 (1910).
131People v. Irisuillo, 83 Phil. 1 (1948).
132Rule 30, Sec. 2, Rules of Court; Rodriguez v. Santos, 55 Phil. 721 (1931);
Ortua v. Rodriguez, 63 Phil. 809 (1936); Victoria v. Victoria, 93 Phil. 15 (1953); Talins
v. Chuakay & Co., G.R. No. 10127, June 30,1958.
338
LEGAL AND JUDICIAL ETHICS
the changes made thereon.133 Such stipulation may include an agreed
statement, an agreement to abide by what a third party designated
to ascertain the facts has found134 or a request to the court to approve
a finding made by a commissioner.136
Like an admission made by counsel in a pleading or in the
course of proceeding, a stipulation is binding upon the client.136 The
fact that the client never authorized his attorney to make a particular
statement does not detract from its binding effect, unless he raises
such question seasonably,137 for a party may not be allowed to gainsay
his own act or deny a right which he has previously recognized.138
Nor does the circumstance that the fact agreed upon by the attorney
is unfavorable to the client diminish its binding force.139
A stipulation does not require proof.140 In the absence of any
other evidence, the duty of the court is to render judgment strictly
on the basis of the stipulation;141 it may not disregard a fact solemnly
agreed by counsel as true or decline to give it its manifest legal effect
in adjudicating the rights of the parties.142
A party may be relieved of the legal effects of the stipulation
made by his attorney only (a) when he is allowed to withdraw
therefrom with the consent of the other party;143 (b) when the court,
upon showing of palpable mistake, permits him to withdraw from
the stipulation;144 or (c) when what the lawyer agreed is that a
witness, if presented in court, would testify as stated by the adverse
attorney.146 In the last two exceptions, counsel may present evidence
aliunde to show palpable mistake in the first instance146 or offer
133Philippine
134Siping
Education Co. v. Manila Port Service, 27 SCRA 1031 (1969).
v. Cacob, 10 Phil. 717 (1908); Kalalo v. Luz, 34 SCRA 337 (1970).
136Manila Railroad Co. v. Arzadon, 20 Phil. 452 (1911).
136Phil. Land-Air-Sea Labor Union v. Cebu Portland Cement Co., 14 SCRA 424
(1965); Victoria v. Victoria, 93 Phil. 15 (1953).
137Godinez v. Pelaez, G.R. No. 18491, February 27, 1971.
13eIrlanda v. Pitargue, 22 Phil. 383 (1912).
139Phil. Land-Air-Sea Labor Union v. Cebu Portland Cement Co., 14 SCRA 424
(1965).
140Rule 129, Sec. 2, Rules of Court; Sta. Ana v. Maliwat, 24 SCRA 1018 (1968);
Phil. Education Co. v. Manila Port Service, 27 SCRA 1031 (1969).
141Stevension & Co. v. Collector of Internal Revenue, 71 Phil. 182 (1927).
142Alzua v. Johnson, 21 Phil. 308 (1912).
1430rtua v. Rodriguez, 63 Phil. 809 (1936).
144Rule 129, Sec. 2, Rules of Court.
146Ramos v. Ramos, 45 Phil. 362 (1923).
146Granada v. Phil. National Bank, 18 SCRA 1 (1966).
AUTHORITY OF ATTORNEY
339
rebuttal evidence to refute what the witness would have testified in
the second instance.147
If what a lawyer has stipulated is not related to the enforcement of a remedy but to the cause of action or subject matter of
the litigation, the client is not bound thereby in the absence of a
precedent special authority or a subsequent ratification on the part
of the client.148 Thus, a stipulation made by plaintiffs counsel in an
action to annul a deed of sale executed in favor of the defendant to
the effect that defendant acquired the property in good faith with a
just title and for a valuable consideration, cannot bind the plaintiff
as said stipulation practically gave away plaintiff s case in favor of
the defendant.149 Similarly, the conformity of counsel to the adverse
party’s motion which materially changed a judgment will not bind
the client.150
§11.19. Agreement as to what witness would testify.
There is a distinction between an agreement as to the truth
of what a witness, if presented, would testify on the one hand and
a stipulation as to what a witness would say as stated by counsel
for the adverse party on the other hand. The former is generally
binding upon the client; the latter is not and has been frowned upon
by the court as it deprives the court of the benefit of reflection upon
the intelligence and veracity of the witness which can arise only
from the process of examination and cross-examination in court.151 A
lawyer may stipulate only as to facts but not as to the manner the
facts are to be offered. The order of trial is not a personal matter
between the parties, one that they may ignore or renounce as if it
only concerned them privately. The form of trial is a matter of public
order and interest.152
In a criminal proceeding, the court may not accept as full
equivalent of proof on oath a stipulation of counsel that if a certain
witness were presented for the prosecution as well as for the
147Ramos v.
Ramos, 45 Phil. 362 (1923).
146Belandres
v. Lopez Sugar Central Mill Co., 97 Phil. 100 (1958); Caballero v.
Deiparine, 60 SCRA 136 (1974).
149Caballero v. Deiparine, 60 SCRA 136 (1974).
150Rodriguez v. CFI of Rizal, 88 Phil. 417 (1951).
151Ramos v. Ramos, 45 Phil. 362 (1923).
152Arzadon v. Arzadon, 15 Phil. 77 (1910); Alejandro v. Pepito, 96 SCRA 322
(1980).
340
LEGAL AND JUDICIAL ETHICS
defense, he would testify as to the very substance of the issue.153 It is
not within the knowledge or competence of counsel to predict what
a supposed witness would say under the sanction of his oath and
the test of cross-examination. Nor is it possible for a trial court to
weigh with exact nicety the contradictory declarations of witnesses
not produced in court.154 A conviction based on such stipulation
may be set aside,155 except when the stipulation is entirely for the
benefit of the accused as the error is one of which he has no reason
to complain.166
§11.20. Compromise of cause of action.
“A compromise is a contract whereby the parties, by making
reciprocal concessions, avoid a litigation or put an end to one
already commenced.”167 Its essence is that a party must give up some
of his rights in consideration of the same act on the part of the other
party.168 The only elements necessary to a valid compromise are the
reality of the claim and the bona fides of the compromise. In the
absence of statutory requirement, no particular form of agreement
is essential to its validity.169
It is well settled that an attorney has no authority to compromise his client’s cause without the client’s consent.160 He may not,
unless expressly authorized, settle the action or subject matter of
the litigation even though he honestly believes that a settlement
will best serve the client’s interest.161 Either a special authority or a
subsequent ratification on the part of a client is essential to the va-
163U.S.
164U.S.
v. Donato, 9 Phil. 701 (1907); U.S. v. Manlimos, 11 Phil. 547 (1908).
v. Pobre, 11 Phil. 53 (1908); Arzadon v. Arzadon, 15 Phil. 77 (1910).
v. Donato, 9 Phil. 701 (1907); U.S. v. Pobre, 11 Phil. 53 (1908).
166U.S. v. Castaneda, 10 Phil. 761 (1908); U.S. v. Manlimos, 11 Phil. 547 (1908);
U.S. v. Lorenzana, 12 Phil. 64 (1908).
167Art. 2028, Civil Code of the Philippines; Medina v. CFI of Cavite, 75 Phil.
518 (1941).
168Jesalva v. Bautista, 105 Phil. 348 (1959).
169Cadano v. Cadano, 49 SCRA 33 (1973).
160Rule 138, Sec. 23, Rules of Court; Monte de Piedad v. Rodrigo, 56 Phil. 310
(1931) ; Alviar v. CFI of La Union, 64 Phil. 301 (1937); Medina v. CFI of Cavite, 73
Phil. 518 (1941); Jacinto v. Montesa, 19 SCRA 513 (1967); Dungo v. Lopena, 6 SCRA
1007 (1962); Vicente v. Geraldez, 52 SCRA 210 (1973).
161Caballero v. Deiparine, 60 SCRA 136 (1974); Acenas v. Sison, 8 SCRA 711
(1963).
166U.S.
AUTHORITY OF ATTORNEY
341
lidity of a compromise effected by an attorney.162 Thus, counsel for an
accused cannot compromise the civil liability arising from the crime
of his client, without special power to do so from the client, and the
compromise, even if approved by the court, cannot be given force and
effect.163
If what an attorney entered into is not a true compromise, as
that term is understood in law, he requires no special authority to
bind the client.164 Thus, an agreement by counsel although entitled
“compromise” which contained nothing more than a recognition of
the obligations of the client under the facts disclosed in the pleadings
and in conformity with existing law, is not a true compromise, the
essence of which resides in reciprocal concessions, and the client is
bound thereby notwithstanding the fact that he has not authorized
his lawyer to sign the agreement.166 A client in whose favor a
“compromise” agreement executed by his counsel without special
authority operated solely to the client’s benefit may not be heard to
repudiate the agreement, the same not being a true compromise as
he has not given up any of his rights in consideration of the benefit
granted him.166
A lawyer must be armed with a special authority to compromise
an action or claim not only when signing a settlement on behalf of
his client but also when appearing, in the absence of his client, in
a pre-trial proceeding. One of the purposes of a pre-trial conference
is to discuss the possibility of a settlement and, without the lawyer
securing such special authority, his client may be non-suited
or considered in default.167 The special authority need not be in
writing, although it is not only wise but prudent as well to secure
a written authority. If not in writing, the special power must be
duly established by evidence other than the self-serving assertion
of counsel himself that such power was verbally given him. The
authority to compromise cannot be lightly presumed.168
162Rule 138, Sec. 23, Rules of Court; Salazar v. Jarabe, 91 Phil. 596 (1952);
Dungo v. Lopena, 6 SCRA 1007 (1962).
163People
v. Carpo, G.R. No. 132676, April 4, 2001.
164Merced v. Roman Catholic Archbishop of Manila, 20 SCRA 1077 (1967);
Dungo v. Lopena, 6 SCRA 1007 (1962).
166Merced v. Roman Catholic Archbishop of Manila, 20 SCRA 1077 (1967).
166Dungo v. Lopena, 6 SCRA 1007 (1962).
167Taroma v. Sayo, 67 SCRA 508 (1975).
168Home Insurance Co. v. United States Lines Co., 21 SCRA 865 (1967); Vicente v. Geraldez, 52 SCRA 210 (1973).
342
LEGAL AND JUDICIAL ETHICS
The special authority may be conferred upon the attorney by
the client himself or by the latter’s authorized agent. In the case of
a corporate client, only the board of directors, as a rule, can grant
such authority as an incident of its power to compromise. The power
of the board may, however, be delegated in favor of its corporate
officers either expressly or impliedly.169
A compromise effected by a client or by his attorney with special
authority from him has upon the parties the effect and authority
of res judicata.™ The approval by the court of the compromise is
not essential to its validity,171 except that which is entered into in
a class suit172 or executed on behalf of a minor, an incompetent, an
absentee or a decedent’s estate, as to which court approval thereof is
necessary to make it binding.173 However, there shall be no execution
of the compromise except in compliance with one which has been
approved by the court or with a judgment based thereon.174
§11.21. Effect of want of special authority.
A compromise executed by counsel without special authority
or consent on the part of the client does not bind the latter. It is
moreover a reprehensible act which amounts to a fraud against the
client.175
A compromise entered into by the client’s attorney without
having been authorized to do so by the client has been invariably
described as null and void ab initio,176 or unenforceable.177 An accurate
characterization of the effect of want of special power on the part
of counsel is that the settlement is merely unenforceable and not
169Vicente
170Art.
v. Geraldez, 52 SCRA 210 (1973).
2037, Civil Code of the Philippines; Sabido v. Cuba, 18 SCRA 981 (1966);
Piano v. Cayanong, 7 SCRA 397 (1963); Araneta v. Perez, 7 SCRA 923 (1963); Serrano v. Miave, 13 SCRA 461 (1965).
171Salazar v. Jarabe, 91 Phil. 596 (1952).
172Rule 17, Sec. 1, Rules of Court.
173Art. 2023, Civil Code of the Philippines.
174Art. 2037, Civil Code of the Philippines; Salazar v. Jarabe, 91 Phil. 596
(1952).
175Caballero v. Deiparine, 60 SCRA 136 (1974); Gonzales v. Parrenas, 94 SCRA
48 (1979).
176Dorego v. Perez, 22 SCRA 8 (1968); Jacinto v. Montesa, 19 SCRA 513 (1967);
Alviar v. CFI of La Union, 64 Phil. 301 (1937); Medina v. CFI of Cavite, 73 Phil. 518
(1941); Paluwagan ng Bayan Savings Bank v. King, 172 SCRA 60 (1989).
177Dungo v. Lopena, 6 SCRA 1007 (1962).
AUTHORITY OF ATTORNEY
343
null and void ab initio. That legal effect results from the nature of a
compromise which is a contract178 and a contract entered into in the
name of another person by one who has not been given authority or
legal representation or who acted beyond his power is, by express
provision of law, unenforceable,179 capable of being ratified by the
client. Hence, it is neither accurate nor correct to conclude that the
absence of a special authority on the part of the attorney renders
the compromise and the judgment based thereon null and void,180 as
the compromise is only unenforceable capable of ratification by the
client.
A judgment based on a compromise executed by an attorney
without special authority from the client may be set aside or
reopened. The party seeking to reopen it with a view to a renewed
of the litigation must show that he acted with diligence; an
unexplained delay in seeking relief is a circumstance that may affect
the application adversely.181 Moreover, the client must show that he
would stand to gain something by the reopening of the case.182
§11.22. Ratification of unauthorized compromise.
A client may ratify an unauthorized compromise entered into
by his counsel either expressly or tacitly.183 Ratification cleanses the
compromise agreement of all its defects from the moment it was
constituted,184 and the client who becomes bound thereby cannot
thereafter disown it.185
A tacit or implied ratification may take many forms, such as by
silence or acquiescence, by acts showing approval or adoption of the
compromise or by acceptance and retention of the benefits flowing
therefrom.186 Laches may operate to validate an agreement invalid
from its inception, as when the client on becoming aware of the
178
Art. 2028, Civil Code of the Philippines.
179Art. 1403,
Civil Code of the Philippines.
Lopena, 6 SCRA 1007 (1962).
l81Rivero v. Rivero, 59 Phil. 15 (1933); Dungo v. Lopena, 6 SCRA 1007 (1962);
Banco Espanol Filipino v. Palanca, 37 Phil. 921 (1918).
182Anduiza v. Quirona, G.R. No. 5073, May 20, 1953.
183Arts. 1317 and 1393, Civil Code of the Philippines.
184Art. 1396, Civil Code of the Philippines.
186Salazar v. Jarabe, 91 Phil. 596 (1952); Cadano v. Cadano, 49 SCRA 33 (1973);
Rivero v. Rivero, 59 Phil. 15 (1933).
186Acuna v. Batac Producers Cooperatives Marketing Ass’n., Inc., 20 SCRA 526
(1967).
180Dungo v.
344
LEGAL AND JUDICIAL ETHICS
compromise fails to repudiate promptly the action of his attorney or
to avail himself of the procedural remedies to have the compromise
or the judgment based thereon set aside. In such a case, ratification
of the unauthorized compromise will be presumed with the burden
placed on the client to rebut the presumption.187 What constitutes
a length of time sufficient to raise a presumption of ratification
depends upon the circumstances of each case. It has been held that
the lapse of two years,188 eight years189 or ten years190 from the time
the client became aware of the unauthorized compromise made the
presumption attain the stature of moral certainty.191
A client who, when informed of the compromise effected by his
counsel, fails to promptly repudiate the action of his attorney will
not afterwards be heard to complain about it or is deemed to have
acquiesced in the settlement.192 Where a compromise by counsel was
approved by the court in the presence of his client who raised no
objection thereto, it is presumed that the court, in the performance
of its duty, has ascertained a priori the conformity of the party to
the settlement before approving it.193 Such presumption does not
arise where the client was not in court at the time it approved the
settlement effected by his counsel.194
A corporate client may ratify an unauthorized compromise
only through its board of directors or any of its officers authorized to
settle the action. It can never be made by the person who wrongfully
assumed the power to execute the compromise, unless the governing
body subsequently gives him the authority to ratify it.196
Ratification by a client of an unauthorized compromise may
also be implied from the fact that he receives the benefits of the
settlement with knowledge thereof.196 A client may not be permitted
187Rivero v. Rivero, 59 Phil. 15 (1933); Banco Espafiol Filipino v. Palanca, 29
Phil. 163 (1918); Manila Railroad Co. v. Court of Industrial Relations, 89 Phil. 726
(1951).
188Salazar v. Jarabe, 91 Phil. 596 (1952); Dungo v. Lopena, 6 SCRA 1007
(1962).
189Cadano v. Cadano, 49 SCRA 33 (1973).
190De la Victoria v. Levy Hermanos, Inc., 14 SCRA 996 (1965).
191Salazar v. Jarabe, 91 Phil. 596 (1952).
192Phil. Aluminum Wheels, Inc. v. PASGI Enterprises, Inc., 342 SCRA 722
(2000) ; Uy Chico v. Union Life Ass. Society, 29 Phil. 163 (1915).
193Cadano v. Cadano, 49 SCRA 33 (1973).
194Acenas v. Sison, 8 SCRA 711 (1963).
196Vicente v. Geraldez, 52 SCRA 210 (1973).
196Yamall v. Yorkshire Worsteh Mills, 87 A2d 192, 30 ALR2d 939 (1952).
AUTHORITY OF ATTORNEY
345
to reject a compromise when it suits him or to accept it when it,
too, suits him. However, where a client who is unaware of the
compromise accepts the fruits thereof under the honest belief that
it is merely part payment of what the other party owes him, he may
not be estopped from prosecuting the balance of his claim.197
§11.23. Confession of judgment.
A confession of judgment stands on the same footing as a
compromise agreement. Hence, a lawyer may not confess judgment
against his client except with the knowledge and at the instance
of the client.198 Thus, a lawyer may not, without special authority,
deliberately refuse to make a defense or expressly withdraw an
opposition to a claim so as to clear the way for an entry of judgment
against his client.199 Nor may he, without being authorized, agree
that a judgment be rendered against his client for a sum of money
payable at an extended period even though he honestly believes that
what he did best serves the client’s interest.200
But while a client may not be bound by a judgment confessed
by his attorney without special authority, he may generally be bound
by an adverse decision rendered as a result of the attorney’s inaction
or negligence, such as his failure to appear at the pretrial,201 attend a
hearing,202 present sufficient evidence203 or appeal a judgment.204 The
reason for this is that the adverse judgment is a mere consequence
of an omission on a procedural matter in regard to which an attorney
has the implied authority to bind his client.
§11.24. Dismissal of action or withdrawal of appeal.
A lawyer has no authority to dismiss his client’s case with
prejudice even if he does not believe that his client is entitled to
197United
(1963).
States v. Beebe, 180 U.S. 343, 45 L ed 563 (1901).
v. Natividad, 51 Phil. 613 (1928); Acenas v. Sison, 8 SCRA 711
198Natividad
‘"Natividad v. Natividad, 51 Phil. 613 (1928); Cf. Fernandez v. Tan Tiong Tick,
111 Phil. 773 (1961).
200Acenas v. Sison, supra.
201Saulog v. Custombuilt Mfg. Corp., 26 SCRA 1 (1968).
202Viviero v. Santos, 98 Phil. 500 (1996).
203Tesorio v. Court of Appeals, 54 SCRA 296 (1973).
204Joven De Jesus v. Phil. National Bank, 12 SCRA 477 (1964).
346
LEGAL AND JUDICIAL ETHICS
prevail in the action.206 A dismissal with prejudice operates as an
adjudication of the action upon its merits and precludes its refilling
in court on the ground of res judicata.206 For this reason, a lawyer
requires a special authority before he can dismiss his client’s cause
with prejudice. Such dismissal should, however, be distinguished
from a dismissal for failure to appear at the hearing, prosecute the
action or comply with a court order, which operates generally as an
adjudication upon the merits,207 the latter type of dismissal being
a consequence of a procedural act or omission within the general
authority of an attorney.
An attorney has, however, the implied power to dismiss his
client’s case without prejudice, that step not being a legal obstacle
to its refilling,208 whenever he is convinced that it is to the client’s
interest.209 Thus, a lawyer may properly ask that his client’s action be
dismissed without prejudice when, by reason of the client’s repeated
failure to appear at the hearing or to give him the necessary evidence,
he cannot proceed with the trial of the case.210 That step is better than
a dismissal of the action on the same ground, upon motion of the
adverse party or upon the court’s own motion, since such dismissal
has the effect, unless otherwise decreed, of an adjudication upon the
merits.211
A lawyer has no implied authority to waive his client’s right to
appeal212 nor to withdraw a pending appeal.213 While he may bring
about either result by negligence or mistake in procedure which
will bind his client, he cannot without special authority expressly
renounce the client’s right to appeal, that step not being a procedural
measure to enforce a remedy but a willingness to accept and abide
by the judgment of the trial court.214 But a client may ratify or be
““Virginia Concrete Co. v. Board of Supervisors, 91 SE2d 415, 56 ALR2d 1283
(1956); Preveden v. Hahn, 36 F Supp 952 (1941); Mongean v. Burkevile, 55 NW2d
445 (1952).
“Cf. Cruz v. Mossessgeld, 24 SCRA 1006 (1968).
207Rule 17, Sec. 3, Rules of Court.
waCf. Rule 17, Sec. 1, Rules of Court.
““See Torriflel v. Toriano, 91 Phil. 209 (1952).
210Hoffer v. Tawcett, 284 NW 873 (1939); The Zilpha, 40 Ct Cl 200.
211Rule 17, Sec. 3, Rules of Court.
212Vicente v. Geraldez, 52 SCRA 210 (1973).
213People v. Macellones, 49 SCRA 529 (1973); People v. Lafuente, 37 Phil. 671
(1918).
2UCf. Director of Lands v. Alberto, 52 SCRA 186 (1973); Dorego v. Perez, 22
SCRA 8 (1968); Gabon v. Jorge, 20 SCRA 401 (1967).
AUTHORITY OF ATTORNEY
347
estopped to disavow the action taken by his counsel as when the
client fails, notwithstanding an opportunity given him, to object to
the withdrawal of an appeal sought by his lawyer.216
§11.25. Client’s right to dismiss or compromise action.
As a client has the exclusive control of the cause of action, the
claim or demand sued upon and the subject matter of the litigation,
he has, generally speaking, the right to dismiss, settle or waive
his cause216 either in the trial or in the appellate court.217 He may
even renounce part or all of the proceeds of a favorable judgment or
materially change it.218
The existence of a valid agreement between a client and his
counsel for payment of a large portion of amounts recovered in the
litigation in case of success as attorney’s fees will not prevent the
client from unilaterally dismissing or compromising his action.219
The right of a lawyer to compensation for services rendered cannot
have a higher standing than the right of the client to dismiss his
cause or settle his litigation. Nor can such right of counsel work as
an obstacle to the approval by the court of the settlement effected by
the client.220
A client may personally sign and file the necessary pleading or
motion for the dismissal of his action or for approval of a compromise
agreement without notice to or even in disregard of his counsel.221 In
such event, the lawyer may not pretend to continue representing
the client, the latter by such action having impliedly dispensed with
his services.222 The lawyer may, however, have his fees preserved or
protected in the same action.223
215People
216Rustia
v. Mendoza, 93 Phil. 581 (1953).
v. CFI of Batangas, 44 Phil. 62 (1922); De Mondia v. Public Service
Commission, 65 Phil. 708 (1938); Aro v. Nanawa, 27 SCRA 1090 (1969).
217Arturo v. Azana, 62 Phil. 425 (1935); Director of Lands v. Alberto, 52 SCRA
186 (1973).
218Rodriguez v. CFI of Rizal, 88 Phil. 417 (1952); Rovero v. Amparo, G.R. No.
5482, May 5,1952.
219Rustia v. CFI of Batangas, 44 Phil. 62 (1922).
220Jesalva v. Bautista, 105 Phil. 348 (1959); Cabildo v. Navarro, 54 SCRA 26
(1973).
221Rustia v. CFI of Batangas, 44 Phil. 62 (1922); Aro v. Nanawa, 27 SCRA 1090
(1969).
222De Mondia v. Public Service Commission, 65 Phil. 708 (1938).
223Aro v. Nanawa, 27 SCRA 1090 (1969); Cabildo v. Navarro, 54 SCRA 26
(1973); Valencia v. Jimenez, 11 Phil. 492 (1908).
348
LEGAL AND JUDICIAL ETHICS
§11.26. Limitations on client’s right.
The client’s right to dismiss or settle his action is not absolute.
The dismissal or compromise by the client of his cause may not
defeat the attorney’s right to a just compensation for his services
either for the full amount of the agreed fees if the client’s action is in
bad faith224 or for a reasonable sum based on quantum meruit if there
is no fraud on the part of the client.226 The attorney may, moreover,
elect to have his right to fees and the amount thereof determined in
the same proceedings without the necessity of filing an independent
civil action for that purpose.226
The client cannot exercise his right to dismiss or settle his
cause in a manner that is contrary to law, public policy, public order,
morals or good customs, or prejudicial to a third person with a right
recognized by law.227 He cannot compromise upon the civil status of
persons, the validity of a marriage or a legal separation, any ground
for legal separation, future support, the jurisdiction of courts and
future legitime.228 While he may settle the civil liability arising from
an offense, the settlement shall not extinguish the public action for
the imposition of the legal penalty or preclude the prosecution of the
offense for the punishment of the offender.229
After a defendant has filed his answer with counterclaim which
cannot stand independent adjudication, a party cannot dismiss
his action or drop some defendants from the complaint without
the consent of the adverse party and leave of court.230 Nor can he
withdraw an appeal or petition when the issues have already been
submitted for resolution and are of paramount public interest without
leave of court.231 Petitioners in a class suit can neither dismiss nor
compromise the action without approval of the court, there being
other members of the class not actually in court whose interests will
have to be considered.232
224Aro
v. Nanawa, 27 SCRA 1090 (1969).
226Cabildo
v. Navarro, 54 SCRA 26 (1973).
v. Nanawa, supra ; Valencia v. Jimenez, 11 Phil. 492 (1908).
227Art. 6, Civil Code of the Philippines.
228Art. 2035, Civil Code of the Philippines.
229Art. 2034, Civil Code of the Philippines.
230Rule 17, Sec. 2, Rules of Court; Lim Tanhu v. Ramolete, 66 SCRA 425
226Aro
(1975).
231Aquino,
Jr. v. Military Commission No. 2, 63 SCRA 546 (1975).
17, Sec. 1, Rules of Court; Ferrer v. Reyes, 54 SCRA 265 (1973).
232Rule
AUTHORITY OF ATTORNEY
349
§11.27. Authority after judgment.
The power of an attorney after the rendition of judgment is more
restricted. In the absence of a greater authority expressly conferred,
an attorney has only the power to take such steps or proceedings as
are necessary to make the judgment fully effective or to sustain or
enforce it or to relieve his client from its effects if it is adverse.233
An attorney has the authority to bind his client in taking an
appeal,234 such step being a procedural measure to relieve the client
of the effects of an adverse judgment.235 As counsel of record in the
inferior or trial court, he is presumed to continue representing his
client in the appellate court with the power to bind his client on any
procedural matter affecting the appeal.236 For that reason, a client
is bound by the adverse judgment rendered on appeal taken by his
counsel even though he had not authorized his lawyer to take the
appeal.237
Any lawyer who obtains a favorable judgment for his client has a
continuing authority to enforce the judgment.238 He may file a motion
for execution,239 make a general direction to the sheriff concerning
the execution sale, agree to a postponement of the sale,240 receive on
behalf of his client the full proceeds of the judgment in satisfaction
thereof141 and release, as a consequence, the judgment debtor from
his judgment obligations.242 But he has no implied authority to accept
anything less than what is adjudged by the court.243
After judgment has become final, an attorney who has been
employed merely for the purpose of the litigation has no authority
to alter or modify the judgment in a material particular, or to act
^Rodriguez v. CFI of Rizal, 88 Phil. 417 (1951).
1953).
^Rule 138, Sec. 23, Rules of Court; People v. Mendoza, 49 O.G. 2740 (July 31,
^Rodriguez v. CFI of Rizal, 88 Phil. 417 (1951).
^Hernandez v. Clapiz, 87 Phil. 467 (1950); Palteng v. Court of Appeals, 26
SCRA 736 (1969).
237Ocampo v. Court of Appeals, 97 Phil. 949 (1955).
’’“Union Bank v. Geary, 5 Pet (U.S.), 99, 8 L ed 60 (1831).
^Ermin v. Blake, 8 Pet (U.S.) 18, 8 L ed 852 (1834).
^United States v. Con kin, 1 Wall (U.S.) 644, 17 L ed 714 (1864).
“'Lee Kin Pio v. Dy Chin, 6 SCRA 1036 (1962); Gamer v. Schilling Co., 174 So,
837, 111 ALR 682 (1937).
242Lee Kin Pio v. Dy Chin, 6 SCRA 1036 (1962); Aya v. Bigomia, 57 Phil. 8
(1932).
243Rule 138, Sec. 23, Rules of Court; Farmer v. Schneider, 58 NYS2d 587
(1945).
LEGAL AND JUDICIAL ETHICS
350
or appear in a proceeding which has been brought to obtain such
alteration or modification, even though the alteration appears to
be beneficial to his client. He can only assent to the correction of a
clerical error in a judgment or decree.244
D. MATTERS IMPUTED TO CLIENT
§11.28. Knowledge acquired by attorney.
The knowledge acquired by an attorney during the time that he
is acting within the scope of his authority is imputed to the client.245
The doctrine of imputed knowledge is based on the assumption
that an attorney, who has notice of matters affecting his client, has
communicated the same to his principal in the course of professional
dealings.246 The doctrine applies regardless of whether or not the
lawyer actually communicated to the client what he learned in his
professional capacity,247 the attorney and his client being, in legal
contemplation, one juridical person.248
As a client is chargeable with knowledge of fact acquired by his
counsel, he cannot as a bidder in a sheriffs sale claim that he is a
purchaser in good faith when his attorney knows that the property
involved belongs to a third party.249 Nor can the client raise, as a
defense in an action, the validity of a note when his counsel has
knowledge of the defect in the instrument.250
§11.29. Notice to counsel as notice to client.
The law requires that service of any written notice upon a party
who has appeared by attorney or attorneys shall be made upon his
attorney or one of them, unless service upon the party himself is
244Rodriguez
v. CFI of Rizal, 88 Phil. 417 (1951).
v. Sheriff of Pampanga, 75 Phil. 462 (1946); Armstrong v. Ashley,
204 U.S. 272, 51 L ed 482 (1907).
246Johnlo Trading Co. v. Flores, 88 Phil. 741 (1951); Peyer v. Martinez, 88 Phil.
72(1951).
ulCf. Guanzon v. Aragon, 107 Phil. 315 (1960); Viviero v. Santos, 98 Phil. 500
(1956); Don Lino Gutierrez & Sons, Inc. v. Court of Appeals, 61 SCRA 87 (1974).
248See Gregorio Araneta, Inc. v. De Patemo, 91 Phil. 786 (1952).
249Ramirez v. Sheriff of Pampanga, 75 Phil. 462 (1945).
250Lambert v. Smith, 157 P 909, 18 ALR 1 (1916).
245Ramirez
AUTHORITY OF ATTORNEY
351
ordered by the court.281 And a notice sent to a party who has appeared
by counsel is not notice in law,252 it being immaterial that the client
actually received the notice or volunteered to get a copy thereof.243
The purpose of the rule is to maintain a uniform procedure
calculated to place in competent hands the orderly prosecution of
a party’s case.254 A party to whom a notice is served and not to his
attorney, knows nothing of judicial procedure.255 He engages an
attorney precisely because he does not feel competent to deal with
the intricacies of the law. Moreover, as the party directly served
would have to communicate with his attorney and turn over to him
the notice he received, the net result would be to noticeably shorten
the usable period for taking the proper steps required to protect the
client’s interests.256 The rule has beneficial effect upon the prompt
dispensation of justice.25’
The attorney to whom service of notice is to be made refers
to the counsel of record or one who in writing has entered a formal
appearance or given his name and address as the designated lawyer
for a party in a case.258 An attorney who never made a formal
appearance is not entitled to notice,259 nor is a notice served upon
him and not upon the counsel of record who has not withdrawn
from the case binding upon the client.260 As long as a lawyer remains
counsel of record, notice to him is notice to client even though he
25lRule 13, Sec. 2, Rules of Court; Viviero v. Santos, 98 Phil. 500 (1956); Mata
v. Rita Legarda, Inc., 117 Phil. 290 (1963); Pabiling v. Parinacio, 24 SCRA 100 (1968);
Ballesteros v. Caoile, 112 Phil. 428 (1961); Tolentino v. Ongsiako, 7 SCRA 1001
(1963) ; Riego, v. Riego 18 SCRA 91 (1966); Palanca v. American Food Mfg. Co., 24
SCRA 819 (1968).
^Palad v. Cui, 28 Phil. 44 (1914); Badalles v. Cawili, 6 SCRA 190 (1962);
^Chainani v. Tancinco, 90 Phil. 862 (1952); Notor v. Daza, 76 Phil. 850
(1946)
.
254Chainani v. Tancinco, 90 Phil. 862 (1952).
^Hernandez v. Clapiz, 87 Phil. 437 (1950).
^J.M. Javier Logging Corp. v. Mardo, 24 SCRA 776 (1968).
^People’s Homesite & Housing Corp. v. Tiongco, 12 SCRA 471 (1964).
258Rule 13, Sec. 2, Rules of Court; Luzon Rubber Mfg. Co. v. Estaris, 52 SCRA
39 (1973); Nicdao v. GSIS, 107 Phil. 241 (1960); Cf. Flores v. Zurbito, 27 Phil. 746
(1918); F. David Enterprises v. Insular Bank of Asia and America; Bincoln Gerard,
Inc. v. NLRC, 187 SCRA 701 (1990).
259Dirigo v. Biranya, 17 SCRA 840 (1966); Magpayo v.
Courtof Appeals,
61
SCRA 115 (1974); Esquivas v. Sison, 61 Phil. 211
(1935).
^Esquivas v. Sison, 61 Phil. 211 (1935);
Ongsiakov. Natividad, 79 Phil. 3
(1947)
.
352
LEGAL AND JUDICIAL ETHICS
never informed his client of such fact,261 or a new attorney entered
a formal appearance for the client,262 or the relation of attorney and
client, as between them, had ceased.263 A notice sent to a law firm
as counsel of record, which has been dissolved, is in the absence of
new appearance notice to client.264 And a notice to pay the docket
fee on appeal served upon the counsel of record in the trial court
and not upon the lawyer who perfected the appeal is binding upon
the appellant.266 However, a notice sent to counsel of record who was
already dead266 or who had qualified for appointment as assistant
provincial fiscal which prevented him, by reason thereof and due
to pressure of official work, from relaying the notice to his client, is
ineffective to bind the client,267 the attomey-client relationship in
both instances having terminated by operation of law.268
Where no notice of withdrawal or substitution of counsel
is shown, notice to counsel of record is for all purposes notice to
the client. Notice to the party himself is not valid. Such notice is
properly sent to the address of the counsel of record in the absence
of due notice to the court of change of address and the date of receipt
is considered the starting point from which the period of appeal
prescribed by law shall begin to run.269
The right to be notified through counsel may be waived either
by the attorney or his client. A lawyer who filed a petition for
reconsideration of an adverse judgment, notice of which was directly
served upon his client, waives the defect of lack of service upon him
of a copy thereof.270 Similarly, a client who asked for continuance
of hearing which was reset on a date chosen by him need not be
notified through counsel of the new setting.271
M1Guanzon v. Aragon, 107 Phil. 315 (1960); Don Lino Gutierrez & Sons, Inc. v.
Court of Appeals, 61 SCRA 87 (1974).
"“Aznar v. Morris, 3 Phil. 636 (1904); Ong Ching v. Ramolete, 51 SCRA 13
(1973); Olivares v. Leola, 97 Phil. 253 (1955).
^Don Lino Gutierrez & Sons, Inc. v. Court of Appeals, 61 SCRA 87 (1974);
Guanzon v. Aragon, 107 Phil. 315 (1960); Palaroan v. Anaya, 15 SCRA 348 (1965).
^Vda. de Carretero v. Tarca, 89 Phil. 689 (1950).
^Palteng v. Court of Appeals, 26 SCRA 736 (1969).
266Rueda v. Juan, 106 Phil. 1069 (1960); Heirs of Masangga v. Masangga, 189
SCRA 234 (1990).
267Blanco v. Aquino, 79 Phil. 647 (1947). But see Heirs of Acuesta v. Eugenio,
CA-G.R. No. 30881-R, October 20,1967 67 O.G. 1744 (1971).
““Blanco v. Aquino, supra.
^UERM Employees Union-FFW v. Minister of Labor, 177 SCRA 165 (1989).
270Luzon Rubber & Mfg. Co. v. Estaris, 52 SCRA 391 (1973).
‘"•National Lumber & Hardware Co. v. Lelasco, 106 Phil. 1098 (1960).
AUTHORITY OF ATTORNEY
353
§11.30. Notice to one as notice to other counsel; exceptions.
If a party appears by two or more attorneys of record, notice to
one attorney is notice to the others as well as to the client,272 even
though the lawyer upon whom service is made is only a deputy of the
other.273 In other words, when a party is represented by two or more
lawyers, notice to one suffices as notice to the party represented by
him.274
The Solicitor General is the lawyer of the Republic and its
officials sued in their official capacities. In view of the many cases
handled by him, he usually deputizes government lawyers to
represent him in some cases, especially those filed by or against the
Republic or its officers in the provinces. When the Solicitor General
has deputized a government lawyer, he remains the principal
counsel and therefore service on him of legal processes, and not
that on the deputized lawyers, is decisive.275 Hence, notice of legal
processes on the deputized counsel is not binding until the notice is
actually received by the Solicitor General.276 However, if an agency
of the government appears by its own internal counsel, not as a
deputized lawyer of the Solicitor General, but as authorized counsel
of said agency, notice to the agency’s counsel is deemed notice to the
Solicitor General.277
The attorneys are those employed regardless of whether they
belong to the same law firm or are practicing one independent of
the other.278 They include a party who, as a lawyer, signs a pleading
as counsel for himself in collaboration with another lawyer.279 The
reason for the rule is that, when more than one attorney appear for
a party, notice to one would suffice upon the assumption that he
would notify or relay the notice to his colleagues in the case.280 If on
^Rule 13, Sec. 2, Rules of Court; Ortigas v. Pacho, 98 Phil. 618 (1956); Don
Lino Gutierrez & Sons, Inc. v. Court of Appeals, 61 SCRA 87 (1974); Damasco v. Arrieta, 7 SCRA 224 (1963); Sy It v. Tiangco, 4 SCRA 436 (1962).
^National Irrigation Administration v. Regino, 192 SCRA 42 (1990).
^Sublay v. NLRC, 324 SCRA 188 (2000).
^^Commissioner of Customs v. Court of Tax Appeals, 328 SCRA 822 (2000).
‘"“National Power Corp. v. NLRC, 272 SCRA 704 (1997).
277Nartional Irrigation Adminitration v. Regino, 192 SCRA 42 (1990); Commissioner of Customs v. Court of Tax Appeals, 328 SCRA 822 (2000).
^Ortega v. Pacho, 98 Phil. 618 (1956); Don Lino Gutierrez & Sons, Inc. v.
Court of Appeals, supra.
^Dujon v. Villarosa, 92 Phil. 400 (1952).
2800rtega v. Pacho, 98 Phil. 618 (1956).
354
LEGAL AND JUDICIAL ETHICS
the other hand all the lawyers are given notices, the earliest date
of receipt thereof by one of them is the starting point from which
the reglementary period to comply with what is required is to be
counted.281
There are exceptions to the rule. The first is that situation
where either by agreement or proper manifestation one of the
attorneys is expressly designated as one to whom service is to be
made. The second exception is that instance where it is admittedly
clear or obvious that one is a leading counsel and the rest mere
helpers, as when the adverse party and the court itself consider one
of the lawyers as the principal counsel.282 In any of these exceptions,
service of any written notice must be made upon the designated or
principal attorney in order that the client will be bound thereby.283
As previously noted, the general rule is that notice to counsel
of record who has not withdrawn is binding upon the client
notwithstanding the fact that no notice was served on another lawyer
who appeared for the same client and subsequently filed a pleading.
However, where the court sent copy of an order to the second counsel
and referred to the counsel of record as former counsel, notice to the
counsel of record and not to the new counsel is not a valid notice, as
an exception to the general rule.284
§11.31. Exceptions to rule that notice to counsel is notice to
client.
The rule that notice to counsel is notice to client and its
corollary principle that notice to client is not a notice in law admit
certain exceptions. The rigor of the rule may be relaxed if its strict
application might foster dangerous collusion to the detriment of
justice. As it would be easy for a lawyer to sell his client’s right
down the river by just alleging that he forgot every process of the
court affecting his client because he was busy, a notice to such
irresponsible lawyer is not binding upon his client.286
“‘Damasco v. Arrieta, 7 SCRA 224 (1963); Baquiran v. Court of Appeals, 112
Phil. 764 (1961).
282Ortega v. Pacho, 98 Phil. 618 (1956); Magpayo v. Court of Appeals, 61 SCRA
115 (1974); Delgado v. Santiago, 99 Phil. 1032 (1956); Rodriguez v. Montalban, 101
Phil. 612 (1957). See Republic v. Palo, 89 SCRA 33 (1979).
““Ortega v. Pacho, 98 Phil. 618 (1956).
^Rinconada Telephone Co. v. Buenviaje, 184 SCRA 701 (1990).
^People’s Homesite & Housing Corp. v. Tiongco, 12 SCRA 471 (1964); Pineda
v. Court of Appeals, 67 SCRA 228 (1975).
AUTHORITY OF ATTORNEY
355
Service of notice upon the party instead of upon his attorney
is valid if ordered by the court.286 There should, however, be some
good reason that would warrant direct notification, such as the
uncertainty as to who the counsel of the party is281 or the need for a
party to do something in person, otherwise the purpose of the rule
requiring service of notice upon the party’s counsel of record may
easily be defeated.
“The notice of pre-trial shall be served on counsel, or on the
party who has no counsel. The counsel served with such notice is
charged with the duty of notifying the party represented by him.”288
“It shall be the duty of the parties and their counsel to appear at the
pre-trial.”289 The failure of the plaintiff or the defendant to appear
at the pre-trial shall be cause for dismissal of the action or shall be
cause to allow plaintiff to present his evidence ex parte, as the case
may be.290 For this reason, counsel should see to it that his client
appear at the pre-trial or he should arm himself with a written power
of attorney executed by the client authorizing him to enter into an
amicable settlement of the case, make admissions or stipulations
of facts, and bind the client in any or all of the matters that will be
taken during the pre-trial conference.291
In appeals from an inferior court to the Regional Trial Court,
the appellant shall serve copies of the notice of appeal and the record
on appeal where required;292 the clerk of court of the inferior court
shall furnish the parties of his letter transmitting the records to
the Regional Trial Court;293 and the clerk of court of the latter shall
notify the parties of his receipt of the complete records or the record
on appeal.294 If the appellee has appeared by counsel, the latter shall
be given the required notices, as he is presumed to be the lawyer on
appeal.295
mRule 13, Sec. 2, Rules of Court; Riego v. Riego, 18 SCRA 91 (1966); Tampico
v. Lozada, 4 SCRA 338 (1962).
287Riego
v. Riego, 18 SCRA 91 (1966).
3, Rule 18, Rules of Court.
^Sec. 4, ibid.
^Sec. 5, ibid.
“•Phil. Pryce Assurance Corp. v. CA, 230 SCRA 164 (1994).
M2Sec. 3, Rule 40, Rules of Court.
^Sec. 6, ibid.
^Sec. 7(a) ibid.
**Cf. Elli v. Ditan, 5 SCRA 503 (1963).
288Sec.
356
LEGAL AND JUDICIAL ETHICS
§11.32. Mode of service of notice.
“Service of pleadings, motions, notices, orders, judgments and
other papers shall be made either personally or by mail.”296
Personal service is made by delivering personally a copy to
the party’s counsel, or by leaving it in his office with his clerk or
with a person having charge thereof and asking that its receipt be
acknowledged. If no person is found in his office, or his office is not
known, or he has no office, then by leaving the copy, between the
hours of eight in the morning and six in the evening, at the counsel’s
residence, if known, with a person of sufficient age and discretion
then residing therein.®7 Service to the party is made only if the party
is not represented by counsel or if service to the party is ordered by
the court, for service to the party who is represented by counsel and
not to the latter is not a valid service.
Service by registered mail shall be made by depositing the copy
if the post office, in a sealed envelope, plainly addressed to the party
or his counsel at his office, if known, otherwise at his residence,
if known, with postage fully prepaid, and with instructions to the
postmaster to return the mail to the sender after ten (10) days if
undelivered. If no registry service is available in the locality of
either the sender or the addressee, service may be done by ordinary
mail.298
Personal service is complete upon actual delivery. Service by
ordinary mail is complete upon the expiration of ten (10) days after
mailing, unless the court otherwise provides. Service by registered
mail is complete upon actual receipt by the addressee, or after five
(5) days from the date he received the first notice of the postmaster,
whichever date is earlier.299
Service by registered mail is complete upon actual delivery to
the attorney, his employee or messenger in his office, or if he fails
to claim his mail from the post office within five days from the date
of first notice of the postmaster, service shall take effect at the
expiration of such time.300
^Sec. 5, Rule 3, Rules of Court.
‘“"Sec. 6, Rule 13.
"“Sec. 7, ibid.
^Sec. 10, ibid.
300Siliman University
v. NLRC, 213 SCRA 359 (1992).
AUTHORITY OF ATTORNEY
357
The exception, which is a constructive notice, is that when the
addressee does not claim his mail within five days from the date of
first notice of the postmaster, then the service takes effect at the
expiration of such time. If he receives his mail after several days or
months after it is registered and there is no proof of such notice, then
service is complete on the date of actual receipt, following the general
rule. It is incumbent upon a party, who relies on constructive notice,
to prove that the first notice was sent and delivered to the addressee,
and a certification from the postmaster, which should include the
data not only as to whether or not the corresponding notices were
issued or sent as to how, when and to whom the delivery thereof was
made, would be the best evidence to prove it.301
Service by registered mail sent to counsel’s address of record,
which was returned with notation that counsel had moved therefrom,
who did not inform the court of his change of address, is a valid
service, effective upon expiration of five days from first notice, and
is binding upon the client.302
The best evidence of the fact that first notice was sent by the
postmaster to the addressee is the certification from the postmaster.
As between the denial of the addressee that he received the notice
of the registered mail and the postmaster’s certification that said
notice was sent to him, the latter prevails, the presumption being
that official duty was regularly performed.303 However, a certification
of the postmaster will not be considered sufficient, where it does not
include the data not only as to whether or not the corresponding
notices were issued or sent but also as to how, when and to whom
the delivery thereof was made.304
Accordingly, it is incumbent upon a party who relies on
constructive service to prove that the first notice was sent and
delivered by the postmaster to the addressee, to be shown by a
certification by the postmaster who should certify that the notice
was sent and that the notice was actually delivered. Absent such
proof, the disputable presumption of completeness of service does
not arise.305
“'Barrameda v. Castillo, 78 SCRA 1 (1977).
302Villa
Transit Service, Inc. v. CA, 193 SCRA 25 (1991).
^PNB v. CFI of Rizal, Pasig, 209 SCRA 294 (1992).
^Santos v. CA, 295 SCRA 147 (1998).
’’“Aguilar v. CA, 310 SCRA 393 (1999).
358
LEGAL AND JUDICIAL ETHICS
§11.33. Personal service preferred; explanation required.
Section 11 of Rule 13 of the Rules of Court provides that
“Whenever practicable, the service and filing of pleadings and
other papers shall be done personally. Except with respect to
papers emanating from the court, a resort to other modes must be
accompanied by a written explanation why the service or filing was
not done personally. A violation of this Rule may be cause to consider
the paper as not filed.”
The general rule is that service and filing of pleadings and other
papers should be done by personal service, and resort to other modes
of service and filing is the exception. Service by other modes, i.e., by
registered mail, may be resorted to only when it is not practicable
to make service personally and there must be a written explanation,
which may be included in the pleading or paper, why service or
filing was not done personally. Violation of this rule may cause the
court to consider the pleading or paper as not filed.306 The reason for
the rule is to expedite action or resolution on pleading, motion or
other paper, and conversely, to minimize, if not eliminate, delays
likely to be incurred if service or filing is done by mail, considering
the inefficiency of the postal service. It is also to do away with the
unethical practice of serving or filing pleadings by mail to catch
opposing party off-guard, or procrastinating claiming the mail or
not claiming it at all.307
Where no explanation is offered to justify resort to service or
filing of pleading by mail or other modes of service, in lieu of personal
service, the court has no discretion but to expunge the pleading
from the record and disregard thereof constitutes grave abuse of
discretion. However, where there is such explanation, the court has
discretion whether to consider the explanation plausible, taking into
account circumstances of time, place and person, the subject matter
of the case or the issues involved therein, and the prima facie merit
of the pleading sought to be expunged for violation of the rule.308
306Sec.
11, Rule 13.
307Solar
Team Entertainment, Inc. v. Ricafort, 293 SCRA 661 (1998).
3mIbid.
AUTHORITY OF ATTORNEY
359
§11.34. Mistake or negligence of counsel binding upon client.
The general rule is that the client is bound by his counsel’s
conduct, negligence and mistake in handling the case, or in the
management of the litigation and in procedural technique, and he
cannot be heard to complain that the result might have been different
had his lawyer proceeded differently.309 The general rule that the
negligence of counsel binds the client is based on the principle that
any act performed by a lawyer within the scope of his general or
implied authority is regarded as an act of his client. Consequently,
the mistake or negligence of counsel may result in the rendition of
an unfavorable judgment against the client.310 The rule presupposes
the existence of an attomey-client relationship and of a pending
case, and refers only to matters pertaining to the conduct of such
case.311
The mistake or negligence of counsel may result in a dismissal
of his client’s action,312 or appeal,313 a rendition of an unfavorable
judgment against him314 or a loss of his right to appeal.315 Similar
results may likewise occur on account of the mistake or negligence
of the attorney’s associate,316 secretary or clerk317 in the performance
of a work delegated to him by his employer. For the rule is that
the negligence or mistake of clerks of lawyers, which adversely
affects cases handled by the latter, is binding upon the lawyers and
eventually their clients.
In other words, a client may lose a litigation in favor of the
adverse party by reason of the attorney’s failure to take the required
step to protect the client’s interest or of the lawyer’s error in
309Vivero v. Santos, 98 Phil. 500 (1956); Inocando v. Inocando, 110 Phil. 266
(1960); Cabalag v. Roxas y Cia, 18 SCRA 1099 (1968); Rivera v. Vda. de Cruz, 26
SCRA 58 (1968); Flores v. Phil. Alien Property Administrator, 107 Phil. 773 (1960);
Ocampo v. Caluag (1967); Valero v. Secretary of Agriculture & Natural Resources,
G.R. No. 18587, April 23, 1963; Gordulan v. Gordulan, 3 SCRA 205 (1961).
310Salonga v. CA, 269 SCRA 534 [1997], citing Agpalo, Legal Ethics, pp. 278279 (1989); Cruz v. Jugo, 66 Phil. 102 (1938); Montes v. CFI of Tayabas, 48 Phil. 640
(1926); U.S. v. Umali, 15 Phil. 33 (1910); Isaac v. Mendoza, 89 Phil. 279 (1951); Vivero
v. Santos, 98 Phil. 500 (1956).
3uPhil. National Bank v. Court of Appeals, 98 SCRA 207 (1980).
312Montejo v. Urotia, 40 Phil. 41 (1971).
313Joven-De Jesus v. Phil. National Bank, 12 SCRA 477 (1964).
314Malipol v. Tan, 55 SCRA 202 (1974).
316Toquib v. Tomol, Jr., 26 SCRA 601 (1969).
316Chavez v. Ganzon, 108 Phil. 6 (1960).
317Eco v. Rodriguez, 107 Phil. 612 (1960).
360
LEGAL AND JUDICIAL ETHICS
judgment as to what is best for his client.318 The following mistakes
or negligence have been held to be binding upon the client:
1.
ailure to file responsive pleading within the reglementary
period due to a mistake as to the date when the period was to be
counted 319 or as to the import and meaning of the notice320 or to
erroneous information as to when summons was received.321
2.
Appearing at the pre-trial conference without seeing to
it that his client is present or securing from him a special power to
compromise the action.322
3.
Unceremoniously leaving the courtroom before the start
of the pre-trial because someone told him that his wife was to give
birth without telling the clerk or any one of the court personnel of
his inability to wait for the pre-trial.323
4.
Failure to appear at the scheduled hearing due to another
engagement without asking postponement thereof as he had done in
the past324 or on account of his having misplaced the notice and going
on vacation326 or for having assumed that his motion for postponement
would be granted326 as it bore the conformity of the adverse party,327
or because of his impression that his client had terminated his
services,328 or of his anxiety over his wife’s forthcoming cesarean
operation,329 or of his clerk misplacing the notice and failing to call
his attention to it.330
5.
Failure to present additional evidence and submitting
the case on the evidence already adduced,331 oversight in submitting
318Eco
v. Rodriguez, 107 Phil. 612 (1960).
319Hemandez v.
Clapiz, 87 Phil. 437 (1950).
v. Gomez, 109 Phil. 1036 (1960).
321Manipol v. Tan, G.R. No. 37730 (January 1974).
322Home Ins. Co. v. United States Lines Co., G.R. No. 25593, November 15,
320Pimentel
1975.
323Saulog v.
Custombuilt Mfg. Corp., G.R. No. 29612, November 15, 1968.
v. Phil. Alien Property Administrator, 107 Phil. 773 (1960); Viviero v.
Santos, 98 Phil. 500 (1956).
325Mendoza v. Bulandi, 108 Phil. 11 (1960).
326Inocando v. Inocando, 110 Phil. 226 (1960).
327Deluao v. Casteel, G.R. No. 21906, December 24,1968.
328Guanzon v. Aragon, 107 Phil. 315 (1960); Wack Wack Golf & Country Club
v. Court of Appeals, 106 Phil. 501 (1959).
^Rivera v. Vda. de Cruz, G.R. No. 21545, November 27,1968.
““Phil. Air Lines v. Area, G.R. No. 22729, February 7,1967; Ocampo v. Caluag,
G.R. No. 21113, April 27,1967.
331Tesorio v. Court of Appeals, G.R. No. 36666, December 19,1973.
324Flores
AUTHORITY OF ATTORNEY
361
certain evidence or error in regard to its sufficiency, importance or
consequence,332 refraining from presenting evidence in view of the
theory he adopted,333 submitting the case for decision and not asking
for postponement to enable defendant to take the witness stand,334
or not introducing evidence and not presenting the defendant as a
witness.335
6.
Failure to claim registered mail containing judicial notice
resulting in his failure to take the steps required in the notice,
because he could not afford to hire a regular clerk,336 or his work
required him to be in different places,337 or he changed his address
without notifying the court thereof.338
7.
Failure to appeal an adverse judgment on account of
erroneous counting of the period within which to perfect the appeal,339
of his delegating the task of computing the period to his clerk who
made a mistake,340 or for no reason at all.341
8.
Failure to file brief for appellant due to political activities,342
or to hypertension.343
9.
Failure to notify his client on time of an adverse judgment
to enable his client to appeal.344
10. Erroneous interpretation or application of law which gave
rise to a default judgment.345
11. Failure to seasonably file a motion for reconsideration or
appeal, or his failure to appeal within the required period, which
resulted in the finality of the judgment against his client.346
“nj.S. v. Dunga, 27 Phil. 274 (1914).
[I960].
(1932).
^Collector of Internal Revenue v. Bohol Land Transp. Co., 107 Phil. 963
^Fernandez v. Tan Tiong Tic, 1 SCRA 1138 (1961).
^People v. Manzanilla, 43 Phil. 167 (1922).
^Babala v. Court of Appeals, 31 SCRA 397 (1970).
“''Enriquez v. Bautista, 79 Phil. 220 (1947); Yangco v. Millan, 57 Phil. 761
^Marquez v. Panganiban, 109 Phil. 1121 (1960).
339Joven-De Jesus v. Phil. National Bank, 105 Phil. 703 (1964).
^Eco v. Rodriguez, 107 Phil. 612 (1960).
M1Toguib v. Tomol, Jr., 26 SCRA 601 (1969).
^Chavez v. Ganzon, 108 Phil. 6 (1960).
’"People v. Tan, 15 SCRA 252 (1965).
^Duran v. Pagarigan, 106 Phil. 907 (1960).
M5Palanca v. The American Food Mfg. Co., 24 SCRA 819 (1968).
^Paramount Vinyl Products Corp. v. NLRC, 190 SCRA 525 (1990); Reontoy v.
Ibaldlit, 302 SCRA 604 (1999).
362
LEGAL AND JUDICIAL ETHICS
Under the present system of advocacy, the client has to bear
the adverse consequences of the inexcusable mistake or negligence
of his counsel or of the latter’s employee and may not be heard to
complain that the result of the litigation might have been different
had he proceeded differently.347
The negligence or omission of counsel to take the required
step to protect his client’s interest, such as his failure to file an
answer within the period, appear at the pretrial or hearing, perfect
an appeal, pay the docket fee on appeal or file an appellant’s brief,
does not ordinarily warrant a reopening of the case.348 Relief from
the effects of a judgment will not be granted to a party who lost a
remedy due to the fault of his counsel349 unless counsel can show
excusable negligence or accident on his part as well as a good cause
or defense on the client’s part.350
The mistake of counsel in the conduct of the proceedings as
a result of his ignorance, inexperience or incompetence does not
constitute a ground for a new trial.351 Neither does an error of
counsel as to the competency of a witness, the sufficiency, relevancy
or irrelevancy of certain evidence, the proper defense, the burden
of proof, the quantum of evidence or the witness to be presented,
justify a new trial.352 To admit such mistake or error as a reason for
reopening the case is to put no end to a litigation as new counsel can
be employed who can allege and show that prior counsel has not been
sufficiently diligent, experienced or learned.353 It will not, moreover,
be conducive to harmony among attorneys as new counsel will have
to exploit the mistake of prior lawyer to secure a new trial and thus
discourage amenities which should characterize their relation as
brethren in the profession.
347Viviero v. Santos, 98 Phil. 500 (1956); Inocando v. Inocando, 110 Phil. 266
(1960); Cabalag v. Roxas y Cia, 18 SCRA 1099 (1966).
348Manipol v. Tan, 55 SCRA 202 (1974); Eco v. Rodriguez, 107 Phil. 612 (1960);
Chavez v. Ganzon, 108 Phil. 6 (1960); Don Lino Gutierrez v. Court of Appeals, 61
SCRA 87 (1974); Robles v. San Jose, 99 Phil. 658 (1956).
^Palanca v. The American Food Mfg. Co., 24 SCRA 819 (1968).
350Catalan v. Monteverde, 63 Phil. 503 (1936); Coombs v. Santos, 24 Phil. 446
(1913); Herrera v. Far Eastern Air Transport, Inc., 88 Phil. 787 (1950).
351U.S. v. Umali, 15 Phil. 33 (1919); Viviero v. Santos, 98 Phil. 500 (1956); Fernandez v. Tan Tiong Tick, 1 SCRA 1138 (1961).
352Tesorio v. Court of Appeals, 54 SCRA 296 (1973); Macavinta, Jr. v. People,
54 SCRA 420 (1973); Viviero v. Santos, 98 Phil. 500 (1956).
353Viviero v. Santos, 98 Phil. 500 (1956); Inocando v. Inocando, 110 Phil. 266
(1960) ; Beatriz v. Cederia, 4 SCRA 617 (1968); U.S. v. Umali, 15 Phil. 33 (1910);
Cabales v. Tan May, 94 SCRA 374 (1979).
AUTHORITY OF ATTORNEY
363
The Court forcefully put the general rule in this wise:
“The error of the defense counsel in the conduct of the
trial is neither an error of law nor an irregularity upon which a
motion for new trial may be presented. Generally, the client is
bound by the action of his counsel in the conduct of his case and
cannot be heard to complain that the result of litigation might
have been different had his counsel proceeded differently. In
criminal cases, as well as in civil cases, it has frequently been
held that the fact that blunders and mistakes may have been
made in the conduct of the proceedings in the trial court, as
well as result of the ignorance, inexperience or incompetence
of counsel, do not furnish a ground for a new trial, for if such
grounds were to be admitted as reasons for the re-opening
cases, there would never be an end to suits so long as new
counsel could be employed who could allege and show that the
prior counsel had not been sufficiently diligent, or experienced,
or learned. To do so would be to put a premium on the willful
and intentional commission of errors by accused persons and
their counsel, with a view to securing new trials in the event
of conviction.”354
A client who suffers prejudice by reason of his counsel's inexcusable negligence in the discharge of his duty may, however, file an
action for damages against him. He may also institute a disbarment
proceeding. Both actions can proceed independently of the other.
§11.35. Exceptions to rule that negligence of counsel binds
client.
The general rule that the client is bound by the mistake or
negligence of his counsel is subject to exceptions. The court may
except cases from the rule where adherence thereto will result in
outright deprivation of the client’s liberty or property or where the
interests of justice so require, and accord relief to the client who
suffered by reason of the lawyer’s gross or palpable mistake or
negligence.355
354People
v. Villanueva, 339 SCRA 482, 493-494 (2000).
355Aguilar v. Court of Appeals, 250 SCRA 371 (1995); Escodero v. Duly, 158
SCRA 69 (1988); Alabanzas v. Intermediate Appellate Court, 204 SCRA 304 (1991).
364
LEGAL AND JUDICIAL ETHICS
The function of the rule that negligence or mistake of counsel in
procedure is imputed to and binding upon the client, like any other
procedural rule, is to serve as an instrument to advance the ends of
justice. When in the circumstances of each case the rule deserts its
proper office as an aid to justice and becomes its great hindrance and
chief enemy, its rigors must be relaxed to admit exceptions thereto
and to prevent a manifest miscarriage of justice.366
The court has the power to except a particular case from the
operation of the rule whenever the purposes of justice require it.367
This is particularly true where the error committed by counsel is
purely technical in nature which does not affect substantially the
client’s cause.358 The attorney’s departure from procedure may be
forgiven where it does not appear to have impaired substantial
rights.359
The exceptions to the general rule include cases where reckless
or gross negligence of counsel deprives the client of due process
of law, or when the application of the rule results in the outright
deprivation of one’s property through a technicality.360 It is only in
case of gross or palpable negligence of counsel when the courts must
step in and accord relief to a client who suffered thereby. In such
a case, the judgment against the client may be vacated and he is
granted a new trial.361
Where the mistake of counsel refers to an erroneous designation
of the name of the real party and is known to the adverse counsel who
deliberately refrained from calling the attention of the court thereto
with the intention of lying in ambush until the proceedings shall
have reached a stage where the error might be beyond correction,
the client may not be made to suffer for the lawyer’s mistake and
356Aquilar v. Court of Appeals, 250 SCRA 371 (1995), citing Agpalo, Ruben E.,
Legal Ethics, 1980 ed., pp. 282-284; Alonzo v. Villamor, 16 Phil. 315 (1910); Santiago
v. De los Santos, 61 SCRA 146(1974); Aguinaldo v. Aguinaldo, 36 SCRA 137 (1970);
Ledesma Overseas Shipping Corp. v. Avelino, 82 SCRA 396 (1978).
3570but v. Court of Appeals, 70 SCRA 546 (1976); Republic v. Polo, 89 SCRA
33 (1979).
358Alonzo v. Villamor, 16 Phil. 318 (1910); Chua Kiong v. Whitetaker, 46 Phil.
578, (1924).
359Tiamco v. Diaz, 75 Phil. 672 (1946).
““Salonga v. CA, 269 SCRA 534 (1997).
361Kalubiran v. Court of Appeals, 300 SCRA 320 (1998); Tan v. Court of Appeals, 275 SCRA 505 (1997).
AUTHORITY OF ATTORNEY
365
should be afforded another opportunity for his day in court to correct
the error.362
Where counsel for appellant was certain that an adverse
judgment would be rendered against his client because only the
appellee presented evidence, the circumstance that at the time he
filed his notice of appeal he has not received a copy of the adverse
judgment does not militate against the intention to appeal therefrom,
and the technical error of counsel should give way to the realities of
the situation.363 And where the case was not tried on the merits and
the long delay in the hearing was caused by counsel’s negligence
rather than by that of the client, the dismissal of the action by
reason thereof may be set aside364 or decreed without prejudice to its
refilling.365
Where an unsuccessful party has been prevented from fully
and fairly presenting his case as a result of his lawyer’s professional
delinquency or infidelity, as when the lawyer connives at the client’s
defeat or sells his client’s interests, the litigation may be reopened to
allow the party to present his side.366 Where counsel is guilty of gross
ignorance, negligence and dereliction of duty, which resulted in the
client’s being held liable for damages in a damage suit, the client is
deprived of his day in court and the judgment may be set aside on
such ground.367
A lawyer who agreed to defend a client in a civil case, asked
for extension of time to file the answer to the complaint but failed to
file the same, as a result of which the client was declared in default,
received copy of the adverse judgment and did not take steps to
have the same set aside or appealed, which thereby became final,
and who thereafter filed a petition for annulment of judgment and
did nothing more, which forced the client to secure the services of
another counsel, committed reckless and gross negligence, to such
an extent that his client was deprived of his property without due
process of law. Such gross negligence does not only bind the client,
as an exception to the rule that mistakes of counsel are binding
362Chua
Kiong Whitetaker, 46 Phil. 578 (1924).
^Urbayan v. Caltex (Phil.), Inc., 5 SCRA 1016 (1962).
364Tandoc v. Tensuan, 93 SCRA 885 (1979).
^De los Reyes v. Capule, 102 Phil. 464 (1957); Cf Piedad v. Batuyong, 55
SCRA 763 (1974).
366Laxamana v. Court of Appeals, 87 SCRA 48 (1978).
^Lao v. Court of Appeals, 119 SCRA 58 (1991).
366
LEGAL AND JUDICIAL ETHICS
upon the client; it also renders the lawyer administratively liable
therefor.368
In labor cases, the laborers who otherwise have meritorious
claims may not be bound by their lawyer’s obvious lack of acquaintance
with a technical point of procedure, especially where the lawyer’s
erroneous action is compounded by the lower court’s oversight, as to
deny them a full hearing on the merits of their claim.369
It is not, however, sufficient that counsel has been grossly
negligent to justify a new trial; it must also be shown that the client
has good and meritorious claim or defense3™ and that the client
is not himself guilty of gross negligence. Thus, where a judgment
of default was rendered against a client, due in part to the gross
negligence of his counsel and in part to the negligence of the client,
the client is bound by the mistakes of his counsel and by the result
of his own negligence.371 Where the client knew all along that his
counsel had been negligent in handling his case or that the latter
had committed series of errors in taking appropriate steps to protect
his interest, without replacing his counsel, the client cannot raise
the gross negligence of counsel to warrant the reversal of the lower
court’s decision. He is estopped.372
Where the adverse judgment against a client resulting from the
gross negligence of his lawyer has, in the meanwhile, become final,
rights of innocent third parties which have been acquired therefrom
may not be affected, in which case only the client will suffer the loss
or injury consequent thereby, without prejudice to his rights against
the negligent lawyer.373
In criminal prosecution, the rule is that the accused
lose his liberty because of the gross irresponsibility of his
Losing liberty by default of an insensitive lawyer should be
upon despite the fiction that a client is by the mistakes of his
For the established jurisprudence is —
368Legarda
369Emesto
v. Court of Appeals, 195 SCRA 418 (1991).
v. Court of Appeals, (1982); Eden v. Ministry of Labor, 182 SCRA
840 (1990).
370Amil v. CA, 316 SCRA 317 (1999).
371Velasquez v. CA, 309 SCRA 539 (1999).
372Boyer-Roxas v. Court of Appeals, 211 SCRA 470 (1992).
373Legarda v. CA, 280 SCRA 642, 660 (1997).
“cannot
lawyer.
frowned
lawyer.”
AUTHORITY OF ATTORNEY
367
“If the incompetence, ignorance or inexperience of counsel is so great and the error committed as a result thereof is
so serious that the client, who otherwise has a good cause, is
prejudiced and denied his day in court, the litigation may be
reopened to give the client another chance to present his case.
In a criminal proceeding, where certain evidence was not presented because of counsel’s error or incompetence, the defendant in order to secure a new trial must satisfy the court that
he has a good defense and that the acquitted would in all probability follow the introduction of the omitted evidence. What
should guide judicial action is that a party be given the fullest opportunity to establish the merits of his action or defense
rather than for him to lose life, liberty, honor or property on
mere technicalities.374
Illustrative of the rule that where the incompetence or negligence of counsel has been held so great as to have deprived the client
of due process and to entitle him to another opportunity to prove his
claim or defense are the following cases:
1.
The lawyer’s failure to attend hearings of the criminal
case, his failure to advise his client that he was going abroad so that
the latter could secure the services of another lawyer, and his failure
to withdraw properly as counsel from the case, which resulted in the
client’s conviction.375
2.
Counsel's erroneous and carelessly contrived strategy,
which prevented the accused from presenting an important piece
of documentary evidence, which if presented and appreciated, could
possibly result in his acquittal, even when the judgment of conviction
has already become final.376
3.
Failure of counsel to file the appellant’s brief after
repeatedly asking for extension of time to file the same, for reasons
unknown and without any cause attributable to the client, which
resulted in the dismissal of the appeal which raised serious doubt
as to the correctness of the trial court’s judgment of conviction.377
For the appeal may not be dismissed and the accused sent to jail
to serve the sentence for failure of the accused’s lawyer to file the
374Aguilar
v. CA, 250 SCRA 371, 375 (1995), quoting Agpalo, Ruben E., Legal
Ethics, 1980 ed., pp. 282-284.
376Suarez v. Court of Appeals, 220 SCRA 274 (1991).
376De Guzman v. Sandiganbayan, 256 SCRA 171 (1996).
377Mariveles v. Mallari, 219 SCRA 44 (1993).
368
LEGAL AND JUDICIAL ETHICS
appellant’s brief due to the latter’s gross negligence but should
instead be reinstated and the brief subsequently filed by another
counsel admitted. The reason is that the right to appeal should not
be lost through technicalities, and losing liberty by default of an
insensitive lawyer should be frowned upon despite the fiction that
the client is bound by the mistakes of his lawyer.378
4.
Where counsel for an accused failed to appear during the
hearing despite the warning of the court that such failure would
amount to a waiver of the accused’s right to present evidence, the
negligence of counsel to appear, which resulted in the conviction
of the accused based solely on the prosecution’s evidence, is gross
that it should not be allowed to prejudice the client’s constitutional
right to be heard and should entitle him to another day in court to
present his evidence. Rigid application of rules must yield to the
duty of courts to render justice where justice is due — secure to
every individual all possible legal means to prove his innocence of a
crime with which he or she might be charged.379
5.
Where counsel did not attend the scheduled hearing for
the reception of the evidence for the defense despite due notice; did
not inform his client of the scheduled hearing, as a result of which
both counsel and client were unable to attend to said hearing; did
not take steps to set a side the order considering his failure to attend
the hearing as a waiver of the right to present evidence; while he
appealed the adverse decision, which adjudged the client liable
for huge amounts, did not pay the appeal docket fee, allowing the
decision to become final and executory; and did not correctly inform
the client of the status of the appeal, the higher interests of justice
and equity demand that the client be allowed to present his evidence
on his defense, the case reopened and remanded to the trial court to
give the opportunity to present his evidence.380
378Aguilar v.Court of Appeals, 250 SCRA 371 (1995), citing Agpalo, Ruben E.,
Legal Ethics, 19980 ed., pp. 280-284.
379Reyes v. CA, 267 SCRA 543 (1997).
’“Apex Mining, Inc. v. CA, 319 SCRA 456 (1999).
Chapter XII
TERMINATION OF ATTORNEY’S AUTHORITY
AND CHANGE OF COUNSEL
A. TERMINATION OF COUNSEL’S AUTHORITY
§12.01. Generally.
The relation of attorney and client may be terminated by the
client, by the lawyer or by the court, or by reason of circumstances
beyond the control of the client or the lawyer. The termination of the
attomey-client relationship entails certain duties on the part of the
client and his lawyer.
A client has the absolute right to discharge his attorney at any
time with or without cause or even against his consent.1 The existence
or non-existence of a just cause is important only in determining the
right of an attorney to compensation for services rendered.2 But the
right of an attorney to be paid for his services or to a contingent fee
based on what may be recovered in the action if successful does not
give him such superior interest in the litigation as to preclude the
client from terminating the professional employment.3
The client’s right to terminate the retainer is an implied term
of every professional employment. A lawyer who accepts a retainer
^rcino v. Gaspar, 87 SCAD 232, 279 SCRA 379 (1997); Rule 138, Sec. 26,
Rules of Court; Rinconada Telephone Co. v. Buenvitge, 184 SCRA 701 (1990); Rustia
v. Court of First Instance of Batangas, 44 Phil. 62 (1922); De Mondia v. Public Service
Commission, 65 Phil. 708 (1938); Bacarro v. Court of Appeals, G.R. No. 24163, April
28,1969; Manoloto v. Reyes, 15 SCRA 131 (1965).
2Aro v. Nanawa, 27 SCRA 1090 (1969); Cabildo v. Navarro, 54 SCRA 26 (1973);
Valencia v. Jimenez, 11 Phil. 492 (1908).
3Rustia v. Court of First Instance of Batangas, 44 Phil. 62 (1922); Jesalva v.
Bautista, 105 Phil. 348 (1959); De Mondia v. Public Service Commission, 65 Phil. 708
(1938).
369
370
LEGAL AND JUDICIAL ETHICS
does so with full knowledge of the fact that his services may be
dispensed with at any stage of the proceedings. Such rule is a firmly
established one and springs from the strictly personal and highly
confidential nature of the relation between attorney and client. The
client’s loss of confidence in his lawyer deprives the relation of that
special element of trust which furnishes the basis of the client’s right
to dismiss him.*
§12.02. Limitations on client’s right.
The right of a client to dismiss his counsel at any time is not
without limitation. The discharge of an attorney or his substitution
by another without justifiable cause shall not negate the attorney's
right to full payment of compensation as agreed in writing or, in
the absence of a written retainer, to a reasonable amount based on
quantum meruit.* Moreover, the attorney may, in the discretion of
the court, intervene in the case to protect his right to fees.6
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 pleading7 or to indefinitely avoid a trial.8 If a client has transferred
the whole of his interests in the litigation pendente lite and the case
is continued by him without the transferee being substituted in his
place, he may not, without the consent of the transferee, dismiss his
attorney.9
It has been held by some courts in the United States that
the right of a client to dismiss his attorney does not exist where
the power of attorney is so coupled with interests engrafted in the
thing itself as distinguished from the proceeds to be derived from
the exercise of the power as to deprive the attorney of a substantial
right if the power were revoked.10 That rule, which has been cited
4Reyes Cristobal v. Ocson, 44 Phil. 489 (1923), citing Martin v. Camp, 219 NY
170 (1917).
6Rule 138, Sec. 26, Rules of Court; Aro v. Nanawa, 27 SCRA 1090 (1969); Cabildo v. Navarro, 54 SCRA 26 (1973).
6Rule 138, Sec. 26, Rules of Court; Aro v. Nanawa, supra.
7Allan v. Acosta, 10 SCRA 230 (1964).
8Miller v. Grier S. Johnson, Inc., 62 SE2d 870 (1951); Berg v. Mantle, 63 P2d
335 (1936).
9See Rule 3, Sec. 20, Rules of Court.
“O’Connell v. Superior Court of San Francisco, 41 P2d 334, 97 ALR 918
(1983).
TERMINATION OF ATTORNEY’S AUTHORITY
AND CHANGE OF COUNSEL
371
by some local writers on the subject,11 is of doubtful validity in this
jurisdiction. The fact that the client with whom the lawyer shares
an interest in the subject matter wishes to terminate the relation
shows that either he has lost confidence in his counsel or there
has developed a conflict of interests between them, either of which
requires that their relation be discontinued.12 The lawyer may not
be deprived of any substantial right by his dismissal. If the attorney
acquired from his client an interest in the subject matter of the
litigation before it became involved therein, he can in his own right
and independently of the client’s right intervene as a party litigant
to protect his interest.13 On the other hand, if the attorney acquired
such interest from his client during the pendency of the litigation,
the transaction is not only null and void as it is contrary to law,14 but
may also subject the lawyer to disciplinary action for acquiring that
interest.15
§12.03. Necessity of notice of discharge.
As between a client and his attorney, no formal notice of
discharge by the former to the latter is necessary. Any act of the
client indicating an unmistakable purpose to terminate the relation
is sufficient.16 Thus, by appearing personally and presenting a
motion to dismiss his action based upon a compromise entered into
with the defendant, plaintiff is deemed to have impliedly discharged
his counsel.17 However, the appearance of another attorney who filed
a motion to dismiss the action18 or who presented a pleading without
stating that the services of prior counsel have been dispensed
with by the client does not operate as an implied revocation of the
authority of the original lawyer.19 And the circumstance that in a
“See MARTIN, LEGAL ETHICS, 76 (1972 ed.); Jorge R. Coquia, The Rule
on Substitution or Employment of Additional Counsel, 51 SCRA 22, 24 (May-June,
1973).
12See Bernardino Guerrero & Associates v. Tan, 14 SCRA 451 (1965).
13Rule 12, Sec. 2, Rules of Court.
14Rubias v. Batillis, 51 SCRA 120 (1973).
15Hemandez v. Villanueva, 40 Phil. 774 (1920); Go Beltran v. Fernandez, 70
Phil. 248 (1940); In re Calderon, 7 Phil. 427 (1907); In re Ruste, 70 Phil. 243 (1940).
16Am. Jur. 2d 133.
17Rustia v. Court of First Instance of Batangas, 44 Phil. 62 (1922); De Mondia
v. Public Service Commission, 65 Phil. 708 (1938).
18Infante v. Montemayor, 9 Phil. 530 (1908).
19Aznar v. Morris, 3 Phil. 636 (1904); Fojas v. Navarro, 32 SCRA 476 (1970);
Olivares v. Leola, 97 Phil. 253 (1955); Ong Ching v. Ramolete, 51 SCRA 13 (1973).
372
LEGAL AND JUDICIAL ETHICS
pleading filed by a new counsel the client condemned the conduct
of his counsel of record does not show an implied termination of the
latter’s authority.20
As between the court and the adverse party, the rule is that
the severance of the relation of attorney and client is not effective
until a notice of discharge by the client or a manifestation clearly
indicating that purpose is filed with the court and a copy thereof
served upon the adverse party.21 Before that formality is complied
with, any judicial notice sent to counsel is binding upon the client
even though as between them the professional relation has long
terminated.22 If the client has not filed a notice of discharge, the duty
of the attorney, upon being informed by his client that his services
have been dispensed with, is to file a notice of withdrawal with the
client’s conformity or an application to retire from the case, he being
released from professional responsibility only after his dismissal or
withdrawal is made of record.23
§12.04. Effect of discharge of attorney.
The authority of an attorney to represent a client ceases upon
his dismissal by the client and its recording in the case.24 Before
his discharge is made of record, the attorney’s power is limited to
making that fact known to the court and the adverse party by filing
a manifestation to that effect with the written conformity of his
client or a petition for withdrawal of appearance and to preserving
or protecting his client’s interests until his final discharge is
effected2® or a new counsel has entered his appearance. Thereafter,
he cannot pretend to continue representing the client.2* However, if
“Baquiran v. Court of Appeals, 2 SCRA 873 (1961).
21Bacarro v. Court of Appeals, 37 SCRA 36 (1971); Baquiran v. Court of Appeals,
2 SCRA 873 (1961); Alcantara, Jr. v. Veloso, 65 SCRA 720 (1975).
“Domingo, Sr. v. Aquino, G.R. No. 23231, March 28, 1969; Don Lino Gutierrez & Sons v. Court of Appeals, 61 SCRA 87 (1974); Fojas v. Navarro, 32 SCRA 476
(1970).
“People v. Casimiro, 45 SCRA 554 (1971); Baquiran v. Court of Appeals, 2
SCRA 873 (1961); Wack Wack Golf & Country Club v. Court of Appeals, 106 Phil.
501 (1949).
uCf Bacarro v. Court of Appeals, 37 SCRA 36 (1971).
“See People v. Casimiro, 45 SCRA 554 (1972); Wack Wack Golf & Country
Club v. Court of Appeals, 106 Phil. 501 (1959).
’“De Mondia v. Public Service Commission, 65 Phil. 708 (1938).
TERMINATION OF ATTORNEY’S AUTHORITY
AND CHANGE OF COUNSEL
373
he reappears as counsel, as by filing a pleading, it is presumed that
he has been reemployed by the client.27
There may, however, be rare instances when an attorney,
whose authority has been terminated by his client, may be allowed
or even required to continue his representation in order to prevent
a failure or miscarriage of justice. Thus, where a labor union which
filed a case on behalf of its members terminated the authority of its
attorney during the pendency of the suit, to prevent a miscarriage
of justice, the individual members of the union may be ordered
impleaded as party litigants under the legal representation of said
attorney until each of the individual members should otherwise
manifest in court.28 That principle may, in appropriate cases, be also
invoked in a class suit.29
§12.05. Death or incapacity of client.
As the relation of attorney and client is personal and one of
agency, it terminates upon the death of the client.30 Thereafter, the
attorney loses his standing in court to represent the deceased client
or the latter’s estate,31 unless he is retained by the administrator,
executor or legal representative of the deceased client.82 But the death
of the administrator or executor or his replacement by another does
not terminate the authority of the attorney to represent the estate,
the attorney not being, by the mere fact of having been employed
by the estate’s legal representative, the personal counsel of the
latter.33
The relation of attorney and client also terminates upon the
incapacity or incompetency of a client during the pendency of the
litigation, the reason being that the client loses the legal capacity
to contract or to control the subject matter of the action.34 Only the
27Aznar
(1946).
v. Morriz, 3 Phil. 636 (1904).
“Bicol Federation of Labor v. Cuyugan, 65 SCRA 195 (1975).
aCf. Ferrer v. Reyes, 54 SCRA 265 (1973).
“Barrameda v. Barbara, 90 Phil. 718 (1952); People v. Florendo, 77 Phil. 16
“Barrameda v. Barbara, 90 Phil. 718 (1952); Caisip v. Cabangon, 109 Phil.
150 (1960).
32Visitacion v. Manit, 27 SCRA 523 (1969); Flores v. Ruiz, 90 SCRA 428
(1979).
“Domingo, Sr. v. Aquino, 38 SCRA 472 (1971).
MCf. Rule 3, Sec. 16, Rules of Court; Gorostiaga v. Sarte, 68 Phil. 4 (1939).
374
LEGAL AND JUDICIAL ETHICS
guardian of the incapacitated or incompetent client may authorize
the lawyer to continue representing the client.35
Whenever a party to a pending case dies, becomes incapacitated
or incompetent, it shall be the duty of his attorney to inform the
court promptly of such death, incapacity or incompetency and to give
the name and residence of his executor, administrator, guardian or
other legal representative.36 That duty is imposed upon the attorney
because he is in a better position than the counsel for the adverse
party to ascertain who is the legal representative of the deceased or
incapacitated or incompetent client.37
The word “party” refers to a natural and not to a juridical
person, such as a duly registered partnership. Hence, the death
of a partner does not necessarily terminate the attomey-client
relationship.38 But the legal dissolution of a corporate client or its
insolvency and the appointment of a receiver may bring about that
result.39
§12.06. A lawyer shall withdraw only for good cause.
Although a lawyer may decline to accept a case except when
designated as counsel de oficio and although his client may dismiss
him at any time, he lacks the unqualified right to withdraw once he
has taken one.40 For he has impliedly stipulated that he will prosecute
the case to conclusion.41 Furthermore, being an officer of the court in
whose favor a lawyer owes the duty to assist in administering justice,
he may not withdraw or be permitted to withdraw as counsel in a
case if such withdrawal will work injustice to a client or frustrate
the ends of justice.42 It has accordingly been held that the right of
an attorney to withdraw or terminate the relation other than for
sufficient cause is considerably restricted. Among the fundamental
(1954).
35Guinto
v. Bonfing, 48 Phil. 884 (1926); Jaranilla v. Gonzales, 96 Phil. 3
36Rule 3, Sec. 16, Rules of Court; Aguinaldo v. Aguinaldo, 36 SCRA 137 (1970);
Bonifacio v. Dizon, 177 SCRA 294 (1989).
37Barrameda v. Barbara, 90 Phil. 718 (1952).
38Wahl v. Donaldson, Sim & Co., 5 Phil. 11 (1909).
395 Am. Jur. 282 (1936).
40Rule 138, Sec. 26, Rules of Court; Canon 44, Canons of Professional Ethics.
41Dais v. Garduno, 49 Phil. 165 (1925); Stork County v. Mischel, 173 NW 817,
ALR 174 (1919).
42Finch v. Wallberg Dredging Co., 281 P2d 136, 48 ALR 1150 (1955); Ledesma
v. Climaco, 57 SCRA 473 (1974).
TERMINATION OF ATTORNEY’S AUTHORITY
AND CHANGE OF COUNSEL
375
rules of ethics is the principle that an attorney who undertakes to
conduct an action impliedly stipulates to carry it to its conclusion. He
is not at liberty to abandon it without reasonable cause. A lawyer’s
right to withdraw from a case before its final adjudication arises
only from the client’s written consent or from the court’s approval of
his petition to withdraw based on a good cause."
A lawyer may retire at any time from any action or special
proceeding with the written consent of his client filed in court
and copy thereof served upon the adverse party.44 As a rule, the
withdrawal in writing of a lawyer as counsel for a party, with the
client’s written conformity, does not require the approval of the
court to be effective,45 especially if the withdrawal is accompanied
by a formal appearance of a new counsel, and the same ordinarily
takes effect upon its filing in court, insofar as the court is concerned
and upon receipt of a copy thereof by the adverse party insofar as
the latter is concerned.4® However, if no new counsel has entered his
appearance, the court may, in order to prevent a denial of a party’s
right to the assistance of counsel require that the lawyer’s withdraw
be held in abeyance until another lawyer shall have appeared for the
party.47
A lawyer may also retire at any time from
proceeding without the consent of his client should
notice to the client and the attorney and on hearing,
he ought to be allowed to retire.48 The application
must be based on a good cause.
any action or
the court, on
determine that
for withdrawal
§12.07. Grounds for withdrawal without client’s consent.
A lawyer may withdraw from the case for a good cause without
the client’s consent but with the approval of the court.49
43Orcino v. Gaspar, 87 SCAD 232, 279 SCRA 379 (1997), citing Agpalo, Legal
Ethics, pp. 289-290 (1992); Rule 138, Sec. 26, Rules of Court; Can on 22, Code of Professional Responsibility; Canon 44, Canons of Professional Ethics.
"Rule 138, Sec. 26, Rules of Court.
“Arambulo v. Court of Appeals, 44 SCAD 972, 226 SCRA 589 (1993).
ieCf. Bacarro v. Court of Appeals, 37 SCRA 36 (1971).
47See Villasis v. Court of Appeals, 60 SCRA 120 (1974); Bicol Federation of
Labor v. Cuyugan, 65 SCRA 195 (1975).
■“Rule 138, Sec. 26, Rules of Court.
49Arambulo v. Court of Appeals, 44 SCAD 972, 226 SCRA 589 (1993).
LEGAL AND JUDICIAL ETHICS
376
A lawyer may retire at any time from any action or proceeding
with the written consent of his client filed in court and copy thereof
served upon the adverse party. Should the client refuse to give his
consent, the lawyer must file an application with the court. The court,
on notice to the client and adverse party, shall determine whether he
ought to be allowed to retire. The application for withdrawal must
be based on a good cause, namely:
1.
hen the client pursues an illegal or immoral
of conduct in connection with the matter he is handling;
2.
conduct
ethics;
course
When the client insists that the lawyer pursue
violative of the canons and rules of professional
3.
When his inability to work with co-counsel will not
promote the best interest of the client;
4.
When the mental or physical condition of the
lawyer renders it difficult for him to carry out the employment
effectively;
5.
When the client deliberately fails to pay the fees for
the services or fails to comply with the retainer agreement;
6.
When the lawyer is elected or appointed to public
office; and
7.
Other similar cases.50
A lawyer is justified in withdrawing from the case if his
client insists upon an unjust or immoral course in the conduct of
his case or persists over his remonstrance in presenting frivolous
defenses.51 Since a lawyer may not allow himself to be a party to
his client’s scheme to defraud the adverse party, he should, if his
client upon being advised refuses to forego any advantage unjustly
gained by deception, retire from the litigation.52 Moreover, if after
an attorney discovers that his client has no cause and is nonetheless
determined to continue it, he should likewise withdraw from the
action.53 An attorney who continues representing a client in a civil
“Rule 22.01, Code of Professional Responsibility.
“Canon 44, Canons of Professional Ethics.
“Canon 44, Canons of Professional Ethics; Gebhart v. United States R. Co., 22
SW 677, 9 ALR 1076 (1920).
“Canon 44, Canons of Professional Ethics.
TERMINATION OF ATTORNEY’S AUTHORITY
AND CHANGE OF COUNSEL
377
suit notwithstanding the occurrence of any of the foregoing grounds
opens himself to possible disciplinary action by the court.
An attorney who finds it impracticable or difficult to perform
his duties for reasons attributable to his client, as when his client
refuses to extend him cooperation,54 has disauthorized him to pursue
the suit55 or stops having any contact with him,56 should promptly
retire from the action. Under such condition, he cannot continue
representing the client without doing injustice to the client’s cause57
or putting in issue his standing as a member of the bar.68
A lawyer may not continue employment when he discovers
that his obligation to preserve the client’s confidence prevents the
performance of his full duty to his former or to his present client,59
especially when his legal representation is challenged on that
ground.60 Thus, having previously appeared as private prosecutor
against an accused, he should withdraw as counsel for a co-accused
charged with the same offense.61 When one of his clients in an
action joins common cause with the adverse party or asserts a claim
adverse to that of his other clients, he should retire as counsel for the
remaining client.62 When he, on his own right, and his client seek to
enforce claims against a defendant, he should ask to be relieved from
his professional responsibility if it appears that the defendant may
not be able to satisfy both judgments.63 And a lawyer who represents
opposing clients with their consent should discontinue professional
relations with both of them should they not see their way clear to
settling their differences amicably.64 Ethical considerations in any of
such instances require that counsel withdraw from the action.
The ethical proscription against a lawyer acting as a witness
and an advocate at the same time in a case requires that counsel
“Ventura v. Santos, 59 Phil. 123 (1933).
“People v. Casimiro, 45 SCRA 554 (1972).
“Republic v. Court of First Instance of Lanao del Norte, 53 SCRA 317 (1973).
57Republic v. Court of First Instance of Lanao del Norte, 53 SCRA 317 (1973).
“Ventura v. Santos, 59 Phil. 123 (1933); People v. Casimiro, 45 SCRA 554
(1972) ; Blanza v. Arcangel, 21 SCRA 1 (1967).
59Canon 37, Canons of Professional Ethics.
“Sumangil v. Sta. Romana, 84 Phil. 777 (1949); Hilado v. David, 84 Phil. 569
(1949).
61U.S. v. Laranja, 21 Phil. 500 (1912).
62See People v. Davis, 210 Cal App2d 721 (1962); Tucker v. United States, 235
F2d 238 (1956).
63A.B.A. Op. 132 (March 15, 1935).
MIn re De La Rosa, 27 Phil. 258 (1914).
378
LEGAL AND JUDICIAL ETHICS
withdraw from the action before he or his partner testifies for the
client on substantial matters and leave the trial of the case to another
lawyer.65 Similarly, a lawyer should retire from a case when his client,
after his testimony, confides to him that he committed perjury66 or
when, in a matrimonial suit, he tells him of his commission of an
offense whose disclosure would defeat his cause. The lawyer’s duty
to the court and to the public, which requires revelation of either
offense, conflicts with his duty to preserve undisclosed his client’s
confidence, and withdrawing from the action is the only way to serve
both loyalties.
The inability of a client to pay the attorney’s fees or the cost
of litigation does not justify the lawyer’s withdrawal from the
action67 unless the client deliberately disregards an agreement as to
compensation or expenses.66 Where the evidence shows that the client
paid the acceptance fee and he thereafter paid part of the balance
upon demand of his counsel even when the fee arrangement is that
the client would pay the balance upon the submission of the brief,
the lawyer’s withdrawing from the case simply because his client
failed to pay the balance of the fee, which was not deliberate, was an
improper conduct unbecoming of a member of the legal profession.69
Where controversy develops between a client and his counsel
as to the latter’s fees for services rendered, which the lawyer seeks
to have them preserved and protected in the action, the attorney
should ask that he be relieved from professional responsibility,
there having arisen a conflict of interests between them which may
either cause a loss of the client’s trust in him or affect the attorney’s
discharge of his duty to his client.70
A client’s proffer of assistance of additional counsel
not be regarded as evidence of want of confidence and the
association as a colleague in a cause may not warrant the
counsel to retire therefrom, unless he has valid objections
which may affect his effectiveness as counsel. When lawyers jointly
should
latter’s
original
thereto
“Allen v. Ross, 25 NW 831, 64 ALR 180 (1929).
(1920).
(1969).
“A-B-A. Op. 287 (June 27,1953).
mIn re Montagne & Dominguez, 3 Phil. 577 (1904); In re Carmen, 41 Phil. 889
“Canon 44, Canons of Professional Ethics.
“Montano v. IBP, A.C. No. 4215, May 21, 2001.
70See Dahlke v. Vina, 51 Phil. 707 (1928); Tolentino v. Escalona, 26 SCRA 613
TERMINATION OF ATTORNEYS AUTHORITY
AND CHANGE OF COUNSEL
379
associated in a cause cannot agree as to any matter vital to the
interest of the client, which the client should resolve, the lawyer
whose judgment has been overruled should, if the nature of the
conflict makes it impracticable for him to cooperate effectively, ask
the client to relieve him.71
In a criminal proceeding, counsel for an accused should not ask
to be relieved from his professional responsibility on mere trivial
ground.72 Nor may he retire from the action because the accused has
confessed to him his guilt.73 The lawyer’s right and duty to extend
the best legal assistance to an accused demand that he continue
representing him irrespective of his personal opinion as to his client’s
guilt.
“A lawyer who withdraws or is discharged shall, subject to his
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.”74
§12.08. Procedure for withdrawal.
A lawyer who desires to retire from an action without the
written consent of his client must file a petition for withdrawal in
court.75 He must serve a copy of his petition upon his client and the
adverse party at least three days before the date set for hearing,
otherwise the court may treat the application as a “mere scrap of
paper.”76 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. If the application is filed under circumstances that
do not afford a substitute counsel sufficient time to prepare for trial
or that work prejudice to the client’s cause, the court may deny his
application and require him to conduct the trial.77
71Canon 7,
72Canon 4,
Canons of Professional Ethics.
Canons of Professional Ethics; People v. Irisuillo, 82 Phil. 1 (1948);
Ledesma v. Climaco, 57 SCRA 473 (1974).
73A.B.A. Op. 90 (Dec. 3, 1932).
74Rule 22.02, ibid.
1Hn re Montagne & Dominguez, 3 Phil. 577 (1904); Alcantara, Jr. v. Veloso, 64
SCRA 720 (1975); Domingo, Sr. v. Aquino, 38 SCRA 472 (1971).
76Visitacion v. Manit, 27 SCRA 523 (1969); Cf. G.A. Machineries, Inc. v. Januto, 50 SCRA 1 (1973).
77Finch v. Wallberg Dredging Co., 281 P2d 136, 48 ALR2d 1150 (1955).
380
LEGAL AND JUDICIAL ETHICS
Ordinarily, a court will not relieve a lawyer from professional
responsibility without notice to the client. However, the court may
be justified under peculiar circumstances in relieving a lawyer from
continuing his appearance in an action or proceeding without hearing
the client as, for instance, when a client stops having any contact
with his lawyer who is thereby left without the usual means for a
successful or at least proper defense of the client’s cause, such as
actual knowledge of relevant facts, the identity of usable witnesses,
pertinent documents and other evidence as well as the money
needed for even the minimum of litigation expenses and possible
advances of attorney’s fees. No responsible lawyer can be expected
to do justice to any cause under such conditions, and it would be an
unjust imposition to compel him to continue his services in relation
thereto.™
The lawyer has no right to presume that his petition for
withdrawal will be granted by the court. Until his withdrawal shall
have been approved, 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. He must still appear on the date of hearing for
the attomey-client relation does not terminate formally until there
is a withdraw of record, otherwise he may be disciplined therefor.79
Moreover, any notice served upon him is notice to and is binding
upon the client.80
§12.09. Death of attorney.
A contract of professional employment terminates upon the
death of an attorney.81 For that reason, the personal representative
of the deceased attorney has no right to assign pending cases
to another lawyer of his choice as the matter is for the client to
decide.82 But the death of a partner in a law firm does not severe
the professional employment between the law firm and the client,
and the remaining partners in the law firm continue to assume
78Republic v. CFI of Lanao del Norte, 53 SCRA 317 (1973); Jiongco v. Reyes,
CA-G.R. No. 50495-R, March 1,1976.
79Orcino v. Gaspar, 87 SCAD 232, 279 SCRA 379 (1997); Rule 22.01, Code of
Professional Responsibility.
“Don Lino Gutierrez & Sons, Inc. v. Court of Appeals, 61 SCRA 87 (1972).
81Bacon v. Hark, 17 L. ed. 52 (1862).
82jRe Heirich, 140 NE2d 825, 67 ALR2d 827 (1957).
TERMINATION OF ATTORNEY’S AUTHORITY
AND CHANGE OF COUNSEL
381
professional responsibility in the pending litigation.83 Neither does
the dissolution of a law firm in itself bring about that result.84
§12.10. Acceptance of incompatible office.
A lawyer who accepts a public office ceases, by operation of
law, to engage in private law practice and becomes disqualified
from continuing to represent a client in those cases which the law
prohibits him from doing so or requires his entire time to be at the
disposal of the government. His qualification to public office operates
to terminate the existing attomey-client relationship.85
The court does not, however, take judicial notice of the
appointment or election of an attorney to a public office which
thereby disqualifies him from continuing as counsel for a client.
In the absence of a withdrawal or manifestation to that effect or
an explanation why that step has not been made, the court may
regard him as the counsel of record upon whom written notice may
be served which will bind the client.86
B. CHANGE OR SUBSTITUTION
OF COUNSEL
§12.11. Change of counsel.
A client may change his counsel in a pending case in any of
three ways. Firstly, he may discharge his attorney at any time with
or without cause and thereafter employ another lawyer who may
then enter his appearance.87 Thus, it has been held that a client is
free to change his counsel in a pending case and thereafter retain
another lawyer to represent him.88 That manner of changing a lawyer
does not need the consent of the lawyer to be dismissed.89 Nor does it
83See
Don Lino Gutierrez & Sons, Inc. v. Court of Appeals, supra.
“Vda. de Carretero v. Tarca, 89 Phil. 698 (1950).
“Aquino v. Blanco, 79 Phil. 647 (1947); People v. Villanueva, 14 SCRA 109
(1965) ; Omico Mining & Industrial Corp. v. Vallejos, 63 SCRA 285 (1975).
“Heirs of Acuesta v. Eugenio, CA-G.R. No. 30881-R, October 20, 1967; Domingo, Sr. v. Aquino, 38 SCRA 472 (1971). But see Aquino v. Blanco, 79 Phil. 647
(1947).
87Canon 7, Canons of Professional Ethics; Laput v. Remotigue, 6 SCRA 45
(1962); Bernardino Guerrero & Associate v. Tan, 14 SCRA 451 (1965).
^Quilban v. Robinol, 171 SCRA 768 (1989).
"Bacarro v. Court of Appeals, 37 SCRA 36 (1971); Rustia v. CFI of Batangas,
44 Phil. 662 (1922).
382
LEGAL AND JUDICIAL ETHICS
require approval of the court.90 Secondly, the attorney himself may
initiate the move by withdrawing his appearance either with the
written consent of his client or with leave of court on some justifiable
ground. Another lawyer may then appear for the client.91
The third method of changing a lawyer is by substitution of
counsel in the form of an application for that purpose. The application
itself constitutes an appearance of the substituting counsel and is a
polite way, on the part of the client, of effecting a change of counsel.
It moreover involves ethical considerations. For these reasons,
compliance with some formalities is necessary to make the change
of counsel by substitution effective.92
§12.12. Requirements for substitution.
A proper substitution of counsel requires: (a) a written
application for substitution; (b) written consent of the client; and
(c) written consent of the attorney to be substituted. In case such
written consent cannot be secured; (d) there must be filed with
the application proof of service of notice of the application upon
the attorney to be substituted.93 A verbal substitution of counsel,
impliedly granted by the judge, contravenes the requirements of
substitution.94
Ethical reasons underlie the requirements for substitution
of counsel and the need for strict compliance therewith. As a
substitution is usually initiated by the substituting counsel and is in
itself an appearance on his part, professional courtesy requires that
the substituting counsel obtain the conformity of the lawyer whom
he would substitute or, if that cannot be secured, at least notify such
lawyer of the contemplated substitution. Without the substituting
counsel complying with such formality, his entry of appearance as
chief counsel of record is an act of pre-empting from the attorney
“Bacarro v. Court of Appeals, 37 SCRA 36 (1971).
91Laput v. Remotigue, 6 SCRA 45 (1962).
92/« Re Soriano, 33 SCRA 801 (1970).
93U.S. v. Borromeo, 20 Phil. 189 (1911); Olivares v. Leola, 97 Phil. 253 (1955);
Ramos v. Potenciano, 9 SCRA 589 (1963); Fojas v. Navarro, 32 SCRA 476 (1970);
Magpayo v. Court of Appeals, 101 Phil. 612 (1957); Rodriguez v. Fernandez, 101
Phil. 612 (1957); Wack Wack Golf & Country Club v. Court of Appeals, 106 Phil. 501
(1959) ; Baquiran v. Court of Appeals, 2 SCRA 873 (1961); Ong Ching v. Remolete, 51
SCRA 13 (1973).
^Requierme, Jr. v. Yuipco, Adm. Case No. RTJ-98-1427, November 27, 2000,
138 SCAD 494.
TERMINATION OF ATTORNEYS AUTHORITY
AND CHANGE OF COUNSEL
383
of record the premier control of the case, which is unbecoming of
a member of the bar.96 For efforts, direct or indirect, in any way to
encroach upon the professional employment of another lawyer are
unworthy of those who should be brethren in the bar.96
The filing by a new counsel of a formal appearance and of a motion
in a case does not constitute a valid substitution, the requirements
of the rule not having been complied with, particularly because the
real party in interest in the case has not dismissed the counsel of
record nor replaced him by the new counsel. The appearance of new
counsel was not having been authorized by the client, the motion he
filed was a mere scrap of paper and produced no legal effect.97
The requirement that the consent to the substitution on the part
of the lawyer to be substituted be secured or a notice thereof served
upon him is moreover designed to afford the lawyer the opportunity
to protect his right to attorney’s fees. If he gives his written consent
to the substitution, it is presumed that he has settled that question
with his client. If he withholds such consent, the notice to him will
give him the chance to have his right to attorney’s fees preserved
and protected in the same action. And the court may, in the order
permitting the substitution, require the client to pay the substituted
counsel his just compensation or make a provision to secure payment
thereof.98
§12.13. Defective substitution and effects thereof.
A substitution of counsel which does not comply with all of its
requirements is defective. Hence, the appearance of new counsel
and his taking over the active conduct of the litigation neither
operates to effect a change of counsel nor to terminate the latter’s
authority.99 Nor is a substitution without the written consent of
the client effective.100 Similarly, a statement in a pleading filed by
a new counsel of record with the written consent of the client but
(1987).
(1962).
mIn
re Soriano, 33 SCRA 801 (1970); Morales v. Fabello, 149 SCRA 334
"Canon 7, Canons of Professional Ethics; Laput v. Remotigue, 6 SCRA 45
97Santana-Cruz
v. CA, G.R. No. 120176, July 20, 2001.
"Evans v. Ockershausen, 100 F2d 695, 128 ALR 177 (1938); Froedtert Grain
& Malting Co. v. Peter Waboril, Inc., 61 NW2d 858, 45 ALR2d 6671; See also Bernardino Guerrero & Associates v. Tan, 14 SCRA 451 (1964).
"Olivares v. Leola, 97 Phil. 253 (1955).
100Fojas v. Navarro, 32 SCRA 476 (1970).
LEGAL AND JUDICIAL ETHICS
384
with neither the conformity of nor a notice to the attorney to be
substituted is an invalid substitution.101 But a statement in a pleading
presented by another lawyer to the effect that the client has duly
relieved the counsel of record amounts to an effective discharge of
the latter in favor of the former even though the attorney discharged
has not been served with a copy thereof.102 That rule underscores the
difference between a dismissal of counsel by a client on the one hand
and a substitution of counsel on the other hand.
A substitution which does not comply with the required
formalities is ineffective to effect a change of counsel or to terminate
his authority. The attorney who appears to be on record before the
filing of the defective application will be regarded as the attorney
responsible for the proper conduct of the case and entitled to be
notified of all processes and pleadings.103 The court may recognize no
other representation on behalf of the client than the counsel of record
until a formal substitution is validly effected.104 For that reason, any
notice to or shortcoming of the counsel of record is binding upon the
client who must suffer the adverse consequences thereof.
But while a defective substitution of counsel, which bears the
conformity of the client but without that of the counsel of record, does
not amount to a change of counsel, it does constitute an appearance
of the new lawyer, both of whom may be deemed counsel of record.105
And the fact that the attempted substitution is ineffective does
not render a pleading filed by the additional counsel without legal
effect,106 as his appearance is with the conformity of the client.
§12.14. Employment of additional counsel.
A client has the right to have as many lawyers as he can
afford.107 The client’s proffer of assistance of additional counsel should
101Ramos v. Potenciano,
9 SCRA 589 (1963).
v. Court of Appeals, 37 SCRA 36 (1971).
103Ramos v. Potenciano, 9 SCRA 589 (1963); Fojas v. Navarro, 32 SCRA 103
(1970) ; Olivares v. Leolo, 97 Phil. 253 (1955); U.S. v. Borromeo, 20 Phil. 189 (1911).
104Wack Wack Golf & Country Club, Inc. v. Court of Appeals, 106 Phil. 501
(1959) ; Fojas v. Navarro, 32 SCRA 476 (1970); Baquiran v. Court of Appeals, 2 SCRA
873 (1961); Visitacion v. Manit, 27 SCRA 523 (1969); Ramos v. Potenciano, 9 SCRA
589 (1963).
105Palteng v. Court of Appeals, 26 SCRA 736 (1969).
106Ong Ching v. Ramolete, 51 SCRA 13 (1973).
107Monson v. Reyes, 67 SCRA 402 (1975).
102Bacarro
TERMINATION OF ATTORNEYS AUTHORITY
AND CHANGE OF COUNSEL
385
not be regarded as evidence of want of confidence.108 Professional
courtesy, however, requires that a lawyer who has been retained as
collaborating counsel in a case should at least communicate with the
counsel of record before entering his appearance.109 And he should
decline association as a colleague if it is objectionable to the original
counsel. But if the lawyer first retained is relieved by the client,
another lawyer may come into the case.110
108Canon 7,
1MIn
(1962).
Canons of Professional Ethics.
re Soriano, 33 SCRA 801 (1970).
110Canon 7, Canons of Professional Ethics; Laput v. Remotigue, 6 SCRA 45
Chapter XIII
COMPENSATION OF ATTORNEY
A. RIGHT TO ATTORNEY’S FEES
§13.01. Generally.
There are two concepts of attorney’s fees. The ordinary concept
refers to the reasonable compensation paid to a lawyer by his client
for the legal services he has rendered to the latter. The other concept
is the amount of damages which the court may award to be paid by
the losing party to the prevailing party.1
The rule that the practice of law is a profession and not a
money-making trade does not operate to deny a lawyer the right to
attorney’s fees for his professional services. He may expect that his
client will pay him his just fees in the same manner that a client
may expect that his counsel will exert his best efforts to protect his
interest.2 He has the right to have and recover from his client a fair
and reasonable compensation for his services, except in cases where
he has agreed to render service gratuitously or has been appointed
counsel de oficio,3
The compensation of a lawyer should be a mere incident
of the practice of law, the primary purpose of which is to render
public service. Neither the amount of attorney's fees nor the client’s
financial capacity to pay such fees dictates the extent of the lawyer’s
■Compania Maritima, Inc. v. CA, 318 SCRA 169 (1999).
2Delgado v. De la
Rama, 43 Phil. 419 (1922); De Guzman v. Visayan Rapid
Transit Co., 68 Phil. 643 (1939); Albano v. Coloma, 21 SCRA 411 (1967).
3Canon 20, Rule 2.04, Code of Professional Responsibility; Rule 138, Sec. 24,
Rules of Court; Rule 138, Sec. 32, Rules of Court; De los Santos v. Palanca, 8 SCRA
265 (1963); Corpuz v. Court of Appeals, 98 SCRA 424 (1980).
386
COMPENSATION OF ATTORNEY
387
devotion to the client’s cause required of him as an advocate.4 Being
primarily an officer of the court charged with the duty of assisting
the court render impartial justice, what a lawyer may collect as his
fees is always subject to judicial control.5
In fixing his fees, a lawyer should never forget that the practice
of law is a profession and not a business using counter methods to
take large profits for those who conduct it.6 He should avoid controversies with clients concerning compensation so far as shall be
compatible with self-respect and with his right to receive a reasonable recompense for his services, and he should resort to law suits
with clients only to prevent injustice, imposition or fraud.7 Lawyers
thus seldom, if ever, file judicial actions for the recovery of their fees
unless righteous and well founded and unless forced by the client’s
intolerable attitude because such lawsuits cannot fail to create the
impression, however, wrong it may be, that those instituting them
are mercenaries.8
§13.02. Right to protection of counsel fees.
The fact that the practice of law is not a business and the
attorney plays a vital role in the administration of justice underscores
the need to secure him his honorarium lawfully earned as a means
to preserve the decorum and respectability of the legal profession.9
A lawyer is as much entitled to judicial protection against injustice,
imposition or fraud on the part of his client as the client against abuse
on the part of his counsel. The duty of the court is not alone to see
that a lawyer acts in a proper and lawful manner; it is also its duty
to see that a lawyer is paid his just fees.10 With his capital consisting
only of his brains and with his skill acquired at tremendous cost not
only in money but in expenditure of time and energy, he is entitled
4Oparel, Sr. v. Abaria, 40 SCRA 128 (1971); People v. Estebia, 27 SCRA 106,
(1969); Narido v. Linsangan, 58 SCRA 85 (1974).
5Gorospe v. Gochangco, 106 Phil. 425 (1959); Mambulao Lumber Co. v. Phil.
National Bank, 22 SCRA 359 (1968).
6Canon 12, Canons of Professional Ethics; Jayme v. Bualan, 58 Phil. 422
(1935).
7Rule 20.04, Code of Professional Responsibility; Canon 14, Canons of Professional Ethics; Retuya v. Corduiz, 96 SCRA 526 (1980).
8Perez v. Scottish Union & Nat. Ins. Co., 76 Phil. 320 (1946).
9See Calalang v. De Boija, 66 SCRA 176 (1975); Ampil v. Agrava, 4 SCRA 370
(1978).
10Femandez v. Bello, 107 Phil. 1140 (1960); Albano v. Coloma, 21 SCRA 411
(1967).
388
LEGAL AND JUDICIAL ETHICS
to the protection of any judicial tribunal against any attempt on
the part of his client to escape payment of his just compensation. It
would be ironic if after putting forth the best in him to secure justice
for his client he himself would not get his due.11
§13.03. Requisites for right to accrue.
Generally, the right of a lawyer to a reasonable compensation for
his services requires the existence of an attomey-client relationship
and the rendition by the lawyer of services to the client.12 The presence
of these requisites is essential to the accrual of the lawyer’s right to
attorneys fees. Thus, a lawyer who rendered professional services
in favor but over the objection of a party is not entitled to recover
attorney's fees from that party even though the services redounded
to his benefit.13 Nor is a lawyer who did not render services entitled
to fees.14 In other words, there should be a professional contract,
express or implied, between a lawyer and his client and the lawyer
should have rendered services pursuant thereto before he may be
entitled to counsel fees.15
§13.04. Written agreement.
A written agreement is not necessary to establish a client’s
obligation to pay attorney’s fees.16 A lawyer is entitled to have and
receive a just and reasonable compensation for services 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 interest of his client,
the latter is bound to pay him his just fees.17 The absence of an
express undertaking on the client’s part to pay attorney’s fees will
nAlbano v.
12Arce
Coloma, supra.
v. Phil. National Bank, 62 Phil. 570 (1935); Early v. Sy-Giang, 4 Phil.
727 (1905); Orosco v. Heirs of Hernandez, 1 Phil. 77 (1901); Sato v. Rallos, 12 SCRA
84 (1964).
13Orosco v. Heirs of Hernandez, supra.-, See also Phil. Ass’n. of Free Labor
Union v. Binalbagan Sugar Co., 32 SCRA 302 (1971).
14Katindig v. Brillantes, 12 SCRA 190 (1963); Legaspi v. SI Ohora Insular, 83
Phil. 149 (1949); Melegrito v. Barbar, 58 Phil. 513 (1933).
15Femandez v. Bello, 107 Phil. 1140 (1960); Imperial v. Toledo, 14 Phil. 584
(1909); Fajardo v. Court of Industrial Relations, 20 SCRA 326, (1967).
16Peyer v. Peyer, 77 Phil. 366 (1946); Dee v. Court of Appeals, 176 SCRA 651
(1989).
17De Guzman v. Visayan Rapid Transit Co., 68 Phil. 643 (1939); Wolfson v.
Anderson, 48 Phil. 672 (1926).
COMPENSATION OP ATTORNEY
389
not defeat recovery if the employment is fairly made out from all
attendant circumstances. Acts of recognition or acceptance are in
general equivalent to a prior engagement. Acquiescence by a client
in his attorney's conduct may take the place of a request to act,
provided that the case was such that the client might reasonably
know that he would be expected to pay the service. That would be
true where a client by his acts induced his attorney to believe that
his services were desired.18 The client’s obligation to pay attorney’s
fees arises from the inanimate contract of facias ut des (I do and
you give) which is based on the principle that no one shall unjustly
enrich himself at the expense of another.19
§13.05. Quantum, meruit.
Quantum meruit means as much as the lawyer deserves or such
amount which his services merit. Recovery of attorney’s fees on the
basis of quantum meruit is authorized (1) when there is no express
contract for payment of attorney’s fees; (2) when although there is
a formal contract for attorney’s fees, the fees stipulated are found
unconscionable or unreasonable by the court; (3) when the contract
for attorney’s fees is void due to purely formal defects of execution;
(4) when the lawyer, for justifiable cause, was not able to finish the
case to its conclusion; (5) when the lawyer and the client disregard
the contract for attorney’s fees,20 and (6) when the client dismissed
his counsel before the termination of the case or the latter withdrew
therefrom for valid reasons.
It is essential for the proper operation of the principle that
there is an acceptance of the benefits by one sought to be charged for
the services rendered under circumstances as reasonably to notify
him that the lawyer performing the task is expecting to be paid
compensation therefor. The doctrine of quantum merit is a device to
prevent undue enrichment based on the equitable postulate that it
is unjust for a person to retain benefit without paying for it.21
18De Guzman v. Visayan Rapid Transmit Co., 68 Phil. 643 (1939); Wolfson v.
Anderson, 48 Phil. 672 (1926).
19Corpus v. Court of Appeals, 98 SCRA 428, (1980).
“Rillaroza, Africa, De Ocampo and Africa v. Eastern Telecommunications
Phil., Inc., 309 SCRA 566 (1999).
21Traders Royal Bank Employees Union-Independent v. NLRC, 269 SCRA 733
[1997], citing Agpalo, R.E., The Code of Professional Responsibility for Lawyers, 1991
ed., 257.
390
LEGAL AND JUDICIAL ETHICS
Thus, a lawyer who rendered professional services without
appointment from the board of directors of a union, although it
acknowledged and made use of his services which redounded to the
benefits of the union, is entitled to attorney’s fees on a quantum
meruit basis notwithstanding the absence of an express authority
from the board.22
The circumstance that the services rendered by a lawyer were
purely administrative in character and did not require a high degree
of professional skill and experience does not affect his right to
fees.23 Professional services to prepare and prosecute just claims for
compensation before an administrative tribunal are as legitimate as
services rendered in court in arguing a cause to convince the court
that the claim presented or defense set up against the claim by the
other party ought to be allowed or rejected. Parties in such cases
require advocates, and members of the legal profession must have
a right to accept such employment and to receive compensation for
their services.24
§13.06. Who is liable for attorney’s fees.
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 him just fees.25
The general rule is that only the client who engaged the
services of counsel either personally or through an authorized agent
is liable for the attorney’s fees. A party who was not privy to the
employment contract or who did not authorize the lawyer’s retainer
is, generally speaking, not liable for counsel fees.26 Consequently a
party to an action who disauthorized a lawyer to appeal an adverse
judgment may not be held liable for attorney’s fees for the successful
(1964).
“Hipolito v. Ferrer-Calleja, 190 SCRA 182 (1990).
“Delgado v. De la Rama, 43 Phil. 419 (1922); Sato v. Rallos, 12 SCRA 84,
24De
Guzman v. Visayan Rapid Transit Co., supra.
“Dee v. Court of Appeals, 176 SCRA 651 (1989).
“Phil. National Bank v. Pardo Robles Hermanos, 67 Phil. 570 (1939); Gonzales
v. Del Rosario, 7 Phil. 140 (1907); Escueta v. Sy-Juilliong, 5 Phil. 405 (1905); National
Power Corp. Supervisor’s Union v. NPC, 106 SCRA 556. (1981).
COMPENSATION OF ATTORNEY
391
prosecution of the appeal taken on behalf of other interested parties.27
A legatee named in a will who pleaded for its allowance may not be
required to contribute to the fees of the lawyer who, on behalf of
oppositors, succeeded in having the will disapproved.28 Nor may a
supposed client be held liable for the fees of a lawyer whose services
were engaged by another on his behalf without his authority, in the
absence of ratification or estoppel on his part.29 In other words, there
arises no obligation to compensate in the absence of an express or
implied contract.30
There are, however, recognized exceptions to the foregoing
rule. Such exceptions rest on the equitable principle that a person
who accepts the benefits of the legal representation impliedly agrees
to pay the lawyer’s services for he may not unjustly enrich himself at
the expense of the lawyer.
§13.07. Liability of persons benefited by counsel’s services.
As a general rule a person who had no knowledge of, or objected
to, the lawyer’s representation may not be held liable for attorney’s
fees even though such representation redounded to his benefit.31
The objection to the lawyer’s appearance should, however, be raised
before and not after beneficial services shall have been rendered
by the lawyer, otherwise the party who benefited from the lawyer’s
representation may be required to pay counsel fees.32 The liability is
based on equity. For it is neither just that the client who retained
the lawyer should alone pay the latter’s fees nor is it fair that those
who, investing nothing and assuming no risk, received the benefits
of the legal representation should not contribute their proportionate
share to the counsel fees.33
The circumstance that the person who employed a lawyer as
counsel for a party has not been duly authorized to do so does not
^Gonzales v. Del Rosario, 7 Phil. 410 (1906).
28Sison v.
Suntay, 102 Phil. 769 (1957).
“See Municipality of Iloilo v. Evangelista, 55 Phil. 290 (1930); Lim Siok v.
Lapiz, 103 Phil. 930 (1958).
“’National Power Corp. Supervisor’s Union v. NPC, 98 SCRA 424 (1980).
31Orosco v. Heirs of Hernandez, 1 Phil. 77 (1901).
32Jones v. Hortiguela, 64 Phil. 179 (1937); David v. Sison, 76 Phil. 418 (1946);
Martinez v. Union Maquinistas, Fogoneros y Motormen, 19 SCRA 167 (1967).
33C/'. Otto Gmur, Inc. v. Revilla, 55 Phil. 627 (1931).
392
LEGAL AND JUDICIAL ETHICS
necessarily exempt the latter from liability to pay attorney’s fees.
If the legal representation redounded to the benefit of the party
concerned, the retention or acceptance of the benefit cures the defect
of lack of authority on the part of the agent to retain the lawyer on
the party’s behalf and creates an obligation to pay the lawyer for his
services.34 An exception to this rule is the employment of a private
lawyer to represent a government entity by an official who has no
authority in law to do so, since the benefits secured by the legal
representation cannot take the place of the law and will not create
an obligation on the part of the government entity to pay the private
lawyer for his services.35
§13.08. Liability of assignee.
Since an assignee of all interests pendente lite usually steps
into the shoes of the assignor and acquires all of the latter’s rights
and obligations in the action, the assignee may be held liable for
counsel fees from out of the proceeds of a favorable judgment. That
obligation gives the assignee the right to intervene in the matter of
fixing the amount of fees which may be a proper charge against the
judgment rendered in the action.36
§13.09. Liability in labor cases.
A lawyer who represents a union and its members and with
whom he has a retainer for payment of a fixed percentage of amounts
recovered from the company is entitled to be paid his fees not only
by the union members but by the non-union members as well who
derive benefits from his services. The non-union members may not
sit idly by while the union members fight it out to secure benefits that
are later extended to all employees as a result of the struggle and
efforts of the union members without risking anything and without
any effort on their part. It is but just and fair that the lawyer who
represented the struggling members of the union to secure benefits
for all employees be paid his just fees by all those who received such
“Velayo v. Patricio, 50 Phil. 178 (1927); Rotea v. Delupio, 67 Phil. 330 (1939).
“Enriquez, Sr. v. Gimenez, 107 Phil. 932 (1960).
“Otto Gmur, Inc. v. Revilla, 55 Phil. 627 (1931); Fossum v. Hernandez, 44 Phil.
675 (1923).
COMPENSATION OF ATTORNEY
393
benefits.37 Where the company grants the same labor benefits to
supervising employees as those awarded to non-supervisory workers
not because of the special efforts of the latter’s lawyer 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.38
Attorney’s fees in labor cases may not be more than what the
law provides and they may not be checked off from any amount due
the employees without their written consent.39
§13.10. Liability in derivative suits.
Where, in a derivative suit, the professional services of counsel
who instituted the action upon request of a stockholder are beneficial
to the corporation, the counsel fees may be properly charged against
corporate funds. But as any stockholder may file a derivative suit
on behalf of the corporation, any other stockholder may intervene
and oppose the grant of such fees as a charge against funds of the
corporation.40
§13.11. Liability in receivership proceedings.
The assets under receivership may be liable for the fees of a
lawyer employed by a receiver to help him in the discharge of his
duties.41 However, the attorney’s fees of the counsel for a defendant in
a receivership proceeding are personal obligations of the defendant
and may not be paid out of the funds in the hands of the receiver,
unless the services rendered by the lawyer have redounded to the
benefit of the receivership or of the plaintiff who asked for the
appointment of the receiver.42
^Martinez v. Maquinistas, Fogoneros y Motormen, 19 SCRA 167 (1967); Union
de Empleados de Trenes v. Kapisanan ng mga Manggagawa sa MRRCO, 110 Phil.
308 (1962). But see, and distinguish these cases from Pascual v. CIR, 88 SCRA 645,
(1979).
“Pascual v. CIR, 88 SCRA 645 (1979); Manila Electric Co. v. Gaerlan, 97 SCRA
840 (1980).
“Gabriel v. Secretary of Labor, 328 SCRA 247 (2000).
“Lichauco v. Court of Appeals, 63 SCRA 123 (1975).
41Bachrach v. Teal, 5 Phil. 631 (1929).
42Phil. National Bank v. Pardo y Robles Hermanos, 67 Phil. 570 (1939).
394
LEGAL AND JUDICIAL ETHICS
§13.12. Liability in trusteeship or guardianship proceedings.
The rule is that a trustee may be indemnified out of the trust
estate for his expenses in rendering and proving his accounts and
for the counsel fees in connection therewith. The court, in the light
of the peculiar circumstances obtaining in each case, may determine
whether or not a trustee may be allowed expenses for attorney’s fee
and permitted to charge the same against the trust estate.43 The
same rule applies in a guardianship proceeding. The property of the
ward may lawfully answer for counsel fees of the lawyer employed
by the guardian. However, no assets of the ward may be spent
for attorney’s fees without the prior approval of the guardianship
court.44
§13.13. Liability in estate proceedings.
An executor or administrator may employ an attorney to
assist him in the execution of his trust. The professional services
are rendered to the executor or administrator and for that reason,
the attorney may not hold the estate directly liable for his fees; the
liability for payment rests on the executor or administrator who may,
if the services are beneficial to the estate, either seek reimbursement
from the estate if he has already paid them or include them in his
account with due notice to all parties interested.46 Ultimately then,
the estate will answer for the fees of the lawyer whose services
are beneficial to the estate, and if the assets have already been
distributed, the distributees or heirs will have to contribute their
share to the counsel fees as the obligations of the estate follow the
assets wherever they are except in the hands of a purchaser in good
faith.46
To hold the estate ultimately liable for attorneys fees requires
that the person to whom the services were rendered was at the time
the executor or administrator and the services were rendered to him
“Araneta v. Perez, 55 SCRA 333 (1962).
“Fernandez v. Bello, 107 Phil. 1140 (1960); Phil. National Bank v. Borromeo,
103 Phil. 223 (1958); Junquero v. Vano, 72 Phil. 293 (1941).
45Uy Tioco v. Imperial, 53 Phil. 802 (1928); Dacanay v. Commonwealth, 72
Phil. 50 (1941); Arevalo v. Adriano, 62 Phil. 671 (1935); Ocena v. Marquez, 60 SCRA
38, (1974).
46David v. Sison, 76 Phil. 418 (1946); Barceno v. Ocampo, 74 Phil. 227 (1943);
Uy Yt v. Quirina Rios & Sons, 74 Phil. 545 (1944).
COMPENSATION OF ATTORNEY
395
in that capacity.47 Thus, where a lawyer was employed by the counsel
of the estate with the consent of the executor48 or by the executor in
his personal capacity49 or as agent of the heirs50 or as usufructuary of
the estate,51 the person who retained the lawyer and not the estate,52
is the one liable for attorney’s fees arising out of a litigation in the
protection of a particular person or between beneficiaries thereof
or an executor or administrator and an heir53 except with respect to
those services which were rendered for the benefit of the estate prior
to the controversy provoked by the heir.54 Where the administrator
is himself the counsel for the heirs, it is the latter who must pay the
attorney’s fees.55
The attorney’s fees of a lawyer employed by an executor to
secure the approval of a will may, if the lawyer is successful, be
properly charged against the estate. The circumstance that the
estate remains irrespective of whether there is or there is no will
does not minimize the importance of the legal services rendered to
the estate. A will is the desire, the command of the owner of the
estate as to how the inheritance shall be distributed. In upholding
the will and working for its approval, the attorney is simply serving
the departed owner of the estate and in effect serving the estate.56
But the estate may not be liable for counsel fees for services rendered
to annul a will at the request of the executor, the latter’s duty being
to enforce and not to invalidate the will; only the executor may be
liable personally therefor.57 Nor may a legatee named in a will who
worked for its approval be made to contribute proportionately to
the attorney’s fees of the lawyer for the oppositor, his interest not
having been served by the lawyer’s representation.58
47Sy-Quiong v. Sy-Tiong Tay, 10 Phil. 141 (1908); Early v. Sy-Guiang, 5 Phil. 42
(1905); Early v. Sy-Guiang, 4 Phil. 730 (1905).
(1966).
■“De la Vina v. Geopano, 51 Phil. 935 (1926).
49Laurente v. Cauna, 107 Phil. 1051 (1960); Inton v. Matute, 17 SCRA 1010
MSy
Guiong v. Sy-Tiong Tay, 10 Phil. 141 (1908).
v. Espino, 67 Phil. 249 (1939).
52Laurente v. Cauna, supra.; Escueta v. Sy-Juilliong, 5 Phil. 405 (1905); Quirino v. Gorospe, 169 SCRA 702 (1989).
“Dacanay v. Hernandez, 53 Phil. 824 (1928).
54Jones v. Hortiguela, 64 Phil. 179 (1937).
55Lacson v. Reyes, 182 SCRA 729 (1990).
56Francisco v. Matias, 10 SCRA 89 (1964).
57Orozco v. Heirs of Hernandez, 1 Phil. 77 (1901).
58Sison v. Suntay, 102 Phil. 769 (1957); Orozco v. Heirs of Hernandez, supra.
51Benedicto
396
LEGAL AND JUDICIAL ETHICS
A lawyer who acted as counsel for an administrator to secure
the invalidation of a will may have his fees charged against the
estate if its disapproval would mean bigger share in the inheritance
of the administrator as an heir and other heirs similarly situated.
The benefit of the legal representation to the estate is the difference
between what they would receive without a will and what they
would have received under the will. While the rejection of the will
is prejudicial to those heirs who would have received the bulk of the
estate under the will, who as a consequence should not be made to
contribute to counsel fees, that circumstance is not a valid ground to
deny compensation to the lawyer as his services proved beneficial to
the estate.59
§13.14. Who are entitled to or to share in attorney’s fees.
The lawyer who has been engaged by a client is the one entitled
to have and recover no more than a reasonable compensation for his
services.60 However, if more than one lawyer have been employed by
a client to handle the case for him, the question of division of fees
may arise. The general rule is that lawyers who jointly represent
a common client for a given fee, in the absence of an agreement as
to division of fees, share equally as they are special partners for
a special purpose.61 Partners in a law firm share in the profits in
accordance with their partnership agreement even though only one
of them actually rendered the service. On the other hand, the fees
of lawyer’s separately employed by a client to prosecute or defend
his cause depend upon their respective fee arrangements with the
client.62
If several lawyers separately employed by a client do not have
express agreement with the client as to the amount of fees each
would respectively receive or if they have rendered services at one
time or another in the action, each of them will be entitled to no more
than what his services actually performed are reasonably worth.63
The court making an award of attorney’s fees that may be charged
against the proceeds of a judgment may apportion the amount
among the collaborating lawyers based on a division of service or
59Sison v.
Suntay, supra.
“Rule 138, Sec. 24, Rules of Court.
6IUnderwood v. Overstreet, 223 SW 152, 10 ALR 1352 (1920).
’“Cf. MacDonald v. Tittman, 70 SW 502 (1902).
“Gilden v. Cowen, 123 F 48 (1903).
COMPENSATION OF ATTORNEY
397
responsibility.64 However, the lawyer who bore the brunt of the
prosecution of the client’s claim to its successful end is entitled to
the full amount of his fees even though the client, after the rendition
of a favorable judgment, has retained another lawyer as his only
counsel in the case.65
The right of a lawyer to share in the professional fees rests on
services performed or on his being, based on an agreement, a partner
of another or in a law firm. However, 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.”66
It is improper for an attorney to receive compensation for merely
recommending another lawyer to his client. Such practice, if
permitted, would tend to germinate the evils of commercialism and
to destroy the proper appreciation of professional responsibility.67
§13.15. Non-lawyer not entitled to fees.
The statutory rule that “an attorney shall be entitled to have
and recover from his client no more than a reasonable compensation
for his services”68 requires the existence of an attomey-client
relationship as a condition to the recovery of attorney’s fees. Such
relationship cannot exist unless the client’s representative in court
is a lawyer. A non-lawyer cannot, therefore, recover attorney’s fees
even if there is a law authorizing him to represent a litigant in
court.69 For this reason, an agreement between a union lawyer and
a layman president of the union to divide equally the attorney’s fees
that may be awarded in a labor case is illegal and immoral insofar
as it grants to the union president a share in the counsel fees.70 And
an agreement for the payment to the widow and heirs of a deceased
lawyer of a percentage of the fees to be received from future business
64Apo Workers’ Union v. Castillo, 97 Phil. 998 (1955); Amalgamated Laborers’
Ass’n. v. Court of Industrial Relations, 22 SCRA 1266 (1968); Martinez v. Union de
Maquinistas, Fogoneros y Motormen, 19 SCRA 167 (1967).
“Cruz v. Court of Industrial Relations, G.R. No. 18277, August 31,1963.
“Rule 20.02, Code of Professional Responsibility.
67A.B.A. Op. 97 (May 3, 1933).
“Rule 138, Sec. 24, Rules of Court.
69Phil. Ass’n. of Free Labor Union v. Binalbagan Isabela Sugar Co., 42 SCRA
302 (1970).
70Amalgamated Laborers’ Ass’n. v. Court of Industrial Relations, 22 SCRA
1266 (1968); Canon 34, Canons of Professional Ethics; Tan Tek Beng v. David, 126
SCRA 389 (1988).
398
LEGAL AND JUDICIAL ETHICS
of the deceased lawyer’s clients is prohibited because such payment
will not represent service performed by the deceased lawyer.71
§13.16. Restrictions on some lawyers to charge fees.
A lawyer who is absolutely disqualified from engaging in the
private practice of law by reason of his government position may
neither practice law nor, should he do so illegally, charge attorney’s
fees for such services. He may not be permitted to charge and collect
such fees without circumventing the restriction. The prohibition
does not, however, apply to the collection of attorney’s fees for
services already performed before the lawyer qualified for the public
office even though payment thereof is made thereafter.72 A lawyer
as a government official charged with the duty of extending free
legal services to indigent litigants may not collect attorney’s fees
from the litigant without being guilty of misconduct.73 While a local
sanggunian member who is a lawyer may appear as counsel in any
administrative proceeding involving the local government unit of
which he is an official, he is prohibited from collecting any fee for his
appearance therein.74
An executor or administrator is prohibited from charging the
estate under his administration of his professional fees for services
rendered by him as a lawyer.75 The prohibition is based on the legal
maxim that one acting in a fiduciary capacity must not place himself
in such a position as to make his interests antagonistic with those
of his principal.76 This principle, even in the absence of an express
statutory prohibition, also operates to restrict the right to or to
limit the amount of attorney’s fees which a lawyer who occupies a
fiduciary position may otherwise collect from his principal for his
services as an advocate.77 Thus, claims for attorney’s fees of a lawyer
who is a union officer for services rendered in labor cases handled
for the union and its members should be closely scrutinized as he
has invariably been paid his salary out of union dues.78 Moreover,
re Sycip, 92 SCRA 1 (1979).
Omico Mining & Industrial Corp. v. Vallejos, 63 SCRA 285 (1975); DiaAnonuevo v. Bercacio, 68 SCRA 81 (1975).
73Manguiat v. Manguiat, 60 SCRA 402 (1974).
74Sec. 90(b), RA 7160.
75Rule 85, Sec. 7, Rules of Court.
76Chung Muy Co’s Administrator v. Lim Quioc, 23 Phil. 518 (1912).
11 Cf. Araneta v. Perez, 5 SCRA 333 (1962).
78Meralco Workers’ Union v. Gaerland, 32 SCRA 419 (1970).
nIn
nCf.
COMPENSATION OF ATTORNEY
399
the charge that he sought a position in the union in order that he
might have captured clientele or feather his law practice may not be
avoided.
§13.17. Right of counsel de oficio to fees.
A court may require a lawyer to render professional services
in favor of an indigent litigant. In the absence of a law allowing
compensation, the lawyer designated as counsel de oficio cannot
charge the government nor the indigent litigant for his professional
services. His appointment as counsel de oficio neither violates the
constitutional restriction against the taking of property without
remuneration or the due process of law nor imposes upon the
government the obligation to pay him his fees.™ The reason for this
is that one of the obligations which an attorney willingly assumed
when he took his oath as a lawyer is to render free legal services
whenever required by the court to do so.80
The Rules of Court provide a token compensation for an attorney
de oficio. Subject to the availability of funds as may be provided by
law the court may, in its discretion, order an attorney employed as
counsel de oficio to be compensated in such sum as the court may
reasonably fix, which shall not be less than thirty pesos in any case
nor more than fifty pesos in light felonies; one hundred pesos in
less grave felonies; two hundred pesos in grave felonies other than
capital offenses; and five hundred pesos in capital offenses.81 The
compensation for counsel de oficio is not, however, intended as a
source of regular income.82
§13.18. Attorney’s conduct affecting his right to fees.
The right of a lawyer to recover from his client a reasonable
compensation for services already performed may be affected
or negated by misconduct on his part, such as carelessness or
negligence in the discharge of his duties,83 misrepresentation or
78Ruckenbroad v. Mullin, 133 P2d 325,144 ALR 839 (1943); Parde v. Salt Lake
County, 118 P 122.
“Ledesma v. Climaco, 57 SCRA 473 (1974); People v. Estebia, 27 SCRA 106
(1969).
81Rule 138, Sec. 32, Rules of Court.
“People v. Daeng, 49 SCRA 221 (1973).
“Wolfson v. Anderson, 48 Phil. 672 (1926).
400
LEGAL AND JUDICIAL ETHICS
abuse of the client’s confidence or unfaithfulness in representing his
client’s cause.84 A lawyer who defrauds his client or acts in bad faith
in his dealings with him forfeits the right to claim payment for his
services.85 Good morals and public policy bar him from the portals of
justice and negate his right to fees by reason of his misconduct as a
member of the bar.86 The adverse result of the litigation does not in
itself deprive a lawyer of the right to claim a reasonable compensation
for his services unless such result is due to the lawyer’s misconduct87
or the fee stipulated is contingent upon the favorable outcome of
the action. Thus, the dismissal of the client’s case for failure of his
counsel to appear at the hearing precludes recovery of attorney’s
fees even though such failure is due to excusable negligence because
the fact remains that the client lost the litigation due to the lawyer’s
omission.88 But a mere honest mistake in the discharge of his duties
does not defeat his right to fees.89 For instance, the circumstance
that the document prepared by a lawyer was subsequently declared
void by the court does not justify disallowance of his fees for drafting
it, unless there is a showing that he has prior knowledge of the act
which gave rise to its nullity.90
§13.19. Withdrawal of counsel from the case.
The lawyer’s unceremonious withdrawal from or abandonment
of the action which prejudices the client negates his right to
compensation for services rendered in the action.91 It constitutes a
breach of his implied undertaking to prosecute or defend the client’s
cause until the termination of the litigation. Similarly, a lawyer who,
for reasons attributable to his fault or misconduct, is forced to resign
from the case with the client’s conformity or in accordance with the
prescribed procedure, may lose his right to fees earned therein.92 For
instance, a lawyer hired on a contingent basis and whose services
were terminated because he refused to represent his client in the
“Medina v. Bautista, 12 SCRA 1 (1964).
“Medina v. Bautista, supra.; see also Caballero v. Deiparine, 60 SCRA 136
(1974); Duffy v. Colonial Trust Co., 135 A 204, 39 ALR 406 (1926).
“Medina v. Bautista, supra.
87Wolfson v. Anderson, supra.; De los Santos v. Palanca, 8 SCRA 765 (1963).
“De los Santos v. Palanca, 8 SCRA 765 (1963).
89Wolfson v. Anderson, 48 Phil. 672 (1926).
“Arevalo v. Adriano, 62 Phil. 671 (1935).
91Davemport v. Aggoner, 207 NW 972, 45 ALR 1126 (1926).
“Canon 44, Canons of Professional Ethics.
COMPENSATION OF ATTORNEY
401
out-of-court settlement of the case is not entitled to attorney’s fees,
nor has he the right to interfere with the implementation of the
settlement agreement in an effort to collect his fees.93
The withdrawal of counsel who has so far done his work
faithfully in accordance with the prescribed procedure does not affect
his right to fees for services rendered in the case. If the withdrawal
is with the client’s written conformity, it is presumed, in the absence
of evidence to the contrary, that he and his client have mutually
agreed to terminate his services and to compensate him for such
services up to the date their relationship is terminated. The lawyer
should, however, refund to his client such part of the retainer as has
not been clearly earned. If the withdrawal is without the client’s
written consent but for a justifiable cause made after due notice
to the client, the lawyer may recover the reasonable worth of his
services up to the date of his withdrawal94 unless the agreed fee is
contingent and the contingency has not arisen.
§13.20. Representation of adverse interests.
The simultaneous representation by a lawyer of opposing
parties to a controversy, in the absence of the client’s consent to the
dual representation made after full disclosure of the facts,95 negates
the lawyer’s right to receive compensation from both of them.96 If
the dual representation is improper, then the claim for attorney’s
fees for services rendered by the lawyer in that dual capacity is also
improper.
The lawyer’s acceptance of employment from a new client
against a former client in a matter which is related to the former
controversy precludes recovery of fees from the former client only if
the latter objected to the representation.97 The new client may not
defeat his right to fees in the absence of concealment and prejudice
by reason of the lawyer’s previous relationship with the adverse
party.98
(1922).
(1954).
^Chua v. NLRC, 190 SCRA 558 (1990).
^Palanca v. Pecson, 94 Phil. 419 (1954); Delgado v. De la Rama, 43, Phil. 419
“Canons 6 and 37, Canons of Professional Ethics.
mCf. Medina v. Bautista, 12 SCRA 1 (1964).
97Wright v. Webb, 278 SW 355 (1925); Deupree v. Garnett, 277 P2d 168
"Grauberger v. Light, 16 P2 188 (1932).
402
LEGAL AND JUDICIAL ETHICS
Where a lawyer, a legal representative and consultant of a
company, was hired by a person who was a debtor of said company
and who knew him to be such, and through his effort was able to
free him from his liability, the debtor cannot refuse payment of
attorney's fees by invoking conflict of interests, as he impliedly
consented thereto and as only the company can possibly invoke such
defense.99
§13.21. Lawyer’s right unaffected by client’s conduct.
A client cannot, in the absence of the lawyer’s fault, consent
or waiver, deprive the lawyer of his just fees already earned. While
a client has the right to discharge his lawyer at any time, dismiss
or settle his action or even waive the whole of his interest in favor
of the adverse party, he cannot by taking any such step deprive his
lawyer of what is justly due him as attorney’s fees unless the lawyer,
by his action, waives or forfeits his right thereto.100
§13.22. Attorney’s discharge by client.
The discharge of a lawyer by his client without a valid cause
before the conclusion of the litigation does not negate the lawyer’s
right to recover payment for his services. However, the discharge
may or may not affect the amount of compensation depending upon
the existence or absence of a valid written contract for professional
services and the nature of that contract. If there is no express written
agreement as to fees, the lawyer may only be entitled to recover the
reasonable value of his services up to the date of his dismissal.101
This rule applies where there is express understanding as to the
amount of fees to be paid but the same has not been reduced to
writing, except that where the dismissal of counsel comes after he
has successfully prosecuted or defended his client’s cause the lawyer
may be entitled to the full amount so agreed.102
If the contract between a client and his lawyer is in writing
and the fee stipulated is absolute and reasonable, a lawyer who
"Dee v. Court of Appeals, 176 SCRA 651 (1989).
100Aro v. Nanawa, 27 SCRA 1090 (1969); Rustia v. CFI of Batangas, 44 Phil.
62 (1922); Cabilda v. Navarro, 54 SCRA 26 (1973); Valencia v. Jimenez, 11 Phil. 492
(1908); Recto v. Harden, 100 Phil. 427 (1956).
101Palanca v. Pecson, 94 Phil. 419 (1954).
102Cruz v. Court of Industrial Relations, 8 SCRA 826 (1963).
COMPENSATION OF ATTORNEY
403
is discharged without justifiable cause will be entitled to the full
amount thereof.103 If the fee stipulated in a valid written contract
is contingent and the lawyer is unlawfully dismissed before the
conclusion of the action, he may recover the reasonable value of his
services thus rendered; but if the contingency occurs or the client
prevents its occurrence by dismissing, settling or waiving his cause,
the lawyer maybe entitled to the full amount agreed in the contract.104
The lawyer should, however, question his discharge to entitle him
to recover under the contract, otherwise he will be allowed recovery
only on a quantum meruit basis.105
The discharge of a lawyer for cause does not necessarily deprive
the lawyer 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. Mere honest differences
between a client and his counsel which prompted the former to
dismiss the latter are insufficient to bar recovery of what is justly
due the lawyer.106
§13.23. Client’s dismissal of action.
A client may dismiss his action even without or against the
consent of his counsel. But he may not, by taking such step, deprive
his counsel of what is due him as attorney’s fees for services rendered
in the absence of waiver on the part of his lawyer. If the dismissal of
the action is in good faith and is based on an honest belief that the
client has no valid cause, the lawyer may recover only the reasonable
worth of his services, except when the fee is contingent in which case
there will be no recovery.
If on the other hand the dismissal of the action by the client is in
bad faith and is intended to defraud the lawyer of his compensation,
the lawyer will be entitled to the full amount stipulated in a valid
written contract or, in the absence of such contract, a reasonable
value of his services based on quantum meruit. The lawyer’s consent
to the dismissal of the action does not necessarily negate his right to
103Palanca
104Aro
v. Pecson, supra.; Aro v. Naftawa, supra.
v. Nanawa, 27 SCRA 1090 (1969).
105Flores v. Phil. National Bank, 17 SCRA 506 (1966).
106Palanca v. Pecson, 94 Phil. 419 (1954); Bernardo Guerrero & Associates v.
Tan, 14 SCRA 451 (1965).
404
LEGAL AND JUDICIAL ETHICS
compensation unless such consent, in the circumstances of the case,
amounts to a waiver of his right thereto.107
§13.24. Client’s compromise of action.
The right of a lawyer to be paid a reasonable compensation for
his services does not give him such a superior interest in the action
as to preclude the client from settling his case.108 But a client cannot,
by entering into a compromise agreement, deprive his lawyer of
his fees in the absence of waiver on the part of the lawyer.109 If the
compromise is with the consent of the lawyer, he will be entitled to
only a reasonable value of his services fixed on the basis of quantum
meruit.110 On the other hand, if the client settles his cause in bad
faith or in fraud of his counsel, the lawyer will be entitled to recover
the full amount of fees stipulated in a valid written contract or, in
the absence of such contract, the reasonable worth of his services.111
For the client has no right to compromise or waive so much of his
acknowledged claim secured through the efforts of his lawyer as
would prejudice the stipulated fee, whether absolute or contingent,
and the adverse party has no right to accept such compromise or
waiver unqualifiedly.112
B. CONTRACT FOR ATTORNEY’S FEES
§13.25. Generally.
A contract of professional services may either be oral or in
writing. The fee stipulated may be absolute or contingent; it may
be a fixed percentage of the amount recovered in the action. The
contract may call for a down payment; it may also provide a fee per
appearance, per piece of work or on an hourly basis. It may be a
combination of these arrangements.
(1973).
107Aro
v. Nanawa, 27 SCRA 1090 (1969); Cabildo v. Navarro, 54 SCRA 26
108Jesalva v. Bautista, 105 Phil. 348 (1959); De Mondia v. Public Service Commission, 65 Phil. 708 (1938).
109Aro v. Nanawa, supra; National Power Corp. v. NPC Employees and Workers’ Union, 89 SCRA 1 (1979).
110MontinoIa v. Hofilena, 13 Phil. 339 (1909); Lutero v. Esler, 52 Phil. 218
(1928).
ulRecto v. Harden, 160 Phil. 427 (1956); Aro v. Nanawa, supra.
112Aro v. Nanawa, supra.
COMPENSATION OF ATTORNEY
405
A written retainer has distinct advantages over an oral
contract. In case of controversy as to the question of fees, a written
contract generally controls the amount thereof.113 And in the event
of the lawyer’s dismissal by the client before the conclusion of the
litigation without a justifiable cause, the attorney may be entitled to
the full amount of the fees as stipulated in the written agreement.
Without such written agreement, he may only recover the reasonable
worth of his services up to the date of his dismissal.114
§13.26. Kinds of retainer: general and special.
The fee which a client may agree to pay his lawyer may be
a general retainer or retaining fee or a special retainer. A general
retainer, or retaining fee, 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 routinary business of the client and referred
to him for legal action. The future services of the lawyer are secured
and committed to the retaining client. For this, the client pays the
lawyer a fixed retainer fee which could be monthly or otherwise,
depending upon their arrangement. The fees are paid whether
or not there are cases referred to the lawyer. The reason for the
remuneration is that the lawyer is deprived of the opportunity of
rendering services for a fee to the opposing party or other parties. In
fine, it is a compensation for lost opportunity.115
A general or retaining fee is paid to a lawyer to insure and
secure his future services for a particular case or work and to
remunerate him for being deprived, by being retained by one party, of
the opportunity of rendering services to the other party. Its purpose
is to prevent undue hardship on the part of an attorney resulting
from the rigid observance of the rule forbidding representation of
conflicting interests. In the absence of an agreement to the contrary,
the retaining fee is neither paid nor received in consideration of the
contemplated service; it is apart from or in addition to what the client
has agreed to pay him for services which he has been employed to
perform.116 In such a case, the fee which the client will pay his lawyer
n3Rule
U4Palanca
(1969).
(1997).
138, Sec. 24, Rules of Court; Francisco v. Matias, 10 SCRA 89 (1964).
v. Pecson, 94 Phil. 419 (1954); Aro v. Nanawa, 27 SCRA 1090
U5Traders
Royal Bank Employees Union-Independent v. NLRC, 269 SCRA 733
118Research and Services Realty, Inc. v. CA, 266 SCRA 731 (1997), citing Ruben
E. Agpalo, Legal Ethics, 140 (1992); Hilado v. David, 84 Phil. 569 (1949).
LEGAL AND JUDICIAL ETHICS
406
for the specific matter is called a special retainer fee, in addition to
the general or retaining fee.
A special retainer is a fee for a specific case handled or special
service rendered by the lawyer for a client. A client may have several
cases demanding special or individual attention. If for every case
there is a separate and independent contract for attorney’s fees,
each fee is considered a special retainer.117
Counsel fees which are obligations of a client in favor of his
lawyer should be distinguished from attorney’s fees in the concept
of damages, the latter being part of the damages which the court
may award in favor of the prevailing party. The award of damages
belongs to the client, unless the lawyer and the client have agreed
that whatever attorney’s fees are awarded by the court when the
client prevails in the action shall belong to the lawyer as part of his
compensation.118
§13.27. Validity of contract.
The general rules governing the validity of an ordinary
contract apply to an agreement for professional services. A contract
for professional services becomes the law between the parties
when stipulations therein are not contrary to law, good morals,
good customs, public policy or public order.119 As in any contract, a
retainer whose cause, object or purpose is contrary to law, public
policy, morals and good customs is null and void.120 Thus, a contract
of professional services entered into by a judge of a superior court
who, under the law, is disqualified to practice is, for that reason, null
and void.121 An agreement stipulating an amount which is more than
what a law has authorized is also invalid.122 Similarly, a professional
employment to draw up a document providing for the separation of
husband and wife and permitting each of them to remarry is void for
it is contrary to morals and public policy.123
(1997).
117Traders
118Recto v.
Royal Bank Employees Union-Independent v. NLRC, 269 SCRA 733
Harden, 100 Phil. 427 (1956).
Commission v. Visayan Packing Corp., 193 SCRA 531 (1991);
Licudan v. Court of Appeals, 193 SCRA 293 (1991).
120Art. 1409, Civil Code of the Philippines; Omico Mining & Industrial Corp. v.
Vallejos, 63 SCRA 285 (1975).
121Omico Mining & Industrial Corp. v. Vallejos supra.
122Narido v. Linsangan, 58 SCRA 85 (1974).
123See Panganiban v. Borromeo, Phil. 367 (1933); Biton v. Monongan, 62 Phil.
7 (1935); Bolinon v. De Leon, 94 Phil. 27 (1954).
U9Reparations
COMPENSATION OF ATTORNEY
407
§13.28. Effect of nullity of contract.
The nullity of a professional contract which results from the
illegality of the object sought to be achieved by the performance of the
professional services precludes a lawyer from recovering his fees for
such services.124 However, if the nullity of the contract is due to want
of authority on the part of one of the contracting parties or to some
irregularity in its formal execution or to the unreasonable amount
of the fees fixed therein, the lawyer will be entitled to recover what
is justly due him for his services on the basis of quantum meruit.
In this case, the services are legitimate, and while the contract will
not be enforced because of its formal defects, the rule against unjust
enrichment will entitle the lawyer to recover the reasonable worth
of his services.124
§13.29. Effect of unconscionability of amount.
The law expressly provides that an “attorney shall be entitled
to have and recover from his client no more than a reasonable
compensation for his services” and that a “written contract for
services shall control the amount to be paid therefor unless found
by the court to be unconscionable or unreasonable.”126 This provision
of law forms part of and is read into every contract of professional
services.127 It is partly because of this rule and largely because a
lawyer is an officer of the court charged with the duty of assisting
the court administer impartial justice that the court may properly
modify or disregard a contract of professional services whenever the
fee therein fixed is unconscionable or unreasonable.128
The unconscionability of the amount of fees stipulated in a
professional contract renders the contract invalid. The circumstance
that the client knowingly entered into such contract does not estop
124Baca
v. Padilla, 190 P. 730, 11 ALR 1188 (1920).
125Velayo
v. Patricio, 50 Phil. 178 (1927); Rotea v. Delupio, 67 Phil. 330 (1939);
Magsumbol v. Pabilao, 102 Phil. 1158 (1957); Quitoriano v. Centeno, 59 Phil. 646
(1934).
126Rule 138, Sec. 24, Rules of Court; see §13.38, infra., for the meaning of
“unconscionable fee.”
nlCf. Ingersoll v. Malabon Sugar Co., 53 Phil. 745 (1927); Liberation Steamship Co. v. Court of Industrial Relations, 23 SCRA 1105 (1968); Taurus Taxi Co. v.
Capital Ins. & Surety Co., 24 SCRA 454 (1968).
128Gorospe v. Gochangco, 106 Phil. 425 (1959); Mambulao Lumber Co. v. Phil.
National Bank, 22 SCRA 359 (1968); Meralco Workers’ Union v. Gaerlan, 97 SCRA
840 (1970); Bachrach v. Galingco, 39 Phil. 138 (1918).
408
LEGAL AND JUDICIAL ETHICS
him from questioning its validity for estoppel does not validate a
contract that is prohibited by law or is against public policy.129
Moreover, a client who goes to a lawyer and practically gives
away his whole interest in the action or his entire property for
professional services to enforce his legal right or to save him from
possible jail term cannot freely enter into a contract for professional
fees. In that predicament, he is at the mercy of the lawyer in the
matter of fees. Public policy demands that the court disregard such
contract and protect the client from unreasonable exaction.130 But
the unconscionability of the stipulated amount will not preclude
recovery; it will only justify the court to fix the reasonable worth of
the lawyer’s services on the basis of quantum meruit.
§13.30. Contingent fee contract.
A contract for a contingent fee is an agreement in writing in
which the fee, usually a fixed percentage of what may be recovered
in the action, is made to depend upon the success in the effort to
enforce or defend a supposed right.131 In a contingent fee contract,
the lawyer gets paid for his services only if he wins the case for
the client unless the client prevents the successful prosecution or
defense of the action, in which case the lawyer will be entitled to
recover on a quantum meruit basis132 or to the full amount as fixed in
a valid written agreement if the client acted in bad faith.133
A contingent fee arrangement is a contract between a lawyer
and a client in which the lawyer’s professional fee, usually a fixed
percentage of what may be recovered in the action, is made to depend
upon the success of the litigation. A much higher compensation is
allowed as contingent fees in consideration of the risk that the lawyer
will get nothing if the suit fails. A contingent fee contract is under the
supervision and scrutiny of the court to protect clients from unjust
charges. The court will reduce the amount of an unconscionable
contingent fee to a reasonable sum, even where the client manifests
129Gorospe v.
(1933).
Gochangco, supra.
130Felices
v. Madrilejos, 51 Phil. 24 (1927); Jayme v. Bualan, 58 Phil. 422
131Miles v. Cheyanne County, 96 Neb 703, 148 NW 959; See also Grey v. Insular Lumber Co., 97 Phil. 836 (1955); Integrated Const. Service v. Relova, 65 SCRA
638 (1975).
132Cabildo v. Navarro, 54 SCRA 26 (1973).
133Aro v. Nanawa, 27 SCRA 1090 (1969).
COMPENSATION OF ATTORNEY
409
conformity thereto. For when a lawyer takes his oath, he submits
himself to the authority of the court and subjects his professional
fees to judicial control.134
A contingent fee arrangement between a lawyer and his client
is not prohibited by Article 1491(5) of the Civil Code which applies
only if the sale or assignment of the property takes place during
the pendency of the litigation involving the client’s property because
the payment of contingent fee is not made during the pendency of
the litigation but only after judgment has been rendered in the case
handled by the lawyer. This is reinforced by the fact that the Rule
16.03 of the Code of Professional Responsibility grants a lawyer a lien
over funds and property of his client for payment of his attorney’s
fees and reimbursement of his advances.135
A lawyer cannot charge his client a contingent fee or a
percentage of the amount recovered as his fees in the absence of
an express agreement to that effect. Contingent fees depend upon
an express contract, without which the lawyer can only recover on
the basis of quantum meruit.136 It is not unusual in a contingent
fee contract that a client pays an initial fee either before or during
the progress of the litigation. That such fee is paid 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.137 The
initial fee could well be a retaining fee which is independent of or in
addition to the contingent fee.138
A contingent fee may be agreed upon with a plaintiff or a
defendant in a civil suit; it may also be stipulated with an accused in
a criminal prosecution.139 The lawyer usually advances the expenses
of litigation as more often than not the client is not in a financial
capacity to finance his action. Because the lawyer gets paid only
if the action is won and, when the client is poor, may not even get
reimbursement for what he has advanced by way of expenses of
litigation, the lawyer in effect becomes a party litigant prosecuting
his own action and in a sense a co-proprietor having as much if not
134Sesbreno v. Court of Appeals, 245 SCRA 30 (1995); Taganas v. NLRC, 248
SCRA 133 (1995).
135Fabillo
v. Intermediate Appellate Court, 195 SCRA 28 (1991).
v. Court of Appeals, 98 SCRA 424 (1980).
137Francisco v. Matias, 10 SCRA 89 (1964).
138Hilado v. David, 84 Phil. 569 (1949).
139Perez v. Scottish Union & National Ins. Co., 76 Phil. 320 (1946).
136Corpus
410
LEGAL AND JUDICIAL ETHICS
more stake as that of the client.140 A contract of this nature is moreover
susceptible to abuse. For these reasons, it is closely scrutinized by
the court to protect the client from unjust charges.141
A contingent fee contract is often the only way by which a poor
litigant may have his right enforced or protected by a lawyer. Unable
to pay attorney’s fees and even to advance litigation expenses, an
indigent litigant who otherwise has a good case may be deprived of
his right unless he can contract for a contingent fee. In fact, most
labor cases are prosecuted by lawyers on behalf of ordinary wage
earners on a contingent basis. However, a contingent fee is also for
the benefit of the lawyer who, all things being equal, is allowed a
much higher compensation than what he would be entitled if the fee
is absolute.
§13.31. Validity of contingent fee.
In this jurisdiction, a contingent fee is not prohibited by law
and is impliedly sanctioned. It is, however, closely supervised by the
court to safeguard the client from unjust charges or abuse on the
part of his counsel.142 Its validity depends, in large measure, upon
the reasonableness of the amount fixed as contingent fee under the
circumstances of the case.143
The prohibition against a lawyer purchasing his client’s
property or interest in litigation during its pendency does not
preclude the execution of a contingent fee contract. A contingent fee
contract neither gives nor purports to give to the lawyer an absolute
right, personal or real, in the subject matter of the litigation during
the pendency thereof, for until there shall have been a favorable
judgment his right to contingent fee remains inchoate. Moreover,
140Gair
v. Peck, 160 NE2d 43, 77 ALR2d 390 (1959).
141Ulanday v. Manila Railroad Co., 45 Phil. 540 (1923); Grey v. Insular Lumber
Co., 97 Phil. 836 (1955); Integrated Const. Service v. Relova, 65 SCRA 638 (1979).
142Licudan v. Court of Appeals, 193 SCRA 293 (1991); Ulanday v. Manila Railroad Co., 45 Phil. 540 (1923); Grey v. Insular Lumber Co., 97 Phil. 836 (1955); Integrated Const. Service v. Relova, 65 SCRA 638 (1975); Recto v. Harden, 100 Phil.
427 (1956). The IBP Committee that drafted the Code of Professional Responsibility
recommended that contingent fee arrangement be declared illegal. However, the Supreme Court disapproved it by deleting the proposed provision on the matter. The
implication is that the existing jurisprudence allowing contingent fee arrangement
remains valid.
143Amalgamated Laborer’s Ass’n. v. CIR, 22 SCRA 1206 (1968); Canon 13, Canons of Professional Ethics.
COMPENSATION OF ATTORNEY
411
the transfer or assignment of property in litigation as payment
of attorney’s fees takes effect only after the finality of a favorable
judgment.144
A contingent fee contract is generally valid and binding, unless
it is obtained by fraud, imposition or suppression of facts, or the fee
is so clearly excessive as to amount to an extortion.145 The fraud or
suppression of facts may be on the part of a lawyer who, because of
the client’s plight as when he is poor and ignorant146 takes advantage
of the situation by exacting an excessive fee. It may also be on the
part of a client who, in order to avoid paying his lawyer a legitimate
fee, undervalues the amount of his interests in litigation.147 In the last
analysis, the question is one of reasonableness of the fee stipulated
in the contract. If under the circumstances of the case the court
finds that the contingent fee is unconscionable, it will disregard the
contract and fix the reasonable compensation for services rendered
on quantum meruit basis.148
§13.32. Effect of agreement to pay litigation expenses.
The rules of the profession forbid a lawyer from agreeing to
pay or bear the expenses of litigation; he may, however, in good
faith advance the expenses as a matter of convenience but subject
to reimbursement.149 The restriction is designed to prevent a lawyer
from acquiring an interest in the litigation and avoid conflict of
interests between him and his client. To permit a lawyer to assume
the expenses or to free the client from such expenses when the case
is lost is to enable him to acquire additional stake in the outcome of
the action which might lead him to consider his own recovery rather
than that of his client or to accept a settlement which might take
care of his interest in the verdict to the sacrifice of that of his client
in violation of his duty of undivided fidelity to his client’s cause.150
144Director of Lands v. Ababa, 88 SCRA 513 (1979); Recto v. Harden, 100 Phil.
427 (1956).
145Ulanday v. Manila Railroad Co., 45 Phil. 540 (1923); Grey v. Insular Lumber
Co., 97 Phil. 836 (1955); Varela v. Villanueva, 95 Phil. 248 (1954); Quitoriano v. Centeno, 59 Phil. 646 (1934); Tanhueco v. De Dumo, 172 SCRA 760 (1989).
146Jayme v. Bualan, 58 Phil. 422 (1933); Felices v. Madrilejos, 51 Phil. 24
(1927).
147Francisco v. Matias, 10 SCRA 89 (1964).
148Amalgamated Laborers’ Ass’n. v. CIR, 22 SCRA 1266 (1968).
149Canon 42, Canons of Professional Ethics.
,50See A.B.A. Op. 288 (October 11, 1954); Low v. Hutchinson, 37 Mel 96
(1853).
LEGAL AND JUDICIAL ETHICS
412
In this jurisdiction, an agreement by a lawyer to conduct the
litigation on his own account, to pay the expenses thereof or to save
his client therefrom and to receive as his fee a portion of the proceeds
of a judgment is obnoxious to the law. Such agreement is known as
champertry. Thus, an agreement between a lawyer and his client,
whereby the lawyer is to defray all expenses of litigation and to
receive a 50% contingent fee is champertous. Although a lawyer may
in good faith advance the expenses of litigation, the same should be
subject to reimbursement. An agreement between a lawyer and his
client that does not provide for reimbursement of litigation expenses
paid by him is against public policy, especially if the lawyer has
agreed to carry on the action at his expense in consideration of
some bargain to have a part of the thing in dispute. Such agreement
violates the fiduciary relationship between the lawyer and his client
and renders the lawyer liable for administrative sanction.151
§13.33. Construction of professional contract.
In construing a contract of professional services between a
lawyer and his client, the general rule is to adopt such construction as
would be more favorable to the client even if it would work prejudice
to the lawyer.152 This rule of interpretation rests on the inequality
in situation between an attorney who knows the technicalities of
the law on the one hand and a client who usually is ignorant of the
vagaries of the law on the other hand,153 and on the lawyer’s status as
151Bautista v. Gonzales, 182 SCRA 151 (1990); Wotkins v. Sedberry, 261 U.S.
571, 67 L. ed 802 (1923).
In the previous edition of this book, the author wrote: “In at lest two cases (Varela v. Villanueva, 95 Phil. 248 (1954); Quintilian v. Degala, 96 Phil. 77 (1954), the
Supreme Court found nothing wrong in a contingent fee contract which provided for a
certain percentage of what might be recovered in the action as counsel fee and for the
layer to bear all expenses of litigation. However, it should be noted that the question
as to whether the lawyer’s bearing all expenses of litigation affected the validity of
the contract has not been raised in those two cases. Had that question been raised,
it is safe to conclude that it would have been resolved against the validity of the contract as champertous.”(See First 1980 Edition, pp. 327-328). Bautista v. Gonzales,
182 SCRA 151 (1990) sustained this comment and had impliedly abandoned Varela
v. Villanueva, supra., and Quintilian v. Degala, supra.
152De
(1968).
los Santos v. Palanca, G.R. No. 17815, August 31,1963.
153Fabillo v. Intermediate Appellate Court, 195 SCRA 28 (1991); Jayme v.
Bualan, 58 Phil. 422 (1933); Amalgamated Laborers’ Ass’n. v. CIR, 22 SCRA 1266
COMPENSATION OF ATTORNEY
413
an officer of the court.164 If the ambiguity in the contract is caused by
the lawyer, the obscurity will, of course, be resolved against him.166
A lawyer who prepares a contract of professional services is
presumed to have seized up the entire situation before entering into
the agreement. He may not, therefore, be heard to complain that the
fee mutually fixed is disproportionate to the work called for in the
contract.156 Nor may a lawyer validly insist that the stipulated fee to
be computed at a fixed percentage of the “amount to be adjudicated”
be based on the market, and not on the assessed, value of the property
awarded in favor of the client as the assessed value was known to
the contracting parties at the time they executed the contract and
the lawyer could have easily inserted the phrase “market value” if
the parties had intended such meaning.157
Words inserted by a client in his own handwriting in a contract
for attorney’s fees are to be taken in his favor, the insertion being
presumed to have been made for his benefit. Where the client inserted
the phrase “after said award is actually realized” from which a fixed
percentage fee of his lawyer would be taken, the lawyer would only
be entitled to a percentage of what was actually received by the
client and not what was adjudicated by the court.158
A contract of professional services, like any ordinary agreement,
is interpreted in accordance with its terms and in favor of the
greatest reciprocity of interest.159 Unless there is evidence that a
lawyer, in entering into contract for a fixed fee, has agreed to handle
other cases for the client without any additional compensation,160
it would neither be fair nor just to hold that he agreed to conduct
such other cases gratuitously.161 An agreement for a fixed fee until
the termination of the action means until the final resolution of the
litigation including appeal, and the agreed fee covers services on
appeal.162
154See
Gorospe v. Gochangco, 106 Phil. 425 (1959).
155Reyes
v. De la Cruz, 105 Phil. 372 (1959); De los Santos v. Palanca, 8 SCRA
764 (1963).
156Martinez v. Banogan, 117 Phil. 923 (1963).
167Reyes v. Dela Cruz, 105 Phil. 372 (1959); Cf. Francisco v. Matias, 119 Phil.
351 (1964).
158Garcia v. De los Santos, 96 Phil. 986 (1955); See also Salvador v. Palencia, 25
Phil. 661 (1913); Albano v. Ramos, 20 SCRA 171 (1967).
159Gutierrez Repide v. Gutierrez Hermanos, 26 Phil. 476 (1913).
160De los Santos v. Palanca, 8 SCRA 764 (1963).
161Gutierrez Repide v. Gutierrez Hermanos, 26 Phil. 476 (1913).
162Dais v. Garduno, 49 Phil. 165 (1926).
414
LEGAL AND JUDICIAL ETHICS
C. MEASURE OF COMPENSATION
§13.34. Amount fixed in valid contract.
Generally speaking, the amount of attorney’s fees due is that
stipulated in the written retainer agreement which is conclusive
as to the amount of the lawyer’s compensation.163 Once the lawyer
has performed the task assigned to him in a valid agreement, his
compensation shall be determined on the basis of what he and his
client have agreed and not on quantum meruit basis.164 Unless both
the attorney and the client expressly or impliedly set aside the
contract and submit the question of reasonableness of the amount of
fees for the court to resolve on quantum meruit basis,166 neither the
client who wishes a reduction of the fee nor the lawyer who desires
an increase thereof may disregard the amount fixed in the contract.166
The duty of the court in such a case is to give effect to the terms of
the agreement.167
The rule applies whether the fee contracted for is absolute168 or
contingent upon the outcome of the litigation.169
§13.35. Amount based on quantum meruit.
Literally, the term quantum meruit means as much as a lawyer
deserves.170 Its essential requisite is the acceptance of the benefits
by the one sought to be charged for the services rendered under
circumstances as reasonably to notify him that the lawyer performing
the task was expecting to be paid compensation therefor.171 The
lawyer is entitled to receive what he merits for his services, as much
as he has earned.172 The doctrine of quantum meruit is a device to
163Compania Maritima, Inc. v. CA, 318 SCRA 169 (1999); Francisco v. Matias,
10 SCRA 89 (1964); Martinez v. Banogan, 7 SCRA 913 (1968); Recto v. Harden, 100
Phil. 427 (1956).
164Francisco v. Matias, supra.
166Delgado v. De la Rama, 43 Phil. 419 (1922).
166Recto v. Harden, supra; Quitoriano v. Centeno, 59 Phil. 646 (1934); Martinez
v. Banogan, supra.
167Jayme v. Bualan, 58 Phil. 422 (1933).
168Martinez v. Banogan, supra.
169Quitoriano v. Centeno, supra.
1,0Mead v. Ringling, 64 NW2d 222; Losli v. Foster, 222 P2d 824.
171Dallas Joint Stock Land Bank v. Colbert, 127 SW2d 1004.
172Quilban v. Robinal, 171 SCRA 768 (1989).
COMPENSATION OF ATTORNEY
415
prevent undue enrichment based on the equitable postulate that it
is unjust for a person to retain benefit without paying for it.173
The court will fix the amount of attorney’s fees on quantum
meruit basis in any of the following instances: (a) the agreement as
to counsel fees is invalid for some reason other than the illegality of
the object of performance; (b) the amount stipulated in the contract
is unconscionable; (c) no agreement as to fees exists between the
parties; (d) the client rejects the amount fixed in the contract as
unconscionable and is found to be so; and (e) some act or event has
precluded the lawyer from concluding the litigation without fault on
his part; and (f) the client has dismissed his counsel or the latter has
withdrawn from the case for a valid reason.
§13.36. Where agreement is invalid.
The nullity of a professional contract will preclude a lawyer
from recovering his compensation for services rendered only if such
invalidity proceeds from the illegality of the object of performance
or of the service performed. If the invalidity of the contract is due
to a mere formal defect in its execution, the lawyer may recover the
reasonable value of his services on quantum meruit basis.174
§13.37. Where amount stipulated is unconscionable.
The court will fix counsel fees on quantum meruit basis whenever
the amount thereof as stipulated between the parties or as sought to
be recovered by a lawyer for his services is unconscionable.176 What
is unconscionable depends upon the circumstances of each case.176
No hard and fast rule can be stated that will serve as a guide in
determining with mathematical accuracy what is or what is not
reasonable.177
173Traders Royal Bank Employees Union-Independent v. NLRC, 269 SCRA 733
(1997), citing Agpalo, R.E., The Code of Professional Responsibility for Lawyers, 1991
ed., 257.
174Velayo v. Patricio, 50 Phil. 178 (1927); Rotea v. Delupio, 67 Phil. 330 (1939);
Magsumbol v. Pagbilao, 102 Phil. 1158 (1957).
176Rule 138, Sec. 24, Rules of Court; Perez v. Scottish Union & National Ins.
Co., 76 Phil. 320 (1946); Jayme v. Bualan, 58 Phil. 422 (1933); Gorospe v. Gochanco,
106 Phil. 425 (1959); Mambulao Lumber Co. v. PNB, 22 SCRA 359 (1968).
176Sison v. Suntay, 102 Phil. 769 (1957); David v. Sison, 76 Phil. 418 (1946).
177De Guzman v. Visayan Rapid Transit Co., 68 Phil. 643 (1939); Delgado v. De
la Rama, 43 Phil. 419 (1922); Del Pan v. Veloso, 6 Phil. 213 (1906); Tan Ti v. Alvear,
26 Phil. 566 (1914).
LEGAL AND JUDICIAL ETHICS
416
Numerous factors must be considered. Moreover, some lawyers
demand much more than others. Some clients are willing to pay more
than others. And more counsel may be employed than necessary.178
The demands on the lawyer’s part and the events that unfold during
the progress of the litigation may render unconscionable what has
been predetermined by the lawyer and his client as a reasonable fee.
For instance, a counsel fee of a fixed percentage ofthe amount involved
in a foreclosure proceeding may be reasonable if the foreclosure is
enforced judicially but may become unconscionable if the foreclosure
is affected extrajudicially.1™ And what is a reasonable amount in a
hard-fought litigation180 may be unreasonable in a simple collection
case.181
The term “unconscionable fee” may accordingly be defined
as that amount which, under the circumstances surrounding the
case, constitutes an over exaggeration of the worth of the lawyer’s
services.182 The matter involves basically a question of fact which is
essentially for the trial court to decide.183 But even in the absence
of proof, the court in the exercise of its discretion may make use of
its professional knowledge in fixing a reasonable compensation to
which a lawyer may be entitled for his services.184
§13.38. Where there is no express contract.
In the absence of an agreement as to attorney’s fees and the
question as to its amount is raised, the court will fix the amount on
quantum meruit basis, since the absence of an express agreement as
to fees will not deprive a lawyer of his right thereto unless he has
agreed to render service gratuitously.
178Tan
(1963).
Ti v. Alvear, supra.
179Mambulao Lumber
Co. v. PNB, supra.; Francisco v. GSIS, 7 SCRA 577
180Francisco v. Matias, 119 Phil. 351 (1964); Ulanday v. Manila Railroad Co.,
45 Phil. 540 (1923).
181Phil. National Bank v. Ibanez, G.R. No. 14244, March 30, 1960; Ledesma
v. Del Rosario, 49 Phil. 34 (1926); Sta. Maria v. Tuason, 11 SCRA 562 (1964); In re
Booram, 39 Phil. 249 (1918).
182The word “unconscionable” as applied to attorneys fees has been defined
as nothing more than that the amount of the fees contracted for, standing alone and
unexplained, would be sufficient to show that an unfair advantage had been taken of
the client or that a legal fraud had been perpetrated on him. Gair v. Peck, 160 NE2d
43, 77 ALR2d 390 (1959).
183Delgado v. De la Rama, 43 Phil. 419 (1922).
184Bachrach v. Golingco, 39 Phil. 138 (1918).
COMPENSATION OF ATTORNEY
417
§13.39. Where attorney and client disregard contract.
As a general rule, a lawyer will only be entitled to the fees
fixed in a written agreement even though his services are worth
more than what has been stipulated in the contract.185 However, if
a lawyer presents a claim for more than the amount fixed in the
contract and the client not only rejects such claim but also questions
the reasonableness of the amount fixed therein, both of them are
deemed to have impliedly disregarded the contract and placed
themselves in the position as though there is no express stipulation
as to the attorney’s fees. In such a case, the lawyer’s compensation
will be determined on quantum meruit basis.186
§13.40. Where counsel is precluded from concluding
litigation.
A lawyer who, without any fault, is prevented by his client
from concluding the litigation may be entitled to recover his fees
merely on quantum meruit basis in cases where there is no written
contract of professional services,187 the lawyer in spite of the
existence of a written agreement never questioned his discharge
by the client, or the client dismissed or settled his action with the
lawyer’s acquiescence.188 The lawyer’s recovery is limited to what is a
reasonable value of his services up to the date of his discharge from
the action. However, if there is a valid written agreement as to fees
and the lawyer’s discharge is unlawful or in bad faith, he will be
entitled to the full amount so agreed.189
§13.41. Factors taken into account.
In determining the amount of fees which a lawyer may charge
his client, the following factors are considered, as provided for in
Rule 20.01 of the Code, namely:
1.
The time spent and the extent of the services
rendered or required;
185Martinez v.
186Francisco
Banogan, 117 Phil. 923 (1963).
v. Matias, 119 Phil. 351 (1964); Delgado v. De la Rama, supra.
I87Palanca v. Pecson, 94 Phil. 419 (1954).
188Flores v. PNB, 17 SCRA 506 (1966); Montinol v. Hofilina, 13 Phil. 339 (1909);
Lutero v. Esler, 52 Phil. 218 (1928).
189Aro v. Nanawa, 27 SCRA 1090 (1969).
LEGAL AND JUDICIAL ETHICS
418
2.
he novelty and difficulty of the questions involved;
3.
he importance of the subject matter;
4.
The skill demanded;
5.
The probability of losing
other employment as a
result of acceptance of the professed case;
6.
The customary charges for similar services and the
schedule of fees of the IBP Charter to which he belongs;
7.
The amount involved in the controversy and the
benefits resulting to the client from the service;
8.
he contingency or certainty of compensation;
9.
he character of the employment, whether occasional
or established; and
10.
The professional standing of the lawyer.
The foregoing factors, not one of which is controlling are mere
guides in ascertaining the real value of the lawyer’s services.1”
Only some of them may be considered by the court. And other
considerations may also be taken into account, such as the actual
purchasing power of the Philippine peso,191 the omission or fault of
the lawyer in the discharge of his duties, the loss of opportunity on
the part of a lawyer for other employment192 or the financial capacity
of the client.
The determination of the amount of attorney’s fees based on
the factors prescribed in Rule 20.01 of the Code of Professional
190Canon 12,
Canons of Professional Ethics.
Angara v. Gorospe, 101 Phil. 79 (1957).
192Canon 12, Canons of Professional Ethics; Meralco Workers’ Union v. Gaerlan, supra.; Bernardo Guerrero & Associates v. Tan, 14 SCRA 451 (1965).
193Rillaroza, Africa, De Ocampo and Africa v. Eastern Telecommunications
Phil., Inc., 309 SCRA 566 (1999).
191
COMPENSATION OF ATTORNEY
419
§13.42. Nature of services.
The value of the lawyer’s services is in large measure determined by the nature, quality and quantity of such services.194 His
competence is judged by the character of his work.196 It is moreover
recognized that a hotly litigated action requires more work and calls
for higher compensation for the lawyer’s services than a non-contested or simple money claim.196
The lawyer’s services should not be fragmented and each
fragment separately valued. Rather, the importance and value of his
services should be measured and considered as a whole. There are
services which, when taken separately, may not in themselves have
noticeable special merit but when considered in connection with
other services to which they are related, acquire an unquestionable
worth197 and have their impact felt on the overall result of the
litigation.198
The time employed is not in itself an appropriate basis for fixing
the amount of compensation.199 However, the length of employment
which runs for years is significant as the longer the period of
employment the more work it entails200 and the lesser opportunity
the lawyer has for other profitable retainers.201 The time devoted
for study and research must also be considered, it being a fact that
much more hours of study and research are employed to prepare a
pleading, memorandum or brief and for hearing than those spent for
conducting the trial in court.202
194Arce v. PNB, 62 Phil. 570 (1935); Del Pan v. Veloso, 6 Phil. 213 (1906); Zulueta v. Pan American World Airways, 49 SCRA 1 (1973); Araneta v. Bank of America,
40 SCRA 144 (1971).
196Perez v. Scottish Union & National Ins. Co., 76 Phil. 320 (1946).
196Phil. National Bank v. Ibanez, 107 Phil. 1172 (1960); Sta. Maria v. Tuason,
11 SCRA 562 (1964).
197Bachrach v. Teal, 53 Phil. 631 (1929); De Guzman v. Visayan Rapid Transit
Co., 68 Phil. 646 (1939).
198Bemardo Guerrero & Associates v. Tan, 14 SCRA 451 (1965).
199Martinez v. Banogan, 117 Phil. 923 (1963); De Guzman v. Visayan Rapid
Transit Co., supra.-, Haussermann v. Rahmeyer, 2 Phil. 350 (1908).
“"Recto v. Hardin, 100 Phil. 427 (1956); Coto Labor Union v. Espinas, 15 SCRA
109 (1965); Cruz v. CIR, 118 Phil. 820 (1963).
’"“Bernardo Guerrero & Associates v. Tan, supra.-, David v. Sison, 76 Phil. 418
(1946).
W2Cf. David v. Sison, supra.; Gorospe v. Gochangco, 106 Phil. 425 (1959).
LEGAL AND JUDICIAL ETHICS
420
The circumstance that a lawyer has been helped by his
assistants in his office cannot in any way reduce the compensation
to which he is entitled to receive for his services as he is paying
his assistants and is not expected to do everything personally. But
it cannot be denied that he, like an army general who directs and
supervises, deserves credit for the victory won in the courtroom.203
§13.43. Skill and standing of attorney.
The skill, experience and standing of a lawyer bear a direct
proportion to the amount of attorney’s fees to which he may be
entitled for his services.204 Which is as it should be. He acquires a
reputation for professional capacity and fidelity to trust through
years of hard labor and devotion to duty, evidenced by the quality
of his work and eminent standing in the community. Not only that.
An argument made in a pleading or brief or orally in court acquires
a different meaning and import according to the persuasive ability
and professional and personal prestige of the lawyer expounding
it. And a client engages his services to prosecute or defend his
cause, especially in million peso litigations, precisely because of
his skill, ability, qualifications and standing in the bar and in the
community.206 He should accordingly be paid a much higher fee than
an ordinary practitioner, all other things being equal.206
The ability, skill and competence of a lawyer must not be
measured by his income. Many good lawyers earn but small income
while lawyers of inferior ability may prosper financially. Neither
is the length of time a lawyer has practiced a safe criterion of his
ability.207 The lawyer’s competence and ability must be judged by the
character and quality of his work and services not only in the field
of law but in other fields of public and private endeavors as well.208
And the court may take judicial notice of the prestige of a lawyer as
a distinguished member of the bar.209
^Sison v. Suntay, 102 Phil. 769 (1957).
““Sison v. Suntay, 102 Phil. 769 (1957); Francisco v. Matias, 119 Phil. 351
(1964); Recto v. Harden, 100 Phil. 427 (1956); Angara v. Gorospe, 101 Phil. 79 (1957);
Zulueta v. Pan American World Airways, 49 SCRA 1 (1975).
^Sison v. Suntay, supra.
206Francisco
v. Matias, supra.; Recto v. Harden, supra.
“"Perez v. Scottish Union & National Ins. Co., 76 Phil. 320 (1946).
^Ingersoll v. Malabon Sugar Co., 53 Phil. 745 (1927); Perez v. Scottish Union
& National Ins. Co., supra.; Sison v. Suntay, supra.; Francisco v. Matias, supra.;
Recto v. Harden, supra.
’“Zulueta v. Pan American World Airways, supra.
COMPENSATION OF ATTORNEY
421
Like any other factors which may be taken into account, the
skill and standing of the lawyer must be duly proved. However, the
fact that no evidence was presented concerning the lawyer’s standing
does not necessarily rule out a claim for attorney’s fees. The absence
of evidence on this point will only result in such factor not being
considered to enhance or diminish the lawyer’s claims for attorney’s
fees.210
§13.44. Value of interest involved.
Generally speaking, the bigger the size or value of the interest
or property involved in a litigation the higher the attorney’s fee is.211
The reason for the rule is that the higher the stakes the more the
case is hotly litigated and the greater the efforts the lawyer exerts.212
But in a million peso litigation, the percentage fee contingent upon
recovery becomes smaller as the amount of recoveiy gets bigger.213
That inverse proportion rule rests on the assumption that the
amount of work required remains the same even though the interest
in controversy exceeds several million pesos.214
The value of the interest in litigation as a measure of the
lawyer’s compensation depends, in the last analysis, upon the extent
of the special and additional services and efforts demanded of the
case. Even if the interest involved is of considerable value but calls
for no extra efforts, there will be no justification for awarding a high
compensation for the lawyer’s services.216 This is particularly true in
labor disputes involving hundreds or thousands of laborers whose
accumulated claims may run to millions of pesos. The controversy is
generally the same notwithstanding the number of claimants.216
210Pimentel
2USison
v. CA, 307 SCRA 38 (1999).
v. Suntay, 102 Phil. 769 (1957); Francisco v. Matias, 119 Phil. 351
(1964); Recto v. Harden, 100 Phil. 427 (1956): Bernardo Guerrero & Associates v.
Tan, 14 SCRA 451 (1965); Tengco v. San Jose, 97 Phil. 491 (1955); Queblan v. Corduno, 62 Phil. 879 (1936); Jones v. Horteguela, 64 Phil. 179 (1937).
212Francisco v. Matias, supra.-, Otto Gmur, Inc. v. Revilla, 53 Phil. 627 (1931).
213Sison v. Suntay, supra.
21*Cf. Meralco Workers Union v. Gaerlan, G.R. No. 24505, April 30,1970.
216Mambulao Lumber Co. v. PNB, 22 SCRA 359 (1968).
216Meralco Workers Union v. Gaerlan, supra.
422
LEGAL AND JUDICIAL ETHICS
§13.45. Loss of opportunity for other employment.
The loss of opportunity for other employment on the part of a
lawyer who accepts a retainer is taken into consideration in fixing
the amount of the lawyer’s fee.217 It is but fair that a client should
compensate his lawyer for being deprived of the chance to earn legal
fees from others by reason of his employment as his counsel.
A lawyer may lose the opportunity for other employment in
either of two ways. The acceptance of a retainer from a client will
preclude a lawyer from appearing for others in cases likely to arise out
of the transaction in view of the prohibition against representation
of adverse interests. If there is a reasonable expectation that had the
lawyer not accepted employment as counsel for the client he would
have been employed by other clients, that circumstance may justify
the award of a higher fee in his favor to compensate him for the lost
opportunity to earn profitable fees.218 But even if there is no such
expectation of employment from other clients, the work may require
tedious details and considerable time that may deprive him of the
opportunity to render legal services in other cases. While such work
may not call for extraordinary skill, it is the loss of opportunity for
other gainful services for his attendance to those small details that
warrant payment of higher compensation than may ordinarily be
granted.219
§13.46. Difficulty of issues involved.
Novel or difficult issues involved in a litigation require greater
efforts on the part of a lawyer in terms of preparation, study and
research put into the case, to convince the court as to the soundness
of the client’s cause. The question may be of first impression on
whose favorable resolution depends sizable interests or the faith of
the client. It may involve the task of having a court reconsider itself,
there being the presumption of validity of the lower court’s judgment.
And more often than not, distinguished lawyers are employed by
clients in cases involving difficult issues. In fixing the lawyer’s fees,
the court takes into account the novelty or difficulty of the questions
217Canon 12,
218Canon 12,
Canons of Professional Ethics.
Canons of Professional Ethics.
v. Sison, 76 Phil. 318 (1946); Bernardo Guerrero & Associates v. Tan,
14 SCRA 451 (1965).
219David
COMPENSATION OP ATTORNEY
423
involved in the action as well as the demands on his part on those
questions.220
§13.47. Test case.
Where severed actions or possible disputes, as in cases
concerning insurance, tax, levy or labor, involve an identical question
and one case is litigated as a test case, the value in controversy
in all the actions should bear its appropriate proportion to the
amount due as fees to the lawyer who prosecuted the test case. A
test case is usually litigated with energy and diligence even if the
actual amount is insignificant because the resolution of the other
actions which involve large sums of money is made to depend on
the favorable outcome of the test case. Fairness and justice require
that the lawyer’s fees be not limited to a reasonable proportion of
the amount in the test case but on the totality of the amounts in all
the actions dependent upon the result of the test case.221 And those
who may be benefited by the result of the test case may be required
to contribute a proportionate share to the fees of the lawyer who
prosecuted the test case.222
§13.48. Results secured.
The importance to a client of his lawyer’s services depends
upon the successful outcome of the litigation. What the lawyer
secures for his client represents a real benefit to the client. It may be
a sum of money for his client as a plaintiff, or a judgment absolving
him from liability as a defendant in a civil suit or acquitting him
as an accused in a criminal action. More often than not a client in
whose favor such result has been secured is willing to pay what he
and his counsel have agreed as to the amount of the attorney’s fees.
And a client whose lawyer fails to secure what his client desires
may hesitate to comply with the contract for professional services
even if the fee agreed upon is absolute. In fixing what a lawyer is
reasonably entitled as his compensation, the result secured by him
is given much weight.223
220Sison v.
(1967).
Suntay, 102 Phil. 769 (1957).
“•Otto Gmur, Inc. v. Revilla, 55 Phil. 627 (1931).
’““Martinez v. Union de Maquinistas, Fogoneros y Motormen, 19 SCRA 167
^Francisco v. Matias, 10 SCRA 89 (1964); Quitoriano v. Centeno, 59 Phil. 646
(1934) ; Sison v. Suntay, 102 Phil. 769 (1957).
424
LEGAL AND JUDICIAL ETHICS
The fact that a lawyer, in spite of his efforts, failed to secure
for his client what he desires does not, however, deprive him of the
right to recover compensation for his services except when the fee
agreed upon is contingent. A different rule would mean that every
professional fee is a contingent fee, and for every litigated case only
the lawyer from the winning side will get paid for his services. If
that were the rule, the practice of law will cease to be a dignified and
honorable profession.
§13.49. Whether fee is contingent.
It is a recognized rule that a lawyer may properly charge a
higher fee for his services when the fee is contingent than when it
is absolute.224 An absolute fee arrangement entitles a lawyer to get
paid for his efforts regardless of the outcome of the litigation; he
does not assume any risk or uncertainty that his compensation will
not be paid. On the other hand, a lawyer whose fee is contingent
assumes the risk of not getting paid for his services; he may not even
get reimbursement for advances of litigation expenses if the client is
poor. Such risk and the result secured as the condition for payment
of fees entitle the lawyer to a much higher compensation than what
he may ordinarily be entitled if the fee is absolute.225
§13.50. Capacity of client to pay.
The financial ability of a client to pay may also be considered
in determining the amount of fees not to enhance the same above
what is reasonable but to ascertain whether or not the client is able
to pay a fair and just compensation for the services rendered. It may
also be looked into as an incident in determining the importance and
gravity of the interests involved in the litigation.226
A poor, ignorant client may not be in a position to appreciate
what a reasonable fee is and may likely agree, because of his
necessities, to anything that his counsel may propose as to the
amount of his compensation. On the other hand, a wealthy client can
224Francisco v. Matias supra.; Del Pan v. Veloso, 6 Phil. 213 (1906); Quintilla v.
Degala, 96 Phil. 77 (1954).
225Recto v. Harden, 100 Phil. 427 (1956).
226De Guzman v. Visayan Rapid Transit Co., 68 Phil. 643 (1939); Delgado v. De
la Rama, 43 Phil. 419 (1922); Panis v. Yangco, 52 Phil. 499 (1928).
COMPENSATION OF ATTORNEY
425
ordinarily deal with his counsel at arms length.227 This is particularly
true in labor cases. While laborers should not be allowed to develop
that atavistic proclivity to bite the hand that fed them, still lawyers
should not be permitted to get a lion’s share of the benefits due the
former by reason of their labor. Contracts for legal services between
laborer and attorney should be carefully scrutinized to the end that
a fair share of the benefits be not denied the laborer.228
§13.51. Statutory limitation as to fees.
The legislature, in the exercise of its police power, may by law
prescribe the limit of the amount of attorney’s fees which a lawyer
may charge his client.229 Thus, under Article 111 of the Labor Code,
it shall be unlawful for any person to demand or accept, in any
judicial or administrative proceedings for the recovery of wages,
attorney’s fees which exceed ten percent of the amount of wages
recovered. Article 222 of the same Code provides that “No attorney's
fees, negotiation fees or similar charges of any kind arising from
any collective bargaining negotiations or conclusion of the collective
bargaining agreement shall be imposed on any individual member
of the contracting union: Provided, however, That attorney’s fees
may be charged against the union fund in an amount to be agreed
upon by the parties. Any contract, agreement or arrangement of any
sort to the contrary shall be null and void.” And Art. 203 of said Code
states that “No agent, attorney or other person pursuing or in charge
of the preparation or filing of any claim for benefit under this Title
(Employees Compensation and State Insurance Fund) shall demand
or charge for his services any fee, and any stipulation to the contrary
shall be null and void.” Moreover, attorney’s fees in labor cases may
not be checked off from any amount due the employee without his
written consent.230 A contract of professional services in violation of
such law is null and void.231 And a lawyer who collects more than
what the law permits may be criminally held liable therefor.232 Such
(1960).
227Jayme
v. Bualan, 58 Phil. 422 (1943); Cf. Senen v. Pichay, 108 Phil. 419
228Amalgamated Laborers’ Ass’n. v. CIR, 22 SCRA 1266 (1968); Meralco Workers Union v. Gaerlan, 97 SCRA 840 (1970).
229See Republic Acts 65, Sec. 15; 136, Sec. 14; and 145, Sec. 1.
230Gabriel v. Secretary of Labor, 328 SCRA 247 (2000).
231Narido v. Linsangan, 58 SCRA 85 (1974).
^See People v. Lardizabal, 99 Phil. 1027 (1955).
LEGAL AND JUDICIAL ETHICS
426
law should, however, be interpreted strictly and may not be extended
beyond what it expressly comprehends.233
§13.52. Fees in cases of referral.
Rule 20.02 of the Code provides that “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/ This rule makes it improper for a lawyer to receive
compensation for merely recommending another lawyer to his
client for if such practice is permitted, it would tend to germinate
the evils of commercialism and to destroy the proper appreciation
of professional responsibility.234 The referral of a client by a lawyer
to another lawyer does not entitle the former to a commission nor
to a portion of the attorney's fees. It is only when, in addition to the
referral, he performs legal service or assumes responsibility in the
case that he will be entitled to a fee.236
§13.53. A lawyer shall not receive fee from another without
client’s consent.
The general rule is that a lawyer should receive compensation
for his services in a case only from his client and not from other
person. For this reason, Rule 20.03 of the Code requires that “A
lawyer shall not, without the full knowledge and consent of the
client, accept fee, reward, cost, commission, interest, rebate or
forwarding allowance or other compensation whatsoever related
to his employment from anyone other than the client.” The rule is
designed to secure the lawyer’s wholehearted fidelity to the client’s
cause and to prevent that situation in which the receipt by him of
a rebate or commission from another in connection with the client’s
cause may interfere with the full discharge of his duty to his client.236
There should be no room for suspicion on the part of the client that
his lawyer is receiving a fee, reward, commission, or compensation
from third parties with hostile interests.237
233Phil.
National Bank v. De Borromeo, 193 Phil. 223 (1958).
Op. 97 (May 3,1933).
236Comments of IBP Committee that
drafted the Code, p. 111.
^Comments of IBP Committee that drafted the Code, p. 112.
2S4A.B.A.
COMPENSATION OF ATTORNEY
427
A corollary of the foregoing rule is the principle that whatever
a lawyer receives from the opposite party in the service of his client
belongs to the client. Thus, the money received from the judgment
creditor by the lawyer of the judgment debtor as consideration for
the lawyer’s desisting from participating in the execution sale of
the debtor’s property is owned by and must be turned over to the
client.238 A lawyer may not claim the attorney’s fees in the concept
of damages awarded by the court in favor of his client, the latter
and not the former being entitled thereto,239 except when he and his
client have agreed that whatever amount the court may award as
attorney’s fees would form part of the lawyer’s compensation.240
§13.54. A lawyer shall avoid controversies with clients
concerning his fees.
Rule 20.04 of the Code advises a lawyer to “avoid controversies
with clients concerning his compensation” and to “resort to judicial
action only to prevent imposition, injustice or fraud.” Suits to
collect fees should be avoided, and only where the circumstances
imperatively require should a lawyer resort to lawsuit to enforce
payment of his fees.241 He may take judicial action to protect his right
to fees either in the main action where his services were rendered or
in an independent civil suit against his client.242
D. PROCEDURE TO RECOVER FEES
§13.55. Generally.
It has been said that there is an irreconcilable conflict of
interests between a client and his lawyer as to the matter of fees.243
That conflict should not, of course, interfere with the discharge by
the lawyer of his duty of undivided fidelity to his client’s cause. Nor
should it diminish his zeal in the prosecution or defense of the client’s
interests. But when that conflict has reached such a point that it not
,238Diaz v. Kapunan,
239Politrade
45 Phil. 848 (1932).
Corp. v. Blanco, 30 SCRA 187 (1969),
240Recto v. Harden, 100 Phil. 427 (1956); Jesus v. Tan, 106 Phil. 554 (1959).
241Comments of IBP Committee that drafted the Code, p. 112.
242Palanca v. Pecsion, 94 Phil. 419 (1954).
243See A.B.A. Op. No. 288 (October 11,1954).
428
LEGAL AND JUDICIAL ETHICS
only becomes the lawyer’s duty to withdraw from the action but to
assert his right to compensation because of the intolerable attitude
assumed by his client, he may in order to prevent injustice, fraud or
imposition rightfully resort to lawsuit to recover his fees.244 He may
take judicial action to protect his right to fees either in the main
action where his services were rendered or in an independent civil
suit against his client.245
§13.56. Lawyer’s application to pay his fees.
Under Canon 16, Rule 16.03 of the Code of Professional
Responsibility, a lawyer may apply so much of the client’s funds
that come into his possession as may be necessary to satisfy his fees
and disbursements, giving notice promptly thereafter to his client.
This provision assumes that the client agrees with the lawyer in
the amount of attorney’s fees. In case of a disagreement, or when
the client disputes the amount claimed by the lawyer for being
unconscionable, the lawyer should not arbitrarily apply the funds
in his possession to the payment of his fees for it would be violative
of the trust relationship between the attorney and client, and would
open the door to possible abuse by those who are less than mindful
of their fiduciary duty. The lawyer should, instead, file the necessary
action in court to fix and recover the amount of his fees.246
§13.57. Petition as incident of main action.
A lawyer may enforce his right to fees by filing the necessary
petition as an incident of the main action in which his services were
rendered only when something is due the client in the action from
which the fee is to be paid247 or when the client settles or waives his
cause in favor of the adverse party in fraud of the lawyer’s claim for
compensation.24* In other words, that remedy cannot be availed of if
244Canon 14,
Canons of Professional Ethics; Cf. Perez v. Scottish Union & Na-
tional Ins. Co., 76 Phil. 320 (1946).
246Palanca v. Pecson, 94 Phil. 419 (1954); Tolentino v. Escalona, G.R. No. 26556,
January 24,1969.
246J. K. Mercado and Sons Agricultural Enterprises, Inc. v. De Vera, 317 SCRA
339 (1999).
247Otto Gmur, Inc. v. Revilla, 55 Phil. 627 (1931); Lichauco v. Court of Appeals, 63 SCRA 123 (1975); Quirante v. Intermediate Appellate Court, 169 SCRA
769 (1989).
248Aro v. Nanawa, 27 SCRA 1090 (1969).
COMPENSATION OF ATTORNEY
429
the client recovers nothing in the main action. The reason is that the
question of fees cannot be determined until after the main litigation
has been decided and the subject of recovery is at the disposition of
the court.249
The petition may be filed with the court before the judgment
in favor of the client is satisfied or the proceeds thereof delivered
to the client.250 It may also be filed before judgment is rendered but
the determination as to the propriety of the fees or as to the amount
thereof, if unliquidated, will have to await the outcome of the
litigation, at which time the issue as to fee may be tried with notice
given to all interested parties. The court may not require the client
to pay counsel fees before judgment is rendered, there being nothing
from which they may be paid, except when it is certain, as in estate
proceedings, that some funds are due the client251 or the client ended
the lawyer’s services before the termination of the action and funds
are available for the purpose.252 Since the petition is in the nature of
an action by counsel against his client for attorney’s fees, he should
pay the docket or filing fees therefor to enable the court to acquire
jurisdiction over the claim.263
The enforcement of the lawyer’s right to attorney’s fees as an
incident of the main action in which his services were rendered is
preferable than in an independent action as it avoids multiplicity
of suit.264 Moreover, the court trying the main litigation is already
familiar with the lawyer’s services and is in a better position to
decide the question of fees.266 And where a client dismisses his
counsel without justifiable cause or settles or waives his action in
bad faith to defeat the lawyer’s right to fees, the better practice is to
decide the matter of compensation in the main action for the better
protection of the lawyer.266
Where a judgment in a case has become final without requiring
payment of attorney's fees, a motion for payment of attorney’s fees
filed therein is improper and the grant thereof by the court is void,
249Otto
Gmur, Inc. v. Revilla, supra.; Lichauco v. Court of Appeals, supra.
260Palanca
v. Pecson, supra.
“■Dais v. Corduno, 49 Phil. 165 (1926).
2S2Bemardo Guerrero & Associates v. Tan, 14 SCRA 451 (1965).
253Lacson v. Reyes, 182 SCRA 729 (1990).
254Palanca v. Pecson, 94 Phil. 419 (1954).
256Palanca v. Pecson, supra; Aro v. Nanawa, 27 SCRA 1090 (1969).
256Aro v. Nanawa, supra.
430
LEGAL AND JUDICIAL ETHICS
as the court cannot amend its final decision. The lawyer’s remedy is
to file a separate and independent action to recover his fees.257
§13.58. Independent civil action.
A lawyer can enforce his right to a reasonable compensation
for services rendered in an independent civil action in cases where
(a) the court trying the main action in which the lawyer’s services
were rendered dismissed the client’s action or awarded nothing
to the client; (b) the court that decided the main litigation had no
jurisdiction over the action or had already lost it; (c) the person
liable for attorney’s fees is not a party in the main action; (d) the
court reserved to the lawyer the right to file a separate civil suit
for the recovery of his fees; (e) the services for which the lawyer
seeks payment were rendered in connection with a matter not in
litigation;268 and (f) the court rendered judgment in the case without
requiring payment for attorney’s fees and the judgment had become
final.269
An independent civil action for recovery of attorney’s fees is
subject to the usual procedural requirements as those applicable to
an ordinary suit such as the payment of filing fees. Such action will
support a judgment in the lawyer’s favor where it is alleged and
proved that he had been retained in his professional capacity, that
he rendered professional services in favor of the client, that the fee
claimed is reasonable and the same remains unpaid notwithstanding
demands.260 In case the fee is contingent, it must also be alleged and
shown that the contingency has occurred.
§13.59. Remedies in estate proceedings.
The procedure for collection of attorney’s fees in an estate
proceeding is for the lawyer to ask the administrator or executor to
pay him his fee. If the administrator or executor refuses or fails to
make payment, the lawyer has either of two remedies. He may file
267Lizardo,
258Otto
Sr. v. Montano, 332 SCRA 163 (2000).
Gmur, Inc. v. Revilla, 55 Phil. 627 (1931); Sato v. Rallos, 12 SCRA 84
(1964); Velayo v. Patricio, 50 Phil. 178 (1927); Albano v. Ramos, 20 SCRA 171 (1967);
Sarmiento v. Montagne & Dominguez, 4 Phil. 1 (1904).
259Lizardo, Sr. v. Montano, 332 SCRA 163 (2000).
260Early v. Sy-Giang, 4 Phil. 727 (1905); Lacson v. Reyes, 182 SCRA 729
(1990).
COMPENSATION OF ATTORNEY
431
an independent civil action against the administrator or executor
in his personal capacity, and should judgment be secured and the
latter pays, the administrator or executor may include the amount
so paid in his account filed with the probate court. The lawyer may,
instead of bringing an independent action, file a petition with the
probate court praying that the court, after due notice to all persons
interested, allow his claim and direct the administrator or executor
to pay his fees as expenses of administration.261
If the administrator or executor dies before the fees of a lawyer
could be paid, he may file a claim against the estate of the deceased
administrator or executor or a petition for the allowance of his fees
with the probate court. He has no cause of action, in an independent
suit, against the substitute or new administrator, the latter not
having engaged his services.2®2
A lawyer may enforce his right to fees in the probate court at
any time before the estate proceeding is definitely closed. After the
proceeding is finally terminated and the assets are distributed in
favor of the distributees, the probate court loses, as a general rule,
the jurisdiction to entertain and adjudicate the matter of fees,263
except when the petition for allowance of fees is filed before such
closure or the distribution of the assets is made without prejudice
to the claim for attorney’s fees.264 The probate court, in authorizing
the distribution of the assets, may require the distributes to post
a bond to answer for the attorney’s fees. If the bond is lost without
the lawyer’s fault before the award for attorney’s fees is enforced,
that circumstance neither defeats the lawyer’s claim nor deprives
the probate court of the authority to enforce the award against the
distributees.265
The allowance of counsel fees in a estate proceeding rests
largely in the sound discretion of the probate court which should
not be interfered with except for manifest abuse, but it may be
modified by the appellate court when the fee allowed is inadequate
^'Aldamis v. CFI of Mindoro, 85 Phil. 228 (1949); Sato v. Rallos, 12 SCRA
84 (1964); Occena v. Marquez, 60 SCRA 38 (1974); Palileo v. Mendoza, 70 Phil. 297
(1940); Uy Tioco v. Imperial, 53 Phil. 802 (1928); Escueta v. Sy-Juilliong, 5 Phil. 405
(1905).
^Escueta v. Sy-Juilliong, 5 Phil. 405 (1905); Gonzales v. Del Rosario, 7 Phil.
140 (1960).
’’“Sato v. Rallos, 12 SCRA 84 (1964); Tengco v. San Jose, 97 Phil. 491 (1955).
^Berceno v. Ocampo, 74 Phil. 227 (1943).
266Berceno v. Ocampo, supra.
LEGAL AND JUDICIAL ETHICS
432
or excessive.2* An order of a probate court fixing the amount of
fees is regarded as interlocutory in nature, subject to modification
or setting aside until the estate proceeding is terminated and the
case definitely closed, after which the order becomes final. In other
words, an order fixing the fees continues to be under the control
of the probate court until the proceeding is closed, and until then
it may increase or decrease the fees as facts and circumstances
develop and unfold which may justify modification of the order even
if the fees have already been partially or fully paid, as they may be
ordered returned or reimbursed to the estate or a bond required to
be filed to guarantee their return or reimbursement.267 However, an
order of a probate court fixing the amount of fees which has been
affirmed or modified by an appellate court can no longer be changed
by the probate court.268 Nor can it order immediate payment of fees
after the perfection of an appeal from the order allowing it.269
The circumstance that the probate court has lost jurisdiction
to adjudicate the matter of fees as a result of the final closure of the
estate proceeding does not foreclose the lawyer’s right to be paid for
his services; he may pursue the claim in an independent civil action
against the administrator in his personal capacity and against the
distributees of the assets of the estate.270
§13.60. Court jurisdiction.
The court having jurisdiction to try the main action in which
the lawyer rendered services has also jurisdiction to pass upon
the question of fees even though the total sum thereof is less than
the jurisdictional amount cognizable by the court,271 and continues
to have that jurisdiction until the proceeds of the judgment shall
have been delivered to the client.272 Conversely, if the court has no
jurisdiction over the subject matter of the main action or has already
(1964).
266Quintillan v.
Degala, 96 Phil. 77 (1954); Francisco v. Matias, 10 SCRA 89
267Tengco
v. San Jose, 97 Phil. 491 (1955); Onas v. Javillo, 54 Phil.
Yt v. Quirina Rios & Sons, 74 Phil. 545 (1944).
269Uy Tioco v. Imperial, 53 Phil. 802 (1928).
270Sato v. Rallos, 12 SCRA 84 (1964).
271Tolentino v. Escalona, 26 SCRA 613 (1969); Palanca v. Pecson, 94 Phil. 419
268Uy
(1954).
272Ri Wing v. Vera, 66 Phil. 130 (1938); Manila Lumber Co. v. Oro, 64 Phil. 164
(1937) ; Abedin v. Natividad, 74 Phil. 17 (1942); Aro v. Nanawa, 27 SCRA 1090 (1969);
Palanca v. Pecson, 94 Phil. 419 (1954).
COMPENSATION OF ATTORNEY
433
lost jurisdiction over it, that court can have no power to award and
fix the attorney’s fees.273 The lawyer may, however, enforce his claim
in a separate civil action. An independent civil action for recovery of
attorney’s fees is subject to the same jurisdictional requirement as
any other ordinary civil suit. But if a client not only fails to object
to the exercise by a court of the jurisdiction to entertain an action
for recovery of attorney’s fees but also asks some affirmative reliefs
he may be estopped, on appeal, to assail the propriety of the action
taken by the trial court in fixing and allowing counsel fees.274
§13.61. Necessity of hearing.
A petition for recovery of attorney’s fees, either as a separate
civil suit or as an incident of the main action, has to be prosecuted
and the allegations therein established as any other money claim.
The persons who are entitled to or must pay attorney’s fees have the
right to be heard upon the question of their propriety or amount.
There is, thus, the necessity of a hearing.275 The persons entitled
to be heard are the lawyer himself, the client, the client’s assignee
of the interest in litigation,276 stockholders in a derivative suit
concerning attorney’s fees sought to be charged against corporate
funds,277 and the administrator, executor, heir and creditor in estate
proceedings.278 These persons have the right to intervene in the
action and to be heard as to the matter of fees.
The burden of proof is upon the lawyer to establish his
allegations.279 He has the right to substantiate his claim, and a trial
court which fixes a smaller amount of fees than what he seeks to
recover solely on the basis of the records without allowing him to
273Meralco Workers Union v. Gaerlan, 97 SCRA 840 (1970); Pamintuan v. Tiglao, 53 Phil. 1 (1929), Abedin v. Natividad, supra.
274Tolentino v. Escalona, 26 SCRA 613 (1969).
276Metropolitan Bank v. Court of Appeals, 181 SCRA 367 (1990), citing Agpalo,
Legal Ethics, 1989 ed., 346.
276Otto Gmur, Inc, v. Revilla, 55 Phil. 627 (1931); Ri Wing v. Vera, 66 Phil. 130
(1938) ; Baltazar v. Serfino, 14 SCRA 820 (1965).
277Lichauco v. Court of Appeals, 63 SCRA 123 (1975); Meralco Workers’ Union
v. Gaerlan, 97 SCRA 840 (1970); Martinez v. Maquinistas, Fogoneros y Motormen,
19 SCRA 167 (1967).
278Gozon v. Malapitan, 107 Phil. 1033 (1960); Occena v. Marquez, 60 SCRA 38
(1974).
279Early v. Sy-Guiang, 5 Phil. 42 (1905); Palanca v. Pecson, 94 Phil. 419 (1954);
Dahlke v. Vinas, 51 Phil. 707 (1928).
LEGAL AND JUDICIAL ETHICS
434
adduce evidence to prove it commits a reversible error correctable
by certiorari.280 Where there is a written agreement for attorney’s
fees, no other piece of evidence than that agreement is necessary
to prove the amount thereof unless the amount appears to be
unconscionable in the absence of an explanation. The court shall not
be bound by the opinion of attorneys as expert witnesses as to the
proper compensation281 but may take their testimonies into account
in fixing the amount of fees, in addition to its professional knowledge
and the various factors affecting the amount of compensation.282
Until there shall have been a hearing at which all parties
concerned are given the opportunity to be heard, the trial court
may not, without abusing its discretion, authorize the payment of
counsel fees,283 especially where the fees claimed are of considerable
amount.284 In the absence of proof to the contrary, it is however
presumed that the trial court granted the award for counsel fees
only after it has heard all the parties involved.285 Neither may the
trial court order immediate payment of such fees where the question
as to their propriety or amount is still pending resolution by the
appellate court.286
§13.62. Defenses.
An action for recovery of attorney’s fees is subject to the
usual defenses applicable to an ordinary civil suit, such as want
of jurisdiction, res judicata, prescription of action, nullity of the
contract for professional services, negligence in the discharge of
the lawyer’s duties, lack of attomey-client relationship, payment or
unconscionableness of the amount claimed.
§13.63. Execution.
A final award of attorney’s fees may be enforced by execution.
The award may be enforced against any property of the client,
“"Occefia v. Marquez, supra.; See Fabie v. Ngo Boo Soo, 84 Phil. 857 (1949).
“‘Rule 138, Sec. 24, Rules of Court; Delgado v. Dela Rama, 43 Phil. 419 (1922);
Panis v. Yangco, 51 Phil. 499 (1928).
“‘‘Francisco v. Matias, 10 SCRA 89 (1964).
^Gozon v. Malapitan, 107 Phil. 1033 (1960); Occena v. Marquez, supra.
^Meralco Workers’ Union v. Gaerlan, supra.
^Martinez v. Maquinistas, Fogoneros y Motormen, supra.
286Uy Tioco v. Imperial, 53 Phil. 802 (1928).
COMPENSATION OF ATTORNEY
435
including the proceeds of the judgment secured for the client in the
main action.287
E. ATTORNEY’S FEES AS DAMAGES
§13.64. Two concepts of attorney’s fees compared.
The attorney’s fee which a court may, in proper cases, award
to a winning litigant is, strictly speaking, an item of damages. It
differs from that which a client pays his counsel for the latter’s
professional services. However, the two concepts have many things
in common that a treatment of the subject is necessary. The award
that the court may grant to a successful party by way of attorney’s
fee is an indemnity for damages sustained by him in prosecuting or
defending, through counsel, his cause in court. It may be decreed in
favor of the party, not his lawyer, in any of the instances authorized
by law. On the other hand, the attorney’s fee which a client pays
his counsel refers to the compensation for the latter’s services.288
The losing party against whom damages by way of attorney’s fees
may be assessed is not bound by, nor is his liability dependent upon,
the fee arrangement of the prevailing party with his lawyer.289 The
amount stipulated in such fee arrangement may, however, be taken
into account by the court in fixing the amount of counsel fees as an
element of damages.290
The fee as an item of damages belongs to the party litigant and
not to his lawyer.291 It forms part of his judgment recoveries against
the losing party.292 The client and his lawyer may, however, agree
that whatever attorney’s fee as an element of damages the court
may award shall belong to the lawyer as his compensation or in
addition thereto.293 In such a case, the court upon proper motion may
(1967).
287Albano v.
Ramos, 20 SCRA 171 (1967); Harden v. Harden, 20 SCRA 706
2S8Polytrade Corp. v. Blanco, 30 SCRA 187 (1969); Gan Tion v. Court of Appeals, 28 SCRA 235 (1969).
289Carino v. Agricultural Credit Union Coop. Finance Admin., 18 SCRA 183
(1966) ; Corpus v. Cuademo, 13 SCRA 591 (1965).
290Lopez v. Pan American Airways Corp., 16 SCRA 431 (1966).
291Polytrade Corp. v. Blanco, supra.; Gan Tion v. Court of Appeals, supra.
292De Jesus-Alano v. Tan, 106 Phil. 554 (1959); Pascual v. Court of Appeals,
300 SCRA 214(1998).
^De Jesus-Alano v. Tan, 106 Phil. 554 (1959); Recto v. Harden, 100 Phil. 427
(1956).
436
LEGAL AND JUDICIAL ETHICS
require the losing party to pay such fee directly to the lawyer of the
prevailing party.294
The two concepts of attorney’s fees are similar in other respects.
They both require, as a prerequisite to their grant, the intervention
of or the rendition of professional services by a lawyer. As a client
may not be held liable for counsel fees in favor of his lawyer who
never rendered services,296 so too may a party be not held liable
for attorney’s fees as damages in favor of the winning party who
enforced his rights without the assistance of counsel.296 Moreover,
both fees are subject to judicial control and modification.297 And the
rules governing the determination of their reasonable amount are
applicable in one as in the other.298
§13.65. Fee as damages not recoverable — general rule.
The general rule is that attorney’s fees in the concept of
damages are not recoverable.299 An adverse decision does not ipso
facto justify their award in favor of the winning party.300 It is not
the fact of winning alone but the attendance of any of the special
circumstances301 and, in the case of a public litigant, the existence of
the right to private counsel that justify the award of attorney’s fees
as damages in favor of the prevailing party.302
Public policy requires that no penalty be placed on the right
to litigate. Such right is so fundamental that damages may not be
charged against those who may exercise it erroneously. A different
rule will put a premium on the right to redress grievances in
court.303 It may also open the door of temptation to a party and his
‘““De Jesus-Alano v. Tan, supra.', Gray v. De Vera, 28 SCRA 268 (1969).
296Katindig
v. Brillantes, 12 SCRA 190 (1964); Legaspi v. El Ohora Insular, 83
Phil. 149 (1949).
296Andreas v. Green, 48 Phil. 463 (1925).
297Gorospe v. Gochangco, 106 Phil. 425 (1959); Mambulao Lumber Co. v. PNB,
22 SCRA 359 (1968).
^Medenilla v. Kayanan, 40 SCRA 154 (1971).
299Jimenez v. Bucoy, 193 Phil. 40 (1958); Costelo v. Samonte, 106 Phil. 1023
(1960).
300Ramos v. Ramos, 61 SCRA 284 (1974); Herrera v. Luy Kim Guan, 110 Phil.
1020 (1961); Heirs of Justiva v. Gustilo, 7 SCRA 72 (1963)
301Art. 2208, Civil Code of the Philippines.
302Rizal Surety & Ins. Co. v. Court of Appeals, 20 SCRA 61 (1967).
303Tan Ti v. Alvear, 26 Phil. 566 (1914); Herrera v. Luy Kim Guan, 110 Phil.
1020 (1961); Boden Co. v. Doctors Pharmaceuticals, Inc., 90 Phil. 500 (1951); Ramos
v. Ramos, 61 SCRA 284 (1974).
COMPENSATION OF ATTORNEY
437
counsel to swell the fees to undue proportion and discourage out-ofcourt settlement of actions in violation of the public policy on the
matter.304
§13.66. Fees as damages recoverable — exception to rule.
The general rule that attorney’s fees in the concept of damages
are not recoverable admits of several exceptions. Prior to the
effectivity of the new Civil Code on August 30, 1950, there were
only two instances when attorney’s fees as an item of damages
may be recovered, namely, when there is a written agreement for
payment of such fees in the event of suit306 and when there is a
special law authorizing their award.306 The new Civil Code provides
eleven additional exceptions to the rule and recognizes the right
of a winning litigant to recover attorney’s fees in any of those
exceptions.307 Their purpose is to lessen unnecessary litigation.
The legislature felt that a plaintiff would rather think twice before
instituting a clearly unfounded suit or a defendant would more
likely satisfy extrajudicially a clearly valid claim if either of them
is advised that he would otherwise have to pay counsel fees and
expenses of litigation to the winning party.308
Attorney’s fees in the concept of damages may be awarded in
any of the following circumstances:
When there is agreement. — It is not uncommon that
parties to a contract expressly agree that attorney’s fees will
be paid to the prevailing party in the event of suit to enforce
the contract. Generally such agreement is neither illegal nor
immoral and is enforceable as the law between the parties.309
Its purpose is to safeguard the party against future damage
which may arise as a result of being compelled to retain the
services of counsel to enforce his rights.310
304Tan
Ti v. Alvear, supra; Gorospe v. Gochangco, 106 Phil. 425 (1959).
v. Miranda, 105 Phil. 266 (1959).
““Delgado v. Valgona, 44 Phil. 739 (1923); Garcia v. Matias, 49 Phil. 257
306Flores
(1926).
307Flores v. Miranda, supra.; Firestone Tire & Rubber Co. v. Inves Chaves &
Co., 18 SCRA 456 (1966).
^Report of the Code Commission, p. 73 (1948).
309Art. 2208, Civil Code of the Philippines; Santiago v. Dimayuga, 3 SCRA 919
(1961) ; Luneta Motor Co. v. Mora, 73 Phil. 80 (1941).
mCf. Andreas v. Green, 48 Phil. 463 (1923).
438
LEGAL AND JUDICIAL ETHICS
The court may, however, reduce what has been fixed
in the contract as attorney’s fees when the amount thereof
appears to be unconscionable or unreasonable.311 This rule finds
its justification in the public policy forbidding an agreement
regarding the payment of attorney’s fees to be used as a source
of speculative profit at the expense of the defeated party.312
When exemplary damages are awarded. — Exemplary
damages are awarded by way of example for the public good as
warranted by the circumstances of the case. When exemplary
damages are awarded, attorney’s fees may likewise be granted313
under the same justification as that of the former.314
When defendants action or omission compelled plaintiff to
litigate. — A party may be awarded attorney’s fees in an action
which he is compelled to institute by reason of the other party’s
act or omission.316 To justify the award of attorney’s fees, the act
or omission of the other party must be in gross bad faith.316 The
party entitled to the award is either a plaintiff in his complaint
against defendant or a defendant in his counterclaim against
plaintiff.317
In criminal cases of malicious prosecution. — A party may
recover attorney’s fees in cases of malicious prosecution against
him in an action for damages against the party responsible
therefor.318 However, to entitle him to recover such fees, he must
not only show that he was acquitted in the criminal action but
must also prove that the person who charged him knowingly
made a false statement of facts to induce the prosecutor to
3UGorospe v. Gochangco, 106 Phil. 425 (1959); Santiago v. Dimayuga, 3 SCRA
919 (1961); E.C. McCollough & Co. v. Veloso, 46 Phil. 1 (1924); Turner v. Casabar, 65
Phil. 490 (1938); Yap Tico v. Alejandro, 53 Phil. 986 (1929); Manila Building & Loan
Ass’n. v. Green, 54 Phil. 507 (1930); Government v. Moreta, 67 Phil. 707 (1932).
312Gorospe v. Gochangco, supra.
313Art. 2208(1), Civil Code.
314Lopez v. Pan American World Airways, 16 SCRA 431 (1966).
315Art. 2208(2) Civil Code; Pidovano v. De la Rama Steamship Co., 96 Phil. 335
(1954).
316People’s Bank & Trust Co. v. Dahican Lumber Co., 20 SCRA 84 (1961); De
los Reyes, v. Pastofida, 2 SCRA 706 (1961); Soriano v. Compaiia General de Filipinas,
18 SCRA 999 (1966).
317Lazatin v. Twano, 2 SCRA 842 (1961); Philippine Milling Co. v. Llobregat,
18 SCRA 546 (1966).
318Art. 2208(3), Civil Code.
COMPENSATION OF ATTORNEY
439
prosecute,319 or that the institution of the criminal action was
prompted by sinister design to vex or humiliate him and to cast
upon him dishonor and disgrace.320
When the action is clearly unfounded. — To warrant the
award of attorney’s fees in cases of a clearly unfounded civil
action or proceeding,321 the action or proceeding must be so
untenable as to amount to gross and evident bad faith.322 This
depends upon the circumstances of the case.323 For instance,
the persistence in maintaining a clearly unfounded action324 or
the prosecution of a case that was previously decided by fined
judgment326 may justify the award of attorney’s fees.326 On the
other hand, good faith on the part of plaintiff in filing an action
that was previously dismissed as untenable will preclude the
award of attorney’s fees in favor of defendant even if the latter
incurred expenses and underwent suffering and anxiety as a
result of the litigation.321 The party entitled to the award is
the party against whom a clearly unfounded civil action or
proceeding is filed, who may be a plaintiff against a defendant
or a defendant as counterclaimant against plaintiff.328
When defendant acted in gross and evident bad faith.
— A defendant or a plaintiff in a counterclaim by defendant
who refuses, in gross and evident bad faith, to satisfy a clearly
valid claim may be adjudged to pay attorney’s fees.329 This is a
corollary of the general principle that every one must, in the
performance of his duties, observe honesty and good faith and
of the rule that any one guilty of fraud in the discharge of his
3l9Phil.
National Bank v. Arrozal, 103 Phil. 213 (1958).
320Buenaventura
v. Sto. Domingo, 103 Phil. 239 (1958).
Civil Code.
S22Herrera v. Luy Kim Guan, 110 Phil. 1020 (1961); Rizal Surety Ins. Co. v.
Court of Appeals, 20 SCRA 61 (1967); Sveriges Angfartygs Assurans Forening v. Qua
Chu Gan, 21 SCRA 12 (1967); Malonzo v.Galang 109 Phil. 16 (1960).
^Rizal Surety & Ins. Co. v. Court of Appeals, supra.
324Yap Teck Suy v. Manila Port Service, 23 SCRA 939 (1968).
326Pichay v. Kairuz, 5 SCRA 29 (1962).
326See Enervida v. De la Torre, 55 SCRA 339 (1974); Malonzo v. Galang, 109
Phil. 16 (1960).
327National Rice & Com Corp. v. Antonio, 2 SCRA 643 (1961).
328Malonzo v. Galang, 109 Phil. 16 (1960); Rizal Surety & Ins. Co. v. Court of
Appeals, supra.
329Art. 2208(5), Civil Code; Pacific Merchandizing Corp. v. Logging Dev. Corp.
34 SCRA 704 (1970); Nabong v. Luzon Surety Co., 101 Phil. 1212 (1957).
321Art. 2208(4),
440
LEGAL AND JUDICIAL ETHICS
obligations shall be liable for damages.330 In other words, the
mere refusal to pay a valid claim is by itself insufficient to
justify the award of attorney’s fees; that act must, in addition,
be characterized by gross and evident bad faith.331 Thus, a
defendant who, without a valid defense, employed technicalities
and resorted to dilatory tactics, including appeals, to withhold
payment of his obligations may be held liable for attorney’s
fees.332 But a defendant who merely pleaded for adjustment
of the amount of his obligations333 or who refused to pay his
indebtedness because plaintiff demanded more than what he
owed him may not be said to have so acted in bad faith as to be
held liable for attorney’s fees.334
In actions for support. — Attorney’s fees may be granted
in actions for support.336 The person obliged to give support is
also obliged to pay such attorney’s fees as may be necessary
to enable the person entitled thereto to enforce his rights.336
Thus, where the duty to support is shown or admitted,
notwithstanding which the person obliged to give it refused
or failed to comply therewith, which compelled the person
entitled thereto to resort to judicial action for the enforcement
of his rights, the latter is entitled to the award of a reasonable
amount of attorney’s fees.337
In cases of recovery of wages. — In appropriate cases,
the court may grant attorney’s fees in favor of household
helpers, laborers and skilled workers in actions filed by them
for recovery of their wages and other monetary benefits due
them under the law.338 Thus, where an employee was forced to
330Firestone
Tire & Rubber Co. v. Ines Chavez & Co., 18 SCRA 356 (1966).
Jimenez v. Bucoy, 103 Phil. 40 (1958); Castillo v. Samonte, 106 Phil. 1023
(1960); Inducil v. De los Santos, 17 SCRA 332 (1966); Maao Sugar Centred Co. v. Rodriguez, 58 SCRA 547 (1974).
“HDaltex (Phil.), Inc. v. Manila Port Service, 27 SCRA 328 (1967); Phil. Surety
& Ins. Co. v. Royal Oil Products, 182 Phil. 326 (1957).
^Jimenez v. Bucoy, 103 Phil. 40 (1958).
334Cachero v. Manila Yellow Taxicab Co., 101 Phil. 523 (1957); Globe Assurance
Co. v. Arcache, 103 Phil. 1164 (1958).
^Art. 2208(6), Civil Code.
^Mercado v. Ostrand, 37 Phil. 179 (1917); Santos v. Sweeney, 4 Phil. 79 (1904);
Abedin v. Natividad, 74 Phil. 17 (1942).
^Baltazar v. Serfino, 14 SCRA 820 (1963); Peyer v. Peyer, 77 Phil. 366 (1946);
De la Cruz, 22 SCRA 333 (1968); Astudillov. Astudillo, 93 Phil. 777 (1953).
338Art. 2208(7), Civil Code; Cariiio v. Agricultural Credit & Coop. Financing
Admin., 18 SCRA 183 (1966).
331
COMPENSATION OF ATTORNEY
441
litigate and incur expenses to protect his rights and interests,
he is entitled to the award of attorney’s fees.339
In actions for indemnity under workmen’s compensation
and employee’s liability laws. — The Workmen’s Compensation
Act expressly authorized the award of attorney's fees in favor
of employees in workmen’s compensation cases, which were in
addition to the medical, disability or death benefits to which
they were entitled.340 Presidential Decree No. 442 repealed the
Workmen’s Compensation Act and replaced the compensation
scheme therein provided with a state insurance system, under
the administration of the Employees Compensation Commission. Such circumstance, however, does not mean that an employee who appeals from an adverse ruling of the Commission
may no longer be entitled to an award of attorney’s fees for the
Civil Code expressly allows the grant of attorney’s fees in such
cases.341
In a separate civil action arising from a crime. — An
offended party may recover damages arising from a crime
against the offender either in the criminal proceeding itself or
in a separate civil action filed for the purpose. But he may be
granted attorney's fees only in a separate civil action to recover
all items of damages342 or in a civil suit to enforce the subsidiary
civil liability adjudged in the criminal proceedings.343
When at least double costs are awarded. — Double costs
are usually awarded in favor of the winning party where the
action or appeal is frivolous.344 A frivolous action or appeal
is one which presents no justiciable question or is so readily
recognizable as devoid of merit on its face that there is, if any,
little prospect of succeeding.345 Costs of suit do not include
339Litonjua
Group of Companies v. Vigan, G.R. No. 143723, June 28, 2001.
“‘’Art. 3428, as amended, Sec. 13; National Development Co. v. Workmen’s
Compensation Commission (1964), 10 SCRA 696 (1964).
“Art. 2208(8), Civil Code.
342Art. 2208(9), Civil Code; Heirs of Castro v. Bustos, 27 SCRA 327 (1969).
“Bustos v. Bobis, G.R. No. 18966, November 22, 1966. In Heirs of Castro v.
Bustos, supra., Justice Capistrano, in a concurring opinion, said that attorney’s fees
may also be awarded in a criminal action in favor of the offended party who prosecuted the case through a private prosecutor.
^Fanwick v. Pardo de Tavera, 73 Phil. 452 (1941); Pinon v. Zaira, 73 Phil.
431 (1941).
345De la Cruz v. Blanco, 73 Phil. 596 (1942).
442
LEGAL AND JUDICIAL ETHICS
attorney’s fees,346 but the award of double costs may justify the
grant of attorney’s fees.347
When the court deems it just and equitable. — The court
may award attorney’s fees when it deems it just and equitable
that such fees be recovered.348 However, to justify the award of
attorney’s fees pursuant to this rule, there should be factual,
legal or equitable justification which should appear on record. A
mere statement by the court that it deems it just and equitable
is insufficient.349
When a special law so authorizes. — Lastly, the court may
grant attorney’s fees as an element of damages in all cases
where a special law expressly authorizes their award.350
§13.67. Right to private counsel a precondition.
To entitle a party to recover attorney’s fees as an item of
damages, he must not only show that the case falls under any of
the exceptions that may warrant the award thereof; he must have
employed and, in the case of a public litigant, must show his right
to employ a private counsel as well. For this reason, a successful
litigant who prosecuted his action without the assistance of counsel
is not entitled to the award of attorney’s fees.361 Nor is a government
official entitled to the award of attorney’s fees for the services of a
private lawyer in prosecuting or defending an action in his official
capacity in the absence of a showing that no government lawyer can
properly represent him.362
§13.68. Award of attorney’s fees discretionary.
It is well settled that the award of attorney’s fees in favor of the
prevailing party in a case is essentially discretionary with the trial
^“Mendiola v. Villa, 15 Phil. 131 (1910); Osorio v. Trias, 16 Phil. 511 (1910);
Vargas v. Ross, 15 Phil. 665 (1910).
347Art. 2208(10), Civil Code.
^Art. 2208(11), Civil Code.
““Buan v. Comagancacan, 16 SCRA 321 (1966); Jimenez v. Bucoy, 103 Phil.
40 (1958).
““Delgado v. Valgona, 44 Phil. 739 (1923); Garcia v. Matias, 49 Phil. 257
(1926).
“‘Andreas v. Green, 48 Phil. 463 (1925).
^Angara v. Gorospe, 101 Phil. 79 (1957); But see San Miguel Brewery, Inc. v.
Magno, 21 SCRA 292 (1967); Phil. Education Co. v. Manila Port Service, 21 SCRA
603 (1967).
COMPENSATION OF ATTORNEY
443
court.353 The exercise of that discretion should, however, be based on
facts appearing on the text of the decision. The decision should state
the reason why the award is made, unless the text thereof plainly
shows the case comes within one of the exceptions. If the reason is
stated only in the dispositive portion of the decision, the award of
attorney’s fees will be disallowed on appeal.364 A statement by the
trial court that it considers it “just and equitable” to require the
payment of attorney’s fees because the claim set up or the defense
raised is untenable is insufficient to justify the award. Otherwise,
every time a party loses, attorney’s fees will follow as a matter of
course in favor of the winning litigant.356
In the absence of a showing that the trial court abused its
discretion, the grant of attorney’s fees or the denial thereof may
not be disturbed on appeal.356 However, the appellate court may, in
the exercise of its discretion, award attorney’s fees or increase or
reduce the amount thereof whenever the law and the circumstances
so warrant.357
§13.69. Pleading and practice.
The claim for attorney’s fees in the concept of damages and
the ground relied upon must be pleaded.358 In the absence of such
allegation, neither the trial court nor the appellate court may grant
353Lopez v. Gonzaga, 10 SCRA 167 (1964); Francisco v. Government Service
Insurance System, 7 SCRA 577 (1963); Arabay, Inc. v. Aquino, 34 SCRA 159 (1970);
Aragones v. Subido, 25 SCRA 95 (1968); Balmes v. Susan, 28 SCRA 304 (1969); Malayan Ins. Co. v. Manila Port Service, 28 SCRA 65 (1969); De la Cruz v. Cruz, 32
SCRA 307 (1970); Agcanas v. Nagu, 32 SCRA 298 (1970); Cachero v. Manila Yellow
Taxicab Co., 101 Phil. 523 (1957); De la Cruz v. Court of Appeals, 42 SCRA 308 (1971)
Rex Taxicab v. Bautista, 109 Phil. 172 (1960).
“Policarpio v. Court of Appeals, 194 SCRA 729 (1991). Jimenez v. Bucoy, 106
Phil. 40 (1958); Castillo v. Samone, 106 Phil. 1023 (1960); Kalolo v. Luz, 34 SCRA 337
(1970) ; Glorias v. De Guzman, 249 SCRA 126 (1995).
365Jimenez v. Bucoy, supra.; Castillo v. Samonte, supra.; Chavez v. Gonzales,
32 SCRA 547 (1970); Malonzo v. Galang, 109 Phil. 16 (1960).
356Lopez v. Gonzaga, 10 SCRA 167 (1964); Francisco v. Government Service
Ins. System, 7 SCRA 577 (1963); Air France v. Carrascoso, 18 SCRA 155 (1966).
^Kalolo v. Luz, 34 SCRA 337 (1969); Phil. Trust Co. v. Policarpio, 29 SCRA
42 (1969); Soriano v. Ubat (1973); Reparations Commission v. Northern Lines, Inc.,
34 SCRA 203 (1970); San Miguel Brewery, Inc. v. Magno, 21 SCRA 292 (1967); Maao
Sugar Central Co. v. Rodriguez, 58 SCRA 547 (1974); Nelson & Co. v. Lepanto Consolidated Mining Co., 26 SCRA 540 (1968).
358Chavez v. Gonzales, 32 SCRA 547 (1970); Malonzo v. Galang, 109 Phil. 16
(1960); Darang v. Belizear, 19 SCRA 214 (1967).
LEGAL AND JUDICIAL ETHICS
444
attorney’s fees.359 With the claim for attorney’s fees having been
set up, the appellate court may grant such fees even if the party so
granted did not appeal from the lower court’s judgment denying the
award.360
The claim for attorney’s fees must not only be alleged; the
existence of the factual basis and the amount thereof must also be
proved.361 The fact that the grant of attorney’s fees is discretionary
does not dispense with the necessity of proof562 even if the party
against whom it is asserted has not denied the claim,363 except when
what is sought is in the nature of liquidated damages fixed in a valid
written agreement.364
To merit the award of attorney’s fees as an item of damages,
the amount thereof must be proved and it must be specifically
prayed for, not just in “such other relief and remedy as the court
may deem just and equitable.”365 For it is settled that the award of
attorney’s fees is the exception rather than the rule; hence, the trial
court should make findings of fact and law, which would bring the
case within the exception and justify the award.366
369Enecilla
supra.
v. Magsaysay, 17 SCRA 125 (1966).
360Flores
v. Miranda, G.R. No. 12163, March 4, 1959; Enecilla v. Magsaysay,
361Wamer Barnes & Co. v. Luzon Surety Co., 95 Phil. 924 (1954); Chavez v.
Gonzales, supra; Malonzo v. Galang, supra.
^Warner Barnes & Co. v. Luzon