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LEGAL ETHICS
REVIEWER
LEGAL ETHICS - is a branch of moral science, which treats of the duties
which an Attorney owes to the court, to the client, to his
colleagues in the profession and to the public as embodied
in the Constitution, Rules of Court, the Code of Professional
Responsibility, Canons of Professional Ethics, jurisprudence,
moral laws and special laws.
State the signiicance of legal ethics.
The practice of law which covers a wide range of activities
characteristic of the legal profession including the pursuit and defense
of client's rights and interests before the court, will be transgressive,
anarchic, riotous, lawbreaking, deiant and disobedient to courts, if
there are no sets of governing rules to limit the parameters and tame
the exercise of the profession.
Legal ethics will guard against the abuses and ills of the profession
such as dishonesty, deceit, immorality, negligence, slothness, lack of
diligence and the many forms of malpractice of the members of the
bar. On the positive side, it will raise the standard of the legal
profession, encourage and enhance the respect for the law, assure an
efective and eicient administration of justice, assist in the keeping
and maintenance of law and order in coordination with the other
departments of government. It also provides the basis for weeding out
the unit and the misits in the legal profession for the protection of the
public. (Pineda, Legal and Judicial Ethics, 1994 Ed., pp.1 and 2).
Original Bases of Legal Ethics:
1. Canons of Professional Ethics
2. Supreme Court Decisions:
3. Constitution
4. Treatises and publications
5. Statistics
Present Basis of the Philippine Legal System : Code of Professional
Responsibility.
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DEFINITION OF TERMS
Bar vs. Bench
Refers to the whole body of attorneys and denotes the
whole body of judges, counselors, collectively the members of
the legal profession
Practice of Law any activity, in or out of court which requires the
application of law, legal procedure, knowledge, training and
experience. To engage in the practice of law is to give
notice or render any kind of service, which device or
service requires the use in any degree of legal knowledge
or skill (Cayetano v. Monsod, 201 SCRA 210).
Attorney-at-law/Counsel-at-law/Attorney/Counsel Abogado/Boceros:
- that class of persons who are licensed oicers of the
courts, empowered to appear, prosecute and defend; and
upon whom peculiar duties, responsibilities, and liabilities
are developed the law as a consequence (Cui v. Cui, 120
Phil. 729).
Attorney In fact an agent whose authority is strictly limited by the
instrument appointing him, however, he may do things not
mentioned in his appointment but are necessary to the
performance of the duties speciically required of him by
the power of attorney appointing him, such authority being
necessarily implied. He is not necessarily a lawyer.
Counsel de Oicio a counsel, appointed or assigned by the court, from
among members of the Bar in good standing who, by
reason of their experience and ability, may adequately
defend the accused.
Note: In localities where members of the Bar are not
available, the court may appoint any person, resident of
the province and good repute for probity and ability, to
defend the accused. Sec. 7, Rule 116, Rules of Court.
Attorney ad hoc' a person named and appointed by the court to
defend an absentee defendant in the suit in which the
appointment is made (Bienvenu v. Factor's of Traders
Insurance Cp., 33 La.Ann.209)
Attorney of Record - one who has iled a notice of appearance and who
hence is formally mentioned in" court records as the oicial
attorney of the party. Person whom the client has named as
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his agent upon whom service of papers may be made.
(Reynolds v. Reynolds, Cal.2d580).
Of Counsel -
to distinguish them from attorneys of record, associate
attorneys are referred to as "of counsel" (5 Am. Jur. 261).
Lead Counsel - The counsel on their side of a litigated action who is
charged with the principal management and direction of a
party's case.
House Counsel -
Lawyer who acts as attorney for business though
carried as an employee of that business and not as an
independent lawyer.
Bar Association Advocate -
an association of members of the legal profession.
The general and popular name for a lawyer who pleads on
behalf of someone else.
Barrister' (England) - a person entitled to practice law as an advocate or
counsel in superior court.
Proctor (England) - Formerly, an attorney in the admiralty and
ecclesiastical courts whose duties and business correspond
to those of an attorney at law or solicitor in Chancery.
Titulo de Abogado - It means not mere possession of the academic
degree of Bachelor of Laws but membership in the Bar after
due admission thereto, qualifying one for the practice of
law.
ADMISSION TO THE PRACTICE OF LAW
The Supreme Court has the power to control and regulate the practice of
law. Thus, the Constitution, under Article VIII, Sec. 5 (5) provides:
See. 5. The Supreme Court shall have the following powers:
(5) Promulgate rules concerning the protection and enforcement
of constitutional rights, pleading practice and procedure in all
courts the admission to the practice of law, the Integrated Bar
and legal assistance to the under privileged.
The Supreme Court acts through a Bar Examination Committee in the
Exercise of his judicial function to admit candidates to the legal
profession.
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The Bar Examination Committee:
• Composed of (1) member of the Supreme Court who acts as
Chairman and
eight (8) members of the bar.
• The 8 members act as examiners for the 8 bar subjects with one
subject
assigned to each.
•
•
The "Bar Conidant acts as a sort of liaison oicer between the court
and the Bar Chairman on the other hand, 'and the individual
members of the committee on the other. He is at the same time a
deputy clerk of .court.
Admission of examinees is always subject to the inal approval of
the court.
Practice of Law
The practice of law is a PRIVILEGE granted only to those who possess
the STRICT INTELLECTUAL AND MORAL QUALIFICATIONS required of
lawyers who are instruments In the efective and eicient
administration of justice. (In Re: Argosino, 1997).
Practice of law means any activity, in or out of court, which requires
the application of law, legal procedure, knowledge, training, and
experience. "To engage in the practice of law is to perform those acts
which are characteristics of the profession. Generally to practice law is
to give notice or render any kind of service which device or service
requires the use in any degree of legal knowledge or skill." (Cayetano
vs. Monsod, 20.1 SORA 210 citing 111 AI..R 23).
Requirements for admission to the
Bar:
1. Citizen of the Philippines
2. At least 21 years old
3. Of good moral character
4. Resident of the Philippines
5. Production before the Supreme Court satisfactory evidence of:
a. Good moral character
b. No charges against him, involving moral turpitude, have been
iled or are pending in any court in the Philippines.
Requirement of Good Moral Character:
a continuing requirement;
good moral character is not only a condition precedent for admission to
the legal profession, but it must also remain intact in order to maintain
one's good standing In that exclusive and honored fraternity. (Tapucar
VS. Tapucar, 1998)
Academic Requirements for Candidates:
1. A bachelor's degree in arts and sciences (pre-law course)
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2. A completed course in:
a. Civil law
b. Commercial law
c. Remedial law
d. Public international law
e. Private international law
f. Political law
g. labor and social legislation
h. Medial jurisprudence
I. Taxation
j. Legal ethics
Non-lawyers who may be authorized to appear in court:
1. Cases before the MTC: Party to the litigation, in person OR through
an agent or friend or appointed by him for that purpose (Sec. 34,
Rule 138, RRC)
2. Before any other court Party to the litigation, in person (Ibid.)
3. Criminal case before the MTC In a locality where a duly licensed
member of the Bar is not available: the judge may appoint a nonLawyer who is:
a. Resident of the province
b. Of good repute for probity and ability to aid the accused in his
defense (Rule 116, Sec. 7, RRC).
4. Legal Aid Program - A senior law student, who /s enrolled in a
recognized law school's clinical education program approved by the
Supreme Court may appear before any court without compensation,
to represent indigent clients, accepted by the legal Clinic of the law
school. The student shall be under the direct supervision and control
of an IBP member duly accredited by the law school.
5. Under the labor code, non-lawyers may appear before the NLRC or
any labor Arbiter,
if
a. They represent themselves, or If
b. They represent their organization or members thereof (Art
222, PO 442, as amended).
"
6. Under the Cadastral Act, a non-lawyer can represent a claimant
before the Cadastral Court (Act no. 2259, Sec. 9).
Public Oicials who cannot engage In the private practice of Law in
the Philippines:
1. Judges and other "oicials as employees of the Supreme Court (Rule
148, Sec. 35, RRC).
2. Oicials and employees of the OSG (Ibid.)
3. Government prosecutors (People v. Villanueva, 14 SORA 109).
4. President, Vice-President, members of the cabinet, their deputies
and assistants (Art. VI/I Sec. 15, 1987 Constitution).
5. Members of the Constitutional Commission (Art IX-A, Sec. 2, 1987
Constitution)
6. Ombudsman and his deputies (Art. IX, Sec. 8(2 nd par), 1987
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Constitution)
7. All governors, city and municipal mayors (R.A. No. 7160, Sec. 90).
8. Those prohibited by special law
Public oicials with Restrictions in the Practice of Law
1. No Senator as member of the House of Representative may
personally appear as counsel before any court of justice as before
the Electoral Tribunals, as quasi-judicial and other administration
bodies (Art. VI, Sec. 14, 1987 Constitution).
2. Under the Local Government Code (RA 7160, Sec. 91) Sanggunian
members may practice their professions provided that if they are
members of the Bar, they shall not:
a. Appear as counsel before any court in any civil case wherein a
local government unit any oice, agency, or instrumentality of
the government is the adverse party;
b. Appear as counsel in any criminal case wherein an oicer or
employee of the national or local government is accused of an
ofense committed in relation to his oice;
c. Collect any fee for their appearance in administrative
proceedings involving the local government unit of which he is an
oicial;
d. Use property and personnel of the government except when the
Saggunian member concerned is defending the interest of the
government.
3. Under RA 910, Sec. 1 as amended, a retired justice or judge
receiving pension from the government, cannot act as counsel in
any civil case in which the Government, or any of its subdivision or
agencies is the adverse party or in a criminal case wherein an oicer
or employee of the Government is accused of an ofense in relation
to his oice.
Attorney's Oath
“I,___________________, do solemnly swear that I will maintain
allegiance to the Republic of the Philippines; I will support its
constitution and obey the laws as well as the legal orders of the
duly constituted authorities therein; I will do no falsehood, nor
consent to the doing of any in court; I will not willingly nor
wittingly promote or sue any groundless, false or unlawful suit, or
give aid nor consent to the same; I will delay no man for money
or malice, and will conduct myself as a lawyer according to the
best of my knowledge and discretion, with all good idelity as well
to the court as to my clients; and I impose upon myself this
voluntary obligations without any mental reservation or purpose
of evasion. So help me God”(Form 28, RRC)
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Nature of Lawyer’s Oath
•
•
The lawyer’s oath is not mere facile words, drift and hollow, but a
sacred trust that must be upheld and kept inviolable. (Sebastian vs.
Calis, 1999)
It 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 made when taking the lawyer’s oath. (In Re: Argosino, 1997, In Re:
Arthur M. Cuevas, 1998).
State the concept of attorney's fee.
Attorney's fee is the reasonable compensation paid
to a lawyer for the legal services he has rendered
to a client. It may also be an indemnity for damages
ordered by the court to be paid by the losing party
to the prevailing party in litigation.
Deine contingent fee.
Contingent fee is one depending on the success of the services to
be performed (7 C.J.S. 1062).
Deine contingent fee contract.
Contingent fee contract is a bilateral, entire agreement,
speculative in nature, providing for conditional compensation of an
attorney. (7 C.J.S. 1062).
Give the distinction between
champertous contracts.
contingent
fee
contracts
and
1.
In a champertous contract, the attorney undertakes to bear all
expenses incident to the litigation. This is not true in contingent
fee contracts.
2.
Champertous fees are payable only in kind, out of the properties
recovered; whereas, contingent fees may be paid in cash.
Champertous contracts are void as against public
policy and the ethics of the profession; whereas,
contingent fee contracts are valid. (Canons of
Professional Ethics, 42).
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ATTORNEY'S FEES
Q
-May a lawyer in a probate case which was dismissed
appeal the dismissal to enforce his attorney's fees based
on contingency? Why?
-No. If the probate of a will is dismissed, the lawyer cannot
appeal to enforce his fees. Since the contingency did not occur
due to the dismissal of the petition, the lawyer is not entitled to
his attorney's fees.
Q
-Is a contract between a lawyer and his client stipulating
a contingent fee covered by the prohibition under Article
1491(5) of the New Civil Code?
-No because the payment of said fee was not made during the
pendency of the litigation but only after the judgment has been
rendered in the case handled by the lawyer. (Fabillo vs. lAC, 195
SCRA 28, March 11, 1991).
Q
-Are initial fees and fees paid in the progress of litigation
part of the contingent fees?
-No, they are independent of the contingent fees. The fact that a
lawyer may have been paid substantially (in initial fees) while the
case was dragging is no justiication for denying him the full
amount under the contingent fee contract with a client. (Law Firm
of Raymundo Armovit vs. CA, 202 SCRA 16, Sept. 27, 1991).
Q
-A lawyer whose services were engaged on a contingency
basis was terminated by his client due to his refusal to
represent him in an extrajudicial settlement of the claim.
State the efect of such termination.
-An attorney hired on a contingent basis and whose services were
terminated by his clients because of his refusal to represent them
in an out of court settlement of their claims has no right to
interfere in the implementation of the settlement agreement in
his eforts to collect attorney's fees not due him. (Chua vs. NLRC,
190 SCRA 558, Oct. 17, 1990).
Q
-Is the agreement between a lawyer and his client which
provides that the latter agrees on a 50% contingent fee
provided the former defrays all expenses for the suit,
including court fees, valid?
-No, such agreement is null and void for being a champertous
agreement. (Bautista vs. Gonzales, supra).
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Q
9
-When may a lawyer validly advance the expenses of
litigation?
-A lawyer may in good faith advance the expenses of litigation
provided the same should be subject to reimbursement. (Bautista
vs. Gonzales, supra).
Q-
-What is the nature of a charging lien?
A charging lien, to be enforceable as security for the payment of
attorney's fees, requires as a condition sine qu non a judgment
secured in the main action by the attorney in favor of his client. It
is not of the nature which attaches to the property in litigation,
but is at most a personal claim enforceable by a writ of execution.
It presupposes that the attorney has secured a favorable money
judgment for his client. A charging lien is limited only to money
judgments and not to judgments for the annulment of a contract
or for delivery of real property. (Metropolitan Bank and Trust
Company vs. CA, 181 SCRA 367, Jan. 23,1990).
Q
What court has jurisdiction over an enforceable charging
lien?
-An enforceable charging lien, duly recorded, is within the
jurisdiction of the court trying the main case. This jurisdiction
subsists until the lien is settled. (Metropolitan Bank and Trust
Company vs. CA, supra).
Q
-
How may a lawyer enforce his right to attorney's fees?
By iling the necessary petition as an incident in the main action in
which his services were rendered when something is due his client
in the action from which the fee is to be paid. (Metropolitan Bank
and Trust Company vs. CA)
Q
-How may a lawyer assert his claim for attorney's fees?
-Counsel's claim for attorney's fees may be asserted either in the
very action in which the services in question have been rendered
for or in a separate action. If the irst alternative is chosen, the
Court may pass upon said claim even if its amount were less than
the minimum prescribed by law for the jurisdiction of said court,
upon the theory that the right to recover attorney's fees is but an
incident of the case in which the services of counsel have been
rendered. (Quirante vs. Intermediate Appellate Court, G.R. No.
73886, 31 Jan. 89).
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Q
- How may a petition for the recovery of attorney's fees be
established?
A petition for the recovery of attorney’s fees, either as a separate
civil suit or as an incident in the main action has to be prosecuted
and the allegations therein established as in any other money
claim. The persons who are entitled to or who must pay attorney's
fees have the right to be heard upon the question of their propriety
or amount. Hence, the obvious necessity of a hearing is beyond
cavil. (Metropolitan Bank and Trust Company vs. CA, supra).
Q-
How do you consider a contract for the payment of attorney's
fees?
A stipulation regarding the payment of attorney's fees is neither
illegal nor immoral and is enforceable as the law between the
parties as long as such stipulation does not contravene law, good
morals, good customs, public order or public policy. (Reparations
Commission vs. Visayan Packing Corporation, 191 SCRA 531, Feb.
6, 1991). So that if a lawyer who rendered services to a labor union
with the knowledge and acquiescence of its Board is entitled to the
reasonable value of his professional services on a quantum meruit
basis, especially if such services redounded to the beneit of the
union although his appointment as union counsel was not
authorized by a Board Resolution. (Hipolito, Jr. vs. Ferrer-Calleja,
190 SCRA 182, Oct. 1, 1990).
Q
-If a lawyer claims and enforces his claim for attorney's fees,
is he required to pay docket fees? Why?
-Yes. A motion for attorney's fees is in the nature of an action
commenced by a lawyer against his client for attorney's fees, hence,
docket fees should have been priory paid before the court could lawfully act on said motion, and decide it. It may be true that the claim
for attorney's fees was but an incident in the main case, still, It is
not an escape valve from the payment of docket fees because as in
all actions, whether separate or as an ofshoot of a pending
proceedings, the payment of docket fees is mandatory. (Lacson vs.
Reyes, 182 SCRA 729, Feb. 26, 1990).
Q-
May the court modify an agreement for the payment of
attorney's fees?
-Yes. Courts may modify attorney's fees previously agreed upon by
the parties under a valid contractual stipulation where the amount
thereof appears to be unconscionable or unreasonable.
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(Radiowealth Finance Co., Inc. vs. Int'I. Corporate Bank, 182 SCRA
862, Feb. 28, 1990).
Q- May an executor or administrator recover attorney's fees for
his services to
the estate? Why?
- No. An administrator or executor may be allowed fees for necessary expenses he has
incurred but he may not recover attorney's fees from the estate. Where the
administrator is himself the counsel for the heirs, it is the latter who must pay
attorney's fees. (Lacson vs. Reyes, supra)
Q.
If the individual heirs in an estate proceedings hired their
own lawyers, is the
estate liable for attorney's fees?
Why?
No. In estate proceedings, attorney's fees are not the obligation of
the estate but of the individual heirs who individually hired their
respective lawyers. The lawyer should collect from the heirs
distributes who individually hired him his attorney's fees according
to the nature of the services rendered. (Sesbreno vs. CA, 213 SCRA
681, Sept. 4, 1992).
Q
-What is the nature of an award of attorney's fees under
Art. 2208 of the Civil Code? Explain.
An award of attorney's fees as an item of damages is the exception
rather than the rule, and counsel's fees are not to be awarded every
time a party wins a suit. The power of the court to award attorney's
fees under Article 2208 of the Civil Code demands factual, legal and
equitable justiication, without which the award is a conclusion
without a premise, its basis being improperly left to speculation and
conjecture. The court must explicitly state thereof the legal reason
for the award of attorney's fees. (Central Azucarera de Bais vs. CA,
188 SCRA 328, Aug. 3, 1990.)
Q
Q.
- When is the principle of quantum meruit applied?
-It is applied if a lawyer is employed without a price agreed upon for
his services. In which case, he would be entitled to receive when
merits for his services, as much as he has earned. (Lorenzo vs. CA,
supra
)
(A) In the absence of a written contract between attorney
and client, what factors are to be considered in determining
the amount of attorney's fees? (1966 Bar)
(B) What elements are generally to be considered in ixing
reasonable compensation for legal services rendered on the
basis of quantum meruit? (1968 Bar)
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(c) What are the criteria in determining the reasonable
amount that may be awarded as attorney's fees? Give at
least seven factors. (1970 Bar)
(D) If the Court decides that the counsel of a party to a case
may recover attorney's fees on the basis of "quantum
meruit", what does the order of the court mean? (1971 Bar)
(E) What factors must be considered by the court in
determining attorney's fees in the absence of a written
contract? (1972 Bar)
(F) What are the factors that should be considered in
determining the amount to be awarded as attorney's fees?
(1977 Bar)
A.
The factors, in determining the amount to be awarded as
attorney's fees on a quantum meruit are:
1.
The importance of the subject matter of the controversy;
2.
The extent of the services rendered; and
3.
The professional standing of the lawyer (Sec. 24, Rule 138,
Revised Rules of Court).
Supreme Court decisions mentioned the following factors: (1) The
amount and character of the services rendered; (2) The labor, time, and
trouble involved; (3) The nature and importance of the litigation or business
in which the services were rendered; (4) The responsibility imposed; (5) The
amount of money or the value of the property affected by the controversy or
involved in the employment; (6) The skill and experience called for in the
performance of the services; (7) The professional character and social
standing of the attorney; and (8) The results secured, it being a recognized
rule that an attorney may properly charge a much larger fee when it is
contingent than when it is not.
The Canons of Professional Ethics consider the following factors, namely:
(1) The time and labor required, the novelty and diiculty of the questions
involved and the skill required properly to conduct the cause; (2) Whether
the acceptance of employment in the particular case will preclude the lawyer's appearance for others in cases likely to arise out of the transaction, and
in which there is a reasonable expectation that otherwise he could be
employed in particular case of antagonisms with other clients; (3) The
customary charges of the BAR for similar services; (4) The amount involved
in the controversy and the beneits resulting to the client from the services;
(5) The contingency or the certainty of the compensation; and (6) The
character of the employment, whether casual or for an established and
constant client. (Canons of Professional Ethics, 12; Mambulao Lumber. Co. vs.
PNB, G.R. No. L-22973, January 30, 1968).
Q
- May a lawyer be entitled to compensation for services
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he rendered?
-Yes. A lawyer has a right to recover from his client a reasonable
compensation for his services, except if he agreed to render
services for free or gratuitously or if he has been appointed as
counsel de oicio.
Q
- What are the requirements before a lawyer maybe
entitled to compensation?
- The requirements are:
(1). There must be a lawyer-client relationship or in short,
employment;
(2) There must be rendition of service.
Q
-Who may not charge attorney's fees?
- The following may not charge attorney's fees:
1) government lawyers;
2) executor or administrator of an estate;
3) counsel de oicio except that he may be entitled to a token
compensation.
Q
- State some acts of a lawyer that may negate the
recovery of attorney's fees.
- They are:
(1)misconduct, negligence or carelessness;
(2)abandonment or withdrawal without client's consent;
(3)representing adverse interest.
Q
- State some acts that may not negate a lawyer's right to
attorney's fees.
- They are:
(1)if the client withdrew the case or compromised it; and
(2)if he was discharged without valid cause.
Q
- How may a lawyer enforce his claim for attorney's fees?
- He may do either of two (2) things:
(1)ile a petition as an incident of the main action which may be
passed upon by the court if there is something due to the
client in the action;
(2)ile an independent action.
Q
- A is the lawyer of B. During the pendency of the case, A
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wants to ile a claim for attorney's fees in the same case
amounting to P50, 000.00. B resisted claiming that the
RTC has no jurisdiction to pass upon it since that is not
within the jurisdiction of the court. Is the contention correct? Why?
-No. The court may pass upon such claim even if the amount is
less than the minimum amount prescribed by law for the
jurisdiction of the court. (Quirante vs. CA, G.R. No. 73886, Jan. 31,
1989). This rule has to be so because the claim is only incidental
to the main action.
Q
lien?
- What does it mean when a lawyer exercises his retaining
- It does not:
(a) mean that he attached the funds which came to his
possession in some other capacity;
(b) extend to the funds of client's principal; or
(c) extend to subject matter of the action.
Q
-When may the court require the surrender of funds or
documents that came into his possession?
- If the client posts a bond and when the documents are
indispensable to the case.
Q
- When shall a retaining lien end?
-It ends when the possession lawfully ends.
Q
- What are the requirements of a charging lien and when
shall it take efect?
- The requirements of a charging lien are:
(1) it should be iled while the court still has the records of the
case and before full satisfaction of the judgment; and
(2) copies of the statement must be served on the client who has
the right to dispute it, or on the adverse party in order to bind
him. It shall take efect from the time the lawyer caused a
notice of his lien to be entered in the records of the case.
Q
- State the efects of a charging lien.
- They are:
(1)it gives the lawyer the right to collect out of the judgment and
executions in pursuance thereof;
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(2) client or assignee who receives the proceeds of the judgment
holds it in trust for the lawyer;
(3)judgment debtor who fully satisies the judgment debt in
disregard of the lien is still liable for the full value thereof,
enforceable by execution;
(4)the lien enjoys preference of credit over a creditor who
subsequently recorded his credit; and
(5)it gives the lawyer a standing in the action to protest its
discontinuance by the client unless suitable measures for the
protection of his fees are provided. In fact, it has the efect of
terminating the client-lawyer relationship.
Q
- Give the basic requirement for the validity of an award
of attorney's fees in a decision.
-An award of attorney's fees in the form of damages to be paid by
the losing party must be stated in the dispositive portion of the
decision giving a reason for the said award. It is necessary for the
court to make indings of facts and law that would bring the case
within the exception to justify the grant of such award. (Lantin vs.
CA, uncited). An award of attorney's fees in accordance with Art.
2208 of the Civil Code demands factual, legal and equitable
justiication without which the award is a conclusion without a
premise its basis being improperly left to speculation and conjecture. The reasons for the award must be explicitly stated in the
text of the trial court's decision, otherwise, it will be disallowed
on appeal. (Central Azucarrera de Bais vs. CA, 188 SCRA 328;
Radiowealth Communication vs. Rodriguez, 182 SCRA 899).
Q
Q
-Is a government-owned or -controlled corporation
represented by the Oice of the Government Corporate
Counsel entitled to attorney's fees? Why?
-Yes. There is, as a matter of principle, no reason why a
government owned or -controlled corporation, or any other
government agency or entity for that matter, which was
compelled to bring suit against a private person or entity in order
to protect its rights and interests, should not be granted an
award of attorney's fees, where such award would be proper if
the suit had been brought by a private entity. While such a
corporation, agency, or entity may be represented by
government lawyers, clearly, costs are incurred either by the
plaintif-corporation or entity directly or by the general taxpaying public indirectly, by reason of the default or other breach
of contract or violation of law committed by the defendant.
- The services of a lawyer were terminated before his
client compromised the case. Is he entitled to contingent
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attorney's fees? Why?
- No, because he did not participate in the negotiations for the
settlement of the case. Since he did not take part in the
settlement, there is 11,0 basis for attorney's fees. However, if he
participated in the negotiation for settlement of his client's case,
he is entitled to his fees agreed upon. In fact, the client can even
be liable for damages for his bad faith if there is any.
Q
-May a lawyer get the entire property in the litigation
after the termination of the case? Why?
No, because that would be unconscionable. A lawyer is not
merely the defender of his client's cause and a trustee of the
client in respect of the client's cause of action; he is also, and
irst and foremost, an oicer of the court and participates in the
fundamental function of administering justice in society. It follows
that a lawyer's compensation for professional services rendered
are subject to the supervision of the court, not just to guarantee
that the fees he charges and receives remain reasonable and
commensurate with the services rendered, but also to maintain
the dignity and integrity of the legal profession to which he
belongs. Upon taking his attorney's oath as an oicer of the
court, a lawyer submits himself to the authority of the courts to
regulate his right to charge professional fees. There should never
be an instance where a lawyer gets as attorney's fees the entire
property involved in the litigation (even on a contingent fee
basis). It is unconscionable for the victor in litigation to lose
everything he won to the fees of his own lawyer. (Sumaoang vs.
Judge, RTC Branch XXXI, Guiniba, Nueva Ecija, et ai., 215 SCRA
137).
Q
-A engaged the services of a lawyer in the recovery of a
parcel of land consisting of 121 square meters. They
agreed that the attorney's fee~ is based on a contingency
where if the property is recovered, the lawyer's son would
be entitled to a usufruct at 97.5 square meters of the land
for 10 years. Is the contingent fee contract valid? Why?
-No, because the contract is tantamount to giving the property of
the client to the lawyer. The contract is deemed excessive. There
should not be an instance wherein the victor in litigation loses
everything to his lawyer. (Licudan vs. CA, 193 SCRA 293).
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THE LAWYER AND SOCIETY
CANON 1 - A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY
THE LAWS OF THE LAND AND PROMOTE RESPECT FOR
LAW AND LEGAL PROCESSES.
•
RULE 1.01- A lawyer shall not to engage in unlawful, dishonest,
immoral or deceitful conduct. Conviction for crimes involving moral
turpitude - a number of lawyers have been suspended or disbarred
for conviction of crimes involving moral turpitude such as:
a. Estafa
b. Bribery
c. Murder
d. Seduction
e. Abduction
f. Smuggling
g. Falsiication of public documents
•
Morality as understood in law - This Is a human standard based on
natural moral law which is embodied in man's conscience and which
guides him to do good and avoid evil.
Moral Turpitude: any thing that is done contrary to justice, honesty,
modesty or good morals.
Immoral Conduct: that conduct which is willful, lagrant, or
shameless and which shows a moral indiference to the opinion of
the good and respectable members of the community (Artiga VS.
Maniwag, 106 SCRA 591).
Grossly Immoral Conduct: One that is so corrupt and false as to
constitute a criminal act or so unprincipled or disgraceful as to be
reprehensible to a high degree; it is a WILLFUL, FLAGRANT or
SHAMELESS ACT which shows a MORAL INDIFFERENCE to the
opinion of respectable members of the community. (Narag VS.
Narag, 1998)
An attorney may be removed not only for malpractice and
dishonesty in his profession but also for gross misconduct not
related to his professional duties which show him to be an unit and
unworthy lawyer.(Co VS. Bernardino, 285 SCRA 102).
•
•
•
•
RULE 1.02- A lawyer shall not to counsel or abet activities aimed at
deiance of the law or at lessening conidence in the legal system.
RULE 1.03- A lawyer shall not, for any corrupt motive or interest,
encourage any suit or proceeding or delay any man’s cause.
RULE 1.04 - A lawyer shall encourage his clients to avoid, end or settle a
controversy if it will admit of a fair settlement.
•
If a lawyer inds that his client's cause is defenseless, it is his
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•
•
•
•
•
•
•
•
•
burden/duty to advise the latter to acquiesce and submit, rather
than traverse the incontrovertible.
It is unprofessional for a lawyer to volunteer advice to bring a
lawsuit, except in rare cases where the blood, relationship or trust
makes it his duty to do so.
Temper client's propensity to litigate
Should not be an instigator of controversy but a mediator for
concord and conciliator for compromise.
The law violated need not be a penal law. “Moral Turpitude" everything which is done contrary to justice, honesty, modesty or
good morals.
Give advice tending to impress upon the client and his undertaking
exact compliance with the strictest principles of moral law.
Until a statute shall have been construed and interpreted by
competent adjudication, he is free and is entitled-to advise as to its
validity and as to what he conscientiously believes to be it just
meaning and extent.
A lawyer has the obligation not to encourage suits. This is so as to
prevent barratry and ambulance chasing.
Barratry - ofense of frequently exciting and stirring up quarrels and
suits, either at law or Otherwise; Lawyer's act of fomenting suits
among individuals and ofering his legal services to one of them.
Ambulance Chasing- Act of chasing victims of accidents for the
purpose of talking to the said victims (or relatives) and ofering his
legal services for the iling of a case against the person(s) who
caused the accident(s).
CANON 2
- A LAWYER SHALL MAKE HIS LEGAL SERVICES
AVAILABLE IN AN EFFICIENT AND CONVENIENT MANNER
COMPATIBLE WITH THE INDEPENDENCE, INTEGRITY AND
EFFECTIVENESS OF THE PROFESSION.
RULE 2.01 - A lawyer shall not reject, except for valid reasons, the cause
of the defenseless or the oppressed.
RULE 2.02 - In such cases, even if the lawyer does not accept a case, he
shall not refuse to render legal advice to the person concerned if only to
the extent necessary to safeguard the latter's rights.
RULE 2.03 - A lawyer shall not do or permit to be done any act designed
primarily to solicit legal business.
Primary characteristics which distinguish the legal profession from business:
a. Duty of service, of which the emolument is a by product, and in
which one may attain the highest eminence without making such
money;
b. A relation as an 'oicer of court' to the administration of justice
involving thorough sincerity, integrity and reliability;
c. A relation to clients in the highest degree of iduciary;
d. A relation to colleagues at the bar characterized by candor, fairness
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and unwillingness to resort to current business methods of
advertising and encroachment on their practice or dealing with their
clients.
•
•
Defenseless - not in the position to defend themselves due to
poverty, weakness, ignorance or other similar reasons.
Oppressed - victims of acts of cruelty, unlawful exaction, domination
or excessive use of authority.
Rule on Advertisements
• General Rule: No advertisements allowed. The most worthy and
efective advertisement possible is the establishment of a wellmerited reputation for professional capacity and idelity to trust.
Lawyers may not advertise their services or expertise nor should
not resort to indirect advertisements for professional
employment, such as furnishing or inspiring newspaper
comments, or procuring his photograph to be published in
connection with causes in which the lawyer has been engaged or
concerning the manner of their conduct, the magnitude of the
interest involved, the importance of the lawyer's position, and all
other self-laudation.
•
Exceptions: Permissible advertisements
1. Reputable law lists, in a manner consistent with the standards of.
Conduct imposed by the canons, of brief biographical and
informative data, are allowed. (Ulep vs. Legal Clinic, Inc., 223
SCRA 378)
2. Ordinary simple professional Card. It may contain only a
statement of his name, the name of the law irm which he is
connected with, address, telephone number and the special
branch of law practiced. (Ulep vs. Legal Clinic, Inc., 2~3 SCRA
378)
3. A simple announcement of the opening of a law irm or of
changes in the partnership, associates, irm name or oice
address, being for the convenience of the profession, is not
objectionable. (Ulep vs. Legal Clinic, Inc., 223 SCRA 378)
4. Advertisements or simple announcement of the existence of a
lawyer or his law irm posted anywhere it is proper such as his
place of business or residence except courtrooms and
government buildings.
5. Advertisements or announcement in any legal publication,
including books, journals, and legal magazines and in telephone
directories.
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RULE 2.04 - A lawyer shall not charge rates lower than those
customarily prescribed unless the circumstances so warrant.
• A lawyer cannot delay the approval of a compromise agreement
entered into between parties, just because his attorney's fees were
not provided for in the agreement.
• Rule: A lawyer cannot compromise the case without client's
consent (special. authority).
Exception: Lawyer has exclusive management of the procedural
aspect of the litigation lawyer is confronted with an emergency
and prompt/urgent action is necessary to protect clients interest
and there's no opportunity for consultation, the lawyer may
compromise.
• Rule: Refrain from charging rates lower than the customary rates.
Valid Justiication: relatives, co-lawyers, too poor.
CANON 3 - A LAWYER IN MAKING KNOWN HIS LEGAL SERVICES
SHALL USE ONLY TRUE, HONEST, FAIR, DIGNIFIED AND OBJECTIVE
INFORMATION OR STATEMENT OF FACTS.
RULE 3.01 - A lawyer shall not use or permit the use of any false,
fraudulent, misleading, deceptive, undigniied, self-laudatory or unfair
statement or claim regarding his qualiications or legal services.
RULE 3.02 - In the choice of a irm 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 irm indicates in all its
communications that said partner is deceased.
RULE 3.03 - Where a partner accepts public oice, he shall withdraw
from the irm and his name shall be dropped from the irm name unless
the law allows him to practice law concurrently.
RULE 3.04 - A lawyer shall not payor give anything of value to
representatives of the mass media in anticipation of, or in return for,
publicity to attract legal business.
•
•
It is unethical to use the name of a foreign irm.
Death of a partner does not extinguish attorney-client relationship
with the law irm.
Negligence of a member in the law irm is negligence of the irm.
CANON 4 - A LAWYER SHALL PARTICIPATE IN THE DEVELOPMENT
OF THE LEGAL SYSTEM BY INITIATING OR SUPPORTING EFFORTS
IN LAW REFORM AND IN THE IMPROVEMENT OF THE
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ADMINISTRATION OF JUSTICE.
 Examples: Presenting position papers or resolutions for the
introduction of pertinent bills in Congress; Petitions with the
Supreme Court for the amendment of the Rules of Court.
CANON 5 - A LAWYER SHALL KEEP ABREAST OF LEGAL
DEVELOPMENTS, PARTICIPATE IN CONTINUING LEGAL EDUCATION
PROGRAMS, SUPPORT EFFORTS TO ACHIVE HIGH STANDARDS IN
LAW SCHOOLS AS WELL AS IN THE PRACTICAL TRAINING OF LAW
STUDENTS AND ASSIST IN DISSEMINATING INFORMATION
REGARDING THE LAW AND JURISPRUDENCE.
Objectives of integration of the Bar
• To elevate the standards of the legal profession
• To improve the administration of justice.
• To enable the Bar to discharge its responsibility more
efectively.
The three-fold obligation of a lawyer
• First, he owes it to himself to continue improving his knowledge
of the laws;
• Second, he owes it to his profession to take an active interest in
the maintenance of high standards of legal education;
• Third, he owes it to the lay public to make the law a part of their
social consciousness.
CANON 6 - THESE CANONS SHALL APPLY TO LAWYERS IN
GOVERNMENT SERVICE IN THE DISCHARGE OF THEIR OFFICIAL
TASKS.
•
•
Public Oicials - include elective and appointive oicials and
employees, permanent or temporary, whether in the career or noncareer service, including military and police personnel, whether or
not they receive compensation, regardless of amount. (Sec. 3 (b),
RA 6713).
The law requires the observance of the following norms of conduct
by every public oicial in the discharge and execution of their
oicial duties:
a. Commitment to public interest
b. Professionalism
c. Justness and sincerity
d. Political neutrality
e. Responsiveness to the public
f. Nationalism and patriotism
g. Commitment to democracy
h. Simple living (Sec. 4, RA 6713)
RULE 6.01 - The primary duty of a lawyer engaged in public prosecution
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is not to convict but to see that justice is done. The suppression of facts
or the concealment of witnesses capable of establishing the innocence of
the accused is highly reprehensible and is cause for disciplinary action.
RULE 6.02 - A lawyer in the government service shall not use his public
position to promote or advance his private interests, nor allow the latter
to interfere with his public duties.
RULE 6.03 - A lawyer shall not, after leaving a government service,
accept engagement or employment in connection with any matter in
which he had intervened while in said service.
• Various ways a government lawyer leaves government service:
a. Retirement
b. Resignation
c. Expiration of the term of oice
d. Dismissal
e. Abandonment
Q:
What are the pertinent statutory provisions regarding
this Rule?
Sec. 3 (d) RA 3019 as amended and Sec. 7 (b), RA 6713
Sec 3. Corrupt practice of Public Oicers. In addition to acts or omission
of public oicers already penalized by existing law, the following shall
constitute corrupt practice of any public oicer and are hereby
declared to be unlawful:
(d) accepting or having any member of his family accept employment
in a private enterprise which has pending oicial business with him
during the pendency thereof or within one year: after termination.
Section 7 (b) of RA 6713 prohibits oicials from doing any of the
following acts:
1. Own, control, manage or accept employment as oicer,
employee, consultant,
counsel, broker, agent, trustee or nominee in any private
enterprise regulated,
supervised or licensed by their oice unless expressly allowed by
law.
These prohibitions shall continue to apply for a period of one (1)
year after resignation, retirement, or separation from public
oice, except in the case of subparagraph (b) (2) above, but the
professional concerned cannot practice his profession in
connection with any matter before the oice he used to be with,
in which case the one year prohibition shall likewise apply.
Q
-State the basic duties of a lawyer to society.
1.
2.
-The Code of Professional Responsibility mandates that:
A lawyer shall uphold the Constitution, obey the laws of the land
and promote respect for law and legal processes;
A lawyer shall make his legal services available in an eicient
and convenient manner compatible with the independence,
integrity, and efectiveness of the profession;
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3.
4.
5.
6.
Q
A lawyer in making known his legal services shall use only true,
honest, fair, digniied and objective information or statement of
facts;
A lawyer shall participate in the development of the legal system
by initiating or supporting efforts in law reform and in the
improvement of the administration of justice;
A lawyer shall keep abreast of legal development, participate in
continuing legal education programs, support eforts to achieve
high standards in law schools as well as in the practical training
of law students and assist in disseminating information regarding
the law and jurisprudence;
These canons shall apply to lawyers in government service in the
discharge of their oicial tasks.
- A lawyer procured personal loans from the complainant
through insinuations of his power as an inluence peddler
at the Bureau of Customs, and issued bad checks. If an
administrative case is iled against him, can he interpose
the defense that his conducts were not connected to the
practice of his profession? Explain.
-No. Rule 1.01, Chapter 1 entitled The Lawyer and Society of the Code of
Professional Responsibility which requires that a lawyer shall not engage in
unlawful, dishonest, immoral and deceitful conduct does not limit itself to
conduct exhibited in connection with the performance of professional duties.
His propinquity for employing deceit and misrepresentations as well as his
cavalier attitude towards incurring debts without the least intention of
repaying them is reprehensible. This disturbing behavior cannot be tolerated
especially if the lawyer is an officer of the court.
Q
- What is the lawyer's primary duty to society?
- The lawyer's primary duty to society or to the State is to
uphold the Constitution, obey the laws of the land and promote
respect for law and legal processes. (Canon 1, Code of
Professional Responsibility). Thus, it has been said that "to say
that lawyers must at all times uphold and respect the law is to
state the obvious". Considering that, "of all classes of
professions, lawyers are most sacredly bound to uphold the
law," (Ex parte Wall, 107 U.S. 265; cited in Malcolm, Legal and
Judicial Ethics, p. 214), it is imperative that they live by the law.
Accordingly, lawyers who violate their oath and engage in
deceitful conduct have no place in the legal profession.
(Victoriano P. Resurreccion vs. Atty. Ciriaco C. Sayson, Adm.
Case No. 1037, 101 SCAD 654, December 14, 1998).
Q
-Where is the duty of a lawyer to uphold the constitution,
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obey the law, etc. enshrined?
- The duty of a lawyer to uphold the Constitution, obey the laws
of the land and promote respect for the law and legal processes
is enshrined in the Attorney's Oath which every lawyer must take
before he may practice law. Such oath runs thus:
"I... do hereby solemnly swear that I will maintain allegiance to
the Republic of the Philippines; I will support its Constitution and
obey the laws as well as the legal orders of the duly constituted
authorities therein; I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue
any groundless, false or unlawful suit, or give aid nor consent to
the same; I will delay no man for money or malice; and will
conduct myself as a lawyer according to the best of my
knowledge and discretion, with all good idelity as well to the
courts as to my clients; and I impose upon myself this voluntary
obligation without any mental reservation or purpose of evasion.
So help me God."
Q
-A lawyer was convicted of the crime of estafa. Can he be
disbarred? Why?
-Yes, because for having been convicted of estafa, such lawyer
does not possess good moral character. A lawyer who had been
convicted of estafa does not possess moral turpitude. Moral
turpitude includes everything which is done contrary to justice,
honesty and good morals. Estafa, no doubt, is a crime involving
moral turpitude because the act is unquestionably against
justice, honesty and good morals. Good moral character is not
only a condition precedent to admission to the legal profession,
but it must also remain extant in order to maintain one's good
standing in that exclusive and honored fraternity.
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. (Victoriano O. Resurrection vs. Atty.
Ciriaco Sayson, Adm. Case No. 1037, December 14, 1998, 101
SCAD 654)
Q
- May a lawyer who was convicted of the crime of
violation of B.P. Big. 22 be disbarred? Why?
-Yes. The issuance of a bouncing check imports deceit and
violation of the attorney's oath and the Code of Professional
Responsibility which requires him to obey the laws of the land.
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Conviction of a crime involving moral turpitude might not relate
to the exercise of the profession of a lawyer, but it certainly relates to and afects the good moral character of a person
convicted of such ofense. (People vs. Tuanda, 181 SCRA 692). It
must be emphasized that the nature of the oice of a lawyer
requires that he shall be a person of good moral character. This
qualiication is not only a condition precedent to an admission to
the practice of law; its continued possession is also essential for
remaining in the practice of law. (Victoriano P. Resurreccion vs.
Atty. Ciriano Sayson, supra).
Q
-BG, a lawyer borrowed the records of a case. He,
however, stole some exhibits by tearing them of. Can he
be disbarred? Why?
-Yes, BG can be disbarred. Well settled is the rule that a lawyer
shall not engage in unlawful, dishonest, immoral or deceitful
conduct. The act of stealing the exhibits can be considered as an
unlawful and dishonest act of a lawyer, a violation of his bounden
duty under the Code of Professional Responsibility. In the case at
bar, BG has descended to the level of a common thief (Fernandez
vs. Benjamin Grecia, Adm. Case No. 3694, June 17, 1993,42
SCAD 438).
Q
-One of the essential qualiications for a lawyer to
maintain his standing in the legal profession is honesty.
Give examples of dishonest and deceitful conduct of a
lawyer.
- They are:
1.
2.
3.
4.
5.
6.
7.
Misappropriating a client's fund (Quilban vs. Robinol, 171
SCRA 769);
Giving false statements under oath in an information sheet
submitted in connection with a lawyer's application for the
position of Chief of Police (Calo vs. Degano, 20 SCRA 447);
Maneuvering reconveyance of property in the name of the
lawyer instead of the client in a case involving sale with
pacta de retro (Imbuido vs. Fidel Sor Mangonon, 4 SCRA
760);
Falsiication of grades in the Bar Examinations (In re: Del
Rosario, 52 Phil. 399);
Delayed failure to account money collected for the client
(Licuanan vs. Melo, 170 SCRA 100);
Inducing someone to buy a parcel of land knowing that it is
not for sale (In re: Quiambao, 102 Phil. 940); and
Stealing evidence attached to the court records.
(Fernandez vs. Grecia, Adm. Case No. 3694, June 17, 1993,
42 SCAD 438).
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Q
- A lawyer who stole a document from the record of a case
was disbarred. Why?
-He is an oicer of the court. He is like the court itself. An
incorrigible practitioner of dirty tricks would be ill-suited to
discharge the role of an instrument to advance the ends of
justice. (Fernandez, et at. vs. Grecia, supra).
Q
- A lawyer shall not engage in immoral conduct. What
degree of immorality may cause the disbarment or
disciplinary action against a lawyer? Explain.
-For immorality to be a ground for disciplinary action, it must not
only be merely immoral but also grossly immoral. It means that
the act must be one which is unquestionably so corrupt or
unprincipled. (Arciaga vs. Maniwang, 106 SCRA 591)
Q
- Give some examples of immoral conduct of a lawyer.
- They are:
1.
2.
3.
4.
5.
6.
7.
Q
Abandonment of wife and cohabiting with another woman.
He can be disbarred (Obusan vs. Ocusan, 128 SCRA 485);
Bigamy committed by lawyer (Terre vs. Terre, 211 SCRA 6);
Representing oneself to be eligible to marry when in fact he
is not (Barrientos vs. Daarol, Adm. Matter No. 1512, Jan. 29,
1993);
Having carnal knowledge with a woman through a promise
of marriage which he did not fulill. He can be disbarred
(Almirez vs. Lopez, 27 SCRA 169);
Arranging the marriage of his son to a woman with whom
he had illicit relations and after the marriage, he continued
his adulterous relations with her (Mortel vs. Aspiras, 100
Phil. 586);
Enveigling a woman into believing that they had been
married civilly to satisfy his carnal desires. He was
disbarred (Cabrera vs. Agustin, 106 Phil. 256; Pomperada
vs. Jochico, 133 SCRA 309); and
Aintaining adulterous relationship with a married woman.
(Cordova vs. Cordova, 179 SCRA 680).
- A married B who was already a married woman although
her marriage was void for having married a irst degree
cousin. A studied law, graduated, passed the Bar
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Examinations where B practically was the one who spent
for him during his studies. A abandoned her and married
C. Can A maintain his standing in the legal profession?
Why?
-No, because he violated his duty not to engage in immoral
conduct. He made a dupe of his wife, living on her bounty and
allowing her to spend for his schooling and marrying another girl
as soon as he inished his studies. (Terre vs. Terre, 211 SCRA 6).
Q
- What is barratry?
- Barratry is the ofense of frequently exciting and stirring up
quarrels and suits, either at law or otherwise. It is a lawyer's act
of fomenting suits among individuals and ofering his legal
services to one of them.
Q
- What is an ambulance chaser?
-Ambulance chaser is a lawyer who haunts hospitals and visits
the homes of afected, oiciously intruding their presence and
persistently ofering his services on the basis of a contingent fee.
(Warvelle, Legal Ethics, pp. 56-57).
Q
- A iled a suit against B. They entered into a compromise agreement but X, the lawyer B objected to it
as his attorney's fees have not been paid. Is the act of
X proper? Why?
- No. It is the sworn duty of a lawyer not to delay any man's
cause for money or malice. A lawyer cannot delay the
approval of a compromise agreement entered into between
the parties, just because his attorney's fees were not provided
for in the agreement. (Jesalva vs. Bautista, 105 Phil. 348).
Q
- One of the duties of a lawyer is that, he shall not, for
corrupt motive or interest, encourage any suit or
proceeding or delay any man's cause. Give examples of
instances of delay which can be considered condemnable.
ANS.
- They are:
1.
Resorting to technicalities to frustrate justice
Insurance Co., Inc. vs. Uy Realty Co., 34 SCRA 745);
(Economic
2.
Filing of multiple or repetitious petitions which obviously delay
the execution of a inal and executory judgment (Gabriel vs. CA,
72 SCRA 273);
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3.
4.
2.
Filing of several actions covering the same subject matter or
seeking substantially identical relief (Macias vs. Uy Kim, 45 SCRA
251) or what is otherwise known as forum shopping;
Filing of frivolous appeals for purposes of delay;
Filing of motions for postponement and other kinds of motion for
dilatory purposes;
6.
Indiscriminate iling of suits against a party clearly intended for
harassment. (
Dimagiba14 vs. Montalvo, Jr., 202 SCRA 641).
Q
- What is the duty of a lawyer in matters of settlement of
cases and why?
-A lawyer shall encourage his clients to avoid, end or settle a
controversy if it will admit of a fair settlement. The reason is that,
it will save the client from additional expenses and help prevent
the clogging of court docket. (Pajares vs. Abad Santos, 30 SCRA
748).
Q
- After the rendition of inal and executory judgment in an
unlawful detainer case, a lawyer attempted to nullify the
decision of the MTC, Manila. Is the act of the lawyer
proper? Why?
-No, because the act evinced a deliberate intent to prolong and
delay the inevitable execution of a inal decision. A lawyer's oath
is a solemn agreement in dedicating oneself to the pursuit of
justice, not mere ictive of words, drift and hallow, but sacred
trust. In so doing, the lawyer violated his duty not to encourage
any suit or proceeding or delay a man's cause for corrupt motive
or interest. (Masinsin, et al. vs. Hon. Ed Vincent S. Albano, et al.,
G.R. No. 86421, May 31, 1994, 51 SCAD 476).
Q
- What should a lawyer do if he cannot accept a case?
- If for valid reasons, a lawyer cannot accept a case, he should
instead give immediate legal advice. He should not refuse to
provide legal advice. He can even refer the case to another
lawyer who can provide prompt assistance.
Q
- What are some of the characteristics of the legal
profession which distinguish it from business?
They are:
1. A duty of public service of which the emolument is a byproduct, and in which one may attain the highest eminence
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without making much money;
2.A relation as an oicer of court to the administration of justice
involving thorough sincerity, integrity and reliability;
3. A relation to clients in the highest degree of iduciary; and
4.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. (In re: Sycip, 92 SCRA 1).
Q
- Explain the principle that the practice of law is a
profession and not a moneymaking trade.
- The rule is so, because in the ixing of attorney's fees, it
must not be forgotten that the profession is a branch of the
administration of justice and not a mere moneymaking trade.
(Jayme vs. Bualan, 58 Phil. 422). It is not a business but a
profession. (In re: Tagorda, 53 Phil. 37). Counsel of repute and
of eminence welcome opportunities to be appointed counsel
de oicio for this makes manifest the principle that the practice
of law is dedicated to the ideal of service and not a mere
trade. (Ledesma vs. Climaco, 57 SCRA 473).
Q
- A lawyer published in a newspaper that marriage license
may be promptly secured through his assistance and the
annoyance of delay or publicity is avoided if desired and
marriage arranged to the wishes of the parties. Was the
act proper? Why?
-No, the advertisement was a lagrant violation of the ethics of
his profession it being a brazen solicitation of business from the
public.
It is highly unethical for an attorney to advertise his talents or
skills as a merchant advertises his wares. Law is a profession and
not a trade. The lawyer degrades himself and his profession who
stoops to and adopts the practice of mercantilism by advertising
his services or ofering them to the public. (Director of Religious
Afairs vs. Bayot, 74 Phil. 579).
Q
- What is the best form of advertisement of a lawyer?
-The most worthy and efective advertisement possible even for a
lawyer is the establishment of a well merited reputation for
professional capacity and idelity to trust. This cannot be forced
but must be the outcome of character and conduct. (Director of
Religious Afairs vs. Bayot, 74 Phil. 579).
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Q
- When may a lawyer make a publication or advertisement
in newspapers, etc.?
-A lawyer may make certain publications or advertisements in
newspapers, or periodicals or magazines about the opening of
a law oice, stating the names of the lawyers and the address
of the oice or the irm. Publication in reputable law lists, in a
manner consistent with the standards of conduct imposed by
the canon, of brief biographical or informative data is
allowable. (Ulep vs. The Legal Aid Clinic, Inc., Bar Matter No.
553, June 17, 1993).
Q
Explain.
- What should a law irm do if a partner has already died?
-If a partner died, the name of the deceased may still be used by
the irm, provided, that there is an indication that said partner is
already dead and the date or year of his death. The purpose is to
avoid the tendency of improperly exploiting its advertising value.
(In the matter of the Petition for Authority to Continue Use of the
Firm Name Ozaeta, Romulo, De Leon, Mabanta and Reyes, 92
SCRA 1).
Q
- May a lawyer who attempts to engage in opium deal be
disciplined? Why?
-Yes, because he may not only be removed for malpractice and
dishonesty in his profession, but also for gross misconduct not
related to his professional duties which show him to be an unit
and unworthy lawyer. The courts are not curators of morals of the
bar. At the same time, the profession is not compelled to harbor
all persons whatever their character, who are fortunate enough
to keep out of prison. A good character is an essential
qualiication for admission of an attorney to practice, when the
attorney's character is bad in such respects as to show that he is
unsafe and unit to be entrusted with the powers of an attorney,
the courts retain the power to discipline him x x x. Of all classes
and professions, the lawyer is most sacredly bound to uphold the
law. (Piatt vs. Abordo, 58 Phil. 350; Co vs. Atty. Bernardino, A.C.
No. 3919, Jan. 28, 1998, 90 SCAD 750).
THE LAWYER AND THE LEGAL PROFESSION
CANON 7 - A LAWYER SHALL AT ALL TIMES UPHOLD THE
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INTEGRITY AND DIGNITY OF THE LEGAL PROFESSION AND SUPPORT
THE ACTIVITIES OF THE INTEGRATED BAR.
RULE 7.01 - A lawyer shall be answerable for knowingly making a false
statement or suppressing a material fact in connection with his application
for admission to the bar.
RULE 7.02 - A lawyer shall not support the application for admission to
the bar of any person known by him to be unqualiied in respect to character,
education, or other relevant attribute.
RULE 7.03 - A lawyer shall not engage in conduct that adversely relects
on his itness to practice law, nor shall he, whether in public or private life,
behave in scandalous manner to the discredit of the legal profession.
• Upright character; not mere absence of bad character.
• A lawyer must at all times conduct himself properly as not to put
into question his
• Avoid scandalous conduct; not only required to refrain from
adulterous relationships or the keeping of mistress but must also
behave himself as to avoid scandalizing the public by creating the
belief that he is louting those moral standards. .
CANON 8 - A LAWYER SHALL CONDUCT HIMSELF WITH COURTESY,
FAIRNESS AND CANDOR TOWARD HIS PROFESSIONAL COLLEAGUES,
AND SHALL AVOID HARASSING TACTICS AGAINST OPPOSING
COUNSEL.
RULE 8.01 - A lawyer shall not, in his professional dealings, use language
which is abusive, ofensive or otherwise improper.
RULE 8.02 - A lawyer shall not, directly or indirectly, encroach upon the
professional employment of another lawyer; however, it is the right of any
lawyer, without fear or favor, to give proper advice and assistance to those
seeking relief against unfaithful or neglectful counsel.
• It is the duty of a lawyer to inform the SC or the IBP of such malpractice to
the end
that the malpractitioner be properly disciplined.
•
Not to use in pleadings and in practice the following: disrespectful,
abusive and abrasive language, ofensive personalities, unfounded
accusations or intemperate words tending to obstruct, embarrass or
inluence the court in administering justice.
•
Want of intention: not an excuse for the disrespectful language used It
merely
extenuates liability.
•
A lawyer, both as an oicer of the court and as a citizen, may criticize in
properly respectful terms and through legitimate channels the act of
courts and judges. But it is the cardinal condition of all such criticism that
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it shall be bona ide, and shall not spill over the walls of decency and
propriety. (In Re: Alrrfacen, 31 SCRA 562)
CANON 9 - A LAWYER SHALL NOT, DIRECTLY OR INDIRECTLY, ASSIST
IN THE UNAUTHORIZED PRACTICE OF LAW.
RULE 9.01 - A lawyer shall not delegate to any unqualiied person the
performance of any task which by law may only be performed by a member
of the Bar in good standing.
RULE 9.02 - A lawyer shall not divide or stipulate to divide a fee for legal
services with persons not licensed to practice law, except:
a) 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 speciied in the agreement; or
b) Where a lawyer undertakes to complete uninished legal business of a
deceased lawyer; or
•
c) Where a lawyer or law irm includes non-lawyer employees in a
retirement plan, even if the plan is based in whole or in part, on a proitsharing arrangement.
that:
Lawyer shall not negotiate with the opposite party who is represented by
a counsel. Neither should the lawyer attempt to interview the opposite
party and question him as to the facts of the case even if the adverse
party is willing to do so.
•
Lawyer should deal only with counsel, even if there's a fair agreement.
•
Lawyer may however, interview any witness or prospective witness for the
opposing side..;
Limitation: avoid inluencing witness in recital and conduct.
• A lawyer must not take as partner or associate one who:
1. Is not a lawyer
2. Is disbarred
3. Has been suspended from the practice of law
4. Foreign lawyer, unless licensed by the se.
•
A lawyer cannot delegate his authority without client's consent even to a
qualiied
person.
Q
- State the basic responsibilities of a lawyer to the legal
profession.
The Code of Professional Responsibility mandates that:
1. A lawyer shall at all times uphold the integrity and dignity of the
legal profession and support the activities of the integrated bar;
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2. A lawyer shall conduct himself with courtesy, fairness, and
candor toward his professional colleagues and shall avoid
harassing tactics against opposing counsel; and
3. A lawyer shall not, directly or indirector, assist in the unauthorized
practice of law.
Q
- What should a lawyer do to maintain his itness to practice
law?
- He should maintain good moral character during the continuance
of the practice and the exercise of the privilege to practice law.
(Quingwa vs. Puno, 19 SCRA 439). He should avoid brushes with the
law; he should not assist anyone in the commission of crimes. He is
expected to be concerned even with matters like payment of his
membership dues to the Integrated Bar of the Philippines (In re:
Edillon, 84 SCRA 554) and the payment of his privilege tax,
otherwise, he may be disciplined. (US vs. Garner, 9 Phil. 18).
Q
- What is an example of an act of a lawyer that would
prevent the discredit of the legal profession by his own acts?
- A lawyer must not only be of good moral character, but also be
seen to be of good moral character and leading lives in accordance
with the highest moral standards of the community. He should
refrain from adulterous relationships or the keeping of mistresses
but must also behave himself as to avoid scandalizing the public by
creating the belief that he is louting those moral standards. (Tolosa
vs. Cargo, 171 SCRA 21).
Q
- How should a lawyer act in relation to his peers?
-He shall conduct himself with courtesy, fairness and candor towards
his colleagues and should avoid harassing tactics against opposing
counsel. (Canon 8). He should not use language which is abusive,
ofensive or otherwise improper. (Canon 8.01). He should not encroach
upon the professional employment of another lawyer. (Canon 8.02).
Q
- Explain the efects if a lawyer uses intemperate, abusive,
abbrasive or threatening language.
- He can be cited for contempt or the courts may use their disciplinary
powers. (Zaldivar vs.Gonzales, 166SCRA 316). If a lawyer attacks
without foundation the integrity of another lawyer, the court may order
the same be stricken of the records. For cases are not won by such
language.
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Q
- When is a strong language against a judge justiied?
-If the use of a strong language is impelled by the same language of
the judge. Hence, if everyone is to blame for the language, it is the
judge himself who provoked it. For, if the judge desires not to be
insulted, he should start using temperate language himself; for, he who
sows the wind will reap a storm. (Fernandez vs. Hon. Bello, 107 Phil.
1140).
Q
- Maya lawyer encroach upon the employment of another
lawyer? Explain.
No. It is highly unethical for a lawyer to exert eforts directly or
indirectly, in any way, to encroach upon professional employment of
another. (Rule 8.02). However, if a lawyer has already withdrawn his
appearance for a client, the entry of his appearance is no longer an
encroachment upon the business of another lawyer. (Laput vs.
Ramontique, 6 SCRA 45).
Q
- May a lawyer divide a fee for legal services with one who is
not licensed to practice law? Is the rule absolute?
- A lawyer shall not divide or stipulate to divide a fee for legal services
with persons not licensed to practice law. The rule is not absolute as
there are exceptions like:
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 the person speciied in
the agreement; or
2. Where a lawyer undertakes to complete uninished business of a
deceased lawyer; or
3.
Where a lawyer or law irm includes non-lawyer employees in a
retirement
plan, even if the plan is based in whole or in part on a proit sharing
arrangement. (Rule 9.02 [a], [b], [c]).
Q
- What is the reason for the general rule above stated?
-The reason is that, if attorney's fees were allowed to non-lawyers, it
would leave the public in hopeless confusion in case of necessity
and also to leave the bar in a chaotic condition, aside from the fact
that non-lawyers are not amenable to disciplinary measures.
(PAFLU vs. Binalbagan Isabela Sugar Co., 42 SCRA 303).
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Q
- Why a lawyer cannot delegate his authority to unqualiied
persons to practice law?
This is by reason of public policy. The practice of law is limited only to
individuals duly qualiied in moral character and education and who
passed the Bar Examination. Public policy demands that legal work be
entrusted only to those possessing tested qualiications and who are
sworn to observe the rules and the ethics of the profession, as well as
being subject to judicial disciplinary control for the protection of the
courts, clients and the public. (PAFLU case, supra).
THE LAWYER AND THE COURTS
CANON 10 - A LAWYER OWES CANDOR, FAIRNESS, AND GOOD
FAITH TO THE COURT.
RULE 10.01 - A lawyer shall not do any falsehood, nor consent to the
doing of any in Court; nor shall he mislead, or allow the Court to be misled by
any artiice;
RULE 10.02 - A lawyer shall not knowingly misquote or misrepresent the
contents of a paper, the language or the text of a decision or authority, or
knowingly cite as law a provision already rendered inoperative by repeal or
amendment or assert as a fact that which has not been proved;
•
•
RULE 10.03 - A lawyer shall observe the rules of procedure and shall not
misuse them to defeat the ends of justice.
Judge-lawyer relationship: based on independence and self-respect.
Lawyer's duty to the court:
a. Respect and loyalty
b. Fairness, truth and candor c. No attempt to inluence courts
• Cases of falsehood:
a. Stating in the Deed of Sale that property is free from all liens and
encumbrances
when not so
b. Encashing check payable to a deceased cousin by signing the latter's
name on
the check
c. Falsifying a power of attorney and using it in collecting the money due
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to the
principal.
d. Alleging in one pleading that the clients were mere lessees and in
another
pleading that the same clients were owners
e. Presenting falsiied documents in court which he knows to be false
f. Filing false charges on groundless suits
g. Using in pleadings the IBP number of another lawyer
h. Unsolicited appearances
i. Use of ictitious residence certiicate
j. Misquotation/misrepresentation
k. Citing a repealed or amended provision
J. Asserting a fact not proved
m. Verbatim reproductions down to the last word and punctuation mark
n. Slight typo mistake: not suicient to place him in contempt
CANON ll. -A LAWYER SHALL OBSERVE AND MAINTAIN THE
RESPECT DUE TO THE COURTS AND TO JUDICIAL OFFICERS AND
SHOULD INSIST IN SIMILAR CONDUCT BY OTHERS.
RULE 11.01- A lawyer shall appear in court properly attired.
•
A lawyer may NOT wear outlandish or colorful clothing to court.
• As an oicer of the court and in order to maintain the dignity and
respectability of the legal profession, a I lawyer who appears in court
must be properly attired. Consequently, the court can hold a lawyer IN
CONTEMPT of court if he does not appear in proper attire. Any deviation
from the commonly accepted norm of dressing in court (barong or tie, not
both) is enough to warrant a citing for contempt.
RULE 11.02 - A lawyer shall punctually appear at court hearing.
RULE 11.04 - A lawyer shall not attribute to a Judge motives not
supported by the record or have no materiality to the case.
RULE 11.05 - A lawyer shall submit grievances against a Judge to the
proper authorities.
• A lawyer is an oicer of the court. He occupies a quasi-judicial oice with
a tripartite
obligation to the courts, to the public and to his clients.
•
The public duties of the attorney take precedence over his private duties.
His irst duty is to the courts. Where duties to the courts conlict with his
duties to his clients, the latter must yield to the former.
•
Lawyers must be respectful not only in actions but also in the use of
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language whether in oral arguments or in pleadings.
•
Must exert eforts that others (including clients, witnesses) shall deal with
the courts and judicial oicers with respect.
•
Obedience to court orders and processes.
•
Criticisms of courts must not spill the walls of decency. There is a wide
diference between fair criticism and abuse and slander of courts and
judges. Intemperate and unfair criticism is a gross violation of the duty to
respect the courts. It amounts to misconduct which subjects the lawyer to
disciplinary action.
• A mere disclaimer of any intentional disrespect by appellant is not a
ground for exoneration. His intent must be determined by a fair
interpretation of the languages employed by him. He cannot escape
responsibility by claiming that his words did not mean what any reader
must have understood them to mean.
• Lawyer can demand that the misbehavior of a judge be put on record.
•
Lawyers must be courageous enough to expose arbitrariness and injustice
of courts and judges.
•
A lawyer may submit grievances against judges in the Supreme Court,
Ombudsman",
or Congress (for impeachment of SC judges only).
CANON 12 - A LAWYER SHALL EXERT EVERY EFFORT AND
CONSIDER IT HIS DUTY TO ASSIST IN THE SPEEDY AND EFFICIENT
ADMINISTRATION OF JUSTICE.
• The Court further commented that it is understandable for a party
in the situation to make full use of every conceivable legal defense
the law allows it. In the appraisal, however, of such attempts to
evade liability to which a party should respond, it must ever be
kept in mind that procedural rules are intended as an aid to justice,
not as means for its frustration. Technicalities should give way to
the realities of the situation. (Economic Insurance Co., Inc., vs. Uy
Realty Co.)
RULE 12.01 - A lawyer shall not appear for trial unless he has
adequately prepared himself on the law and the facts of his case, the
evidence he will adduce and the order of its preference. He should also be
ready with the original documents for comparison with the copies
- A lawyer shall not appear for trial unless he has adequately
prepared himself with the law and the facts of his case, the
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evidence he will adduce and the order of Its preference. He
should also be ready with the original" documents for
comparison
with
the
copies.
•
Newly hired counsel: must acquaint himself with all the antecedent
proceedings and
processes that have transpired in the record prior to his takeover.
•
If presenting documentary exhibits, he must be ready with the originals
for the
purpose of comparison with copies thereof.
RULE 12.02 - A lawyer shall not ile multiple actions arising from the same
cause.
• Forum shopping - omission to disclose pendency of appeal or prior
dismissal of his
case by a court of concurrent jurisdiction with intent of seeking a
favorable opinion.
Forum. ;shopping exists when as a result of an adverse opinion In one
forum:
a. A party seeks favorable opinion (other than by appeal or certiorari) in
another; or
b. When he institutes two or more actions or proceedings grounded on the
same cause, on the gamble that one or the other would make a
favorable disposition (Binguet Electric Corp. vs. Flores, 287 SCRA 449,
March 12, 1998).
•
• The most important factor in determining the existence of forum-shopping
is the VEXATION caused the courts and party-litigants by a party who asks
diferent courts to rule on the same related causes, asking the same relief.
•
Forum shopping constitutes DIRECT CONTEMPT of court and may subject
the
ofending lawyer to disciplinary action.
RULE 12.03 - A lawyer shall not, after extensions of time to ile pleadings,
memoranda or briefs, let. The period lapse without submitting the same or
ofering an explanation for his failure to do so.
•
Asking for extension of time must be in good faith.
RULE 12.04 - A lawyer shall not unduly delay a case, impede the execution
of a judgment or misuse Court processes.
RULE 12.05 - A lawyer shall refrain from talking to his witness during a
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break or recess in the trial, while the witness is still under examination.
RULE 12.06 - A lawyer shall not knowingly assist a witness to misrepresent
himself or to impersonate another.
RULE 12.07- A lawyer shall not abuse, browbeat or harass a witness nor
needlessly inconvenience him.
• Rights and obligations of a witness - a witness must answer questions,
although his answer may tend to establish a claim against him. However,
it is the right of a witness:
1. To be protected from irrelevant, improper, or insulting questions and
from
harsh or insulting demeanor;
2. Not to be detained longer than the interest of justice requires;
3. Not to be examined except only as to matters pertinent to the issue;
4. Not to give any answer which will tend to subject him to a penalty
for an : ofense unless otherwise provided by law, or
5. Nor to give answer which will tend to degrade his reputation, unless
it be to
the very fact at issue or to a fact from which the fact in issue would be
presumed. But a witness must answer to the fact of his previous inal
conviction for an ofense. (Rule 132, Sec. 3, RRC)
RULE 12.08- A lawyer shall avoid testifying in behalf of his client, except:
a) On formal matters, such as the mailing, authentication or custody of an
instrument, and the like; or
b) On substantial matters, in cases where his testimony is essential to the
ends of justice, in which event he must, during his testimony, entrust the trial
of the case to another counsel
CANON 13 - A LAWYER SHALL RELY UPON THE MERITS OF HIS CAUSE
AND REFRAIN FROM ANY IMPROPRIETY WHICH TENDS TO
INFLUENCE, OR GIVE THE APPEARANCE OF INFLUENCING THE COURT.
RULE 13.01 - A lawyer shall not extend extraordinary attention or hospitality
to, nor seek opportunity for cultivating familiarity with Judges.
RULE 13.02 - A lawyer shall not make public statements in the media
regarding a pending case tending to arouse public opinion for or against a
party.
RULE 13.03 - A lawyer shall not brook or invite interference by another
branch or agency of the government in the normal course of judicial
proceedings.
•
The judge has the corresponding duty not to conveyor permit others to
convey the
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impression that they are in a special position to inluence the judge.
•
Discussing cases with the judge privately should be avoided.
•
Test when public statement is contemptuous: The character of the act
done and its direct tendency to prevent and obstruct the discharge of
oicial duty.
•
To warrant a inding: of "prejudicial publicity", there must be an allegation
and proof that the judges have been unduly inluenced, not simply that
they might be, by the "barrage" of publicity.
•
Lawyer is equally, guilty as the client if he induces the latter to cause the
publicity.
Q
-State the basic responsibilities of a lawyer to the courts.
- The Code of Professional Responsibility mandates that:
1)
A lawyer owes candor, fairness, and good faith to the court;
2)
A lawyer shall observe and maintain the respect due to the
courts and to judicial oicers and should insist on similar conduct by
others;
3)
A lawyer shall exert every efort and consider it his duty to
assist in the speedy and eicient administration of justice; and
3
Q-
A lawyer shall rely upon the merits of his cause and refrain from any
impropriety which tends to inluence, or gives the appearance of
inluencing the court.
Who has the power to regulate the admission to the bar and
the practice of law?
The Supreme Court, as regulator and guardian of the legal profession,
has plenary disciplinary authority over attorneys. The authority to
discipline lawyers stems from the Court's Constitutional mandate to
regulate admission to the practice of law, which includes as well
authority to regulate the practice itself of law. (Zaldivar vs.
Sandiganbayan, 166 SCRA 316 [1988]).
Q
- May a lawyer or anybody criticize the courts? Why?
It is the cardinal condition that criticisms of courts shall be bona ide and
shall not spill over the walls of decency and propriety. A wide chasm
exists between fair criticisms, on the one hand, and abuse and slander of
courts and the judges on the other. Intemperate and unfair criticism is
gross violation of the duty of respect to courts. It is such a misconduct
that subjects a lawyer to disciplinary action.
The lawyer's duty to render respectful subordination to the courts is
essential to the orderly administration of justice. Hence, in the assertion of
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their clients' rights, lawyers even those gifted with superior intellect are
enjoined to give due respect to the courts. (Zaldivar vs. Gonzales, supra).
Q - A lawyer wanted the Oice of the President to review the
decision of the Supreme Court. Is the act of the lawyer subject to
discipline? Why?
Yes, because respect to the court is an important duty of a lawyer. No
other department of the government can review the decisions of the
Supreme Court. What the lawyer did was even violative of the principle
of separation of powers. (Maglasang vs. People, 190 SCRA 308).
Q
- Is the act of a lawyer of iling baseless cases against a judge
proper? Why?
No. In Aparicio vs. Andal, et al., July 25, 1989, it was said that iling of
baseless cases against a judge is improper. He was admonished
because a lawyer has a basic duty to conduct himself with good idelity
to the courts, to be courteous, fair, not be combative and bellicose.
(Sangalang vs. Gaston, Aug. 30, 1989; In re: Laureta).
Q
- To whom does a lawyer owe his irst and foremost duty?
The lawyer's irst and foremost duty is to the court.
He is duty bound to comply with the lawful orders of the court. The
reason is that the attorney is an oicer of the court because his main
mission is to assist the court in administering justice.
Q
- In Sangalang vs. Gaston, August 30, 1989, a lawyer was
suspended because of his own actuations, when in his motion
for reconsideration he said that the decision of the SC "reads
more like a brief for Ayala." Was the lawyer's act proper? Why?
.-No. The primary duty of a lawyer is to assist in the administration of
justice, not to his client. His client's success is only subordinate such
that, he is at liberty to advocate his client's cause in utmost earnest,
but he is not at liberty to resort to arrogance, intimidation and
innuendo. The act of the lawyer not only puts to serious question his
own integrity and competence but also jeopardized his own campaign
against graft and corruption undeniably prevailing in the judiciary. They
are unbecoming as well as an assault on the honor and integrity of the
court.
Q-
State the basic duties of a lawyer to the court.
The attorney's duty of prime importance is to observe and
maintain the respect due to the courts of justice and judicial oicers.
The duty to observe and maintain the respect due the court is likewise
incumbent up OJ} one aspiring to be a lawyer. He should conduct
himself toward judges with the courtesy that all have a right to expect
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and with the propriety which the dignity of the courts requires. For his
investiture into the legal profession places upon his shoulders no
burden more basic, more exacting and more intemperate than that of a
respectful behavior toward the courts.
A lawyer owes the court the duty to observe and maintain a
respectful attitude not for the sake of temporary incumbent of the
judicial oice but for the maintenance of its supreme importance.
(Department of Health vs. Sy Chi Siong Co., Inc., et al., G.R. No. 85289,
Feb. 20, 1989).
A lawyer owes candor, fairness and good faith to the Court.
(Canon 10). A lawyer shall observe and maintain the respect due to the
Court and to judicial oicers (Canon 11) and a lawyer shall exert every
effort and consider it his duty to assist in the speedy and eicient
administration of justice. (Canon 12). (Pentecostes vs. Judge Hidalgo,
Adm. Case No. RTC 89-331, Sept. 28, 1990).
A lawyer should be courteous, respectful to the courts of justice.
He should be fair, not repultant, combative and bellicose in dealing
with the Court. The use of disrespectful, intemperate and manifestly
baseless and malicious statements in his pleadings or motions is a
direct contempt of Court for which he may be disciplined. (Aparicio vs.
Andal, July 25, 1989; Zaldivar vs. Gonzales, supra).
Q-
In iling a pleading, etc., the lawyer deliberately changed the
wordings of the law. State the effect of such act.
A lawyer may be punished for contempt of court by deliberately
changing the provisions of law in order to mislead the court.
(Deiparine, Jr. vs. CA, 221 SCRA 503, April 23, 1993; COMELEC vs. Hon.
Noynay, et al., G.R. No. 132365, July 9, 1998, 95 SCAD 818).
Q-
State the efect of submitting to the court a falsiied document.
Submission to the court of falsiied documents constitutes willful
disregard of the lawyer's duty to act at all times in a manner consistent
with the truth. A lawyer should never seek to mislead the court by an
artiice or false statement of fact or law. (Bautista vs. Gonzales, 182
SCRA 151, Feb. 12, 1990).
Q - State the efect of forum shopping.
- Forum shopping is malpractice and constitutes contempt of court. In
PNCC vs. NLRC, 172
SCRA 867, the Supreme Court said that a
lawyer engages in forum shopping when he institutes a proceeding at
the time the same case or an incident thereto is pending
in another court or tribunal with an expectation of securing a favorable
decision.
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In fact, in Danville Maritime, Inc. vs. Comm. on Audit and Comm.
on Audit vs. RTC, July 28, 1989, the Supreme Court said that all
cases should be dismissed without prejudice to the iling of action
against the counsel concerned. No one should try to trile with
courts and abuse processes. (Crisostomo vs. SEC, November 6,
1989).
A lawyer who resorts to forum shopping, continuously seeks the
court where he may possibly obtain favorable judgment, thereby
adding to the already clogged dockets of the courts with the
unmeritorious cases he iles, grossly abuses his right of recourse to
the courts. By iling multiple petitions or complaints in the false
hope of getting some favorable action, he obstructs the
administration of justice. He is thus derelict in his duty as counsel to
maintain in such admission, actions or proceeding only as appears
to him to be just, and such defenses only as he believes to be
honestly debatable under the law. He thus prostitutes his oice at
the expense of justice. (Atriaga vs. Villanueva, Adm. Case No. 1892,
July 29, 1988).
A counsel, who, instead of assisting in the speedy disposition of
cases, makes mockery of justice, and this is guilty of gross misconduct
in oice may be suspended indeinitely from the practice of law until
such time that he can demonstrate to the court that he has
rehabilitated himself and deserves to resume the practice of law.
Q- Is a lawyer irst and foremost the defender of his client or an
oicer of the court? Explain.
- A lawyer is not merely the defender of his client's cause and a trustee
of his client in respect of the client's cause of action and assets; he is
also, irst and foremost, an oicer of the court and participates in the
fundamental function of administering justice in society. It follows that
a lawyer's compensation for professional services rendered are subject
to the supervision of the court, not just to guarantee that the fees he
charges and receives remain reasonable and commensurate with the
services rendered, but also to maintain the dignity and integrity of the
legal profession to which he belongs. Upon taking his attorney's oath
as an oicer of the court, a lawyer submits himself to the authority of
the courts to regulate his right to charge professional fees. (Sumaoang
vs. Judge, RTC Br. XXXI, Guimba, Nueva Ecija, 215 SCRA 136, Oct. 26,
1992).
Q
- State the efect of the willful iling of multiple frivolous and
baseless complaints.
A lawyer who iles multiple petitions may be held liable for willful
violation of his duties as an attorney. The iling of multiple petitions
constitutes abuse of the Court's processes and improper conduct that
tends to impede, obstruct and degrade the due administration of
justice. Claim of good faith alone is not enough to be exonerated from
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contempt. (Kalilid Wood Industries Corp. vs. CA, 197 SCRA 735, May
31,1991; Eternal Gardens Memorial Park Corp. vs. CA, et al., August 5,
1998, 97 SCAD 93).
Complainant's (lawyer) wanton disregard of the Supreme Court's stern
warning not to ile baseless and frivolous complaints and his adamant
refusal to abide by Canon 11, Rule 11.03 and Rule 11.04 of the Code of
Professional Responsibility have shown his unitness to hold the license
to practice law. (Balaoing vs. Calderon, 221 SCRA 533).
Q
- A government lawyer iled a petition for certiorari as a special
civil action before the Supreme Court and later iled an appeal
with the Court of Appeals, without withdrawing the irst case.
Is the act of the lawyer proper? Explain.
No, because he owes the following duties to the court:
a.)
A lawyer shall observe the rules of procedure and shall not misuse
them to defeat the ends of justice. (Canon 10.03, Canon 10, CPR); and
b.)
A lawyer shall not ile multiple actions from the same cause. (Rule
12.02, Canon 12, CPR).
Q-
A party is not allowed to pursue simultaneous remedies in two
(2) diferent for a because such practice works havoc on
orderly judicial procedure. Explain.
The iling of the petition for certiorari borders on the censurable as it
triles with the courts, abused their processes, and added to the
already heavily burdened dockets. While counsel may owe entire
devotion to the interest of his client, his privilege to practice law carries with it certain correlative duties to the court, one of which is to
assist in the speedy and eicient administration of justice and not
saddle the court with multiple actions arising from the same case.
The lawyer has the duty to be more circumspect in dealing with the
courts. The SC said that a lawyer who performs his duty with
diligence and candor not only protects the interest of his client, he
also serves the ends of justice, does honor to the bar and helps
maintain the respect of the community to the legal profession. (PRC,
et al. vs. CA, et al., G.R. No.
117817, and PRC, et al. vs. Hon. Nitafan, et al., G.R. No. 118437, July
9, 1998, 95 SCAD 732).
Q-
A lawyer iled a motion for extension of time to ile a motion
for reconsideration at the MTC. What duty did he violate?
Why?
-The lawyer has the duty to keep abreast with jurisprudence. In iling
a motion for extension of time to ile Motion for Reconsideration with
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the MTC, or RTC or Court of Appeals, he has failed to observe the responsibility imposed on him as a member of the Bar to keep abreast
with the latest developments in the law. (Uy vs. CA, et al., G.R. No.
126337, February 12, 1998, 91 SCAD 715).
THE LAWYER AND THE CLIENT
CANON 14 - A LAWYER SHALL NOT REFUSE HIS SERVICES TO THE
NEEDY.
RULE 14.01A lawyer shall not decline to represent a person solely on
account of the latter's race, sex, creed or status of life, or
because of his own opinion regarding the guilt of said person.
• Rule 14.01 is applicable only in criminal cases. In criminal cases, a
lawyer cannot decline to represent an accused or respondent
because of his opinion that the said person is guilty of the charge or
charges iled against him.
In representing the accused or
respondent, the lawyer must only use means which are fair and
honorable. (Rule 138, sec.20[l], Revised Rules of Court)
•
•
Rule 14.01 is not applicable in civil cases because "(c) To counselor
maintain such actions or proceedings only as appear to him to be just. and
such defenses only ~s he believes to be honestly debatable under
the law." (Rule 138, sec. 20[C},1 Revised Rules of Court)
When the lawyer signs a complaint or answer, his signature is deemed a
certiication by him "that he has read the pleading; that to the best
of his knowledge. information, and belief, there is good ground to
support it." (Rule 7, sec. 3, Revised Rules of Court) For violating this
rule, the lawyer may be subjected to disciplinary action.
RULE 14.02 A lawyer shall not decline, except for serious and suicient
cause, an appointment as counsel de oicio 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.
RULE 14.03 A lawyer may not refuse to accept representation of an
indigent client unless:
(a) he is not in a position to carry out the work efectively or
competently;
(b)he labors under a conlict of interest 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
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•
governing his relations with paying clients.
Duties to Client:
a. Owe utmost learning and ability
b. Maintain inviolate the conidence of the client
c. Disclose all circumstances/interest regarding the controversy
d. Undivided loyalty
e. Not reject cause of defenseless and oppressed
f. Candor, fairness and loyalty
g. Hold in trust money or property
h. Respond with zeal to the cause of the client
•
Appointment of Amicus Curae
a. By application to the judge
b. The judge on his own initiative may invite the lawyer
c. No right to interfere with or control the condition of the record, no
control over the suit
•
Cannot refuse on the ground of insuicient of compensation or lack of it
CANON 15 - A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND
LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENT.
RULE 15.01 A lawyer, in conferring with a prospective client, shall
ascertain as soon as practicable whether the matter would
involve a conlict with another client or his own interest, and if so,
shall forthwith inform the prospective client.
RULE 15.02 A lawyer shall be bound by the rule on privilege
communication in respect of matters disclosed to him by a
prospective client.
Rule on Revealing Client's Identity
•
General Rule: A lawyer may not invoke privilege communication to
refuse revealing
a client's identity. (Rega/a vs. Sandiganbayan, 262 SCRA 122, September
20, 1996) Exceptions:
1. When by divulging such identity, it would implicate the client to that
same
Controversy for which the lawyer's services were required.
2. It would open client to civil liability
3. The disclosure of such identity will provide for the only link in order to
convict the
Accused, otherwise, the government has no case.
•
Requisites
of
Communication:
Privileged
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a. Atty.-client relationship (or a kind of consultancy relationship with a
prospective
Client .
b. Communication made by client to lawyer in the course of lawyer's
professional
employment .
c. Communication is intended to be conidential (see Rule 130, Sec. 21(b),
Rules of
Court)
When communication is not privileged:
a. After pleading has been iled [pleading ceases to be privileged
communication
becomes part of public records]
b. Communication intended by the client to be sent to a third person
through his counsel (it loses its conidential character as soon as it
reaches the hands of third person)
c. When the communication sought by client is intended to aid future
crime
d. When communication between attorney and client is heard by a third
party - third
party testimony is admissible as evidence,
•
•
Even if the communication is unprivileged, the rule of ethics prohibits
him from voluntarily revealing or using to his beneit or to that of a third
person, to the disadvantage of the' client, the said communication unless
the client consents thereto.
•
This is applicable to students under the Student Practice Law Program
RULE 15.03A lawyer shall not represent conlicting interests except by
written consent of all concerned given after a full disclosure of
the facts.
Rule on Conlicting Interest
It is generally the rule based on sound public policy that an
attorney cannot represent adverse interest. It is highly improper to
represent both sides of an issue.
The proscription against
representation of conlicting interest inds application where the
conlicting interest arises with respect to the same general matter and
is applicable however slight such adverse interest maybe. It applies
although the attorney’s intention and motives were honest and he
acted in good faith. However, representation after full disclosure of
facts. (Nakpil vs. Valdez, 286 SCRA 758).
•
General Rule: An attorney Cannot represent adverse interest.
Exception: Where the parties consent to the representation after full
disclosure of facts.
•
The TEST in determining Conlicting Interest: The test is whether or
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not the acceptance of a new relation will prevent an attorney from
the full discharge of his duty of undivided idelity and loyalty to his
client or invite suspicion of unfaithfulness in double-dealing in the
performance thereof. (Tiana vs. Ocampo)
RULE 15.04A lawyer may, with the written consent of all concerned,
act as mediator, conciliator or arbitrator in settling disputes.
•
At a certain stage of the controversy before it reaches the court, a
lawyer may represent conlicting interests with the consent of the
parties. A common representation may work to their advantage
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. (Donald Dee vs. CA,
176 SCRA 651)
RULE 15.05 - A lawyer when advising his client, shall give a candid and
honest opinion on the merits and probable results of the client's
case, neither overstating nor understating the prospects of the
case.
•
It is the duty of a counsel to advise his client, ordinarily a layman
to the intricacies and vagaries of the law, on the merit or lack of
merit of his case. If he inds that his client’s cause is defenseless,
then it is his duty to advise the latter to acquiesce and submit,
rather than traverse the incontrovertible. A lawyer must resist the
whims and caprices of his client, and temper his client’s propensity
to litigate.
RULE 15.06 A lawyer shall not state or imply that he is able to inluence
any public oicial, tribunal or legislative body.
RULE 15.07 A lawyer shall impress upon his client compliance with the
laws and the principles of fairness.
RULE 15.08 - A lawyer who is engaged in another profession or occupation
concurrently with the practice of law shall make clear to his client
whether he is acting as a lawyer or in another capacity.
• Lawyers should refrain from giving any advice unless they have obtained
suicient understanding of their client's cause. A careful investigation and
examination of the facts must irst be had before any legal opinion be
given by the lawyer to the client.
To avoid breach of legal ethics, a lawyer should keep any business, in
which is
engaged in concurrently with the practice of law, entirely separate and
apart from the latter.
•
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CANON 16 - A LAWYER SHALL HOLD IN TRUSTS ALL MONEYS AND
PROPERTIES OF HIS CLIENT THAT MAY COME INTO HIS POSSESSION.
RULE 16.01 A lawyer shall account for all the money or property
collected or received for or from the client.
RULE 16.02 - A lawyer shall keep the funds of each client separate and
apart from his own and those of others kept by him
RULE 16.03 A lawyer shall deliver the funds and property of his client
when due or upon demand. However, he shall have a lien over
the funds and may apply so much thereof as may be necessary
to satisfy his lawful fees and disbursements, giving notice
promptly thereafter to his client. He shall also have a lien to the
same extent on all judgments and executions he has secured for
his client as provided for in the Rules of Court.
Attorney’s Liens - an attorney shall have a lien upon the funds, documents
and
Papers of his client which have lawfully come into his possession and may
retain the same until his lawful fees and disbursements have been paid,
and may apply such ines to the satisfaction thereof. He shall also have a
lien to the same extent upon all
Judgments for the payment of money, and executions issued in pursuance
of such
Judgments which he has secured in a litigation of his client, from and after
the time when he shall have caused a statement of his claim of such lien
to be entered upon the records of the court rendering such judgment, or
issuing such execution and shall have caused written notice thereof to be
delivered to his client and to the adverse party; and he shall have the
same right and power over such judgments and executions as his client
would have to enforce his lien and secure the payment of his fees and
disbursements. (Sec. 37, Rule 138, Revised Rules of Court)
•
Prohibition on Purchase of Client's Property: art. 1491: Civil Code
Art. 14-1: The following persons cannot acquire by purchase, even at a
public or judicial auction, either in person or through the mediation of
another:
(4) Public oicers and employees, the property of the State or of any
subdivision thereof, or of any government owned or controlled corporation,
or Institution, the administration of which has been entrusted to them; this
provision shall apply to judges and government experts who, in any
manner whatsoever, take part in the sale;
(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior
courts, and, other oicers and employees connected with the
administration of justice, the property and rights litigation or levied upon
an execution before the court within whose jurisdiction or territory they
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exercise their respective functions; this prohibition includes the act of
acquiring by assignment and shall apply to lawyers, with respect to the
property and rights which may be the object of any Litigation in which
may take part by virtue Of their profession.
RULE 16.04 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.
• Attorney's lien is not an excuse for non-rendition of accounting.
•
Cannot disburse client's money to client's creditors without authority.
•
Failure to deliver upon demand gives rise to the presumption that he has
misappropriated the funds for his own use to the prejudice of the client
and in violation of the trust reposed in him.
Notify client if retaining lien shall be implemented.
•
•
When a lawyer enforces a charging lien against his Client, the clientlawyer relationship is terminated.
•
The principle behind Rule 16.04 is to prevent the lawyer from taking
advantage of his inluence over the client or to avoid acquiring a inancial
interest in the outcome of the case.
CANON 17 - A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT
AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE
REPOSED IN HIM.
•
NO fear of judicial disfavor or public popularity should restrain him from
full discharge of his duty.
•
It is the duty of the lawyer at the time of retainer to disclose to the client
all the Circumstances of his relations to the parties and any interest in, or
connection with, The controversy which might inluence the client in the
selection of counsel.
•
The lawyer owes loyalty to his client even after the relation of attorney
and client has terminated. (Lorenzana Food Corp. vs. Daria, 197 SCRA428)
It is not 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.
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CANON 18 - A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE
AND DILIGENCE.
RULE 18.01 A lawyer shall not undertake a legal service, which he
knows or should know that he is not qualiied 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.
RULE 18.02 - A lawyer shall not handle any legal matter without adequate
preparation.
RULE 18.03 - A lawyer shall not neglect a legal matter entrusted to him, and
his negligence in connection therewith shall render him liable.
RULE 18.04 - A lawyer shall keep the client informed of the status of his
case and shall respond within a reasonable time to the client's
request for information.
•
Competence: suiciency of lawyer's qualiication to deal with the matter
in question and includes knowledge and skill and the ability to use them
efectively in the interest of the client in a reasonable time to the client's
Request for information.
•
A lawyer must keep himself constantly abreast with the trend of
authoritative pronouncements and developments in all branches of law.
•
There must be extraordinary diligence in prosecution or defense of his
client's cause.
If a lawyer errs like any other human being, he is not answerable for every
error or
Mistake, and will be protected as long as he acts honestly and in good
faith to the
Best Of his skill and knowledge.
•
•
Lawyer is not an insurer of the result of a case where he is engaged as
counsel.
•
Attorneys have authority to bind their clients In any case by any
agreement in relation they made in writing, and in taking appeals, and in
all matters or ordinary judicial procedure. But they cannot, without
special authority, compromise their client's litigation or receive anything
in discharge of a client's claim, but the full amount in cash. (FAR Corp. vs.
JAC, 157 SCRA 698)
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CANON 19 - A LAWYER SHALL REPRESENT HIS CLIENT WITH ZEAL
WITHIN THE BOUNDS OF THE LAW.
RULE 19.02 A lawyer who has received information that his client has,
in the course of the representation, perpetrated a fraud upon a
person or tribunal, shall promptly call upon the client to rectify
the same, and failing which he shall terminate the relationship
with such client in accordance with the Rules of Court.
RULE 19.03 - A lawyer shall not allow his client to dictate the procedure in
handling the case.
•
General Rule: Negligence binds client
Exception: Reckless imprudence (deprives client of due process)
Results in outright deprivation of one's property through
technicality
Must not present in evidence any document known to be false; nor
present a false witness.
• Negative pregnant is improper since it is an ambiguous pleading
(improper if in bad faith and the purpose is to confuse the other party)
In defense: present every defense the law permits.
•
•
Lawyer should do his best eforts to restrain and to prevent his clients
from perpetrating acts which he himself ought not to do. Or else,
withdraw. But lawyer shall not volunteer the information about the
client's commission of fraud anyone counter to duty to maintain client’s
conidence and secrets.
CANON 20 - A LAWYER SHALL CHARGE ONLY FAIR AND REASONABLE
FEES.
RULE 20.01 - A lawyer shall be guided by the following factors in
determining his fees:
(a) The time spent and the extent of the services rendered or
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•
required;
(b)The novelty and diiculty of the questions involved;
(c) The importance of the subject matter;
(d)The skill demanded;
(e) The probability of losing other employment as a result of
acceptance of the profered case;
(f) The customary charges for similar services and the schedule
of fees of the IBP chapter to which he belongs;
(g)The amount involved in the controversy and the beneits
resulting to the client from the services;
(h)The contingency or certainty of compensation;
(i) The character of the employment, whether occasional or
established; and
(j) The professional standing of the lawyer.
Kinds of Payment which may be stipulated upon:
A ixed or absolute fee which is payable regardless of the result of the
case b. A contingent fee that is conditioned to the securing of ,a
favorable judgment
and recovery of money or property and the amount of which may be
on a
percentage basis,
c. A ixed fee payable per appearance
d. A ixed fee computed by the number of hours spent
e. A ixed fee based on a piece of work
• Attorney's Fees
a. Ordinary attorney's fee - the reasonable compensation paid to a
lawyer by his client for the legal services he has rendered to the
latter. The basis for this compensation is the fact of his employment
by and his agreement with the client.
b. Extraordinary attorney's fee.. an indemnity for damages ordered by
the court
to be paid by the losing party In litigation. The basis for this is any of
the cases provided for by law where such award can be made, such as
those authorized in Article 2208 of the Civil Code, and is payable NOT to
the lawyer but to the client, unless they have agreed that the award shall
pertain to the lawyer as additional compensation or as part thereof.
•
How attorney's fees may be claimed by the lawyer:
1. It may be asserted either in the very action in which the services of a
lawyer had
been rendered or in a separate action.
2. A petition for attorney's fees may be iled before the judgment in favor of
the client is satisied or the proceeds thereof delivered to the client.
3. The determination as to the propriety of the fees or as to the amount
thereof will have to be held in abeyance until the main case from which the
lawyers claim for attorney's fees may arise has become inal. Otherwise, the
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determination of the courts will be premature.
•
Contracts for employment may either be oral or express. It is oral when
the counsel is employed without a written agreement - but the conditions
and amount of attorney’s fees are agreed upon. A written agreement is
not necessary to prove a client's obligation to, pay attorney's fees. (Peyer
VS. Peyer, 77 Phil 366)
•
Kinds of Retainer Agreements on Attorney’s fees:
a. General Retainer or Retaining Fee – it is the fee paid to a lawyer to
secure his future services as general counsel for any ordinary legal
problem that may arise in the ordinary business of the client and
referred to him for legal action;
b. Special Retainer – it means “as much as he deserves”, and his used
as the basis for determining the lawyer’s professional fees in the
absence of a contract, but recoverable by him from his client.
•
Quantum Meruit is resorted to where:
a. There is no express contract for payment of attorney's fees
agreed upon between the lawyer and the client;
b. When although there is a formal contract for attorney's fees, the
stipulated fees are found unconscionable or unreasonable by the
court.
c. When the contract for attorney's fees is void due to purely formal
matters or defects of execution
d. When the counsel, for justiiable cause, was not able to inish the
case to its conclusion .
e. When lawyer and client disregard the contract for attorney's fees.
•
Skill: length of practice is not a safe criterion of
professional ability.
RULE 20.02 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.
RULE 20.03 - A lawyer shall not, without the full knowledge and consent of
the client, accept any fee, reward, costs, commission, interest,
rebate or forwarding allowance or other compensation
whatsoever related to his professional employment from anyone
other than the client.
•
Exception. A lawyer may receive compensation from a person other than
his client when the latter has full knowledge and approval thereof. (Rule
138, sec. 20[e], Revised Rules of Court}
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RULE 20.04 - A lawyer shall avoid controversies with clients concerning his
compensation and shall resort to judicial action only to prevent
imposition, injustice and fraud.
• Unauthorized counsel: Not entitled to attorney's
fees.
•
Stipulation regarding payments of attorney's fees is not illegal/immoral
and is enforceable as the law between the parties provided such
stipulation does not contravene law, good morals, etc.
•
When counsel cannot recover full amount despite written contract for
attorney’s fees:
a. When he withdraws before the case is inished
b. Justiied dismissal ()f 'attorney (payment: in quantum meruit only)
• The reason for the award of attorney's fees must be stated in the text of
the decision; otherwise, if It is stated only in the dispositive portion of the
decision, the same must be disallowed on appeal.
•
Even though the interest or property involved is of considerable value,
if the legal services rendered do not call for much eforts there is no
justiication for the award of high fees.
•
Compensation to an attorney for merely recommending another lawyer
is improper
(agents)
•
Attorney's fees for legal services shared or divided to non-lawyer is
prohibited. Division of fees is only for division of service or responsibility.
A lawyer should try to settle amicably any diferences on the subject. A
lawyer has 2
options. Judicial action to recover attorney's fees;
a. In Same case: Enforce attorney's fees by iling an appropriate
motion or
petition as an incident to the main action where he rendered legal
services.
b. In case separate civil action.
•
CANON 21 - A LAWYER SHALL PRESERVE THE CONFIDENCE AND
SECRETS OF HIS CLIENT EVEN AFTER THE ATTORNEY-CLIENT
RELATION IS TERMINATED.
•
Conidence - refers to information protected by the attorney-client
privilege (Revised
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Rules of Court)
•
Secret - refers to other information gained in the professional relationship
that the client has regulated to be held Inviolate or the disclosure of which
would be embarrassing or would likely be detrimental to the client.
An attorney cannot, without the consent of his client, be examined as to any
communication made by the client to him, or his advice given thereon in the
course of professional employment; nor can an attorney's secretary,
stenographer, or clerk be examined, without the consent of the client and his
employees, concerning any fact the knowledge of which has been acquired in
such capacity (Rule 130, Sec. 21 (b), Revised Rules
RULE 21.01 - A lawyer shall not reveal the conidences 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.
• When properly authorized after having been fully informed of the
consequences to
reveal his conidences/secrets, then there is a valid waiver. .
•
Art. 209. Betrayal of Trust by an Attorney or Solicitor. Revelation of
secrets. In
addition to the proper administrative action, the penalty of prison
correctional in its minimum period, or a ine ranging from P200 to P1000,
or both, shall be imposed upon any attorney at law or solicitor who, by any
malicious break of professional duty as inexcusable negligence or
ignorance, shall prejudice his client, or reveal any of the secrets of the
latter learned by him in his professional capacity.
The same penalty shall be imposed upon an attorney at law or
solicitor who, having undertaken the defense of a client, or having
received conidential information from said client in a case, shall
undertake the defense of the opposing party in the same case, without
the consent of his irst client (Rule 209, Revised Penal Code)
•
General Rule: Obligation to keep secrets covers only lawful purposes
Exceptions:
a. Announcements of intention of a client to commit a crime
b. Client jumped bail and lawyer knows his whereabouts; or client is
living
somewhere under an assumed name
c. Communication involves the commission of future fraud or crime but
crimes/frauds "already committed" falls within the privilege
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
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to his own advantage or that of third person, unless the client with full
knowledge of the circumstance consents thereto.
RULE 21.03 A lawyer shall not, without the written consent of his client,
give information from his iles 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 afairs of a client of the irm 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 conidences or secrets of the client.
RULE 21.06 - A lawyer shall avoid indiscreet conversation about a client's
afairs 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 conlict of interest.
•
Avoid committing calculated indiscretion - accidental revelation of secrets
obtained in his professional employment.
•
Prohibition applies, even if the prospective client did not thereafter
actually engage the lawyer.
CANON 22 - A LAWYER SHALL WITHDRAW HIS SERVICES ONLY FOR
GOOD
CAUSE
AND
UPON
NOTICE
APPROPRIATE
IN
THE
CIRCUMSTANCES.
RULE 22.01 - A lawyer may withdraw his services in any of the following
cases:
a) When the client pursues an illegal or immoral course of
conduct in connection with the matter he is handling;
b) When the client insists that the lawyer pursue conduct
violative of these canons and rules;
c) When his inability to work with co-counsel will not promote the
best interest of the client;
d) When the mental or physical condition of the lawyer renders it
diicult for him to carry out the employment efectively;
e) When the client deliberately fails to pay the fees for the
services or fails to comply with the retainer agreement;
f) When the lawyer is elected or appointed to public ofice; and
g) Other similar cases.
h) Kinds of Appearance:
(a) General appearance is when the party comes to court either as plaintif
or defendant and seeks general reliefs from the court for satisfaction of his
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claims or counterclaims respectively.
(b) Special appearance is when a defendant appears in court solely for
the purpose of objecting to the jurisdiction of the court over his person.
The aim is simply the dismissal of the case. If the defendant seeks other
reliefs, the appearance, even if qualiied by the word special, is equivalent
to a general appearance.
RULE 22.02 - A lawyer who withdraws or is discharged shall, subject to a
retainer lien, immediately turn over all papers and property to which the
client is entitled, and shall cooperate with his successor in the orderly
transfer of the matter, including all information necessary for the proper
handling of the matter.
• If a person, in respect to his business afairs or troubles of any kind,
consults with his atty. in his professional capacity with the view of
obtaining professional advice or assistance, and the atty. voluntarily
permits or acquiesces in such consultation, then the professional
employment must be regarded as established. (Hi/ado vs. David, 84 Phil.
589)
•
The withdrawal as counsel of a client or the dismissal by the client of his
counsel must be in a formal partition iled in the case. Atty.-client
relationship does not terminate formally until there is withdrawal made of
record. Unless properly relieved, counsel is responsible for the conduct of
the case. (Tumbangahan vs. CA, 165 SCRA 485)
1.NATURE
2. BASIS
3. COVERAGE
4. WHEN LIEN
TAKES
EFFECT
5. NOTICE
6.
APPLICABILIT
Y
•
RETAINING LIEN
Passive Lien: It cannot be
actively enforced. It is a
general lien
Lawful possession of papers,
documents, property belonging
to client.
Covers only papers, documents
and property in the lawful
possession of the attorney by
reason of his professional
employment.
As soon as the attorney gets
possession of the papers
documents or property
Client need not be notiied to
make it efective
May be exercised before
judgment or execution or
regardless thereof.
CHARGING LIEN
ACTIVE LIEN: It can be enforced
by execution. It is a special lien.
Securing of a favorable money
judgment for the client.
Covers all judgment for the
payment of money and
executions issued in pursuance of
such judgments.
As soon as the claim for
attorney’s fees had been entered
into the records of the case.
Client and adverse party must be
notiied to make it efective
Generally, it is exercisable only
when the attorney had already
secured a favorable judgment for
his client
Withdrawal as counsel for a' client, an attorney may only retire from a
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case either by written consent of his client or by permission of the court
after due notice and hearing, in which event the attorney should see to it
that the name of the new attorney is recorded in the case.
•
An attorney who could not get the written consent of his, client must
make an application to the court, for the relation does not terminate
formally until there is a withdrawal of record. Counsel has no right to
presume that the court would grant his withdrawal and therefore must still
appear on the date of hearing.
•
Requirements for the Substitution of Counsel in a Case:
a. Written application
b. Written consent of client
c. Written consent of attorney to be substituted
d. If the consent of the attorney to be substituted cannot be obtained,
there must
be at least a proof of notice that the motion for substitution has been
served
upon him, in the manner prescribed by the rules.
•
A lawyer cannot recover compensation from one who did not employ or
authorize his
employment, however valuable the results of his services
may have been to such
person. In similar cases, no compensation when:
a. Client conducts himself in a manner which tends to degrade his
attorney; b. Client refuses to extend cooperation;
c. Client stops having contact with him.
•
The right of a client to terminate a lawyer is absolute. Such termination
may be with
or without cause.
•
The attorney-client relationship is terminated by:
(1) Withdrawal of the lawyer under Rule 22.01;
(2) Death of the lawyer, unless it is a Law Firm, in which case, the other
partners
may continue with the case;
(3) Death of the client as the relationship is personal, and one of agency
(4) Discharge or dismissal of the lawyer by the client, for the right to
dismiss a
counsel is the prerogative of the client, subject to certain limitations;
(5) Appointment or election of a lawyer to the government position which
prohibits
private practice of law;
(6) Full termination of the case or case;
(7) Disbarment or suspension of the lawyer from the practice of law;
(8) Intervening incapacity or incompetence of the client during the
pendency of the
Case, for then the client loses his capacity to contract, or to control the
subject matter of the action. The guardian may authorize the lawyer to
continue his
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employment;
(9) Declaration of the presumptive death of the lawyer (art. 390, New
Civil Code; art.
41, Family Code)
(10) Conviction for a crime and imprisonment of the lawyer
LIABILITIES OF LAWYERS
•
Civil Liability
a. Client is prejudiced by lawyer’s negligence or misconduct b. Breach
of iduciary obligation
b. Breach of iduciary obligation
c. Civil liability to third persons
d. Libelous words in pleadings; violation of communication privilege
e. Liability for costs of suit (treble costs) - when lawyer is made liable
for
insisting on client's patently unmeritorious case or interposing appeal
merely to delay litigation
• Criminal Liability
a. Prejudicing client through malicious breach of professional duty
b. Revealing client's secrets
c. Representing adverse interests
d. Introducing false evidence
e. Misappropriating client's funds (estafa)
Contempt of Court
a. Kinds of Contempt:
1. Direct - consists of misbehavior in the presence of or so near a
court
or judge as to interrupt or obstruct the proceedings before
the court or
the administration of justice; punished summarily.
2. Indirect - one committed away from the court involving
disobedience of or resistance to a lawful writ, process, order,
judgment or command of the court, or tending to belittle,
degrade, obstruct, interrupt or embarrass the court.
3. Civil- failure to do something ordered by the court which is
for the
beneit of a party.
4. Criminal - any conduct directed against the authority or
dignity of the
court.
• The exercise of the power to punish contempt has a twofold
aspect, namely
(1)the proper punishment of the guilty party for his disrespect
to the court or its order; and
•
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(2)to compel his performance of some act or duty required of
him by the court which he refuses to perform. A civil
contempt is the failure to do something ordered to be done
by a court or a judge for the beneit of the opposing party
therein; and a criminal contempt is conduct directed against
the authority and dignity of a court or of a judge, as in
unlawfully assailing or discrediting the authority or dignity of
a court or of a judge, or in doing a duly forbidden act. Where
the punishment imposed, whether against a party to a suit
or a stranger, is wholly or primarily to protect or vindicate
the dignity and power, either by ine payable to the
government or by imprisonment, or both, it is deemed a
judgment in criminal case. Where the punishment is by ine
directed to be paid to a party in the nature of damages for
the wrong inlicted, or by imprisonment as coercive measure
to enforce the performance of some act for the beneit of the
party or in aid of the inal judgment or decree rendered in his
behalf, the contempt judgment will, if made before inal
decree, be treated as in the nature of an interlocutory order,
or, if made after inal decree, as a remedial in nature, and
may be reviewed only on appeal from the inal decree, or in
such other mode as is appropriate to the review of
judgments in civil cases. The question of whether the
contempt committed is civil or criminal, does not afect the
jurisdiction or the power of a court to punish the same.(Halili
vs. CIR, 136 SCRA 112)
b. Acts Constituting Contempt:
1. Misbehavior
2. Disobedience
3. Publication concerning pending
litigation
4. Publication tending to degrade -the
court disrespectful language in
Pleadings
5. Misleading the court or obstructing
justice
6. Unauthorized practice of law
7. Belligerent attitude
8. Unlawful retention of client's funds
•
The power to punish for contempt and the power to disbar are separate
and distinct, and that the exercise of one does not exclude the exercise of
the other. (People vs.
Godoy, 243 SCRA 64)
ADMINISTRATIVE LIABILITIES OF LAWYERS
Main Objectives of Disbarment and Suspension:
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1. To compel the attorney to deal fairly and honestly with his clients;
2. To remove from the profession a person whose misconduct has
proved him unit to be entrusted with the duties and responsibilities
belonging to the oice of all attorney;
3. To punish the lawyer;
4. To set an example or a warning for the other members of the bar;
5. To safeguard the administration of justice from Incompetent and
dishonest Lawyers;
6. To protect the public .
I
• Characteristics of Disbarment Proceedings:
1. Neither a civil nor criminal proceedings;
2. Double jeopardy cannot be availed of In a disbarment proceeding;
3. It can be initiated motu propio by the SC or IBP. It can be initiated
without a complaint;
4. It is imprescriptible;
5. Conducted conidentially;
6. It can proceed regardless of the interest of the lack thereof on the
part of the complainant;
7. It constitutes due process.
•
Grounds for Disbarment or Suspension:
1. Deceit;
2. Malpractice or other gross misconduct in oice;
3. Grossly immoral conduct;
4. Conviction of a crime involving moral turpitude;
5. Violation of oath of oice;
6. Willful disobedience of any lawful order of a superior court;
7. Corrupt or willful appearance as attorney for a party to case without
authority to do so (Sec. 27, Rule 138, RRC)
•
Pr0cedure for Disbarment
a. Institution either by:
1. The Supreme Court, motu proprio, or
2. The ISP, motu proprio, or
3. Upon veriied complaint by any person
b. Six copies of the veriied complaint shall be iled with the Secretary
of the IBP or Secretary of any of its chapter and shall be forwarded
to the IBP Board of Governors.
c. Investigation- by the National Grievance Investigators.
d. Submission of investigative report to the ISP Board of Governors.
e. Board of Governors decides within 30 days.
f. Investigation by the Solicitor-General
g. SC renders inal decision for disbarment/suspension/dismissal.
Quantum of Proof Required: CLEAR, CONVINCING & SATISFACTORY evidence.
"'1
Burden of Proof. Rests on the COMPLAINANT, the one who Instituted
the suit
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•
Oicer authorized to investigate Disbarment cases:
1. Supreme Court
'.I
2. IBP through its Commission on Bar Discipline or authorized
investigator
3. oice of the Solicitor General
•
Mitigating Circumstances in Disbarment:
1. Good faith in the acquisition of a property of the client subject of
litigation (In re: Ruste, 70 Phil. 243)
2. Inexperience of the lawyer (Munoz v. People, 53 SCRA 190)
3. Age (Lantos v. Gan, 198 SCRA 16)
4. Apology (Munoz v. People, 53 SCRA 190)
5. Lack of Intention to slight or ofend the Court (Rheem of the
Philippines, Inc.
v. Ferrer, 20 SCRA 441).
REINSTATEMENT
Reinstatement - the restoration in disbarment proceedings to a disbarred
lawyer the privilege to practice law.
•
The power of the Supreme Court to reinstate is based on its constitutional
prerogative to promulgate rules (;>0 the admission of applicants to the
practice of law. (art. VIII, sec. 5[5], 1987Consitution).
•
Criterion. The applicant must, like a candidate for admission to the Bar,
satisfy the Court that he is a person of good moral character - a it and
proper person to practice law. The Court will take into consideration the
applicant's character and standing prior to the disbarment, the nature and
character of the charge for which he was disbarred, his conduct
subsequent to the disbarment, and the time that has elapsed between the
disbarment and the application for reinstatement. Whether or not the
applicant shall be reinstated rests on the discretion of the court.
(Prudential Bank VS. Benjamin Grecia, 192 SCRA 381).
•
Reinstatement to the roll of attorneys wipes out the restrictions and
disabilities
resulting from a previous disbarment. (Cui vs: Cui, 11 SCRA 755)
•
The Supreme Court, in addition to the required rehabilitation of the
applicant for reinstatement may require special conditions to be fulilled
by the applicant.
PARDON
•
Q: Is a disbarred lawyer due to conviction for a crime automatically
reinstated to the practice of law upon being pardoned by the President?
A: To be reinstated, there is still a need for the iling of an appropriate
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petition with the Supreme Court. (In re: Rovero, 101 SCRA 803)
•
If during the pendency of a disbarment proceeding, the respondent was
granted executive pardon, the dismissal of the case on that sole basis wiU
depend on whether the executive pardon is absolute or conditional. If the
pardon is absolute or unconditional, the disbarment case will be
dismissed. However, if the executive
pardon is conditional, the disbarment case will not be dismissed on the
basis thereof. .
SPECIAL DISABILITIES OF LAWYERS
The following persons are prohibited from acquiring property under
litigation by reason of the relation of trust or their peculiar control either
directly or indirectly and even at a public or judicial auction: .
1. Guardians;
2. Agents
3. Administrators
4. Public oicers and employees
5. Judicial oicers and employees
6. Prosecuting attorney’s and lawyers (Art 1491 f NCC)
7. Those specially disqualiied by law (Rubias vs. Batilles, 31
SCRA 120)
• Elements of Article 1491 (Civil Code; Laig vs. CA, 82 SCRA 294)
a. There must be an attorney-client relationship
b. The property or interest of the client must be in litigation
c. The attorney takes part as counsel in the case
d. The attorney by himself or through another purchases such interest
during the pendency of the litigation.
•
General Rule: A lawyer may not purchase, even at a public or judicial
auction, 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. This prohibition is entirely independent of fraud and such
need not be alleged or proven.
Efects:
a. Malpractice on the part of the lawyer and may be disciplined for
misconduct
b. Transaction is null and void
•
Exceptions:
a. Property is acquired by lawyer through
arrangement
b. Any of the 4.e.Ie.ments of Art. 1491 is missing
a
contingent
fee
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Q
- State the basic responsibilities of a lawyer to his client.
The Code of Professional Responsibility prescribes the following as responsibilities of a
lawyer to his client, to wit:
1. A lawyer shall not refuse his services to the needy;
2. A lawyer shall observe candor, fairness, and loyalty in all his
dealings and transactions with his clients;
3. A lawyer shall hold in trust all moneys and properties of his client
that may come into his possessions;
4. A lawyer owes idelity to the cause of his client and he shall be
mindful of the trust and conidence reposed in him;
5. A lawyer shall serve his client with competence and diligence;
6. A lawyer shall represent his client with zeal within the bounds of the
law;
7. A lawyer shall charge only fair and reasonable fees;
8. A lawyer shall preserve the conidence and secrets of his client even
after the attorney-client relationship is terminated; and
9. A lawyer shall withdraw his services only for good cause and upon
notice appropriate in the circumstances.
Q
- What is the signiicance of the duty of a lawyer that he shall
not refuse his services to the needy?
- It is an implementation of the constitutional guarantee that free
access to the courts shall not be denied the citizens by reason of
poverty. It also implements the time-honored principle that a lawyer
shall delay no man for money or malice. It must be recalled that the
business of a lawyer is basically public service and not for business
purposes.
Q
- A, a lawyer was appointed counsel de oicio by the court.
Since he is a mere counsel de oicio, will it afect his
relationship with his client considering that he has no
compensation? Why?
- No. The fact that an attorney merely volunteers his services or that
he is only a counsel de oicio does not diminish or alter the degree of
professional responsibility owed to his client. (People vs. Rio, 201
SCRA 702). The reason is that a lawyer should represent his client
with zeal within the bounds of the law.
Q
- Should a lawyer in the discharge of his duties to his clients
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present every remedy regardless of his personal views? Why?
- Yes. A lawyer owes entire devotion to the interests of his clients,
warmth and zeal in the maintenance and defense of his rights and the
exertion of his utmost learning and ability; to the end that nothing can
be taken or withheld from his client except in accordance with law. He
should present every remedy or defense regardless of his own personal
views. In the full discharge of his duties to his client, the lawyer should
not be afraid of the probability that he may displease the judge or the
general public. (Legarda vs. CA, 195 SCRA 418).
Q
- What should a lawyer do to ensure that communications to
him will reach him promptly?
- A lawyer should so arrange matters that oicial and judicial
communications sent by mail will reach him promptly and should he fail to
do so, not only he, but his client as well must sufer the consequences of
his negligence. Where a lawyer moved from his address on record, and did
not notify the court thereof, resulting in failure to receive notice of the
decision the Supreme Court held that there was negligence. But the client
must sufer the consequences. (Villa Transport Service, Inc. vs. CA, 193
SCRA 25).
Q
- What is the duty of a lawyer with respect to his pleadings,
etc. before iling the same? Why?
- It is the bounden duty of a lawyer to check, review, and re-check the
allegations in his pleadings, more particularly the quoted portions, and
ensure that the statements therein are accurate and the reproductions
faithful, down to the last word and punctuation mark. The legal
profession demands that a lawyer thoroughly go over pleadings,
motions, and other documents dictated or prepared by him, typed or
transcribed by his secretaries or clerks, before iling them with court. If
a client is bound by the acts of his counsel, with more reason should
counsel be bound by the acts of his secretary who merely follows his
order. The distortion of facts, misquoting or intercalating phrases in the
text of a court decision, committed by counsel, with the willing
assistance of his secretary, is a grave ofense and should not be
treated lightly because it is a serious violation of one's Oath as a
member of the Bar, and under the Code of Professional Responsibility.
(Adez Realty, Inc. vs. Court of Appeals, 212 SCRA 623).
Q
- What should a lawyer do when he receives an adverse
decision? Explain.
- He should inform his client about the adverse decision. If he fails to do
so, he is considered as having failed to exercise due diligence of
counsel. A lawyer handling a case must give his entire devotion to the
interest of his client. Neither shall he neglect a legal matter entrusted
to him for his negligence therewith shall render him liable. He can be
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suspended. (Francisco vs. Bosa, 205 SCRA 722).
Q - The Law Firm of A, B, and C represented X in a case. A is
personally handling the case. While preparing the brief, A died.
What should the Law Firm do? Why?
.
- The Law Firm should have re-assigned the case to another lawyer for
the purpose of preparing the brief or it could have withdrawn as
counsel in the manner provided by the rules so that the client can
contract the services of a new lawyer. The negligence of the law irm in
this matter binds the client. Besides, the client himself was negligent
when he failed to make inquiries with respect to the status of his case,
he being a close friend of the lawyer who handled it. The fact should
have made him more vigilant with respect to the case at bar, as he
failed to do so, its plea that it was not accorded the right to procedural
due process cannot elicit either approval or sympathy. (B.R. Sebastian
Enterprises vs. Court of Appeals, 206 SCRA 28)
Q - A lawyer was tardy in his appearance before a judge in a
case, hence, it was considered submitted for resolution. After
learning of the incident, he asked the Court to reconsider it and
the judge told him to ile a motion for reconsideration. He did not
notify his client of the turn of events. Explain the efect of his
acts.
- His failure to ile the motion for reconsideration despite the instruction of
the judge amounts to negligence. His explanation that the judge already
advised him of the improbability of reconsideration is devoid of merit. He
still should have taken the proper steps in order to prevent the judgment
from becoming inal and executory. Worse, he did not even notify his client
of the status of the case, even after he received notice of the decision. He
should not have gone to Iloilo without leaving someone in his oice to act
on urgent matters and to notify him of developments in the case he was
handling. This is sheer lack of professional sincerity. Counsel was
suspended from practice for one year. (Perla Compania de Seguros vs.
Santisteban, 207 SCRA 153).
Q
- Is clerical ineiciency of a lawyer's staf like failure to ile a
brief a valid defense in a charge of negligence of a lawyer?
Why?
No. A responsible lawyer is expected to supervise the work in his
oice with respect to all pleadings to be iled in court, and he should not
delegate this responsibility completely to his oice secretary. Otherwise,
irresponsible members of the bar can avoid disciplinary action by simply
attributing the fault to the ofice secretary. (Gutierrez vs. Zulueta, 187
SCRA 64).
Q
- The Law Firm of A, Band C has a branch oice in Cebu City
where D is assigned or represents himself to be the lawyer in
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the branch oice. Is service upon him binding upon the main
oice? Why?
-Yes. Where a lawyer represents himself to be part of one law irm,
service on that lawyer in his branch oice will be a valid service, and
the law irm cannot be allowed to pretend that its main and branch
oices are separate law irms with separate and distinct personalities.
(Quano Arrastres vs. Alsonas, 20 SCRA 619).
Q - At the hearing of a case, the counsels agreed to consider the
case submitted for decision on the basis of the evidence,
excluding certain amounts of interests and nominal damages.
When the judgment adverse to one party was rendered, he moved
to annul the same contending that such act constituted a
compromise which his counsel was not authorized to do. Rule on
his contention and explain.
This was not a compromise or stipulation of facts or confession of
judgment. If at all, there was only a mutual waiver on the part of both
parties (right to present evidence for defendant, and interests and
stipulated attorney's fees for plaintif). The counsels in this case had the
implied authority to do all the acts necessary or incidental to the
prosecution and management of the suit in behalf of their clients who
were all present but never objected to the disputed order of the court.
They have the exclusive management of the procedural aspect of the
litigation including the enforcement of the rights and remedies of the
client. Thus, when the case was submitted for decision on the evidence so
far presented, the counsel for private respondents acted within the scope
of his authority as agent and lawyer in negotiating for favorable terms for
his client. Parties are bound by the acts and mistakes of their counsel in
procedural matters. Mistakes of counsel as to the relevancy and
irrelevancy of certain evidence or mistakes in the proper defense, in the
introduction of certain evidence, or in argumentation are, among others
all mistakes of procedure, and they bind the client, as in the instant case.
(Mobil Oil vs. CFI Rizal, 208 SCRA 523).
Q
- The mistake of a lawyer generally binds the client. Is the rule
absolute? Explain.
- No. Though as a general rule, the client is bound by the mistakes or
negligence of his lawyer, the Supreme Court has made an exception.
Where the lawyer's lack of devotion to the client is so gross and
palpable that the court must come to the aid of the distraught client.
This was the situation in Legarda vs. CA, 195 SCRA 418, where the
lawyer merely iled a Motion for Extension of Time to ile an answer,
and thereafter did nothing else.
Q
- Give an example of a case of gross negligence of a lawyer
which does not bind his client and an exception to the same.
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Where a lawyer did not ile an answer for his client despite an
extension of time therefor having been granted, resulting in an
adverse judgment and then failed to appear and then allowed the
period to ile a petition for relief to lapse, and thereafter did not ile a
petition for annulment of the judgment in the appellate court despite
being asked by his client to do so, he is guilty of gross and inexcusable
negligence that efectively denied the client of her day in court,
depriving her of her property without due process of law. In this case,
the client is not bound by the actions of counsel. (Legarda vs. Court of
Appeals, 195 SCRA 418). But where the client knew all along that their
counsel was not attending to their case, did not take steps to change
counselor attend to their cases until it was too late, and continued to
retain the service of the negligent counsel despite full knowledge of
his lapses, they cannot raise that negligence to warrant reversal of the
adverse decision. (Boyer-Roxas vs. Court of Appeals, 211 SCRA
470).
Q - May the Court discipline a lawyer even if his act is not
covered by a client-lawyer relationship between the complainant
and himself? Explain.
Yes. In fact, in Lizaso vs. Amante, A.C. No. 2019, June 3, 1991, 198
SCRA 1, where Atty. Amante enticed complainant to invest in the casino
business with the proposition that her investment would yield her an
interest of 10% proit daily, and Atty. Amante not only failed to deliver
the promised return on the investment but also the principal thereof
(P5, 000.00) despite complainant's repeated demands, the Supreme
Court said:
“As early as 1923, however, the Court laid down in In Re
Vicente Pelaez [44 Phil. 567 (1923) J the principle that it
can exercise its power to discipline lawyers for causes
which do not involve the relationship of attorney and client
In disciplining the respondent, Mr. Justice Malcolm said: As
a general rule, a court will not assume jurisdiction to
discipline one of its oficers for misconduct alleged to have
been committed in his private capacity. But this is a
general rule with many exceptions x x x The nature of the
oice, the trust relation which exists between attorney and
client, as well as between court and attorney, and the
statutory rules prescribing the qualiications of attorneys,
uniformly require that an attorney shall be a person of
good moral character. If that qualiication is a condition
precedent to a license or privilege to enter upon the
practice of the law, it would seem to be equally essential
during the continuance of the practice and the exercise of
the privilege. So it is held that an attorney will be removed
not only for malpractice and dishonesty in his profession,
but also for gross misconduct not connected with his
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professional duties, which shows him to be unit for the
oice and unworthy of the privileges which his license and
the law confer upon him..
Q
- In 1965, Jose Nakpil became interested in purchasing a
summer residence in Moran Street, Bagnio City. For lack of
funds, he requested the respondent to purchase the Moran
property for him. They agreed that respondent would keep
the property in trust for Nakpil until the latter could buy it
back. Pursuant to their agreement, respondent obtained two
(2) loans from a bank (in the amounts of P65, 000.00 and
P75, 000.00) which he used to purchase and renovate the
property. Title was then issued in respondent's name.
It was Nakpil who occupied the Moran summer house. When
Jose Nakpil died on July 8, 1973, respondent acted as the legal
counsel and accountant of his widow, complainant IMELDA NAKPIL.
On March 9, 1976, respondent's law irm, Carlos J. Valdes and
Associates, handled the proceeding for the settlement of Jose's estate. Complainant was appointed as administratriX of the estate.
The ownership of the Moran property became an issue in the
intestate proceedings. It appears that respondent excluded the
Moran property from the inventory of Jose's estate. On February 13,
1978, respondent transferred his title to the Moran property to his
company, the Caval Realty Corporation.
On March 29, 1979, complainant sought to recover the Moran
property by iling with the then Court of First Instance (CFI) of
Baguio City an action for reconveyance with damages against
respondent and his corporation. In defense, respondent claimed
absolute ownership over the property and denied that a trust was
created over it.
In his defense, he contended that he did not hold the Moran
property in trust for the Nakpils as he is the absolute owner. He
explained that the Nakpils never bought back the property from him,
hence, it remained to be his property and hence, correctly excluded
from the inventory of Nakpil estate.
1. Is the respondent guilty of lack of idelity to his client?
Explain..
Yes, because he violated the trust agreement when he claimed
absolute ownership over the property and refused to sell it to the
complainant after Jose's death. To place the property beyond the
reach of complainant and the intestate court, respondent later
transferred it to his corporation. Such act of excluding the Moran
property from the intestate estate of Jose evinced a lack of idelity to
the cause of his client. This violated Canon 17 of the Code of
Professional Responsibility which provides that a lawyer owes idelity
to his client's cause and enjoins him to be mindful of the trust and
conidence reposed in him. (Imelda Nakpil vs. Atty. Carlos J. Valdes,
A.C. No. 2040, 92 SCAD 66, March 4, 1998).
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2.
Was the respondent guilty of representing conlicting
interest when his accounting irm prepared the list of assets and
liabilities of the estate and, at the same time, computed the claims
of two creditors of the estate and yet, the estate was represented
by his law irm? Explain.
Yes, because the interest of the estate and that of the creditors are
adverse to each other. By representing the creditors when his
accounting irm prepared and computed the claims of the two creditors
while his law irm represented the estate, there was clearly a conlict
between them which stands as debtor and that of the two claimants
who are creditors in the estate. He thus, undoubtedly placed his law
irm in a position where his loyalty to his client could be doubted. In the
estate proceedings, the duty of respondent's law irm was to contest
the claims of these two creditors but which claims were prepared by
respondent's accounting irm. Even if the claims were valid and did not
prejudice the estate, the set-up is still undesirable. The test to
determine whether there is a conlict of interest in the representation is
probability, not certainty of conlict. It was respondent's duty to inhibit
either of his irms from said proceedings to avoid the probability of
conlict of interest. (Nakpil vs. Valdes, supra).
3.
Can respondent advance the defense that assuming there was
conlict of interest, he could not be charged before this Court
as his alleged "misconduct" pertains to his accounting
practice? Explain.
No. In the case at bar, complainant is not charging respondent with
breach of ethics for being the common accountant of the estate and
the two creditors. He is charged for allowing his accounting irm to represent two creditors of the estate and, at the same time, allowing his
law irm to represent the estate in the proceedings where these claims
were presented.
4. In advancing his defense, he said that assuming there was
conlict of interest, he could not be charged before the
Supreme Court as his alleged misconduct pertains to his
accounting practice. Is the contention correct? Why?
- No, for the complainant was not charging the respondent with breach
of ethics for being the common accountant of the estate and the two
creditors. He was charged for allowing his accounting irm to represent
two creditors of the estate and, at the same time, allowing his law irm
to represent the estate in the proceedings where these claims were
presented. The act is a breach of professional ethics and undesirable as
it placed respondent's and his law irm's loyalty under a cloud of doubt.
Even granting that respondent's misconduct refers to his accountancy
practice, it would not prevent the Court from disciplining him as a
member of the Bar. The rule is settled that a lawyer may be suspended
or disbarred for ANY misconduct, even if it pertains to his private
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activities, as long as it shows him to be wanting in moral character,
honesty, probity or good demeanor. (Nadayag vs. Grageda, 55 SCAD
713, 237 SCRA 202). Possession of good moral character is not only a
prerequisite to admission to the bar but also a continuing requirement
to the practice of law.
Public conidence in law and lawyers may be eroded by the
irresponsible and improper conduct of a member of the Bar. Thus, a
lawyer should determine his conduct by acting in a manner that would
promote public conidence in the integrity of the legal profession.
Members of the Bar are expected to always live up to the standards
embodied in the Code of Professional Responsibility as the relationship
between an attorney and his client is highly iduciary in nature and
demands utmost idelity and good faith. (lgual vs. Javier, 69 SCAD
117,254 SCRA 416). In the case at bar, respondent exhibited less than
full idelity to his duty to observe candor, fairness and loyalty in his
dealings and transactions with his clients. (Canon 15, Code of
Professional Responsibility; Nakpil vs. Valdez, A.C. No. 2040, March 4,
1998, 92 SCAD 66).
Q
- Does the prohibition against sale of properties between a
lawyer and a client apply to assignment of rights? Why?
- Yes, the prohibition in Article 1491, NCC applies to assignment of
rights over a property
subject of litigation in consideration of legal services during the
pendency of litigation. The reason is that, assignment has the same
import and efect of sale. In both situations, public policy prohibits the
acts. (Ordonio vs. Eduarte, 207 SCRA 229).
Q
- What is the essential feature of a client-lawyer relationship?
Give some instances of such an indication.
-The essential feature of the relationship between a lawyer and a
client is the employment of the former by the latter as suggested
by: (1) the giving of advice or assistance when sought; and (2) the
receipt of documents and use of the same.
Q
- Deine general and special appearance.
General appearance is one that is done by a lawyer for any act
except to question the jurisdiction of the court.
Q
- Who can challenge the appearance of a lawyer and within
what time? Why?
-The authority of a lawyer to appear may be challenged by the client
because such relationship partakes of the nature of agency. It may
likewise be challenged by the adverse party. But the challenge must be
seasonably done otherwise, estoppel would come in.
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Q
-What is the efect of unauthorized appearance of a lawyer?
- That is a ground to cite him for contempt.
Q
- May a client terminate his lawyer and cite the efects of the
same?
.
- Yes, a client has the right to terminate his lawyer at any time with or
without just cause. If it
is without just cause, he must fully pay the compensation agreed upon.
If it is with just cause, the payment of compensation is based on
quantum meruit.
Q
- What is the efect of death or incapacity of a client?
ANS.
- Death or incapacity of a client terminates the relationship of the
lawyer and client. Thus, the lawyer cannot represent the estate unless he is
retained by the administrator.
Q
- May a counsel withdraw from a case of his client?
- Yes, provided the client consents to it. The consent is necessary
because the relationship of
a lawyer and a client is based on contract and the consent of a client to
the withdrawal of a lawyer has the efect of terminating such
relationship. If the client does not consent, the contract still subsists.
Q
- State the grounds for the withdrawal of a counsel.
They are the following:
(1)if the client insists on unjust or immoral cause in the conduct of a
case;
(2)if the client refuses to cooperate or loses contact with him;
(3)if the client disregards agreement as to compensation;
(4)if the lawyer accepts an incompatible oice.
Q
- State the procedure in the substitution of a lawyer.
- The procedure in the substitution of a lawyer requires that:
a) there must be written application for substitution;
b) there must be written consent of the client;
c) there must be written consent of counsel to be substituted;
d) there must be proof of notice on the irst attorney.
Q
- If a lawyer withdraws from a case, is there a need for the
court's approval?
.
- It depends. An attorney's withdrawal with clients' consent needs no
court approval. Court
approval is indispensable
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only if the withdrawal is without the client's consent. (Arambulo vs.
CA, 44 SCAD 972, 226 SCRA 589, Sept. 17, 1993). The reason for the
client's consent is that, the relationship between the two of them is
based on a contract.
Q
- A engaged the services of X as his counsel. A year later, he
engaged the services of Y and authorized him to appear for A.
State the efects of the acts of A with respect to his
relationship with X. Explain.
- The execution of power of attorney for authority to appear in favor of
second counsel works as a dismissal of incumbent counsel of record
who need not formally withdraw. Once a new counsel assumes that
status, it is incumbent on him to inquire why he has not received any
notice from the court.
Q - State the Conlict of Interest Rule.
- A lawyer shall not represent conlicting interests except by written
consent of all concerned given after a full disclosure of the facts. (Rule
15.03, Code of Professional Responsibility).
Q
- What is the rationale for the conlict of interest rule?
.
- The prohibition against representation of conlicting interests is
based not only because the relation of attorney and client is one of
trust and conidence of the highest degree, but also because of the
principles of public policy and good taste. (Tiania vs. Ocampo, 200
SCRA 462, Aug. 12, 1991). A lawyer becomes familiar with this facts
connected with his client's case. He learns from his client the weak
points of the action as well as the strong one. Such knowledge must be
considered and guarded with care. No opportunity must be given to
him to take advantage of his client's secrets. A lawyer must have the
fullest conidence of his client, for if the conidence is abused, the
profession will sufer by the loss thereof. (Maturan vs. Gonzales, A.C.
No. 2597, 92 SCAD 473, March 12, 1998).
Q
- What is the test of conlict of interest in disciplinary cases
against a lawyer?
- The test is whether or not the acceptance of a new relation will
prevent an attorney from the full discharge of his duty of undivided
idelity and loyalty to his client or invite suspicion of unfaithfulness of
double-dealing in the performance thereof. (Tiana vs. Ocampo, supra).
Q
- When is a lawyer deemed to be representing conlicting
interests?
- A lawyer represents conlicting interests when, in behalf of one client,
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it is his duty to contend for that which duty to another client requires
him to oppose. The obligation to represent the client with undivided
idelity and not to divulge his secrets or conidence forbids also the
subsequent acceptance of retainers or employment from others in
matters adversely afecting any interest of the client with respect to
which conidence has been reposed.
In cases where a conlict of interest may exist, full disclosure of the
facts and express consent of all the parties concerned are necessary.
There is no necessity for proving the actual transmission of conidential
information to an attorney in the course of his employment by his irst
client in order that he may be precluded from accepting employment
by the second Or subsequent client where there are conlicting
interests between the irst and the subsequent clients. Absence of
monetary consideration does not exempt the lawyer from complying
with the prohibition against pursuing cases where a conlict of interest
exists. (Buted vs. Hernando, 203 SCRA 1, Oct. 17, 1991).
Q
- Cite a recognized exception to the rule against representation
of conlicting interests by a lawyer.
- Where the clients knowingly consent to the dual representation after
the full disclosure of the facts by the counsel. (Bautista vs. Gonzales),
Q
State and explain the test in determining a conlict of
interest.
- The test of conlict of interest in disciplinary cases against a lawyer is
whether or not the acceptance of a new relation will prevent an
attorney from the full discharge of his duty of undivided idelity and
loyalty to his client or invite suspicion of unfaithfulness or doubledealing in the performance thereof. (In re: De la Rosa, 27 Phil. 265).
Q
- May a lawyer represent parties with conlicting positions? Is
the rule absolute? Explain.
- As a rule, a lawyer cannot represent parties with conlicting positions
because of the conlict of interest. There is however, an exception at a
certain stage of the controversy before it reaches the court. A lawyer
may represent the conlicting interest of the two parties with their
consent, since a mutual lawyer, with honest motivations may be better
situated to work out an acceptable settlement of their diferences,
being free of partisan inclination and acting with the cooperation and
conidence of said parties.
Q
- The accounting irm of Atty. V prepared the list of assets
and liabilities of the estate of A and at the same time
computed the claims of two creditors of the estate. Is there
a representation of conlicting interest in allowing his
accounting irm to represent the two creditors in the proceedings for the settlement of the estate of A which his law
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.
Q
irm represented? Why?
- Yes. The professional services of a lawyer and representation as a
CPA might result to representation of conlicting interest. In Nakpil
vs. Valdez, A.C. No. 2040, March 1998, 92 SCAD 66, it was said that
there is clearly a conlict between the interest of the estate which
stands as the debtor and that of the two claimants who are creditors
of the estate.
- State some rules in case of conlict of interest.
- In Generosa Buted, et al. vs. Atty. Harold M. Hernando, Adm. Case No.
1359, Oct. 17, 1991, the Supreme Court laid down rules on conlict of
interest of lawyers in handling cases, thus:
(a) In cases where a conlict of interest may exist, full disclosure of the
facts and express consent of all the parties concerned are
necessary. (ln re: Dela Rosa, 27 Phil. 258). The present Code of
Professional Responsibility is stricter on this matter considering that
consent of the parties is now required to be in written form. (Canon
15, Rule 15.03).
(b)In San Jose vs. Cruz, 57 Phil. 794, it was said that 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.
For it is a rule that:
"An attorney is not permitted, in serving a new client as against a
former one, to do anything which will injuriously afect 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 diferent case; nor can the attorney use
against his former client any knowledge or information gained
through their former connection. "
(c) In Maria Tinia vs. Atty. Amado Ocampo, A.C. No. 2285 and other
companion cases, Aug. 12, 1991, it was said that the prohibition
against conlict of interest in representation of clients is prohibited
because the relation of lawyer and client is one of trust and
conidence of the highest degree, and because of the principles of
public policy and good taste. An attorney has the duty to preserve
fullest conidence of his client and represent him with undivided
loyalty. Once this conidence is abused, the entire profession sufers.
(In re: De la Rosa).
Q
- The law irm of X, Y and Z and Associates was retained by
ABC Corporation which sued SMC represented by the irm. Can an
associate of the irm represent SMC? Why?
- No, because the employment of the irm is considered the
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employment of all its members and associates. To hold otherwise would
be to promote conlict of interest.
Q
- What is the duty of a lawyer who receives money for his
client?
.
- He must account for the same, otherwise, his conduct shows his
unitness for the conidence and trust reposed in him, or showing such
lack of personal honesty or good moral character as to render him
unworthy of public conidence, a ground for disbarment. (Navarro vs.
Meneses, 91 SCAD 285, 285 SCRA 586; 19ual vs. Javier, 69 SCAD 117,
March 7,1996; Castillo vs. Taguines, 69 SCAD 291, March 11, 1996;
Jaime Curimatmat, et al. vs. Atty. Felipe Gojat, A.C. No. 4411, June 10,
1999).
Q
-May a lawyer decline employment? Explain.
Yes. It is settled that a lawyer is not obliged to act as counsel for every
person who wish to become his client. He has the right to decline
employment, subject, however, to the provisions of Canon 14 of the
Code of Professional Responsibility. Once he agrees to take up the case
of a client, he owes idelity to such cause and must always be mindful
of the trust and conidence reposed on him. (Navarro vs. Meneses, 91
SCAD 285, 285 SCRA 586)
Q
- What is the nature of the oice of a lawyer?
- An attorney is more than a mere agent or servant because he
possesses special powers of trust and conidence reposed on him by
his client. (Regala vs. SB, 74 SCAD 504, 262 SCRA 122)
Q
- What is the nature of duty of the Oice of the Solicitor
General to represent the interest of the government? Explain.
- As a public oicial, it is his sworn duty to provide legal services to the
government, particularly to represent it in litigations. And such duty
may be enjoined upon him by a writ of mandamus.
Under the Administrative Code (Sec. 35), it is mandatory upon
the OSG to represent the government, its agencies and
instrumentalities and its oicials and agents in any litigation,
proceedings, investigation requiring the services of a lawyer.
In fact, if the OSG withdraws, it can be considered as beyond the
scope of its authority in the management of a case.
Q
- After the death of a partner in a law irm, the latter failed to
ile the brief for a client due to the fact that the lawyer
assigned to do it left the law irm. Explain the efect of such
act.
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- The death of one of the partners of a law irm does not extinguish the
lawyer-client relationship between said irm and petitioner. If the irm
does not ile the brief for the client, that is an inexcusable negligence.
The mere fact that the lawyer who was designated to handle the case
left the law oice is of no moment. (R.B. Sebastian Ent., Inc. vs. CA,
G.R. No. 41862, Feb. 7, 1992). Negligence of counsel binds the client.
Q
- Explain the efect if a lawyer notarizes a document purporting
to have been signed by one who is already dead.
- A lawyer who notarized a document purporting to have been signed
by a person already dead and yet cognizant of such fact committed
grave professional misconduct. He failed to live up to the standards expected as a member of the bar. His conduct amounted to dishonesty, in
violation of his oath. (Tejada vs. Hernando, Adm. Case No. 2427, May 8,
1992).
Q
- May a lawyer transact business with his client? Why?
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 the lawyer 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 oice, 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 an attorney's favor. (Nakpil vs. Valdez, 92 SCAD 66, 286
SCRA 758).
Q
- How do you describe the relationship between a lawyer and
his client? Explain.
.
- The relation between an attorney and his client is highly iduciary and
very delicate, exacting and conidential, requiring a high degree of
idelity and good faith. In view of that special relationship, 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. The fact that a lawyer has a lien for fees on money in his
hands collected for his client does not relieve him from the duty of
promptly accounting for the funds received. (Licuanan vs. Melo, A.C.
2361, 9 Feb. 89).
Q
- Describe the lawyer's duty to the cause of his client.
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- A lawyer must protect the rights and interests of his client and not to
take advantage of him. He should be more circumspect in dealing with
the properties of his client instead of
concentrating only on his
attorney's fees. (Fornilda vs. Branch 164, RC, 169 SCRA 376).
A lawyer owes idelity to the cause of his client and must be
mindful of the trust and conidence reposed in him. (Canon 17). He
shall serve his client with competence and diligence, and his duty of
entire devotion to his client's cause not only requires, but entitles him
to employ every honorable means to secure for the client what is justly
due him or to present every defense provided by law to enable the
latter's cause to succeed. (Canon 15). An attorney's duty to safeguard
the client's interests commences from his retainer until his efective
release from the case or the inal disposition of the whole subject
matter of the litigation. (Visitacion vs. Manit, March 27, 1969). During
that period, he is expected to take such reasonable steps and such
ordinary care as his client's interests may require. (Gamalinda vs.
Attys. Fernando Alcantara and Joselito Lim, A.C. No. 3695, Feb. 24,
1992).
The Supreme Court also admonished lawyers on their duty to advice
their clients not to make untenable claims. As oicers of the court, they
are under obligation to advice their clients against making untenable
and inconsistent claims. For, they are not merely hired employees who
must unquestionably do the bidding of the clients. (Periquet vs. NLRC,
186 SCRA 724).
In one case, the Supreme Court however reminded litigants that
lawyers are not demi-gods or magicians who can always win their
cases for their clients no matter the utter lack of merit of the same or
how passionate the litigants may feel about their cause, while lawyers
are expected to serve their clients with competence and diligence,
they are not always expected to be victorious. (Curimatmat, et ai. vs.
Gojari, A.C. No. 4411, June 10, 1999).
Q
- What presumption arises if a lawyer appears for a client and
explain the efect of the same?
- As a rule, once a lawyer appears for a party, it is presumed that he
has the authority to do so. No written power of attorney is required to
authorize him to appear in court for his client. (Marcelo vs. Ubay, 187
SCRA 719). The iling of the answer and appearance is suicient to give
authority to the lawyer. However, the authority to appear can be
questioned by the adverse party. (Com. of Customs vs. KMK Gano, 182
SCRA 591). The reason is obvious. The client will be bound by his
acquiescence resulting from his knowledge that he was being
represented by the lawyer.
But where that relationship is created, the lawyer has the obligation to
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attend to and protect the integrity of his client. Hence, a lawyer was
warned for his inexcusable negligence to appear for pre-trial.
(Agravante vs. Patriarca, 183 SCRA 113 [1990]).
Hence, in Gutierrez vs. Zulueta, 187 SCRA 64, a lawyer was suspended
for one year for his failure to exercise due diligence in protecting and
attending to the interest of his client. He failed to ile the brief to the
prejudice of his client. He attributed the negligence to his secretary
which was not accepted.
Q
- State the efect of a lawyer's acceptance of attorney's fees.
- The lawyer's acceptance of attorney's fees efectively bars a lawyer
from altogether disclaiming the existence of an attorney-client
relationship. The client, however, must explain his case to his lawyer so
that he can handle it properly and intelligently. He must likewise extend
full cooperation. (Villafuerte vs. Cortez, A.C. No. 3455, April 14, 1999).
Q
- May a lawyer accept a bad case?
- It depends.
A lawyer may accept a bad case if it is criminal inspite of his opinion
regarding the innocence or guilt of the accused. If it is a civil case, he
should decline it.
Q
- What is the extent of the lawyer's obligation of idelity to his
client? Explain.
- A lawyer owes idelity to the cause of his client but not at the expense
of truth and the administration of justice. Practice of law must not
serve as an instrument for the harassment of the complainant and the
misuse of judicial processes. (Garcia vs. Francisco, 220 SCRA 512,
March 30, 1993).
As oicers of the court, counsels are under obligation to advise
their client against making untenable and inconsistent claims. Lawyers
are not merely hired employees who must unquestionably do the
bidding of their client, however, unreasonable this may be when tested
by their own expert appreciation of the pertinent facts and the
applicable law and jurisprudence. Counsel must counsel. (Periquet vs.
NLRC, 196 SCRA 724, June 22,1990).
Q
- How do you characterize the right of a client to terminate the
services of his counsel?
- The right of client to terminate his relations with his counsel is
universally recognized. Such termination may be with or without cause.
The right of a client to terminate the authority of his counsel includes
the right to make a change or substitution at any stage of the
proceedings. To be valid, any such change or substitution must be
made: (a) upon written application; (b) with written consent of the
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client; (c) upon written consent of the attorney to be substituted; (d) in
case the consent of attorney to be substituted can not be contained,
there must be at least a proof of notice that the motion for substitution
has been served upon him in the manner prescribed by the Rules.
(Section 26, Rule 138, Rules of Court; Rinconada Telephone Company,
Inc. vs. Buenvi'aje, 184 SCRA 701, April 27, 1990).
Q
- State the efect if a client personally appears and iles a
motion by himself even if he is represented by a counsel.
- A client, by appearing personally and presenting a motion by
himself, is considered to have impliedly dismissed his lawyer. Both at
common law and under Section 26, Rule 138 of the Rules of Court, a
client may dismiss his lawyer at any time or at any stage of the
proceedings, and there is nothing to prevent a litigant from
appearing before the court to conduct his own litigation.
The client has also an undoubted right to compromise a suit
without the intervention of his lawyer. Even the lawyer's right to fees
from their clients may not be invoked by the lawyers themselves as
a ground for disapproving or holding in abeyance the approval of a
compromise agreement. The lawyers concerned can enforce their
rights in the proper court in an appropriate proceeding in accordance
with the Rules of Court, but said rights may not be used to prevent
the approval of the compromise agreement. (Municipality of Pililia,
Rizal vs. CA, 52 SCAD 548, 233 SCRA 484, June 28, 1994).
Q
- What happens if a lawyer commits misconduct by using for
his personal end money collected by him for and behalf of a
client?
- A lawyer, under his oath, pledges himself not to delay any man for
money or malice. He is bound to conduct himself with all good idelity
to his clients. He is obligated to report promptly the money of his clients that has come into his possession. He should not comingle it with
his private property or use it for his personal purposes without his
client's consent. He should maintain a reputation for honesty and idelity to private trust.
Money collected by a lawyer in pursuance of a judgment in favor
of his clients is held in trust and must be immediately turned over to
them.
A lawyer may be disbarred for any deceit, malpractice or other
gross misconduct in his oice as attorney or for any violation of the
lawyer's oath. (Licuanan vs. Melo, A.C. 2361, Feb. 9, 1989).
Q
- May a lawyer purchase a property of his client subject of
litigation during the pendency of litigation? Does the
prohibition include a mortgage? Why?
No, because of public policy for it is possible that the lawyer may e) at
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undue inluence against his client.
Mortgage of property of a client to a lawyer while the property is
under litigation is void under Art. 1491 (5), New Civil Code. To state
that mortgages are not included within the prohibition would open the
door to an indirect circumvention of the statutory injunction,
acquisition of property being merely postponed till eventual
foreclosure. (Fornilda vs. Br. 164, RTC, G.R. 72306, Jan. 29, 1989). What
cannot be done directly cannot be done indirectly. (See also Rubias vs.
Batiller).
Q - When is a thing said to be in litigation for purposes of
applying the prohibition against lawyers from acquiring by
purchase their clients' property under Art. 1491 of the Civil Code?
-
A thing is said to be in litigation not only if there is some contest or
litigation over it in court, but also from the moment that it becomes
subject to the judicial action of the judge, including certiorari proceedings. (Valencia vs. Cabanting, 196 SCRA 302, April 26, 1991).
Q
- What if the purchase was made after the litigation has
already been terminated, is the disqualiication still applicable?
Why?
- No more.
A contract of services does not violate Art. 1491, NCC prohibiting lawyers
from acquiring by purchase even at a public or judicial auction, properties
and rights which are the objects of litigation in which they may take part by
virtue of their profession, if the purchase takes place after the litigation.
(Fabillo vs. IAC, March 11, 1991). The rule has to be so because the public
policy that is sought to be preserved no longer exists, as there can be no
more undue inluence that the lawyer may exert against his client.
Q
May a lawyer enter into a contract of lease with the
administrator of an estate where the former is his client? Why?
- No. The Civil Code provides the persons disqualiied to buy referred
to in Arts. .1490 and 1491, are also disqualiied to become lessees of
the things mentioned therein. (Art. 1646). A lawyer of the administrator
of an estate failed to secure the approval of the court in various
contracts of lease between the estate and the lawyer's family
partnership. It was said that the lease contracts are covered by the
prohibition against any acquisition or lease by a lawyer of properties
involved in litigations in which he takes part. To rule otherwise would
lend stamp of judicial approval on an arrangement which, in efect,
circumvents that which is directly prohibited by law. (Mananquil vs.
Atty. Villegas, Adm. Matter 2430, Aug. 30, 1990).
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Q
- May a lawyer appropriate money received for his client? Why?
- No. In Quilban vs. Robinol, 171 SCRA 768, the Supreme Court said that a
lawyer cannot unilaterally appropriate his client's money not only because
he is bound by a written agreement but because it is highly improper for
him to have done so. His contention that he has! the right to retain
possession of the money until his attorney fees are paid is not meritorious.
He is bereft of a legal right to retain his client's funds intended for any
purpose. For doing so, he was disbarred, for he rendered himself unit to
continue in the practice. He did not only violate his oath "not to delay any
man for money" and but also "to conduct himself with all good idelity to
his client.
Q - A lawyer assured his client that he could secure a Temporary
Restraining Order (TRO) to stop the execution of a judgment
because the judge is his "katsukaran" and accepted Pl,000.00 as
attorney's fees. But the judge asked him to withdraw because of
their friendship. He again asked for P3,000.00 to be given to
another judge, but he said he could not ind the judge. He later on
told his client that a case should be iled and demanded
P10,000.00 to be deposited with the Treasurer's Oice for the
redemption of the property plus Pl,000.00 as expenses. At the
hearing, he withdrew his appearance. It was found out that there
was no deposit. State the efect of the acts of the lawyer.
- When a lawyer takes client's cause, he thereby covenants that he will
exert ,all eforts for its prosecution until the inal conclusion. The failure to
exercise diligence of advancement of a client's cause makes such lawyer
unworthy of the trust that the client had reposed in him. His acts showed
lack of idelity as a lawyer. (Cantiller vs. Potenciano, Dec. 18, 1989).
Q
- What is the efect if a lawyer makes an unsolicited
appearance for a person without a Client lawyer relationship?
The unsolicited appearance of a lawyer in the absence of client-lawyer
relationship with a client is an act unbecoming of a member of the Bar, and
should be a cause for investigation. (Porac Trucking, Inc. vs. CA, 183 SCRA
45, March 6, 1990).
Q
- State the efect of a lawyer's participation in the preparation
of prohibited contracts.
- Participation in the execution of the prohibited contracts such as
those referred to in Articles 1491 and 1646 of the New Civil Code has been
held to constitute breach of professional ethics on the part of the lawyer for
which disciplinary action may be brought against him. The claim of good faith
is no defense to a lawyer who has failed to adhere faithfully to the legal
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disqualiications imposed upon him designed to protect the interests of his
client. (Mananquil vs. Villegas, 198 SCRA 335, Aug. 30, 1990).
Q
- Is a client bound by his counsel's acts? Is the rule absolute?
Why?
As a general rule, a client is bound by his counsel's conduct,
negligence, and mistakes in handling the case during the trial. However, the
rule admits of exceptions. A new trial may be granted where the incompetence of counsel is so great that the defendant is prejudiced and
prevented from fairly presenting his defense. Where a case is not tried on the
merits because of the negligence of counsel rather than the plaintif, the
case may be dismissed, but in the interest of justice, without prejudice to the
iling of a new action. (Suarez vs. CA, G.R. No. 91133, March 22, 1993).
DISBARMENT
Q
- Are the grounds for disbarment enumerated under Section
27, Rule 138 of the Rules Of Court exclusive?
No. A lawyer may be disbarred for grounds provided by the rules and such
causes analogous to the same.
Q
- What is the basic purpose of disbarment? Explain.
- The purpose of disbarment is to protect the courts and the public
from the misconduct of the oicers of the court and to ensure the
proper administration of justice by requiring that those who exercise
this important function shall be competent, honorable and trustworthy
men in whom the courts and clients may repose conidence. The
objectives of disbarment are to compel the lawyer to deal fairly and
honestly with his client and to remove from the profession a person
whose misconduct has proved him unit for the duties and
responsibilities belonging to the oice of an attorney. (Doroy vs.
Legaspi, 65 SCRA 304). A lawyer who received P900.00 from his client
for iling fee and other expenses in connection with the iling of the
case but did hot do so, and instead deceived his client into believing
that the case had been iled, is guilty of malpractice for gross
misconduct in his ofice as attorney and of violation of his oath of
oice, and ought to be disbarred for failing to live up to the high
standards of the law profession and being unworthy of membership of
the bar. (Diaz vs. Gonong,141 SCRA 46).
Q
- May the court discipline one of its oicers even if he commits
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the act in his private capacity? Explain.
.
- As a general rule, a court will not assume jurisdiction to discipline
one of its oicers for misconduct alleged to have been committed in his
private capacity. But, this is a general rule with many exceptions. The
courts sometimes stress the point that the attorney \las shown, through
misconduct outside of his professional dealings, a want of such
professional honesty as to render him unworthy of public conidence,
and an unit and unsafe person to manage the legal business of others.
The reason why such a distinction can be drawn is because it is the
court which admits an attorney to the bar, and the court requires for
such admission the possession of a good moral character. So it is held
that an attorney will be removed not only for malpractice and
dishonesty in his profession, but also for gross misconduct not connected with his professional duties, which shows him unit for the oice
and unworthy of the privilege which his license and the law confer
upon him. (Lizaso vs. Amante, 198 SCRA 1, June 3, 1991).
Q - May a lawyer who is employed in the government be
disciplined as a member of the Bar for misconduct in the
discharge of his duties as an employee? Why?
- As a rule, a lawyer, who holds a. government oice may not be
disciplined as a member of the Bar for misconduct in the discharge of his
duties as a government oicial. However, if the conduct is of. such a
character as to afect his qualiications as a lawyer or to show moral
delinquency, then, he may be disciplined. (Austria vs. Abaya, AM. Nos. R705-RTJ, R698-P, and A.C. No. 2909, August 23, 1989).
Q
- In Collantes vs. Atty. Vicente Renemeron, Adm. Case No.
3056, Aug. 16, 1991, the basic question was whether a lawyer,
as Register of Dee<ls of a certain locality, may also be
disciplined for his malfeasance as a public oicial.
-
Yes, because his misconduct as a public oicial constituted a
violation of his oath as a lawyer.
The lawyer's oath (Rule 138, Section 17, Rules of Court; People vs.
De Luna, 102 Phil. 968), imposes upon every lawyer the duty to
delay no man for money or malice. The lawyer's oath is a
source of his obligations and its violation is a ground for his
suspension, disbarment or other disciplinary action. (Legal Ethics, Ruben E. Agpalo, 1983 Edition, pp. 66-67).
As the late Chief Justice Fred Ruiz Castro said:
"A person takes an oath when he is admitted to the
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Bar which is designed to impress upon him his
responsibilities. He thereby becomes an 'oicer of the court'
on whose shoulders rests the grave responsibility of
assisting the courts in the proper, fair, speedy and eicient
administration of justice. As an oicer of the court, he is
subject to a rigid discipline that demands that in his every
exertion the only criterion be that truth and justice triumph.
This disciplinary line is what has given the law profession its
nobility, its prestige, its exalted place. From a lawyer, to
paraphrase Justice Felix Frankfurter, are expected those
qualities of truth speaking, a high sense of honor, full of
candor, intellectual honesty, and the strictest observance of
iduciary responsibility all of which, throughout' the
centuries, have been compendiously described as moral
character.
"Membership in the Bar is in the category of a
mandate to public service of the highest order. A lawyer is
an oath-bond servant of society whose conduct is clearly circumscribed by inlexible 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."
(Apostacy in the Legal Profession, 64 SCRA 784, 789-790).
The Code of Professional Responsibility applies to lawyers in
government service in the discharge of their oicial task. (Canon 6).
"A lawyer shall not engage in conduct that adversely
relects on his itness to practice law, nor shall he, whether
in public or private life, behave in a scandalous manner to
the discredit of the legal profession." (Rule 7.03, Code of
Professional Responsibility).
Only those who are competent, honorable, and reliable may
practice the profession of law (Noriega vs. Sison, 125 SCRA 293),
for every lawyer must pursue only the highest standard in the
practice of his calling. (Court Administrator vs. Hermoso, 50 SCRA
269)
In disbarring the lawyer, the Supreme Court said the acts of dishonesty
and oppression committed by a public oicial have demonstrated his
unitness to practice the high and noble calling of the law. (Bautista vs.
Judge Guevarra, 142 SCRA 632).
Q
- A law student married his girlfriend, but agreed to keep it
secret so that he could continue with his studies. He inished law,
took and passed the bar, but the wife blocked his oath taking with a
complaint with the Supreme Court. It was however dismissed due to
the wife's aidavit of desistance. She later iled a case again against
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him alleging that he deceived her into signing the afidavit of
desistance as he never intended to live with her. He utilized the
aidavit only to dismiss the case. In his comment, he went to the
extent of claiming that his marriage was void. In his application to
take the Bar Exams, he stated that he was "single". Do his acts
warrant his membership in the legal profession? Why?
- No. The Supreme Court said that respondent's lack of good moral
character is only too evident. He has resorted to conlicting
submissions before the Supreme Court to suit himself. He has also
engaged in devious tactics with complainant in order to serve his
purpose. In so doing, he has violated Canon 10 of the Code of
Professional Responsibility, which provides that "a lawyer owes candor,
fairness and good faith to the court" as well as Rule 10.01 thereof
which states that "a lawyer should do no falsehood nor consent to the
doing of any in court, nor shall he mislead, or allow the court to be
misled by any artiice". Courts are entitled to expect only complete
candor and honesty from the lawyers appearing and pleading before
them. (Chavez v. Viola, Adm. Case No. 2162, 19 April 1991, 196 SCRA
10). Respondent, through his actuations, has been lacking in the
candor required of him not only as a member of the Bar but also as an
oicer of the public from being advised and represented in legal
matters by incompetent and unreliable persons over whom, the judicial
department can exercise little control.
Q
- A was not allowed to take his oath as a lawyer and sign the
attorney's roll. Ten years later, he was allowed to do so, upon
testimonials signed by some people as to his moral character
and civic consciousness. But before he was able to do so, the
original complainants in the malpractice case moved for a
reconsideration contending that while being a Land
Investigator at the Bureau of Lands, he was able to procure a
falsiied free patent over a public land which he used to secure
a loan by means of a real estate mortgage which he did not
pay. Is the resolution of the Supreme Court revoking the
resolution allowing him to sign the attorney's roll and take his
oath proper? Why?
Yes, because he does not possess the required good moral character to
be a member of the Bar. The law requires that a lawyer must be of
good moral character and this is required not only in his membership in
the Bar, but also in the performance of his duties as a public oicer.
Q
- Is the imposition of indeinite suspension from the practice
of law a cruel, degrading and inhuman punishment? Why?
- No. The imposition of indeinite suspension from the practice of law is
not a "cruel, degrading or inhuman punishment". The indeiniteness of
the suspension, far from being "cruel" or "degrading" or "inhuman",
has the efect of placing, as it were, the key to the restoration of the
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suspended lawyer's rights and privileges in his own hands. That
sanction has the efect of giving the respondent the chance to purge
himself in his own good time of his contempt and misconduct by
acknowledging such misconduct, exhibiting appropriate repentance
and demonstrating his willingness and capacity to live up to the
exacting standards of conduct rightly demanded from every member of
the bar and oicer of the courts. (Zaldivar vs. Sandiganbayan, G.R. No.
79690-707; Zaldivar vs. Gonzales, G.R. No. 80578, Feb. 1, 1989).
Q
- A lawyer delayed a probate case for almost half a century. Is
his act punishable under the Code of Professional
Responsibility? Why?
- Yes. In fact, the case of Ismaela Dimagiba vs. Atty. Jose Montalvo, Jr.,
A.C. No. 1420, Oct. 15, 1991, is a classic example of a lawyer who was
disbarred for malpractice, for stretching to almost half of century a
litigation arising from the probate of a will of the late Benedicto de los
Reyes. It appeared that the probate case was iled on January 1955. In
delaying the case for almost half a century, he violated his oath not to
delay any man for money-or malice, besmirched the name of an
honorable profession, and has proven himself unworthy of the trust
reposed in him by law as an oicer of the Court.
Q
- May a lawyer be disciplined if he makes a dupe of the
complainant, living on her bounty and allowing her to spend for
his schooling? Explain.
- Yes. In Bolivar vs. Simbol, 16 SCRA 623, the Supreme Court found
the respondent guilty of "grossly immoral conduct" because he
made a dupe of complainant, living on her bounty and allowing her
to spend for his schooling and other personal necessities while dangling before her the mirage of a marriage, marrying another girl as
soon as he had inished his studies, keeping his marriage a secret
while continuing to demand money from complainant. The Court
held such acts "indicative of a character not worthy of a member of
the Bar."
Q
- A lawyer courted a lady. He represented himself to be eligible
to marry when in fact, he is not. For this reason, the woman
submitted herself to the sexual desires of the lawyer. Can he
be punished for his acts? Why?
- Yes, because he does not possess good moral character which is a
condition that precedes admission to the Bar, and is not dispensed with
upon admission to the Bar. (Barrientos vs. Daarol, A.C. No. 1512, Jan.
29, 1993).
Q
- A lawyer was found guilty of immoral conduct having married
twice. Can he be suspended? Why?
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.
-Yes, because he lacks good moral character which must be possessed
by a member of the Bar. In Santos vs. Tan, 196 SCRA 16, however, the
lawyer was merely suspended despite the inding of fact that he
committed bigamy. The reason was his advanced age of 72.
Q
- Before T became a lawyer, he inveigled D to marry him
knowing that she is already married. D even sent him to
school, took care of him but T later on abandoned D and got
married to another woman. Is he worthy to be a member of the
legal profession? Why?
- No. The conduct of respondent Jordan Terre in inveigling complainant
Dorothy Terre to contract a second marriage with him; in abandoning
complainant Dorothy Terre after she had cared for him and supported
him through law school, leaving her without means for the safe delivery
of his own child; in contracting a second marriage with Helina Malicdem
while his irst marriage with complainant Dorothy Terre was subsisting,
constituted "grossly immoral conduct" under Section 27 of Rule 138 of
the Rules of Court, afording more than suicient basis for the disbarment of respondent Jordan Terre. He was unworthy of admission to
the Bar in the irst place. (Terre vs. Terre, Adm. Case No. 2349, July 3,
1992).
Q
- A, a lawyer kept a mistress, entered into another marriage
while the prior still subsisted and abandoned his wife and
children. Can he be disbarred? Why?
- Yes, because such acts show disrespect of family relations, morality
and decency and the law and the lawyer's oath. Such gross
misbehavior clearly shows a serious law in his character, his moral
indiference to scandal in the community and his outright deiance to
established norms. These acts put the legal profession in disrepute and
place the integrity of the administration of justice in peril. (Tapucar vs.
Tapucar, A.C. No. 4148, July 30, 1998, 96 SCAD 743).
Q
- May a lawyer be disbarred if he sells properties contrary to
the orders of the court? Why?
- Yes, because it constitutes disobedience and deiance of the lawful
orders of the court. (Gaeslin vs. Navarro, 85 SCRA 230).
Q
- A iled his application to take the Bar Examination and stated
that he is single when in truth, he is married. State the efect
of such act of A. Explain.
ANS.
- His act constitutes a gross misrepresentation of a material fact
made in utter bad faith. That false statement, if it had been known, would
have disqualiied him outright from taking the Bar Examinations as it
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indubitably exhibited a lack of good moral character. (Leda vs. Tabang,
206 SCRA 395).
The requirement of good moral character is not only a condition
precedent to admission to the practice of law, continued possession is
also essential for remaining in the practice of law. As said by Mr. Justice
Malcolm, "A good character is essential qualiication for admission of
an attorney to practice. When the attorney's character is bad in such
respects as to show that he is unsafe and unit to be entrusted with the
powers of an attorney, the courts retain the power to discipline him.
(Leda vs. Tabang, 206 SCRA 395).
Q - A, a lawyer summoned a subordinate to his superior's oice.
There and then, he threatened or intimidated him by warning him
of dismissal and the expense of a possible suit in court. Is the act
of A proper? Why?
- No. He is guilty of conduct unbecoming of a member of the Bar.
A man of law should never use his legal expertise and inluence in
order to frighten or coerce anyone, especially the ordinary man who
looks up to him for justice. (Roque vs. Clemencio, 212 SCRA 618).
Q - What is the efect if a lawyer prepares a false deed in place of
the proper type of deed for the sake of convenience? Why?
- He can be suspended, for he violated the rule that a lawyer shall not
engage in unlawful, dishonest or deceitful conduct.
Q - A lawyer notarized a document without notarial commission.
May he be penalized for such act? Why?
Yes. In Mariano Joson vs. Atty. Gloria Baltazar, A.C. No. 575, Feb.
14, 1991, a lawyer was suspended for notarizing documents without
notarial commission. The Supreme Court called it "irreprehensible",
constituting not only malpractice but also commission of separate
crime of falsiication of public documents. (See: In the Matter of
Disbarment of Dominador Flores; City Fiscal Lozada vs. Flores, 21 SCRA
1267). Notarization of a private document converts such document into
a public one and renders it admissible in court without further proof of
its authenticity. (Sec. 24, Rule 132; Antellon vs. Barcelona, 37 Phil.
148). Courts, administrative agencies and the public at large must be
able to rely upon the acknowledgment executed by a notary public and
appended to a private instrument. Notarization is not an empty routine;
to the contrary, it engages public interest in a substantial degree and
the protection of that interest requires preventing those who are not
qualiied or authorized to act as notaries public from posing upon the
public and the courts and administrative oices generally. (Rebolleda
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vs. Intermediate Appellate Court, 155 SCRA 520).
Q
- If a lawyer receives money for a client and he does not remit
it but instead appropriates it for himself, can he be penalized?
Why?
- Yes. To receive money for a client and fail to remit the same, a lawyer
may be disbarred because it is a clear breach of the lawyer's oath to
which he swore to observe. In Licuanan vs. Melo, 170 SCRA 100, a
lawyer collected rentals of his client's apartments but failed to remit
the same despite inquiries. It was held as a clear malpractice and
unprofessional for him to misappropriate said funds. He displayed lack
of honesty and good moral character. (See also Navarro vs. Meneses III,
CBD, AC No. 313, January 30, 1998,91 SCAD 285).
Money collected by a lawyer on a judgment rendered in favor of a
client constitutes a trust fund and must be immediately paid to the
client. (Batiller vs. Potenciano, Dec. 4, 1989).
Q - A lawyer Stole a document evidence from the record of a
case. State the efect of his act. Explain.
- He can be disbarred. A lawyer is an oicer of the court. He is like the
court itself. In this case, where the lawyer was disbarred earlier but
reinstated, the BC said an incorrigible practitioner of dirty tricks would
be ill-suited to discharge the role of an instrument to advance the ends
of justice. (Fernandez, et at. vs. Grecia, A.C. No. 3694, June 17, 1993,42
SCAD 438).
Q
- State some rules in the suspension of lawyers by the
Supreme Court and the purpose of the same.
- They are:
1) There is no need to refer the case to the OSG for the initiation of
the charges;
2) The Supreme Court has the authority to confront and prevent a
substantive evil which is the degradation of the justice system of
the country and the destruction of the standards of professional
conduct required of the members of the bar;
3) The imposition of indeinite suspension is not cruel or unusual
punishment.
This is to give him a chance to purge himself on his own good
time on his contempt and misconduct exhibiting appropriate
repentance and demonstrating his willingness and capacity to live up
to the existing standards of a member of the bar. (Zaldivar vs.
Gonzales, 170 SCRA 1).
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Q
- For immorality, a lawyer may be suspended. When may such
suspension be lifted? Explain.
.
- For immorality, a lawyer was indeinitely suspended. In Cordova vs.
Cordova, Nov. 29, 1989, the Supreme Court said that, it would lift the
suspension if he could show that he has and continues to provide for
the support of his legitimate family and that he has given up the
immoral course of conduct that he has clung to.
-
Q
For, as has been said in Tolosa vs. Cargo, March 3, 1989, a lawyer
must not only comply with the rigorous standards of conduct
appropriately required of a member of the bar. He must not only
be .seen of good moral character, and leading the good lines in
accordance with the highest standards of the community.
- What is the efect if a lawyer notarizes a document signed by
a deceased person? Explain.
- Notarization by a lawyer of documents signed by deceased persons
constitutes negligence which should warrant suspension from the
practice of law. It is the duty of the notarial oicer to demand that a
document be signed in his presence by the real parties thereto; the
notarial oicer must observe "utmost care" to comply with the
elementary formalities in the performance of his duties. (Dinoy vs.
Rosal, 54 SCAD 481, 235 SCRA 419, Aug. 17, 1994).
Q
- What is the efect if a lawyer violates BP BIg. 22 and is
convicted? Explain.
- Violation of BP BIg. 22 is a crime involving moral turpitude, hence,
conviction of a lawyer of such crime justiies her suspension from the
practice of law. Said crime imports deceit and a violation of her
attorney's oath and the Code of Professional Responsibility under both
of which she was bound to "obey the laws of the land." (People vs.
Tuanda, 181 SCRA 692, Jan. 30, 1990).
Q
- A lawyer used the IBP receipt number of another lawyer. Give
the efect of
such act.
- A lawyer deserves to be suspended for using, apparently through
negligence, the IBP oicial receipt number of another lawyer.
(Bongalonta vs. Castillo, 58 SCAD 233, 240 SCRA 310, Jan. 20, 1995).
He violated his duty not to engage in unlawful, dishonest and deceitful
conduct.
Q
- X engaged the services of Atty. A when he was sued by Y.
He paid A but the latter failed to ile the answer for his
client. State the efect of such act.
- He can be suspended for his failure to attend to the interest of his
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client.
Q
- How is disbarment instituted?
- Disbarment is instituted:
1) By the Supreme Court, motu proprio; or
2) By the IBP Board of Governors:
(a) Motu proprio; or
(b)upon referral by the Supreme Court; or
(c) upon referral by a chapter Board of oicers at the instance of any
person.
Q
- State the requirements in a complaint for disbarment.
- The complaint must:
1) be veriied;
2) state clearly and concisely the facts complained of;
3) be supported by aidavits of persons having personal knowledge of
acts therein alleged, or document which may substantiate it;
4) be iled with six (6) copies furnished the Secretary of the IBP or any
of its chapters.
Q
- State the procedure for disbarment proceeding in the IBP
after complaint is iled.
- The following is an outline of the procedure of a disbarment
proceeding after it is iled with the IBP:
1. The case shall be assigned to a National Grievance Investigator
where the Board of Governors shall appoint one from among IBP
members or three (3) when special circumstances warrant;
2. If the complaint is meritorious, the respondent shall be served with
a copy requiring him to answer within 15 days form service;
3. The respondent shall ile an answer containing 6 ( six) copies and
shall verify the same; after receipt of the answer or lapse of the
period to do so, the Supreme Court may, muto proprio or at the
instance of the IBP Board of Governors, upon recommendation by
the Investigator, suspend an attorney from practice for any of the
causes under Rule 138, Sec. 27, during the pendency of the
investigation;
4. After joinder of the issues or failure to answer, the respondent shall
be given full opportunity to defend himself. But if the respondent
fails to appear to defend himself inspite of notice, the investigator
may proceed ex parte. The investigation shall be terminated within
three (3) months from commencement which period may be
extended;
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5. The Investigator shall make a report to the Board of Governors
within 30 days from termination of the investigation which report
shall contain his indings and recommendations together with the
evidence;
6. The Board of Governors shall have the power to review the decision
of the Investigator. Its decision shall be promulgated within a period
not exceeding 30 days from the next meeting of the Board following
the submission of the report of the Investigator:
a) If the decision is a inding of guilt of the charges, the IBP Board of
Governors shall issue a resolution setting forth its indings and
recommendations which shall be transmitted to the Supreme
Court for inal action together with the record;
b) If the decision is for exoneration, or if the sanction is less than
suspension or dismissal, the Board shall issue a decision exonerating the respondent or imposing a lesser sanction. The
resolution exonerating the respondent shall be considered as terminating the case unless upon petition of the complainant or
other interested party iled with the Supreme Court within 15
days from notice of the Board's decision.
Q
- What are the grounds to disqualify an investigator appointed
by the Board of Governors?
- They are the following:
1) If he is related to the respondent or counsel within the 4th
degree of consanguinity or ainity;
2) If he has pecuniary interest with the respondent;
3) If he has personal bias; and
4) If he has acted as counsel for either party, unless the parties sign
and enter upon the record their written consent.
Q
- How may the investigator be disqualiied if he does not inhibit
himself?
- He may be disqualiied by an order of the IBP Board of Governors
upon a vote of majority of the Board upon the instance of either party.
Or, he may be removed for cause by a vote of at least six (6) members
of the IBP Board of Governors.
Q
- State the remedy of a party if the case is dismissed.
- The decision is reviewed by the Supreme Court motu proprio or upon
a timely appeal by complainant within 15 days from notice of dismissal.
Q
- State the procedure for disbarment in the Supreme Court:
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1. Upon the initiation of the complaint, the SC may refer the case for
investigation to the
Solicitor General, or any oicer of the Supreme
Court, or judge of a lower court;
2. If referred, the investigator shall proceed with the investigation
and make a report to the Supreme Court.
Q
- Who may impose the penalty of suspension of an attorney?
- Suspension of an attorney may be imposed by:
1. The Supreme Court, pending investigation under Rule 138-B;
2. The CA or RTC whose decision shall be transmitted to the Supreme
Court for investigation.
Q
- Describe the nature of a disbarment/suspension proceedings
against a lawyer.
- The proceedings shall be private and conidential but the Supreme
Court resolution shall be published.
Q
- What is the basic purpose of disbarment?
- The purpose of disbarment is not meant as a punishment to deprive
an attorney of a means of livelihood but is rather to protect the courts
and the public from the misconduct of the oicers of the court and to
ensure the proper administration of justice. (Geaslin vs. Navarro, 185
SCRA 230, May 9, 1990).
Q
- Describe the power of the Supreme Court to discipline
lawyers.
- The power to punish for contempt of court does not exhaust the
scope of disciplinary authority of the court over lawyers. The
disciplinary authority of the court over members of the Bar is but
corollary to the court's exclusive power of admission to the Bar. An
attorney will be removed not only for malpractice, and dishonesty in his
profession, but also for gross misconduct not connected with his
professional duties, which shows him to be unit for the oice and
unworthy of the privilege which his license and the law confer upon
him. (Santos vs. CFI of Cebu, Branch IV, 185 SCRA 472, May 18, 1990).
Q
- May a lawyer who has been disbarred be reinstated? Explain.
- Yes, but that is a matter of discretion of the Court
Reinstatement to the practice of law of one who has been previously
disbarred rests on whether or not the applicant has satisied and
convinced the Court by positive evidence that the eforts he has made to
ward the rehabilitation of his character has been successful, and
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therefore, he is entitled to be readmitted to a profession that is
intrinsically an oice of trust. (Prudential Bank vs. Grecia, 192 SCRA 381,
Dec. 18, 1990).
Q
- Describe the proceedings for disbarment of lawyers.
.
- Proceedings for the disbarment of members of the bar are not in any
sense civil actions where there is a plaintif and the respondent is the
defendant. Disciplinary proceedings involve no private interest and
aford no redress for private grievance. They are undertaken for the
purpose of preserving courts of justice from the oicial ministration of
persons unit to practice. The attorney is called to answer to the court
for his conduct as an oicer of the court. The complainant or the
person who called the attention of the court to the attorney's alleged
misconduct is in no sense a party, and has generally no interest in the
outcome except as all good citizens may have in the proper
administration of justice. (De Vera vs. Pineda, 213 SCRA 434, Sept. 2,
1992, citing Tajan vs. Hon. Vicente Cusi, Jr., 57 SCRA 154, May 30,
1974).
Q
- May a lawyer be disbarred or suspended for grounds other
than those enumerated above under Rule 138, Sec. 27 of the
Rules of Court? Explain.
- Yes. An attorney may be disbarred or suspended for any violation of
his oath or of his duties as an attorney and counsellor which include the
statutory grounds enumerated in Section 27, Rule 138 of the Rules of
Court. These statutory grounds are so broad as to cover practically any
misconduct of a lawyer in his professional or private capacity. The
enumeration of the statutory grounds for disciplinary action is not
exclusive and a lawyer may be disciplined on grounds other than those
speciically provided in the law. Generally, a lawyer may be disbarred or
suspended for any misconduct whether in his professional or private
capacity, which shows him to be wanting in moral character, in honestly,
probity and good demeanor or unworthy to continue as an oicer of the
court, or an unit or unsafe person to enjoy the privileges and to manage
the business of others in the capacity of an attorney , or for conduct which
tends to bring reproach on the legal profession or to injure it n the
favorable opinion of the public. Any interested person or the court motu
porprio may initiate disciplinary proceedings. (Marcelo vs. Javier, Sr., 214
SCRA 1, Sept. 18, 1992).
Q
- How do you describe the power of the Supreme Court to
disbar a lawyer? Explain.
- It is a matter of judicial discretion.
The determination of whether an attorney should be disbarred
or merely suspended for a period involves the exercise of a sound
judicial discretion, mindful always of the fact that disbarment is the
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most severe form of disciplinary action and should be resorted to
only in cases where the lawyer demonstrates an attitude or course
of conduct wholly inconsistent with approved professional
standards. In cases of lighter ofenses or of irst delinquency, an
order of suspension, which is correctional in nature, should be inlicted. In view of the nature and consequence of a disciplinary
proceeding, observance of due process, as in other judicial
determinations, is imperative along with a presumption of innocence
in favor of the lawyer. Consequently, the burden of proof is on the
complainant to overcome such presumption and establish his
charges by clear preponderance of evidence. (Marcelo vs. Javier, Sr.,
supra).
In Resurreccion vs. Sayson, Adm. Case No. 1037, December 4,
1998, 101 SCAD 654, it was ruled that the power to disbar must be
exercised with caution, and only in a clear case of misconduct that
seriously afects the standing and character of the lawyer as an
oicer of that Court and member of the Bar. Disbarment should
never be decreed where any lesser penalty, such as temporary
suspension, would accomplish the end desired. (Castillo vs.
Taguines, 69 SCAD 291, 254 SCRA 416).
Q
- Is it possible for the Supreme Court to discipline a Register of
Deeds for malfeasance of his oicial functions? Why?
-Yes. For his misconduct as a public oicial also constitutes a violation
of his oath as a lawyer. The lawyer's oath is a source of his obligations
and its violation is a ground for his. suspension, disbarment or other
disciplinary action. The Code of Professional Responsibility applies as
well to lawyers in the government service in the discharge of their
oicial tasks. (Collantes vs. Renomeron, 200 SCRA 584, Aug. 16,1991).
Q
- When a lawyer was investigated, he stated that he did not
perfect an appeal in a case he handled only to say later on that
he withdrew it. Can he be disciplined for such act? Why?
- Yes, because he made a false statement.
A lawyer must be a disciple of truth. Under the Code of Professional
Responsibility, he owes candor, fairness and good faith to the courts. He
shall neither do any falsehood, nor consent to the doing of any. He also
has a duty not to mislead or allow the courts to be misled by any artiice.
(Rule 10.01 of Canon 10, Code of Professional Responsibility).
For this ofense, he was suspended from the practice of law for
another year. True, in Ordonio vs. Eduarte, 207 SCRA 229; Porac Trucking,
Inc. vs. Court of Appeals, 202 SCRA 674 and Erectors, Inc. vs. NLRC, 166
SCRA 728, a suspension of only six months for a similar malfeasance was
imposed. But in this case, his falsehood is aggravated by its brazenness,
for it was committed in an attempt, vain as it was, to cover up his forum
shopping. (Benguet Electric Cooperative, Inc. vs. Atty. Ernesto B. Flores,
A.C. No. 4058, March 12, 1998, 92 SCAD 478).
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Q
- After more than four (4) years from bis suspension, on
January 11, 1993, to be exact, respondent Raul M. Gonzales iled
ex parte Motion to lift his suspension from the practice of law,
alleging the following:
1. That respondent gave free legal aid services to the poor
and needy of Zambales and Iloilo, by paying lawyers to do
the same as he could not personally represent said clients
by reason of his suspension;
2. That during his years of suspension, he has pursued civic
work, especially for the poor and displaced people in
Zambales, during the height of Mt. Pinatubo eruption;
3. That respondent has a long record in the service of human
rights and the Rule of Law, especially during the Martial
Law years;
4. Respondent pleads for his reinstatement to the practice of
law because his suspension for 51 months has been the
longest in Philippine legal annals;
5. Respondent
states
his
profound
regrets
for
the
inconvenience which he has caused to the Court and to
some of its members but he wishes to assure that he did
not act with malice much less with a desire to inlict harm
on the Tribunal;
6. Respondent reiterates very sincerely his respect to the
institution which is the Supreme Court as he reiterates his
oath to conduct himself as a lawyer according to the best
of his knowledge and discretion, with all good idelity as
well as to the Courts, as to the clients and inally restating
fealty to the institution which is the Supreme Court which
he has always respected as the ultimate bulwark of
freedom, of the Rule of Law, of human rights and of equity
and justice.
Can he be reinstated? Explain.
- Yes, for in fact, the Supreme Court said that this is not a court of
vengeance but of justice. The respondent's contrition, so noticeably
absent of his earlier pleadings, has washed clean the ofense of his disrespect. His remorse has softened his arrogance and made up for his
misconduct.
Respondent Raul M. Gonzales' suspension from the practice of
law for more than four (4) years has given him ample time and
opportunity to amend his erring ways, rehabilitate himself, and thus,
prove himself worthy once again to enjoy the privileges of membership
of the Bar.
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For the proper guidance of respondent Raul M. Gonzales, the SC
reiterated a time-honored rule that the practice of law is a privilege
burdened with conditions. Adherence to the rigid standards of mental
itness, maintenance of the highest degree of morality and faithful
compliance with the rules of the legal profession are the conditions
required for remaining a member of good standing of the bar and for
enjoying the privilege to practice law. The Supreme Court, as guardian
of the legal profession, has ultimate disciplinary power over attorneys.
This authority to discipline its members is not only a right, but a
bounden duty as well. The Court cannot, and will not, tolerate any
outbursts from its members without running the risk of disorder, chaos
and anarchy in the administration of justice. That is why respect and
idelity to the Court is demanded of its members "not for the sake ofthe
temporary incumbent of the judicial oice, but for the maintenance of
its supreme importance."
The Supreme Court further said:
"Like the prodigal son in the Biblical story, respondent Raul M.
Gonzales comes before Us repentant. The passage of years has indeed
the efect of making people wiser and humbler, as it has to respondent
Raul M. Gonzales. We are convinced of his sincerity to "reiterate his
oath to conduct himself as a lawyer according to the best of his
knowledge and discretion, x x x and to restate his fealty to the
institution which is the Supreme Court x x x. "
Q
- Constantino charged Atty. Saludares with conduct
unbecoming of a lawyer for the non-payment of a loan which
the latter obtained from complainant's son. It appears that
respondent borrowed Pl,OOO.OO from complainant's son
purportedly for an urgent personal obligation promising to
pay it back promptly the following day. He did not pay
despite demands.
Can he be suspended for such act? Why?
- Yes. By his failure to present convincing evidence to justify his
non-payment of the debt, not to mention his seeming indiference to
the complaint brought against him made apparent by his
unreasonable absence from the proceedings before the Solicitor
General, respondent failed to demonstrate that he still possessed
the integrity and morality demanded of a member of the bar. Such
conduct is unbecoming and does not speak well of a member of the
bar. A lawyer's professional conduct must at all time be kept beyond
reproach and above suspicion. He must perform his duties to the
bar, to the courts, to his clients, and to the society with honor and
dignity. (Constantino vs. Saludares, Dec. 7. 1993,46 SCAD 597).
Q
- The Garcia spouses, the Dionisio spouses and Felisa and
Magdalena Beationg leased a parcel of land to Sotero Lee
for a period of 25 years.Despite repeated verbal and
written demands, Lee refused to vacate after the expiration
of the lease.
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In this disbarment case, Garcia claims that Lee's counsel,
Francisco, commenced various suits before diferent courts to
thwart Garcia's right to regain her property and that all
theseproceedings were decided against Lee. The proceedings
stemmed from the said lease contract and involved the same
issues and parties, thus violating the proscription against
forum-shopping. On the other hand, Francisco contends that he
asserted in defense of his client's right only ~uch remedies as
were authorized by law.
Decide.
- The lawyer can be suspended. By grossly abusing his right of recourse
to the courts for the purpose of arguing a cause that had been repeatedly
rebufed, he was disdaining the obligation of the lawyer to maintain only
such actions or proceedings as appear to him to be just and such defenses
only as he believes to be honestly debatable under the law. By violating
his oath not to delay any man for money or malice, he has besmirched the
name of an honorable profession and has proved himself unworthy of the
trust reposed in him by law as an oicer of the Court. (Garcia vs.
Francisco, March 30, 1993).
Q
- Atty. Daarol was charged for disbarment on grounds of
deceit and grossl immoral conduct.after the respondent and
complainant became close to one another, respondent
invited her to a party, thereafter, before taking back to her
house in Dipolog City, he invited her for a joyride; parked
the jeep at a beach; promised her marriage. He started
caressing her down to her private parts. The complainant
told her that she was afraid to give what he wanted, but
respondent kept on promising to marry her; then, she
obliged. The sexual intercourse continued on several
occasions. The woman became pregnant, so he sent her and
her mother to Manila and promised to follow them. When he
arrived in Manila, he told them that he could not marry her
because he was already married. He promised to work for
the annulment of his marriage since he and his wife had
been living separately for 16 years. Instead, the complainant
was sent to Cebu and she delivered her child in Cebu.
Thereafter, he did not see her anymore, hence, the
complaint. Can he be disbarred? Why?
Yes. By his acts of deceit and immoral tendencies to appease
his sexual desires, respondent Daarol has amply demonstrated his
moral delinquency. Hence, his removal for conduct unbecoming by a
member of the Bar on the grounds of deceit and grossly immoral
conduct (Sec. 27, Rule 138, Rules of Court) is in order. Good moral
character is a condition which precedes admission to the Bar (Sec.
2, Rule 138, Rules of Court) and is not dispensed with upon
admission thereto. It is a continuing qualiication which all lawyers
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must possess (People vs. Tuanda, 181 SCRA 682 [1990]; Delos Reyes
vs. Aznar, 179 SCRA 653 [1989]), otherwise, a lawyer may either be
suspended or disbarred. (Barrientos vs. Daarol, January 29, 1993).
Q
- Mariveles engaged the services of Atty. Mallari in a criminal
case. He was convicted, hence, he instructed Mallari to appeal
to the CA, but at the CA, Mallari asked for numerous
extensions and failed to ile an appeal brief, resulting in the
dismissal of the appeal. He discovered his lawyer's desertion of
his duties when he was subpoenaed to appear for the
execution of the decision. Explain the efects of the lawyer's
acts.
- He can be disbarred, because he is guilty of abandonment
and dereliction of duty to his client. He demonstrated his
indiference and lack of responsibility to the courts and his client as
well as a shameless disregard to his duties as lawyer. He is unit for
membership in this noble profession. (Mariveles vs. Mallari, Feb. 17,
1993).
Q
- Atty. Balaoing iled several cases against judges in Olongapo
City and Zambales.
The complaint against MTC Judge Dojillo was dismissed
for lack of merit and declared that Balaoing's explanation
was unsatisfactory and he was severely censured for having
instituted a patently unfounded and frivolous administrative
action and warned that the commission by him of the same
or similar misconduct will be dealt with severely.
Notwithstanding the above warning, Balaoing again iled
two (2) complaints against Judge Calderon and Judge
Maliwanag for grave abuse of authority and malicious delay in
the administration of justice.
In the case of Judge Calderon, it was shown that
Balaoing won in a foreclosure case againstGavilan. After the
foreclosed properties were sold in a public auction, where
Balaoing was the highest bidder, a certiicate of sale was
issued and the same was registered. Respondent Judge
allegedly prevented the implementation of the writ of
possession, to the prejudice of Balaoing. Respondent Judge
explained that he quashed the writ of possession she earlier
issued in favor of Balaoing because Gavilan's widow and her
children were residing in the foreclosed properties and the
period to redeem the said properties had not yet expired.
In the case of Judge Maliwanag, Balaoing, who is the
plaintif in two civil cases pending before the sala of
Maliwanag, alleged that the Judge abused his authority by
refusing to declare as in default the defendants in said cases
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despite their repeated failure to attend the pretrial
conferences
and
to
submit
their
pre-trial
briefs.
Furthermore, she charged Maliwanag with gross ignorance
of the law for allegedly issuing a patently unjust order.
All the administrative cases were dismissed for lack of merit.
May Atty. Balaoing be disbarred? Why?
Yes. It is shown from the facts that Balaoing has a penchant
for iling administrative charges against judges in whose sala he has
pending cases, whenever the latter render decisions or issue orders
adverse to him and/or his client. In Bagamasbad vs. Judge De
Guzman (AM No. RTC-88, Nov. 7, 1989), the Supreme Court
admonished lawyers to be more prudent in iling administrative
charges against members of the judiciary. It is true that "the lawyer
owes entire devotion to the interest of the client, warm zeal in the
maintenance and defense of his rights and the exertion of his
utmost learning and ability. No fear of judicial disfavor or public
unpopularity should restrain him from the full charge of his duty. But
it is stead fastly to be borne in mind that the great trust of the
lawyer is to be performed within and not without the bounds of the
law. The oice of attorney does not permit, much less does it
demand from him or any client, violation of law or any manner of
fraud or chicanery. He must obey his own conscience and not that of
his client. Balaoing went out of bounds when he iled his baseless
and frivolous administrative complaints against Judges Calderon and
Maliwanag with no other plain and clear purpose than to harass
judges, thus, exact vengeance on them for rendering adverse
judgments against him and his client. (Balaoing vs. Caideron, AM No.
RTJ-90-530; Balaoing vs. Maliwanag, AM No. RTJ-676, April 27, 1993).
Q
- The respondent was charged with dishonesty and grave
misconduct in connection with the theft of some pages from a
medical chart which was material evidence in a damage suit
iled by his clients against some doctors and St. Luke's
Hospital. Can he be disbarred? Why?
- Yes. By stealing the said pages of the medical chart, he violated
Rule 1.01, Canon 1 of the Codes of Professional Responsibility as well
as Canon 7 which provided:
"Rule 1.01 - A lawyer shall not engage in unlawful, dishonest,
immoral and deceitful conduct."
"Canon 7. - A lawyer shall at all times uphold the integrity and dignity
of the legal profession and support the activities of the Integrated Bar."
A lawyer is an oicer of the courts, he is "like the court itself, an
instrument or agency to advance the ends of justice". (People
ex reI Karlin vs. Culkin 60 A.L.R. 851, 855). An incorrigible
practitioner of "dirty tricks," like Grecia would be ill-suited to
discharge the role of "an instrument to advance the ends of
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justice."
The importance of integrity and good moral character as part of a
lawyer's equipment in the practice of his profession has been stressed by
the Court repeatedly.
"x x x. The bar should maintain a high standard of legal
proiciency as wel,! as of honesty an,d fair dealing. Generally
speakiTJg, a lawyer can do honor to the legal profess~on by faithfully
perform,ing his d,uties to society, to the bar, to the courts and to his
clients. To this end, nothing should be done by any member of the
legal fraternity which might tend to lessen in any degree the
conidence of the public in the idelity, honesty and integrity of the
profession. (Marcelo vs. Javier, Sr., A.c. No. 3248, September 18,
1992).
"x x x. The nature of the oice of an attorney at law requires
that he shall be a person of good moral character. This qualiication is
not only a condition precedent to admission to the practice of law; its
continued possession is also essential for remaining in the practice of
law, in the exercise of privileges of members of the Bar. Gross misconduct on the part of a lawyer, although not related to the discharge
of professional duties as member of the bar, which puts his moral
character in serious doubt, renders him unit to continue in the
practice of law. (Melendrez vs. Decena, 176 SCRA 662, 676)
x x x public policy demands that legal work in representation of
parties litigant should be entrusted only to those possessing tested
qualiication and who are sworn to observe the rules and the ethics of
the profession, as well as being subject to judicial disciplinary control
for the protection of courts, clients and the public." (Phil Association of
Free Labor Unions [PAFLU] vs. Binalbagan Isabela Sugar Company, 42
SCRA 302, 305).
By descending to the level of a common thief, respondent Grecia has
demeaned and disgraced the legal profession. He has demonstrated his
moral unitness to continue as a member of the honorable fraternity of
lawyers. He has forfeited his membership in the Bar.
"Generally, a lawyer may be disbarred or
suspended for any misconduct, whether in his
professional or private capacity, which shows him to be
wanting in moral character, in honesty, probity and good
demeanoror unworthy to continue as an oicer of'the
court, or an unit or unsafe person to enjoythe privileges
and to manage the business of others in the capacity of
an attorney, or for conduct which tends to bring
reproach onthe legal profession or to injure it in the
favorable opinion of the public." (Marcelo vs. Javier, Sr.
A.C. No. 3248, September 16, 1992; Fernandez vs.
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Grecia, June 17, 1993).
Q
- A sworn complaint was iled with the Supreme Court on 24
December 1981, with the complainant Dorothy B. Terre,
charging respondent Jordan Terre, a member of the Philippine
Bar with "grossly immoral conduct," consisting of contracting a
second marriage and living with another woman other than
complainant, while his prior marriage with complainant
remained subsisting.
His defense was that his irst marriage with complainant
is void, hence, his marriage with his second wife is valid.
There is, therefore, no immoral conduct. Is his defense valid?
Why?
.- No. When the second marriage was entered into, respondent's prior marriage with the complainant was subsisting, no
judicial action having been initiated or any judicial declaration as to
nullity of the same. That he was in good faith was not accepted since
his pretended defense was the same thing which he used to inveigle
complainant into believing that her prior marriage was void. The
moral character of respondent was deeply lawed, hence, his acts
eloquently displayed, not only his unitness to remain as a member
of the Bar, but likewise his inadequacy to uphold the purpose and
responsibility of his gender because marriage is a basic social
institution. (Arroyo vs. CA, G.R. Nos. 96602 and 96715, Nov. 19,
1991).
In Pomperada vs. Jochico, 133 SCRA 309 (1984), it was said, in
rejecting a petition to be allowed to take the oath as a member of the
Bar and to sign the Roll of Attorneys:
"It is evident that respondent fails to meet the
standard of moral itness for membership in the egal
profession. Whether the marriage was a joke as
respondent claims, or a trick played on her as claimed
by complainant, it does not speak well of respondent's
moral values. Respondent had made a mockery of
marriage, a basic social institution which public policy
cherishes and protects. (Cordova vs. Cordova, 179 SCRA
680 [89J; Laguitan vs. Tinio, 179 SCRA 837).
In Bolivar vs. Simbol, 16 SCRA 623, the Court found the respondent
guilty of "grossly immoral conduct" because he made "a dupe
of complainant living on her bounty and allowing her to spend
for his schooling and other personal necessities while dangling
before her the mirage of a marriage, marrying another girl as
soon as he had inished his studies, keeping his marriage a
secret while continuing to demand money from complainant. x
x x." The Court held such acts "indicative of a character not
worthy of a member of the Bar."
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The SC said that the conduct of respondent Jordan Terre in
inveigling complainant Dorothy Terre to contract in a second
marriage with him; in abandoning complainant Dorothy Terre
after she had cared for him and supported him through law
school, leaving her without means for the safe delivery of his
own child; in contracting a second marriage with Helina
Malicdem while his irst marriage with complainant Dorothy
Terre was subsisting, constituted "grossly immoral conduct"
under Section 27 of Rule 138 of the Rules of Court, afording
more than suicient basis for disbarment of respondent Jordan
Terre. He was unworthy of admission to the Bar in the irst
place. The Court will correct this error forthwith. (Terre vs.
Terre, July 3, 1992).
Q
-A lawyer enticed his 85-year old aunt to entrust all her money
to him. He later on refused to return it. Can he be disbarred?
Why?
- Yes, because he violated the Code of Professional Responsibility
as well as his oath as an attorney. His deceitful conduct makes him
unworthy of membership in the legal profession. The nature of the
oice of a lawyer requires that he shall be of good moral character.
This qualiication is not only a condition precedent to admission to the
legal profession but its continued possession is essential to maintain
one's good standing in the profession. He was disbarred. (RayosOmbac
vs. Rayos, 90 SCAD 742, 285 SCRA 93).
Q
- What is the efect if the complainant in a disbarment case
executes an aidavit of withdrawal of the case? Why?
- Nothing, as it does not exonerate the respondent. A case of
disbarment or suspension may proceed regardless of interest or lack of
interest of the complainant. What matters is whether, on the basis of
the facts borne out by the record, the charge of deceit and grossly
immoral conduct has been duly proven. (Rayos-Ombac vs. Rayos,
supra).
Q
- What is the nature of a disciplinary proceeding?
- A proceeding for suspension or disbarment is not in any sense a
civil action where the complainant is a plaintif and the respondent is a
defendant. It involves no private interest and aford no redress for
private grievance. It is undertaken and prosecuted solely for the public
welfare and for preserving courts of justice from the oicial ministration
of persons unit to practice law in them. The attorney is called to
answer to the court for his conduct as an oicer of the court. (RayosOmbac vs. Rayos, supra).
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Q
- What is the efect if a lawyer procures personal loans through
insinuations of his power as an inluence peddler in the Bureau
of Customs and issues bad checks and takes advantage of his
government oice?
- He can be suspended, for a lawyer shall not engage in unlawful,
dishonest, immoral or deceitful conduct. In the case at bar, the
lawyer's propensity for employing deceit and misrepresentation as well
as his cavalier attitude towards incurring debts without the least
intention of repaying them is reprehensible. This disturbing behavior
cannot be tolerated most especially in a lawyer who is an oicer of the
court. (Co vs. Bernardino, 90 SCAD 750, 285 SCRA 102).
Q
- If a lawyer fails to appeal a case, can he be suspended? Why?
Yes, because a lawyer shall not neglect a legal matter entrusted
to him and his negligence in connection therewith shall render him
liable. (Villaluz, et aI. vs. Armenta, et aI., 90 SCAD 658, 285 SCRA 1).
Q
- Does it mean that he can be suspended even if he believes
that such appeal is useless? Why?
Yes, because it is highly improper for him to adopt such
opinion without any clear instruction from his client not to appeal
the adverse verdict. A lawyer owes entire devotion in protecting the
interest of his client, warmth and zeal in the defense of his rights. He
must use all his learning ability to the end that nothing can be taken
or withheld from his client in accordance with law. He must present
every remedy or defense within the authority of the law in support
of his client's cause, regardless of his personal views. (Reontoy vs.
Ibadlit, 90 SCAD 738, 285 SCRA 88). In fact, a lawyer has no right to
waive his client's right to appeal.
JUDICIAL ETHICS
JUDICIAL ETHICS
is the branch of moral science which treats of the right and
proper conduct to be observed by all judges in trying and deciding
controversies brought before them for adjudication which conduct must
be demonstrative of impartiality, integrity, competence, independence
and freedom from improprieties. This freedom from improprieties must
be observed in both the public and private life of a judge - being the
visible representation of the law.
•
Sources of Judicial Ethics:
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1. Code of Judicial Conduct
2. Constitution (Art VIII, Art IX and Art III)
3. New Civil Code (Articles 9, 20, 27, 32, 35,
739,1491,2005,2035,2046)
4. Revised Rules of Court(Rules71,135,137,139B,140)
5. Revised Penal Code (Articles 204,205,206,207)
6. Anti-Graft and Corrupt Practices Act (RA 3019)
7. Canons of Judicial Ethics (Adm. Order No. 162)
8. Code of Professional Responsibility
9. Judiciary Act of 1948 (RA 296)
10.
Judiciary Reorganization Act of 1930 (8P129)
11.
Supreme Court Decisions
12.
Foreign Decisions
13.
Opinions of authorities
14.
Other Statutes
15.
SC Circulars
•
Court - a board or other tribunal which decides litigation or contest
(Hidalgo vs.
Manglapus, 64 D.G. 3189). A court may exist without a judge.
•
Judge - a public oicer who, by virtue of his oice, is clothed with judicial
authority. A public oicer lawfully appointed to decide litigated questions
in accordance with law (People VS. MananttJn, 5 SCRA 687). This refers to
persons only. There may be a judge without a court.
.
•
De jure judge - one who is exercising the oice of judge as a matter of
right, an oicer of a court who has been duly and legally elected or
appointed and whose term has not expired. An oicer of the law fully
vested with all of the powers and functions conceded under the law to a
judge, which relate to the administration of justice within the jurisdiction
over which he presides (Luna V$. Rodriguez, 37 Phil. 191).
•
De facto judge - a judge who in good faith continues to act and is
recognized by common error after the abolition of his court by statute is
deemed judge de facto of the new court which succeeds to the jurisdiction
of that presided over by him (U.S. vs. Abalos, 1 Phil 76). An oicer who is
not fully vested with all the powers and duties. conceded to judges, but is
exercising the oice of a judge under some color of right.
•
Qualiications to be Supreme Court Members:
1. Natural born citizen of the Philippines
2. At least 40 years of age
3. Must have been at least for 15 years, a judge of a lower court or
engaged in the
practice of law (Sec. 7(2), Art. VIII, 1987 Constitution)
•
Qualiications to be Judges:
1. Citizen of the Philippines
2. Member of the Bar (Sec. 7(2), Art. VIII, 1987 Constitution)
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3. Must be a person of proven competence, integrity, probity and
independence
(Sec. 7(3), Art. VIII, 1987 Constitution)
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Qualiications of Justices and Judges under the Judiciary
Reorganization Act
of 1980 (B.P. 129):
1. Presiding Justice and Associate Justices of the Court of Appeals shall have
the same qualiications as those provided in the Constitution, for Justices
of the
Supreme Court (Sec. 5)
2. RTC judges shall be natural born citizens of the Philippines, at least 35
years 0 age and for at least ten years, has been engaged in the practice
of law in the Philippines or has held a public oice in the Philippines
requiring admission to the practice of law as an indispensable requisite
(Sec. 15).
3. MTC judges shall be natural born citizens of the Philippines, at least 30
years of age, and for at least ive years, has been engaged in the practice
of law in the Philippines, or has held a public oice in the Philippines
requiring admission to the practice of law as an indispensable requisite.
•
CODE OF JUDICIAL CONDUCT
PREAMBLE
An honorable, competent and independent judiciary exists to administer
justice and thus promote the unity of the country. The stability of
government, and the well-being of the people.
CANON 1
A JUDGE UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE
JUDICIARY
RULE 1.01 -A judge should be the embodiment of competence, integrity and
independence.
RULE 1.02 - A judge should administer justice impartially and without delay.
RULE 1.03-A judge should be vigilant against any attempt to subvert the
independence of the judiciary and should forthwith resist any pressure from
whatever source intended to inluence the performance of oicial functions.
• Judges should avoid even the slightest infraction of the law.
•
Must be models of uprightness, fairness and honesty
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•
Should - not relax in his study of the law and court
decisions.
•
Must decide motions without delay.
•
Should also appear impartial
CANON 2
A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF
IMPROPRIETY IN ALL ACTIVITIES.
RULE 2.01- A judge should so behave at times as to promote public
conidence in the integrity and impartiality of the judiciary.
RULE 2.02- A judge should not seek publicity for personal vainglory.
RULE 2.03- A judge shall not allow family, social, or other relationships to
inluence judicial conduct or judgement. The prestige of judicial oice shall
not be used or lent to advance the private interest of others, nor convey or
permit others to convey the impression that they are in a special position to
inluence the judge.
RULE 2.04- A judge should refrain from inluencing in any manner the
outcome of litigation or dispute pending before an-other court or
administrative agency.
•
A judge must be beyond suspicion. He has the duty not only to render a
just and impartial decision but also to render it in such a manner as to be
free from any suspicion as to its fairness and impartiality, and also as to
his integrity.
• Every litigant is entitled to nothing short of the cold neutrality of an
independent, wholly free disinterested and impartial tribunal.
•
A judge must be temperate in his language and must not lose
his cool.
•
A judge is prohibited from making public statements in the media
regarding a pending case so as not to arouse public opinion for or against
a party (violates the Principle of Subjudice)
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•
Judges must not use or permit the use of any undigniied self-laudatory
statement regarding their qualiications or legal services.
•
A judge must not allow anyone to ride on his prestige. He should not
create the impression that someone or some people are so close to him to
enjoy his favor.
CANON 3
A JUDGE SHOULD PERFORM OFFICIAL DUTIES HONESTLY, AND WITH
IMPARTIALITY AND DILIGENCE ADJUDICATIVE RESPONSIBILITIES.
RULE 3.01- A judges shall be faithful to the law and maintain professional
competence.
•
Judge should be conversant with the law and Its amendments.
RULE 3.02- In every case, a judge shall endeavor diligently to ascertain the
facts and the applicable law unswayed by partisan interests, public opinion or
fear of criticism.
•
Finding, of facts must be based not on the personal knowledge of the
judge but upon the evidence presented.
•
If the personal view of the judge contradicts the applicable doctrine
promulgated by the Supreme Court, nonetheless, he should decide the
case in accordance with that doctrine and not in accordance with his
personal views. He is however not prohibited from stating his own opinion
on the matter if he wants to' invite constructive attention thereto.
RULE 3.03- A judge shall maintain order and proper decorum in the court.
RULE 3.04 - A judge should be patient, attentive, and courteous to lawyers,
especially the inexperienced, to litigants, witnesses, and others appearing
before the court. A judge should avoid unconsciously falling into the attitude
of mind that the litigants are made for the courts, instead of the courts for
the litigants.
•
Conduct of trial must not be attended with fanfare and publicity; not
permit pictures or broadcasting.
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Must use temperate language should not make insulting remarks
RULE 3.05 - A judge shall dispose of the court's business promptly and
decide cases within the required periods
RULE 3.06 - While a judge may, to promote justice, prevent waste of time or
clear up some obscurity, properly intervene in the presentation of evidence
during the trial, it should always be borne in mind that undue interference
may prevent the proper presentation of the cause or the ascertainment of
truth.
RULE 3.07 - A judge should abstain from making public comments on any
pending or impending case and should require similar restraint on the part of
court personnel.
•
A judge must properly organize his court to ensure prompt and convenient
dispatch of its business (Canon 8, Canons of Judicial Ethics)
•
A judge should closely supervise court personnel so that adequate
precautions are taken sending out subpoenas, summons, and court
processes to ensure that they are timely served and received (SC Circular
No. 13 dated July 31, 1987, Par. 4[a])
•
Ascertain that the records of all cases are properly kept and managed.
•
Maintain a checklist on the cases submitted for decision with a view to
knowing exactly the speciic deadlines for the resulution/decision of the
said cases.
•
Loss of records: gross negligence
•
Should be a good manager
•
May summarily punish any person including lawyers and court personnel
for direct contempt for misbehavior committed in the presence of or so
near a court or a judge as to obstruct or interrupt the proceedings before
the same (Rule 71, Revised Rules of Court)
•
May not summarily suspends a lawyer for indirect contempt.
Every court has the inherent power among others, to preserve and enforce
orders in its immediate presence to compel obedience to its judgments,
orders and processes and to control, In furtherance of justice the conduct of
its ministerial oicers (Sec. 5,
Rule 135 ~O, Revised Rules of Court)
.
•
Judge Was the power to appoint, but the power to dismiss court
employees is vested
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in the Supreme Court.
•
If knowingly nominate or appoint to any public oice any person lacking
the legal qualiication therefor, shall be guilty of unlawful appointment
punishable with imprisonment and ine (Alt. 244, Revised Penal Code).
ADMINISTRATIVE RESPONSIBILITIES
RULE 3.08 - A judge should diligently discharge administrative
responsibilities, maintain professional competence in court management, and
facilitate the performance of the administrative functions or other judges and
court personnel.
RULE 3.09 - A judge should organize and supervise the court personnel to
ensure the prompt and eicient dispatch of business, and require at all times
the observance of high standards of public service and idelity.
RULE 3.10 - A judge should take or initiate appropriate disciplinary
measures against lawyers or court personnel for unprofessional conduct of
which the judge may have become aware.
RULE 3.11 - A judge should appoint commissioners, receivers, trustees,
guardians, administrators and others strictly on the basis of merit and
qualiications, avoiding nepotism and favoritism. Unless otherwise allowed by
law, the same criteria should be observed in recommending appointment of
court personnel. Where the payment of compensation is allowed, it should be
reasonable and commensurate with the fair value of services rendered.
DISQUALIFICATION
RULE 3.12 - A judge should take no part in a proceeding where the
judge's impartiality might reasonably be questioned. These cases include
among others, proceedings where:
a) the judge has personal knowledge of disputed evidentiary facts
concerning the proceeding;
b) the judge served as executor, administrator, guardian, trustee or
lawyer in the case or matter in controversy, or a former associate of the
judge served as counsel during their association, or the judge or lawyer was
a material witness therein;
c) the judge's ruling in a lower court is the subject of review;
d) the judge is related by consanguinity or ainity to a party litigant
within the sixth degree or to counsel within the fourth degree;
e) the judge knows that the judge's spouse or child has a inancial
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interest, as heir, legatee, creditor, iduciary, or otherwise, in the subject
matter in controversy or in a party to the proceeding, or any other interest
that could be substantially affected by the outcome of the proceeding.
In every instance, the judge shall indicate the legal reason for
inhibition.
•
Petition to disqualify judge must be iled before rendition of judgment by
the judge;
can't be raised irst time on appeal.
•
If a judge denies petition for disqualiication. the ultimate test: is whether
or not the
complaint was deprived of a fair and Impartial trial.
Remedy seek new trial.
REMITTAL OF DISQUALIFICATION
RULE 3.13 -A judge disqualiied by the terms of Rule 3.12 may, instead
of withdrawing from the proceeding, disclose on the record the basis of
disqualiication. If, based on such disclosure, the parties and lawyers
independently of the judge's participation, all agree in writing that the reason
for the inhibition is immaterial or insubstantial, the judge may then
participate in the proceeding. The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceeding.
CANON 4 - A judge may, with due regard to oicial duties, engage in
activities to improve the law, the legal system and the
administration of justice.
Rule 4.01 - A judge may, to the extent that the following activities do
not impair the performance of judicial duties or case doubt on the
judge's impartiality:
a. speak, write, lecture, teach or participate in activities
concerning the law, the legal system and the
administration of justice;
b. appear at a public hearing before a legislative or
executive body on matters concerning the .law, the
legal system or the administration of Justice and
otherwise consult with them on matters concerning the
administration of justice;
c. serve on any organization devoted to the improvement
of the law, the legal system or the administration of
justice.
•
Decision to engage in these activities depends upon the sound
judgment of the judge.
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•
If has not enough time to spare (such as when caseload is too heavy
prudence dictates, he must concentrate on his judicial duties.
•
If a judge has time to spare, the best attitude to take is to participate in
activities which are closely related to the performance of his duties and
which do not consume much of his time and energy.
CANON 5
A JUDGE SHOULD REGULATE EXTRA-JUDICIAL ACTIVITIES TO
MINIMIZE THE RISK OF CONFLICT WITH JUDICIAL DUTIES
ADVOCATIONAL, CIVIC AND CHARITABLE ACTIVITIES.
RULE 5.01 - A judge may engage in the following activities provided that
they do not interfere with the performance of judicial duties or detract from
the dignity of the court:
a) write, teach and speak on non-legal subjects;
b) engage in the arts, sports, and other special recreational
activities;
c) participate in civic and charitable activities;
d)
serve as an oicer, director, trustee, or non-legal advisor of a non-proit or non political educational, religious, charitable,
fraternal, or civic organization.
FINANCIAL ACTIVITIES
RULE 5.02 - A judge shall refrain from inancial and business dealing
that tend to relect adversely on the court's impartiality, interfere with the
proper performance of judicial activities or increase involvement with
lawyers or persons likely to come before the court. A judge should so
manage investments and other inancial interests as to minimize the
number of cases giving grounds for disqualiications.
RULE 5.03 - Subject to the provisions of the proceeding rule, a judge may
hold and manage investments but should not
serve as oicer, director, manager, advisor, or employee of any business
except as director of a family business of the judge.
RULE 5.04 -A judge or any immediate member of the family shall not accept
a gift, bequest, factor or loan from anyone except as may be allowed by law.
RULE 5.05 - No information acquired in a judicial capacity shall be used or
disclosed by a judge in any inancial dealing or for any other purpose not
related to judicial activities.
• Prohibitions under the Revised Penal Code:
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Art 215. Prohibited Transaction. The penalty of prision correccional in its
minimum period or a ine ranging from P200 to P1000 or both, shall be
Imposed upon any appointive public oicer who, during his incumbency, shall
directly or indirectly become interested in any transaction of exchange or
speculation within the territory subject to his jurisdiction.
Art 216. Possession of prohibited interest by a public oicer. The
penalty of arresto mayor in its medium period to prison correccional in its
minimum period, or a ine ranging from P200 to P1000, or both, shall be
imposed upon a public oicer who directly and indirectly, shall become
Interested in any contract or business which it is his oicial duty to intervene.
•
Acceptance of gifts given by reason of the oice of a public oicer is
indirect bribery
(Art. 211, RPC)
•
When he agrees to perform an act constituting a crime in connection with
the performance of his oicial duties in consideration of any ofer,
promise, gift or present received by such oicer, he is guilty of direct
bribery (Art. 210, RPC)
•
Sec 3. Corrupt practices of public oicers. In addition to acts or omissions
of public oicers already penalized by existing law, the following shall
constitute corrupt practices of any public oicer and are hereby declared
to be unlawful:
(h) Directly or indirectly having inancial or pecuniary interest in any
business, or contract or transaction In connection with which here
intervenes or takes part in his oicial capacity or in which he is prohibited
by the Constitution or by any law from having any interest, (Sec. 3(h), RA
3019)
•
Donations given to a judge, or to his wife, descendants or ascendants by
reason of his oice are void (Art. 739, Civil Code)
•
General Rule: Avoid taking or receiving loans from litigants (Sec. 2 [b]
and [c] of R.A. 3019, and Sec. 16, art. VIII of the Constitution)
Exception (AGCPA): Unsolicited gifts or presents of small value ofered
or given as a mere ordinary token of gratitude or friendship according to
local custom or usage (Sec. 14 of R.A. 3019)
•
No solicitation of funds by public oicials (Sec. 7 [d], R.A. 6713)
FIDUCIARY ACTIVITIES
RULE 5.06 - A judge should not serve as the executor, administrator,
trustee, guardian, or other iduciary, except for the estate, trust, or person of
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a member of the immediate family, and then only if such service will not
interfere with the proper performance of judicial duties. "Member of
immediate family" shall be limited to the spouse and relatives within the
second degree of consanguinity. As a family, a judge shall not:
a) serve in proceedings that might come before the court of said judge;
or
b) act as such contrary to Rules 5.02 to 5.05.
PRACTICE OF LAW AND OTHER PROFESSION
RULE 5.07 - A judge shall not engage in the private practice of law. Unless
prohibited by the Constitution or law, a judge may engage in the practice of
any other profession provided that such practice will not conlict or tend to
conlict with judicial functions.
•
Includes preparation of pleadings or papers in anticipation of litigation,
and giving of legal advice to clients or persons needing the same.
•
Not engage in notarial work.
Exception: "Notaries public ex-oicio" - may engage only in notarization of
documents connected with the exercise of their oicial functions. Provided
all notarial fees on account of the government and certiication attesting
to lack of any lawyer or Notary Public.
•
Sworn statement of assets and. liabilities including statement of amounts
and services of income, the amount of personal and family expenses and
the amount of income tax is paid for the next preceding calendar year.
FINANCIAL DISCLOSURE
RULE 5.08 - A judge shall make full inancial disclosures as required by law.
RULE 5.09 - A judge shall not accept appointment or designation to any
agency performing quasi-judicial or administrative functions.
POLITICAL ACTIVITIES
RULE 5.10 – a judge is entitled to entertain personal views on political
questions. But to avoid suspicion of political partisanship, a judge shall
not make political speeches, contribute to party funds, publicly endorse
candidates for political oice or participate in other partisan political
activities.
COMPLIANCE WITH THE CODE OF JUDICIAL CONDUCT
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All judges shall strictly comply with this code.
DATE OF EFFECTIVITY
This code, promulgated on 5 September 1989, shall take efect on 20
October 1989.
Liabilities of Judges
Administrative Liabilities:
•
Grounds for administrative sanctions against judges (Sec. 67 of the
Judiciary Act of
1(48)
1. Serious misconduct - implies malice or wrongful intent, not mere
error of judgment, judicial acts complained of must be corrupt or
inspired by an intention to violate the law. or were in persistent
disregard for well-known legal rules
2. Ineiciency - implies negligence, incompetence, ignorance, and
carelessness, when the judge fails to observe in the performance of
his duties that diligence, prudence and circumspection which the
law require: in the rendition of any public service.
Instances of serious misconduct:
1. Unjustiiable failure to decide cases within reglementary period
2. Failure to deposit funds with the municipal treasurer or to produce
them despite his promise to do so
3. Misappropriation of iduciary funds
4. Extorting money from a party-litigant who has a case before his court
5. Solicitation of donation for oice equipment
6. Unlawful solicitation in violation of R.A. No. 6713
7. Frequent unauthorized absences in oice
8. Falsiication of certiicate of service to collect salary
9. Declaring Wednesdays as non-session days which the judge declared
as his "Mid-week pause"
10.
Indeinite postponement for, several years of a criminal case
pending in his sala
11.
Judges is poking his gun to another in a restaurant while in a sate
of intoxication
12.
Pistol-whipping the complainant on the latter's left face without
any justiication
13.
Acting as counsel and/or attorney-in-fact for all the, parties with
opposing interests on a parcel of land in pursuance of his personal self-
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interest
14.
Using intemperate language unbecoming of a judge
15.
Failure to reply to a show cause resolution of the Supreme Court
16.
Loss of records
17.
Inaction by judge which is the tantamount to partiality in favor of
one party ... among others.
•
Instances of gross ineiciency:
1. Delay in the disposition of cases
2. Unduly granting repeated motions for postponement of a case
3. Gross incompetence and ignorance of the law
4. Reducing to a ridiculous amount the bail bond of the accused in a
murder case
5. Including execution in the judgment itself
6. Dismissing uncalendared criminal cases without verifying whether the
other parties had received the notices of court hearings…among others
Procedure for iling an administrative complaint (Rule 140 of the Revised
Rules of
Court):
1. Complaint in writing setting forth clearly the facts and circumstances
relied upon and sworn to and supported by aidavits and documents
2. Service or dismissal, which must followed by an answer within 10 days
from date of service ‘
3. Answer and hearing
4. Report iled with the Supreme Court of indings accompanied by evidence
and documents
•
Civil Liabilities:
•
Civil Liabilities Re Oicial Functions:
a. Obstructs, defeats, violates or in any manner impedes or impairs the
civil rights.
b. Willful or negligent rendition of a decision which causes damages to
another
c. For damages: rendering/neglecting to decide a case causing loss to
a party.
•
Civil Code Disabilities:
Rule: Can't purchase properties subject of litigation is his court.
Exception: Does not apply where the subject property was not
acquired from any of the parties to the case, nor will it apply when the
litigation is already inished.
•
Donations made to a judge by reason of his oice are void.
•
Taking advantage of his position to boost his candidacy amounts to 'gross
misconduct.
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•
Cannot serve as oicers or advisers of political groups.
Criminal Liabilities
• Malfeasance under the RPC:
a. Knowingly Rendering Unjust Judgment (Art. 204, RPC)
The elements are.
1. That the oicer is a judge;
2. That he renders judgment in a case submitted to him for
decision;
3. That the judgment is unjust;
4. The judge knows that his judgment is unjust.
b. Judgment Rendered Through Negligence (Art. 205, RPC)
The elements are:
1. That the ofender is a judge;
2. That he renders judgment in a case submitted to him for
decision
3. That the judgment is manifestly unjust;
4. That it is due to his inexcusable negligence or ignorance.
Notaries Public
I. Qualiications (Sec 232 and 234, Revised Administrative Code (RAC))
A. Filipino citizen
B. Over 21 years of age
C. Should not have been convicted of any crime involving moral
turpitude
D. Training
1. Those admitted to the practice of law
2. Those who have passed the studies of law in a reputable
university
3. A clerk or deputy clerk of court or one who has at some time
held the position of clerk or' deputy clerk of court for a period
of not less than two (2) years
4. Those qualiied for the oice of Notary Public de oicio under
Spanish sovereignty
5. Municipal judges as notaries public de oicio in municipalities
or Municipal districts
i. where there are no persons with the necessary
qualiications
ii. where there are qualiied persons but they refuse
Appointment
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•
non-lawyers as notaries:
General Rule: SC Circular No. 16 of 1985 directed
appointing judges to refrain and desist from appointing
and/or renewing the appointment of non-lawyers as
notaries public because of the unethical practices of
notaries public who are non-lawyers;
Exception: In places where there are no lawyers, or
there are not enough lawyers, the appointment of nonlawyers as notaries public may be allowed, but a nonlawyer who wishes to be commissioned as a notary
public must apply.
Deine the following:
1. Court – A board or other tribunal which decides a litigation or
contest. (Hidalgo vs. Manglapus, 64 O.G. 3189).
2. Judge – A public oicer who by virtue of his oice, is clothed with
judicial authority. A public oicer lawfully appointed to decide
litigated questions in accordance with law. (People vs. Manantan, 5
SCRA 687).
3. De jure judge – one who is exercising the oice of judge as a matter
of right; an oicer of a court who has been duly and legally elected
or appointed.
An oicer of the law fully vested with all the powers and
functions conceded under the law to a judge, which relate to the
administration of justice within the jurisdiction over which he
presides. (Lino Luna vs. Rodriguez, 37 Phil. 191).
A judge who is in all respect legally appointed and qualiied as
such and whose term of oice has not expired. (Tayko vs.
Capistrano, 53 Phil. 872).
4. De Facto judge – A judge who in good faith continues to act and is
recognized by common error after the abolition of his court by
statute is deemed judge de facto of the new court which succeeds
to the jurisdiction of that presided over by him. (US. vs. Abalos, 1
Phil. 76).
An oicer who is not fully invested with all of the powers and
duties conceded to judges, but is exercising the oice of judge
under some color of right. ( Lino Luna vs. Rodriguez, ibid.)
One who exercises the duties of a judicial oicer under color of
an appointment or election thereto. (Tayko vs. Capistrano, 53 Phil.
872).
The acts of a de facto judge are just as valid for all purposes as
those of a de jure judge so far as the public or third persons who
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are interested therein are concerned. x x x. The decision of a de
facto judge cannot be collaterally attacked. (Nacionalista Party vs.
De Vera, 85 Phil. 132).
The decision of a judge is void, if on the day it is promulgated,
the judge ceased to be a judge. (Rodriguez vs. Tesorero de
Filipinas, 84 Phil. 368; Ong Sui vs. Paredes, 17 SCRA 661; People
vs. Solis, CA-G.R. No. 141117-R, November 20, 1965).
QUESTIONS ON JUDICIAL ETHICS
Q
- Are there any distinctions between the court and the judge?
ANS. - Yes. The court is an entity and the person who occupies the position is
the judge. A court may exist without a judge. There may be a judge
without a court. (Pamintuan vs. Llorente, 29 Phil. 346).
Q
- What do you understand by the principle that the
administration of justice is a shared responsibility of the judge
and the lawyer?
ANS. - It means that it is the duty of both counsel and judge to maintain not
to destroy, the high esteem and regard for courts. Any act on the part
of one or the other that tends to undermine the people's respect for,
and conidence in, the administration of justice is to be avoided. And
this, even if both may have to restrain pride from taking the better part
of their system. (Lugue vs. Kayanan, 29 SCRA 173). The relations of
judge and lawyer should be founded on mutual respect and on a deep
appreciation by one of the duties of the other. (Romero vs. Valle, 147
SCRA 197)
Q
- Explain the principle that a judge should not only be impartial
but must also appear impartial.
ANS. - The sole purpose of courts of justice is to enforce the laws uniformly
and impartially, without regard to persons or their circumstances or to
opinions of men. A judge should at all times be wholly free, disinterested, impartial and independent. Elementary due process requires a
hearing before an impartial and disinterested tribunal. A judge has both
the duty of rendering a just decision and the duty of doing it in a
manner completely free from suspicion as to its fairness and as to his
integrity. Judges therefore, should not only be impartial but they should
also appear impartial. (Tan, Jr. vs. Gallado, 73 SCRA 315).
Q
- Should a judge succumb to pressure from whatever source?
Why?
ANS. - No. To do so is equivalent to a case of betrayal of the public trust
reposed on a judge as an arbiter of the law and a revelation of his/her
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weak moral character. A judge is expected to be fearless in his/her
pursuit to render justice, to be unafraid to displease any person,
interest or power and to be equipped with a moral iber strong enough
in his/her oice. (Ramirez vs. Corpuz-Macandog, 144 SCRA 462).
Q
- How do you describe the appearance of a judge in his oicial
and personal conduct?
ANS. - A judge's oicial conduct and his behavior in the performance of judicial duties should be free from the appearance of
impropriety and must be beyond reproach. (Alagas vs. Reyes, 131
SCRA 445; Li vs. Niyares, 65 SCRA 167). Even his personal behavior
in his everyday life should be beyond reproach. He should avoid
even the slightest infraction of the law. (Cabrera vs. Pajares, 142
SCRA 127).
Q
- How do you explain the fact that a judge should be like
Caesar's wife?
ANS. - A judge should be like Caesar's wife because a judge must not only be
pure but must also appear to be so. Appearance is as important as
reality in the performance of judicial functions. Like Caesar's wife, a
judge must not only be pure but must be beyond suspicion. (Palang vs.
Zosa, 58 SCRA 776). A judge has the duty not only to render a just and
impartial decision, but also render it in such a manner as to be free
from any suspicion as to its fairness and impartiality, and also as to the
judge's integrity. (Martinez vs. Gironella, 65 SCRA 245).
Q
- Explain the rule that a judge should not seek publicity for
personal vainglory.
ANS. - It means that judges should be prohibited from seeking publicity
for vanity or self-gloriication. Judges are not actors or actresses or
politicians. They are also prohibited from making public comments
on any pending or impending case. Judges must not be moved by a
desire to cater to public opinion to the detriment of justice. (Go vs.
CA, 206 SCRA 165).
Q
- Maya judge invite the press during the hearing of a
sensational case? Why?
ANS. - No. A judge should not allow unnecessary taking of Pictures of the
court .proceedings. He should not allow the broadcasting of
proceedings over the radio or allow the televising of the proceedings.
The reason is that, such fanfare and publicity detract from the dignity
of the court proceedings for the parties involved tend to become more
self-conscious on their appearances rather than the truth of the facts
and substance of the issues. The administration of justice would then
ultimately sufer as the judge might be inluenced by the public clamor
engendered by the publicity. Finally, a judge should not seek publicity
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for his personal vainglory.
Q
- When may a judge intervene during the presentation of
evidence?
ANS - A judge may intervene during the presentation of evidence in order to
expedite and prevent unnecessary waste of time. (Domanico vs. CA,
122 SCRA 218). He may intervene to profound clariicatory questions.
(People vs. Muit, 117 SCRA 696). He should, however, limit himself only
to clariicatory questions and not to ask searching questions after the
witness had given direct testimony. (Valdez vs. Aquilizan, 133 SCRA
150). His act should be done sparingly and not throughout the
proceedings. (People vs. Ibanson, 120 SCRA 679).
Q
- What constitutes undue interference by the judge in the
presentation of evidence?
ANS. - There is undue interference if the judge will extensively profound
questions to the witnesses which will have the efect of or will tend
to build or bolster the case of one of the parties.
Q
- Give the reason behind the rule that a judge should not
interfere in the presentation of evidence.
ANS. - A judge should not only be impartial, but he should appear to be so. If
he profounds questions to help build the case of a party, he would
come out biased against or partial in favor of a party. A judge interference may likewise prevent the proper presentation of the case, and
the ascertainment of the truth in respect thereto.
Q
- An MTC judge was present during the meeting of his
relatives before the DARAB. He even suggested the review
of the land reform coverage and even talked to those who
refused to obey the writ of execution issued by the DARAB.
Is the act of the judge proper?
ANS. - No, because as a member of the Bench, he should have realized
that his presence, opinion and participation in any proceeding could
slant the evaluation and resolution of the case in favor of the party
he identiies himself with. A judge need not utter any word for his
sheer presence, as a member of the Judiciary, would be suicient
suggestion of persuasion and inluence. (Garcia, et al. vs. Valdez,
A.M. No. MTJ-98-1156, July 13, 1998, 96 SCAD 170).
Q
- If a judge renders a judgment on the day after a case is
submitted for decision, is the act proper? Why?
ANS. - Yes, there is nothing anomalous in the act of the judge, as it is even
an evidence of his intention to dispose of cases with dispatch. The
immediate resolution of the decision was no more than his compliance
with his duty as a judge to dispose of the court's business promptly and
decide cases within required periods. Instead of being punished, he
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should even be commended for his close attention to duty. (Fule vs. CA,
et al., G.R. No. 112212, March 2,1998,92 SCAD 14).
Q
- Why should a judge decide a case within the reglementary
period provided for by the Rules?
ANS. - A judge should decide a case within the reglementary period because
failure to do so constitutes gross dereliction of duty. A judge should
decide a case promptly and expeditiously, for it cannot be denied that
justice delayed is justice denied. Delay in the disposition of cases
undermines the people's faith and conidence on the judiciary. Hence,
judges are enjoined to decide cases with dispatch. Their failure to do so
constitutes gross ineiciency and warrants the imposition of administrative sanctions on them. (Fe T. Bernardo vs. Judge Amelia A
Fabros, A.M. No. MTJ-99-1l89, May 12, 1999, citing Sanchez vs. Vestil,
AM. No. MTJ-981419, October 13, 1998, 100 SCAD 147).
Q
- A judge admitted that she failed to decide a case within
the reglementary period provided for the by the Rules. Her
reason was that there was oversight on her part. Is the
reason proper? Why?
ANS. - No. A judge is expected to keep his own record of cases so that he
may act on them promptly without undue delay. It is incumbent
upon him to devise an eicient recording and iling system in his
court so that no disorderliness can afect the low of cases and their
speedy disposition. x x x Proper and eicient court management is
as much his responsibility. He is the one directly responsible for the
proper discharge of his oicial functions. (See Fe T. Bernardo vs.
Judge Amelia A Fabros, AM. No. MTJ-99-1l89, 106 SCAD 425, May 12,
1999).
Q
- When may a judge be subjected to disciplinary action for his
errors? Explain.
ANS. - For liability to attach for gross negligence of the law, the assailed
order, decision or actuation of a judge must not only be found
erroneous but, most importantly, it must be established that the judge
was moved by bad faith, dishonesty, hatred, or some other like motive.
(Dela Cruz vs. Concepcion, 54 SCAD 640, '235 SCRA 597).
Q
- When is a judge liable for rendering an unjust judgment?
Explain.
ANS. - A judge may be held liable for rendering an unjust judgment when he
acts in bad faith, malice, revenge, or some other motive. (Heirs of the
late Nasser Yasin vs. Felix, 66 SCAD 157, 250 SCRA 545).
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Q
- Discuss the import of the rule on voluntary inhibition of
judges.
ANS. - The import of the rule on voluntary inhibition of judges is that the
decision on whether or not to inhibit is left to the sound discretion and
conscience of the trial judge based on his rational and logical assessment of the circumstances prevailing in the case brought before
him. It makes clear to the occupants of the Bench that outside of
pecuniary interest, relationship or previous participation in the matter
that calls for adjudication, there might be other causes that could
conceivably erode the trait of objectivity, thus calling for inhibition. This
is to betray a sense of realism, for the factors that lead to preference or
predelictions are many and varied.
In the inal reckoning, there is really no hard and fast rule when it
comes to the inhibition of judges. Each case should be treated
diferently and decided based on its peculiar circumstances. The issue
of voluntary inhibition is primarily a matter of conscience and sound
discretion on the part of the judge. It is a subjective test the result of
which the reviewing tribunal will not disturb in the absence of any
manifest inding of arbitrariness and whimsicality. The discretion given
to trial judges is an acknowledgment of the fact that these judges are
in a better position to determine the issue of inhibition as they are the
ones who directly deal with parties-litigants in their courtrooms.
(People vs. Gallermo, G.R. No. 123546, July 7, 1998, 95 SCAD 579).
Q
- A complaint was iled against a judge for reprehensible
conduct in engaging in the, ,publication of a gossip tabloid,
The Mirror, as editor and legal adviser and as a gossipmongering columnist of a local newspaper, Sun Star Clark.
Complainant alleged that respondent used his newspaper
column to ventilate his biases or personal anger at people or
institutions. For instance, when respondent failed to receive
payment from the Oice of the Governor for advertisement
in exchange for a congratulatory messages in the maiden
issue of The Mirror, respondent placed a blank space
purportedly for the governor's message, and expressed
contempt with a few lines underneath a picture of the
governor. Complainant believes that respondent judge
should not engage in active, sensational, and free-for-all
journalistic writing because such act degrades the judicial
system and compromises his impartiality as an administrator
of justice. He likewise persistently attacked the governor for
his movie-making activities.
Can the judge be dismissed for his acts? Why?
ANS. - Yes. The Code of Judicial Conduct mandates that a judge should
avoid impropriety and the appearance of impropriety in all activities.
The personal behavior of a judge not only upon the Bench but also in
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his everyday life should be above reproach and free from the
appearance of impropriety.
There is a diference between freedom of expression and
compromising the dignity of the Court through publications of
emotional outburst and destructive criticisms. Respondent's writing
of active and vicious editorials compromises his duties as judge in
the impartial administration of justice, for his views printed on
newspapers relect on his oice as well as on the public oicers that
he challenges. From the standpoint of conduct and demeanor
expected of a judge, resort to intemperate language only detracts
from the respect due a member of the judiciary and becomes selfdestructive.
Moreover, in persistently attacking the moviemaking activities of
the provincial governor and repeatedly threatening to ile an action
against a public oicer, respondent encourages litigation and causes
dissension against the public oicer concerned.
As a judge,
respondent's role is to maintain equanimity and not instigate litigation.
This is not to say that one cannot question the improper activities of
government oicials if there are any. However, it is not proper for a
judge to write publications of carelessly-worded editorials in local
newspapers. (Benalfre J. Galang vs. Judge Abelardo H. Santos, A.M. No.
MTJ-99-1197, May 26, 1999).
Q
- After the hearing of the petition for bail, the court issued
an order denying the same on the ground that the evidence
of guilt is strong. The petitioner iled a motion for
reconsideration, but was denied, the court ruling that it has
already clearly spelled out the grounds relied upon in the
denial of the motion. The accused asked for the inhibition of
the judge contending that because of the actuations of the
judge, he has already become biased, hence, he stands no
chance at all in court presided by the judge. Is the motion
proper? Why?
ANS. - No. The orders denying the petition for bail and the motion for
reconsideration do not suiciently prove bias and prejudice to
disqualify the judge under Sec. 1, Rule 37 of the Rules of Court. For
such bias and prejudice, to be a ground for disqualiication, must be
shown to have stemmed from an extrajudicial source, and result in
an opinion on the merits on some basis other than what the judge
learned from his participation in the case. Opinions formed in the
course of judicial proceedings, as long as they are based on the
evidence presented and conduct observed by the judge, even if
found later on as erroneous, do not prove personal bias or prejudice
on the part of the judge. Extrinsic evidence is required to establish
bias, bad faith, malice or corrupt purpose, in addition to palpable
error which may be inferred from the decision or order itself.
(Victorio Aleria, Jr. vs. Hon. Alejandro Velez, Jr., G.R. No. 127400,
November 16, 1998, 100 SCAD 720, citing Webb vs. People, 85
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SCAD 66, 276 SCRA 243).
Q
- A judge ordered the release of the accused knowing that the
cash deposit for his bail was not yet suicient. Is he liable for
his act? Why?
ANS. - Yes, because the error was gross and patent violation of law and the
rules on bail. While it is true that a judge may not be held
administratively accountable for every erroneous order or decision
(Guillermo vs. Reyes, 58 SCAD 130, 240 SCRA 154), yet if the error is
gross or patent, malicious, deliberate or in evident bad faith, he may
still be liable. The reason for this is that he is expected to have a more
than cursory acquaintance with the rules on bail. Failure to follow basic
legal commands embodied in the law and the rules constitutes gross
ignorance of the law (Del Rosario, Jr. vs. Bartolome, 81 SCAD 281, 270
SCRA 645; Aurillo vs. Francisco, 54 SCAD 352, 235 SCRA 283) from
which no one may be excused, not even a judge. (Evelyn De Austria vs.
Judge Orlando D. Beltran, A.M. No. RTJ-98-1406, September 1, 1999).
Q
- Maya judge be held administratively accountable for every
erroneous order or decision he rendered? Why?
ANS. - No. As a rule, a judge may not be held administratively accountable
for every erroneous order or decision he renders. To unjustiiably hold
otherwise, assuming that he has erred, would be short of harassment
and would make his position doubly unbearable, for no one called upon
to try the facts or interpret the law in the process of administering
justice can be infallible in his judgment. The error must be gross or
patent, malicious, deliberate or in evident bad faith. It is only in this
latter instance when the judge acts fraudulently or with gross
ignorance, that administrative sanctions are called for as an imperative
duty of this Court. (Evelyn de Austria vs. Judge Orlando D. Beltran, A.M.
No. RTJ-98-1406, September 1, 1999; Panganiban vs. Judge Pablo B.
Francisco, et al., A.M. No. RTJ-98-1425, November 16, 1999).
Q
- Give examples of defenses of a judge charged with ignorance
of the law.
ANS. - Good faith and absence of malice, corrupt motives or improper
considerations are suicient defenses in which a judge charged with
ignorance of the law can ind refuge. (Evelyn de Austria vS. Judge
Orlando D. Beltran, A.M. No. RTJ-98-1406, September 1, 1999, citing
Guillermo vs. Reyes, 58 SCAD 130, 240 SCRA 154).
Q
- Are the acts of a judge in his judicial capacity subject of
disciplinary action? Is the rule absolute? Explain.
ANS. -No. As a matter of public policy, in the absence of fraud, dishonesty or
corruption, the acts of a judge in his judicial capacity are generally not
subject to disciplinary action, even though such acts are erroneous.
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(Morada vs. Judge Tayao, 48 SCAD 131, 229 SCRA 723, citing Louis
Vuitton S.A. vs. Judge Villanueva, 216 SCRA 121; Mendoza vS. Villaluz,
106 SCRA 664). As has been stated in the recent case of Santos vs.
Judge Jose Orlino, A.M. No. RTJ-98-1418, September 25, 1998, 98 SCAD
752:
"The fundamental propositions governing responsibility for judicial error were
more recently summarized in 'In Re: Joaquin T. Borromeo,' 59 SCAD 1
[1995J, 241 SCRA (1995). There the Court stressed inter alia that given
the nature of the judicial function and the power vested in the SC and
the lower courts established by law, administrative or criminal
complaints are neither alternative nor cumulative to judicial remedies
where such are available, and must wait on the result thereof Existing
doctrine is that judges are not liable for what they do in the exercise of
their judicial functions when acting within their legal powers and
jurisdiction. (Alzua, et al. vs. Johnson, 21 Phil. 308, 326; Sec. 9, Act No.
190). Certain it is that a judge may not be held administratively
accountable for every erroneous order or decision he renders. (Rodrigo
vs. Quijano, 79 SCRA 10). To hold, otherwise, would be to render
judicial oice untenable, for no one called upon to try the facts or
interpret the law in the process of administering justice can be
infallible in his judgment. (See Lopez vs. Corpuz, 78 SCRA 374; Pilipinas
Bank vs. Tirona-Liwag, 190 SCRA 834). The error must be gross or patent, deliberate and malicious or incurred with evident bad faith.
(Quizon vs. Baltazar, Jr., 65 SCRA 293)."
If an alleged error of a judge cannot amount to gross misconduct
and bereft of any persuasive showing of deliberate or malicious intent
to cause prejudice to any party, the administrative complaint against
him insofar as the charge for gross misconduct is concerned, must be
dismissed for want of factual basis. (Jewel F. Canson vs. Hon. Francis F.
Garchitorena, et al., SB-99-9-J, July 28, 1999).
Q
- An applicant for a position was told by the judge that in
exchange for his signature on her employment, she would
become his girlfriend. Thereafter, he went on to kiss her
against her will. After learning that her application had been
approved, he called her to his chamber and said that she was
already his girlfriend. He went on to embrace her, kiss her, and
touch her right breast. Can the judge be punished? Why?
ANS. - Yes, because not only did he fail to live up to high moral standards
of the judiciary, he even transgressed to ordinary norms of
decency expected of every person. The conduct of a judge,
whether oicial or private, must be beyond reproach and above
suspicion. A member of the Bench must not only be a good
judge; he or she must also be a good person. (Dawa vs. De Asa,
96 SCAD 373, 292 SCRA 703). This is necessary so as not to
erode the faith and conidence of the public in the judiciary.
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(Naval vs. Panday, 84 SCAD 691, 275 SCRA 654). In the inal
analysis, such faith and conidence is anchored on the highest
standard of integrity and moral uprightness that judges are expected to possess. As ruled in Junio vs. Rivera, Jr., 44 SCAD 308,
225 SCRA 688:
"All judges on all levels of the judicial hierarchy, from this Court down
to the Municipal or Metropolitan Trial Courts, are bound to observe
the above exacting standards. There is however, a special reason for
requiring compliance with those standards from those who are front
liners of the judicial department. As such, a judge is the most visible
living representation of the country's legal and judicial system. He is
the judicial oficer who on a day-to-day basis deals with the disputes
arising among simple, rural people who comprise the great bulk of
our population. He is the judicial oicer who comes into closest and
most frequent contact with our people. The judiciary as a whole and
its ability to dispense justice are inevitably measured in terms of the
public and private acts of judges in the grass roots level. It is
essential, therefore, if the judiciary is to engage and retain the
respect and conidence of our nation, that this Court insist that
municipal judges and all other judges live up to the high standards
demanded by our case law and the Code of Judicial Conduct, and by
our policy."
The judge's lustful conduct was aggravated by the fact that he
was the superior of the complainant. Instead of acting in loco
parentis toward his subordinate employee, he took advantage of his
position and preyed on her. (Ana May M. Simbajon vs. Judge Rogelio
M. Esteban, A.M. No. MTJ-98-1162, August 11,1999, citing TalensDabon vs. Arceo, 72 SCAD 527, 259 SCRA 354).
Q
ANS. -
- Will the retirement of a judge preclude the inding of any
administrative liability on his part? Why?
No. The retirement of a judge or any judicial oicer from the service
does not preclude the inding of any administrative liability to which
he shall still be answerable. In Gallo vs. Cordero, 61 SCAD 956, 245
SCRA 219, it was said that since the court had this jurisdiction at the
time of the iling of the administrative complaint it was not lost by
the mere fact that the respondent public oicial had ceased in oice
during the pendency of his case. The Court retains its jurisdiction
either to pronounce the respondent oicial innocent of the charges
or declare him guilty thereof. A contrary rule would be fraught with
injustice and pregnant with dreadful and dangerous implications. If
innocent, respondent oicial merits vindication of his name and
integrity as he leaves the government which he has served well and
faithfully; if guilty, he deserves to receive the corresponding censure
and a penalty proper and imposable under the situation. (Villa
Macasasa, et at. vs. Judge Fausto H. Imbing, A.M. No. RTJ-99-1470,
August 16, 1999).
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Q
- A judge should act beyond reproach and suspicion. Does
this mandate include his personal behavior? Why?
ANS. -
Yes. A judge should conduct himself beyond suspicion and
reproach, and be free from appearance of impropriety in his
personal behavior, not only in his oicial duties, but also in his
everyday life. No position demands greater moral righteousness
and uprightness than a seat in the judiciary. A judge must be the
epitome of integrity and justice. (Assn. of Court Employee vs.
Tupas, July 12, 1989).
Q
- State how a judge should conduct himself in the
performance of his duties and in his dealings with others.
ANS.
-The court exists to promote justice (Canon 2, Canons of Judicial
Ethics); accordingly, the judge's oicial conduct should be free from
appearance of impropriety, and his personal behavior, not only upon
the bench and in the performance of oicial duties, but also in his
everyday life, should be beyond reproach. (Canon 3, id.). He is the
visible representation of the law and, more importantly, of justice.
(Oice of the Court Administrator vs. Gines, 43 SCAD 76, 224 SCRA
262 [1993]; Inciong vs. De Guia, 154 SCRA 93 [1987]; Dela Paz vs.
Inutan, 64 SCRA 540 [1975]). He should administer his oice with a
due regard to the integrity of the system of the law itself,
remembering that he is not a depositary power, but a judge under
the sanction of law. (Canon 18; Guillen, et al. vs. Judge Nicolas, A.M.
MTJ-98-1166, 101 SCAD 397, December 4, 1998, citing Caamic vs.
Galapon, 56 SCAD 14, 237 SCRA 390).
Q
-Describe the duty of a judge whenever an accused pleads
guilty to a capital ofense.
ANS. -Trial courts must exercise meticulous care in accepting a plea of guilty
in a capital ofense. Judges are duty-bound to be extra solicitous in
seeing to it that when an accused pleads guilty, he understands fully
the meaning of his plea and the import of his inevitable conviction.
(People vs. Gonzaga, 127 SCRA 158). Courts must proceed with more
care where the possible punishment is in its severest form, like death,
for the reason that the execution of such a sentence is irrevocable.
Experience has shown that innocent persons have at times pleaded
guilty. (People vs. Albert, 66 SCAD 456, 251 SCRA 136). Only a clear,
deinite and unconditional plea of guilty by the accused must be
accepted by trial courts. (ibid.). There is no such rule which provides
that simply because the accused pleaded guilty to the charge that his
conviction should automatically follow. (People vs. Mendoza, 42 SCAD
118,231 SCRA 264). A judge should always be an embodiment of
competence. (Rule 1.01, Canon1, Code of Judicial Conduct). As an
administrator of justice, it is imperative that the trial judge carry out his
duties ably and competently so as not to erode public conidence in the
judiciary. (People vs. Sevillano, et al., G.R. No. 129058, 105 SCAD 296,
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March 29, 1999).
Q
- In a criminal case for falsiication and use of falsiied
document, the judge was charged with impartiality for having
failed to inhibit himself despite the fact that he was related to
the accused within the fourth degree of ainity, thewife of the
accused being the irst cousin of the judge. Was the act of the
judge proper? Explain.
ANS.-No. Under Rule 137, Sec. 1 of the Rules of Court, ajudge who is related
within the sixth degree of consanguinity or ainity to a party in a case
is disqualiied from sitting in the case without the consent of all parties,
expressed in writing, signed by them, and entered upon the record.
This prohibition is not limited to cases in which he acts by resolving
motions and issuing orders as respondent judge has done in the
subject criminal case. The purpose of the prohibition is to prevent not
only a conlict of interest but also the appearance of impropriety on the
part of the judge. A judge should take no part in a proceeding where his
impartiality might reasonably be questioned (Canon 3, Rule 3.12) and
he should administer justice impartially and without delay. (Canon 1,
Rule 1.02; Lazo vs. Judge Antonio Tiong, A.M. No. MTJ-98-1173,
December 15, 1998, 101 SCAD 692).
Q
- A judge was caught in the act of demanding and receiving
money from a party-litigant. Is the act suicient to remove
him? Why?
ANS. -Yes. A judge should always be a symbol of rectitude and propriety,
comporting himself in a manner that will raise no doubt whatsoever
about his honesty. (Yuson vs. Noel, 45 SCAD 116,227 SCRA 1). The conduct of respondent judge shows that he can be inluenced by monetary
considerations. His act of demanding and receiving money from a
party-litigant constitutes serious misconduct in oice. It is this kind of
gross and launting misconduct, no matter how nominal the amount
involved on the part of those who are charged with the responsibility of
administering the law and rendering justice quickly, which erodes the
respect for law and the court. (Oice of the Court Administrator vs.
Gaticales, 208 SCRA 508).
The respondent judge tainted the image of the Judiciary to which
he owes fealty and the obligation to keep it at all times unsullied and
worthy of the people's trust. (Garcia vs. Dela Penia, 48 SCAD 171, 229
conduct. He violated the established norms of judicial behavior and the
best interest of the judiciary demands that he be dismissed from
service.
Q
- What are some of the grounds for the dismissal of a judge?
State the reasons.
ANS. - Some acts that may warrant dismissal of a judge:
(a)
acceptance of bribe;
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(b)
holding oice and conducting hearings at his residence;
(c)
use of physical violence against the personnel of his court who
failed to deliver the entire volume of nipa ordered by him for the
roof of his house; (lmpao vs. Makilala, A.M. No. MTJ-88-184, October 13, 1989, 178 SCRA 541).
(d)
receiving money from litigants and borrowing from them without
paying back;
(e)
ordering a litigant to install an air-conditioning unit for the car of
his wife. (Ompoc vs. Torres, Sept. 17, 1989).
Reasons:
Members of the judiciary should display not only the highest
integrity but at all times conduct themselves in such a manner as to be
beyond reproach and suspicion. The respect and conidence of the
public may justiiably be eroded if the conduct of an erring judge is
condemned. (Paredes vs. Buduha, Dec. 7, 1989).
Q
- An RTC judge was ined and required to pay an amount
equivalent to three (3) months salary. He dismissed six
informations for violation ofBP BIg. 22 because the checks
were undated,hence, were mere promissory notes; the issuance did not constitute criminal acts; that their collection
can be properly made in a civil case. Was the act of the
judge proper? Why?
ANS. -No, in fact, the judge was ined for ignorance of the law. His opinion
that the checks were invalid because they were not dated also
revealed his unfamiliarity with Sec. 6 of the Negotiable Instrument Law.
(Torres vs. Pedrosa, Aug. 22, 1989). It is the duty of a judge to keep
abreast with the law and jurisprudence.
Q
-Maya judge be subjected to disciplinary action in case of mis
appreciation of evidence? Is the rule absolute? Explain.
ANS. -No. In Miranda vs. Manalastas, Dec. 21, 1989, the Supreme Court said
that mere error in the appreciation of evidence, unless so gross and
patent as to produce an inference of ignorance or bad faith or that the
judge unknowingly rendered an unjust judgment, are irrelevant in
administrative proceedings against the judge. A judge is not infallible in
his judgment. All that is expected of him is that he follows the rules
prescribed to ensure fair and impartial hearing.
A judge may not be administratively liable for erroneous ruling.
Q
- If a party iled an administrative case against a judge, will
this incident constitute a ground to disqualify the judge from
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trying the case? Why?
ANS. - No. In Aparicio vs. Andal, July 25, 1989, the Supreme Court said that
the mere iling of an administrative case does not constitute a
ground to disqualify a judge from hearing the case, otherwise, many
cases would have to be kept pending or there might not be enough
judges to handle all the cases pending in all courts. There must irst
be a showing of arbitrariness or prejudice before the judge can be
considered partial or bias.
Hence, if a judge denies the motion to inhibit him, his continued
cognizance of the case pending before him is proper, if no TRO or
injunction is issued against him.
Q
- State the efect if a judge shows signs of partiality and prejudgment in a case. Why?
ANS. - The judge can be inhibited from further trying the case.
Partiality and pre-judgment can be just and valid reasons for the
judge to voluntarily inhibit himself. But mere suspicion that he is partial
is not enough. There must be evidence to prove the charge. (Fecundo
vs. Benjamin, Dec. 18, 1989). A litigant is entitled to the fairness and
cold neutrality of an impartial judge.
Q
- Madam C sought the assistance of a judge in
expediting the intestate estate proceedings of her deceased
common-law husband. He, however, took advantage of her
helplessness and state of material depredation and took her
as his mistress. Was the act of the judge proper? Why?
ANS.
-No, because a judge should personify judicial integrity and
exemplify honesty in public service. The personal behavior of a
judge, both in the performance of oicial duties and in private life
should be above suspicion. The exploitation of women becomes
reprehensible when the ofender commits injustice by the brute
force of his position of power and authority. (Calanog case).
Q
- Maya judge be held to answer for an erroneous decision
which he rendered? Why?
ANS. -A judge cannot be held to account or answer, criminally, civilly, or
administratively for an erroneous decision rendered by him in good
faith. While the Supreme Court does not require perfection and infallibility, it reasonably expects a faithful and intelligent discharge of duty
by those who are selected to ill the positions of administrators of
justice.
Q
- A judge has already retired when an administrative case was
iled against him. Is he still within the court's jurisdiction?
Why?
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ANS. - Yes. Even if a judge has already retired before the administrative case
was iled against him, the Supre me Court held that the court has not
lost its jurisdiction over him even if his retirement has been approved,
for his retirement beneits have not yet been paid. The reason for this
is that the people would have no remedy left anymore. By reason of
public policy, the Court must assert and maintain jurisdiction for acts
performed in oice which are inimical to the service and prejudicial to
the interest of the litigants and the general public.
Q
-Maya judge who exercises his judicial function be made liable
for damages? Why?
ANS. -A judge who exercises his judicial functions cannot be liable for
damages. The test of liability is not jurisdiction, but the nature of the
question which is being determined when the error complained of is
committed by the court. (Aparicio vs. Andal, G.R. No. 8658793, July 25,
1989). He is not liable even though there is in reality absolute failure of
jurisdiction over the subject matter. For, judges are excluded from
liability under Art. 32, New Civil Code, provided, their acts do not
constitute a violation of the Revised Penal Code.
Q
- An RTC Judge was removed on charges of immorality and
conduct unbecoming of a public oicial. It was alleged that he
maintained a mistress, having been the father of two children
with her, inspite his being a married man. Is the act of the
judge proper? Why?
ANS. -No, because the judge has behaved in a manner not becoming of his
robes and as a model of rectitude, betrayed the people's high
expectations, and diminished the esteem in which they hold the
judiciary in general.
The circumstances show a lack of circumspection and delicadeza
on the part of the respondent judge by failing to avoid situations that
make him suspect to committing immorality and worse, having that
suspicion conirmed especially so that under Canon 1, Rule 1.01, a
judge should be the embodiment of competence, integrity, probity and
independence.
The Code of Judicial Ethics mandates that the conduct of a judge
must be free from impropriety not only with respect to the performance
of his judicial duties, but also to his behavior outside his sala and as a
private individual. There is no dichotomy of morality: a public oicial is
also judged by his private morals. The Code dictates that a judge, in
order to promote public conidence in the integrity and impartiality of the
judiciary, must behave with propriety at all times. A judge's oicial life
can not simply be detached or separated from his personal existence.
Thus:
"Being the subject of constant public scrutiny, a judge should freely
and willingly accept restrictions on conduct that might be viewed as
burdensome by the ordinary citizen."
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Q
- Explain the res ipsa loquitor doctrine in the investigation of
errant judges.
ANS. -In these res ipsa loquitur resolutions, there was on the face of the
assailed decisions an inexplicable grave error bereft of any redeeming
feature, a patent railroading of a case to bring about an unjust decision, or a manifestly deliberate intent to wreak an injustice against a
hapless party.
The res ipsa loquitur doctrine does not accept or dispense with
the necessity of proving the facts on which the inference or evil intent
is had. It merely expresses the clearly sound and reasonable conclusion
that when such facts are admitted or are already shown by the record,
and no credible explanation that would negative the strong inference of
evil intent is forthcoming, no further hearing to establish them to
support a judgment as to the culpability of a respondent is necessary.
(In re: Judge Baltazar Dizon, Adm. Case No. 3086, May 31, 1989).
Q
- In Clemencio Sabitsana, Jr. vs. Judge Adriano Villamore, RTJ
No. 90-474, Oct. 4, 1991, a complaint was iled alleging that
in his monthly certiicates of service, he made it appear that
he had resolved all cases submitted for decision within the
90-day period when in truth, he had 15 cases undecided
from 5 years back or from March 1985. Was the act of the
judge proper? Why?
ANS. -No. A member of the Bench cannot pay mere lip service to the 90-day
requirement, but should, in fact, persevere in its implementation. The
Certiicate of Service is not merely a means to one's paycheck, but an
instrument by which the Courts can fulill the constitutional mandate of
the people's right to a speedy disposition of cases. Thus, it has been
ruled:
"The people's faith in the administration of justice, especially those who
belong to the low income group, would be greatly impaired if decisions
are long in coming, more so from trial courts which unlike collegiate
tribunals where there is a need for extended deliberation, could be
expected to act with dispatch." (Magdamo vs. Pahimulin, Adm. Matter
No. 662-MJ, 30 September 1976, 73 SCRA 110).
Q
- Should a judge show undue interest in a pending case before
another court? Why?
ANS. -No. Cardinal is the rule that a judge should avoid impropriety in all
activities. The Canons mince no words in mandating that a judge shall
refrain from inluencing in any manner the outcome of litigation or
dispute pending before another Court. (Canon 2, Rule 2.04).
Interference by members of the Bench in pending suits with the end in
view of inluencing the course or the result of litigation does not only
subvert the independence of the judiciary but also undermines the
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people's faith in its integrity and impartiality. (Commentaries on the
Code of Judicial Conduct). On this point, Impao vs. Makilala (A.M. No.
MTJ-88-184, October 13, 1989, 178 SCRA 541) expounds:
"It is an important judicial norm that a judge's private as well as
oicial conduct must at all times be free from the appearance of impropriety." (Lugue vs. Kayanan, G.R. No. L
26828, August 29, 1969,29 SCRA 165; x x x). As held by this Court in the
case of Dela Paz vs. Inutan, Adm. Matter No. 201 MJ, June 30, 1975, 64
SCRA 540:
"The judge is the visible representation of the law and, more
importantly, of justice. From him, the people draw their will and
awareness to obey the law. They see in him an intermediary of justice
between two conlicting interests, especially in the station of municipal
judges, like respondent Judge, who have that close and direct contact
with the people before anybody else in the judiciary. Thus, for the
judge to return that regard, he must be the irst to abide by the law
and weave an example for the others to follow."
Q
- If a judge reconsiders his decision/order, can he be charged
administratively? Why?
ANS. -No. It is the prerogative of a judge to correct his own decision before it
becomes inal and executory, so as to make it conform to the evidence
presented and the applicable laws. (Baguyo vs. Leviste, 107 SCRA 35).
The rule is true for as long as the judge is in good faith which is always
possessed.
A judge is not administratively accountable for every erroneous
ruling or decision rendered, provided, he acts in good faith and without
malice. (Mendoza vs. Villaluz, 106 SCRA 664). The proper remedy of the
aggrieved party is not an administrative charge against the judge but
an appeal or petition for review of his decision. (Martin vs. Judge
Placido Vallarta, A.M. No. MTJ-90-495, Aug. 12, 1991).
Q
- What is the efect if a judge allows the release of an accused
who was convicted of a non-bailable ofense? Why?
ANS.
- The judge is guilty of gross misconduct when he allowed accused
individuals duly convicted of non-bailable ofenses and drug pushers
at that - to enjoy provisional liberty by way of bail. Under the facts
obtaining in these cases, good faith cannot be presumed on the part
of the respondent judge. The suspicious circumstances attending
the cases in point are far too glaring to ignore. (Villa vs. Amonoy,
A.C. RTJ-89-395, Feb. 13, 1991).
- How do you describe the oice of a judge? Explain.
Q
ANS. -The oice of a judge exists for one solemn end – to promote justice by
administering it fairly and impartially. (Gonzales vs. Austria M. Abaya,
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176 SCRA 634). The judge is the visible representation of the law and
of justice. From him, the people draw their will and awareness to obey
the law. As such, he should avoid even the slightest infraction of the
law. (Inciong vs. De Guia, 154 SCRA 93; Dela Paz vs. Inutan, 64 SCRA
56, 177 SCRA 435). In Santos vs. Lumang, it was said that a judge who,
through gross ignorance of the laws or serious misconduct, frustrates
the people's search for justice, commits a rank disservice to the cause
of justice which calls for rectiication and the imposition of appropriate
disciplinary measures. In Summers vs. Ozaeta, 81 Phil. 754, it has been
said that a judge's position demands equanimity, prudence, fortitude
and courage.
Q
- For failure to pay a just debt, a judge was inedP20,OOO.OO.
Was the penalty proper? Why?
ANS. -Yes. Willful failure to pay a just debt is a serious ofense under Rule
140 of the Rules of Court, as amended by the resolution of the
Supreme Court, dated July 25, 1974. The amount involved (P4,500.00)
is not big. He could easily have paid it, but it appears that he was bent
on frustrating the complainant's best eforts to obtain satisfaction of
her lawful claim, apparently for no other intention than to annoy and
oppress her for having haled him and his wife into court. While an
ejectment case is supposed to be summary in nature, respondent
judge, through dilatory tactics, stretched the trial over a period of ten
(10) years, and dragged the case all the way from the municipal court
to the Court of Appeals. After the decision had become inal, he
delayed payment for two more years. He came across only after the
complainant in exasperation had iled this administrative charge
against him.
Respondent judge's conduct toward the complainant was
oppressive and unbecoming a member of the judiciary. He used his
position and his legal knowledge to welsh on a just debt and to harass
his creditor. His example erodes public faith in the capacity of courts to
administer justice. He violated Rule 2.0l. Canon 2 of the Code of Judicial
conduct which requires that "a judge should so behave at all times as
to promote public conidence in the integrity and impartiality of the
judiciary. (De Julio vs. Judge Benjamin Vega, A.M. No. RTJ-89-406, July
18, 1991).
Q
- What should the Oice of the Ombudsman do if a criminal
complaint against judge is iled with that oice? Why?
ANS. -Where a criminal complaint against a judge or other court employees
arises from their administrative duties, the Ombudsman must defer
action on said complaint and refer the same to the Supreme Court for
determination whether said judge or court employee had acted within
the scope of their administrative duties. This is so because Article VIII,
Section 6 of the 1987 Constitution exclusively vests in the Supreme
Court administrative supervision over all courts and court personnel,
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from the Presiding Justice of the Court of Appeals down to the lowest
municipal trial court clerk. By virtue of this power, it is only the
Supreme Court that can oversee the judges and court personnel's
compliance with all laws, and take the proper administrative action
against them if they commit any violation thereof. No other branch of
government may intrude into this power, without running afoul of the
doctrine of separation of powers. (Maceda vs. Vasquez, 221 SCRA 464,
April 22, 1993).
Q
- Mayan action of a judge in the exercise of his judicial function
be the subject of a disciplinary action? Is the rule absolute?
ANS. -No. As a general rule, the acts done by a judge in his judicial capacity
are not subject to disciplinary action, even though erroneous. These
acts become subject to disciplinary power only when they are attended
by fraud, dishonesty, corruption or bad faith. (Abiera vs. Maceda, 52
SCAD 581, 233 SCRA 520, June 30, 1994).
A judge is not administratively accountable for every erroneous
ruling or decision rendered, provided, he acts in good faith and without
malice. (Martin vs. Vallarta, 200 SCRA 469, Aug. 12, 1991).
Good faith and absence of malice, corrupt motives and improper
consideration are suicient defenses that may be availed of by a
judicial oicer charged with ignorance of the law and promulgation of
an unjust decision from being held accountable for errors of judgment,
on the premise that no one called upon to try the fact or interpret the
law in the administration of justice can be infallible. (Pilipinas Bank vs.
Tirona-Liwag, 190 SCRA 834, Oct. 18, 1990).
Q
- State the concept and elements of knowingly rendering
unjust judgment.
ANS. - Knowingly rendering an unjust judgment is both a criminal and an
administrative charge. As a crime, it is punished under Art. 204 of
the RPC, the elements of which are: (a) the ofender is a judge; (b)
he renders a judgment in a case submitted to him for decision; (c)
the judgment is unjust; and (d) the judge knows that his judgment is
unjust. The gist of the ofense therefore is that an unjust judgment
be rendered maliciously or in bad faith, that is, knowing it to be unjust.
An unjust judgment is one which is contrary to law or is not
supported by the evidence, or both. The source of an unjust judgment
may be error or ill-will. There is no liability at all when required to
exercise his judgment or discretion. A judge is not liable criminally for
any error which he commits, provided he acts in good faith. Bad faith is
therefore the ground of liability. If in rendering judgment the judge fully
knew that the same was unjust in the sense aforesaid, then he acted
maliciously and must have been actuated and prevailed upon by
hatred, envy, revenge, greed, or some other similar motive. Mere error
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therefore in the interpretation or application of the law does not
constitute the crime.
The nature of the administrative charge of knowingly rendering
an unjust judgment is the same as the criminal charge. Thus, it must
be established that the judge rendered a judgment or decision not
supported by law and/or evidence and that he must be actuated by
hatred, envy, revenge, greed, or some other similar motive.
If for every error of a judge he should be punished, then perhaps
no judge, however good, competent and dedicated he may be, can
ever hope to retire from the judicial service without a tarnished image.
Somehow along the way he may commit mistakes, however, honest.
This does not exclude members of appellate courts who are not always
in agreement in their views. Anyone belonging to the minority opinion
may generally be considered in error, and yet, he is not punished
because each one is entitled to express himself. This privilege should
extend to trial judges so long as the error is not motivated by fraud,
dishonesty, corruption, or any other evil motive. (Dela Cruz vs.
Concepcion, 54 SCAD 640, 235 SCRA 597, Aug. 25, 1994).
Q
-If a judge is charged and the complainant has lost interest in
prosecuting the case, will the case be dismissed? Why?
ANS. -No. The fact the complainant has lost interest in prosecuting the
administrative case against a judge will not necessarily warrant a
dismissal thereof. Once charges have been iled, the Supreme Court
may not be divested of its jurisdiction to investigate and ascertain
the truth of the matter alleged in the complaint. The Supreme Court
has an interest in the conduct of members of the Judiciary and in
improving the delivery of justice to the people, and its eforts in that
direction may not be derailed by the complainant's desistance from
further prosecuting the case he or she initiated.
To condition administrative actions upon the will of every
complainant, who may, for one reason or another, condone a
detestable act, is to strip the Court of its supervisory power to
discipline erring members of the Judiciary. Deinitely, personal
interests are not
material or controlling. What is involved here is a matter of public
interest considering that a judge is no ordinary citizen but an oicer of
the court whose personal behavior not only upon the bench and in the
performance of judicial duties, but also in his everyday life, should be
beyond reproach. (Imbing vs. Tiongson, 48 SCAD 101,229 SCRA 690,
Feb. 7, 1994).
Q -. X applied for the position of an RTC judge without revealing
that he has two pending cases. Is the act of X proper? Why?
ANS. -No. A judge is held guilty of gross misrepresentation when he failed to
disclose that he was facing two serious criminal charges when he
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accepted appointment and subsequently qualiied as RTC judge. The
argument that he had not yet been convicted and should be presumed
innocent is beside the point, and so is the contention that the crimes of
homicide and attempted homicide do not involve moral turpitude. The
important consideration is that he had a duty to inform the appointing
authority and the SC to determine on the basis of his record his
eligibility for the position he was seeking. (Oice of the Court
Administrator vs. Estacion, Jr., 181 SCRA 33, Jan. 11, 1990).
Q
- Why should a judge regulate his extrajudicialactivities?
ANS. -Judges are enjoined not only to regulate their extrajudicial activities in
order to minimize the risk of conlict with their judicial duties but also
prohibited from engaging in the private practice of law. (Balayan vs.
Ocampo, 218 SCRA 13, Jan. 29, 1993).
Q
- May a judge issue a subpoena to a person whohas no case in
his sala? Why?
ANS. -No. In the absence of a case in his sala in connection with which a
party could be subpoenaed, a judge has absolutely no power or
authority to issue a subpoena to such party.
Q
ANS.
The judge, in using a subpoena form for criminal cases to
summon a party upon the request of another who had no case
before his court, invited legitimate criticism against his oice as an
instrument of oppression. His act constitutes ignorance of the law
and oppression which should warrant disciplinary sanction. (Caamic
vs. Galapon, Jr., 56 SCAD 14, 237 SCRA 390, October 7, 1994).
- May a judge meet one of the parties i;n a case inside his
chambers without the other party and meddle with the issues
confronting the parties on the pretext of settling it? Why?
-No. In the absence of their lawyers, a judge ought not to
meddle in issues confronting the parties even on the pretext of
settling their cases as such act would compromise the integrity of
his oice. Judges are cautioned to avoid in-chamber sessions without
the other party and his counsel present, and to observe prudence at
all times in their conduct to the end that they not only act
impartially and with propriety but are also perceived to be impartial
and proper.
The act of a judge in meeting with complainants without the
presence of counsel and warning them not to tell anyone, and
demanding money under the guise of forging peace between the
parties constitutes grave misconduct. (Capuno vs. Jaramillo, Jr., 53
SCAD 329, 234 SCRA 212, July 20, 1994).
Q
- Maya judge solemnize marriage without marriage license?
Why?
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ANS .- No. For solemnizing marriages even without the requisite marriage
license, a judge is deemed to have actually triled with the law's
concern for the institution of marriage and the legal efects lowing
from civil status, which should merit administrative sanction, without
prejudice to the civil and criminalliabilities he may have incurred as
well. (Cosca vs. Palaypayon, Jr., 55 SCAD 759,237 SCRA 249, Sept. 30,
1994).
Q
- During the incumbency of a judge, he sent out handbills
indicating his intention to run for a congressional seat. Was
the act of the judge proper? Why?
ANS.
-No. A judge acted improperly when he sent out letters/handbills
manifesting his intention to run as a congressional candidate
while still the incumbent judge and prior to the commencement
of the campaign period. He took advantage of his position to
boost his candidacy, demeaned the stature of his oice and must
be pronounced guilty of gross misconduct. (Vistan vs. Nicolas,
201 SCRA 524, Sept. 13, 1991).
Q
- Should a judge report to his oice even if he has no hearings?
Why?
ANS. -Yes. A judge must report to his oice even if he has no hearings on
regular days. The law regulating court sessions does not permit any
"day of' from regular oice hours to enable the judge to engage
exclusively in research or decision-making, no matter how important.
(Mendoza vs. Mabutas, 42 SCAD 423, 225 SCRA 411, June 17, 1993).
Q
- A judge used his chambers as his family's residence. Was the
ANS. -No. A judge cannot use his chambers as his family's residence even
with the Governor's permission. Government property is for oicial use
only and not for the personal use of the oicial. (Presado vs. Geova, 42
SCAD 507, 223 SCRA 489, June 21, 1993). Court rooms cannot be used
as judge's living quarters. (Felongco vs. Dictado, 42 SCAD 700, 223
SCRA 696).
Q
- If the order of a judge was questioned before a higher court,
should he appear personally to seek a reversal of the order that is
unfavorable to his action? Why?
ANS. -No. The judge whose order is under attack is merely a nominal
party. Wherefore, a judge, in his oicial capacity should not be made
to appear as a party seeking reversal of a decision that is
unfavorable to the action taken by him. A decent regard for the judicial hierarchy bars a judge from suing against the adverse opinion
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of a higher court. (Santiago vs. CA, 184 SCRA 690, April 27, 1990).
Q
- The judge failed to render judgment in a case within the
reglementary period. His reason is the failure of the
stenographer to transcribe the notes. Was the contention
proper?
ANS. -
No. A delay in the transcription of stenographic notes cannot
be considered a valid reason for the delay in rendering judgment
in a case. With or without the transcribed stenographic notes, the
90-day period for deciding cases should be adhered to. (Balagot
vs. Opinion, 195 SCRA 429, March 20, 1991).
In one case, the Supreme Court said that the failure to decide
a case particularly one involving a simple violation of the
Bouncing Checks Law for over ive years is an inordinate amount
of procrastination tantamount to gross negligence. It is not
enough for judges to pen their decisions; it is also important to
promulgate and make them known to all concerned at the
earliest possible time and within the mandated period. (Soyangco
vs. Maglalang, 196 SCRA 5, April
19, 1991).
Q
- Describe the power of courts to cite persons in contempt.
ANS. -The power to declare a person in contempt of court and in dealing with
him accordingly is an inherent power lodged in courts of justice to be
used as a means to protect and preserve the dignity of the court, the
solemnity of the proceedings therein and the administration of justice
from callous misbehavior, ofensive personalities, and contumacious
refusal to comply with court orders.
And as in all other power of the court, the contempt power,
however, plenary it may seem, must be exercised judiciously and
sparingly.
Clearly then, judges are enjoined to exercise utmost restraint in
the use of their contempt powers. They are expected to avail of the
contempt power only as a last resort when all other alternative courses
of action are exhausted in the pursuit of maintaining respect to the
court and its processes. Thus, when a less harsh remedy presents itself
to the judge, he should at all times hesitate to use his contempt power,
and instead opt for the less harsh remedy. (De Guia vs. Guerrero, Jr., 54
SCAD 1,234 SCRA 625, August 1, 1994).
Q
- Is "immorality" as a ground for imposition of ad. ministrative
sanctions limited to illicit sexual intercourse alone?
ANS.
-No. Immorality has not been conined to sexual matters, but
inCludes conduct inconsistent with rectitude, or indicative of
corruption, indecency, depravity, and dissoluteness; or is willful,
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lagrant or shameless conduct showing moral indiference to opinions
of respectable members of the community, and as inconsiderate
attitude toward good order and public welfare. (Black's Law Dictionary,
Sixth ed., 1990, 751; cited in Alfonso vs. Judge Juanson, Adm. Matter
No. RTJ-92-904, Dec. 7, 1993,46 SCAD 603).
For, it has been held that there is no dichotomy of morality; a
public oicial is also judged by his private morals. The Code of Judicial
Ethics dictates that a judge, in order to promote public conidence in
the integrity and impartiality of the judiciary, must behave with
propriety at all times. A judge's oicial life can not simply be detached
or separated from his personal existence. (Junio vs. Rivera Jr., 44 SCAD
308, 225 SCRA 688, Aug. 30, 1993).
In Sicat vs. Alcantara, et al., 161 SCRA 284, May 11, 1988,
wherein the respondent judge was chargedwith immorality for
having an illicit afair with a married female court employee, the
Supreme Court declared:
"The personal and oicial actuations of every member of the
Bench must be beyond reproach and above suspicion. The faith and
conidence of the public in the administration of justice cannot be
maintained if a judge who dispenses it is not equipped with the
cardinal judicial virtue of moral integrity, and if he obtusely continues
to commit an afront to public decency. In fact, moral integrity is more
than a virtue; it is a necessity in the Judiciary."
In another case where a municipal judge was charged with
having illicit relations with a concubine under scandalous
circumstances, it was stated that if good moral character is required of
a lawyer, with more reason should that requirement be exacted of a
member of the Judiciary who at all times is expected to observe
irreproachable behavior and is bound not to outrage public decency.
Thus, even as an ordinary lawyer, a judge has to conform to the strict
standards of conduct demanded of members of the profession.
Deinitely, fathering a child with a woman other than his lawful wife
fails to meet these standards. A judge sufers from moral obtuseness or
has a weird notion of morality in public oice when he labors under the
delusion that he can be a judge and at the same time have a mistress
in deiance of the mores and sense of morality of the community.
(lmbing vs. Tiongson, 48 SCAD 101,229 SCRA 690, Feb. 7, 1994).
Q
- Explain the basic reason for disqualiication of judges.
ANS. -
The underlying reason for the Rule on Disqualiication of Judges
under Sec. 1, Rule 137, Rules of Court, is to ensure that a judge,
sitting in a case, will at all times be free from inclinations or
prejudices and be well capable to render a just and independent
judgment. A litigant, we often hear, is entitled to nothing less than
the cold neutrality of a judge. Due process requires it. Indeed, he not
only must be able to so act without bias but should even appear to
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be so. Impartiality is a state of mind; hence, the need for some kind
of manifestation of its reality.
Verily, a judge may, in the exercise of his sound discretion, inhibit
himself voluntarily from sitting in a case, but it should be based on
good, sound or ethical grounds, or for just and valid reasons. It is not
enough that a party throws some tenuous allegations of partiality at
the judge. No less than imperative is that it is the judge's sacred duty
to administer justice without fear or favor. (Parayno vs. Meneses, 50
SCAD 170,231 SCRA 807, April 26, 1994).
Q
- Why should a judge who is related to a party in a case
pending in his sala disqualify himself?
ANS. -
The rule of compulsory disqualiication of a judge to hear a case
where the judge is related to either party within the sixth degree of
consanguinity or ainity rests on the salutary principle that no judge
should preside in a case in which he is not wholly free, disinterested,
impartial and independent. A judge has both the duty of rendering a
just decision and the duty of doing it in a manner completely free
from suspicion as to its fairness and as to his integrity. The law
conclusively presumes that a judge cannot objectively or impartially
sit in such a case and, for that reason, prohibits him and strikes at
his authority to hear and decide it, in the absence of written consent
of all parties concerned. The purpose is to preserve the people's
faith and conidence in the courts of justice. (Garcia vs. Dela Peiia,
48 SCAD 171, 229 SCRA 766).
Q
- The respondent was charged with immorality and
violation of the Code of Judicial Ethics. The acts were allegedly
committed when he was still a practitioner. The complainant
alleged that respondent had carnal knowledge with his wife in
at least ive (5) occasions without specifying the dates. In fact,
his wife allegedly admitted having sexual intercourse with him.
Now that he is a judge, can he be removed for those acts he
committed when he was still a practitioner? Explain.
ANS.
-No, for the acts were done before he became a judge. Proof of
prior immoral conduct cannot be the basis for his administrative
discipline. The respondent may have undergone moral reformation
after his appointment, or his appointment could have completely
transformed him upon the solemn realization that apublic oice is a
public trust and public oicers and employees must at all times be
accountable to the people, serve them with utmost responsibility,
integrity, loyalty and eiciency, act with patriotism and justice, and
lead modest lives. (Section 1, Article XI,1987 Constitution). It would
be unreasonable and unfair to presume that since he had wandered
from the path of moral righteousness, he could never retrace his
steps and walk proud and tall again in the path. No man is beyond
reformation and redemption. A lawyer who aspires for the exalted
position of a magistrate knows, or ought to know, that he must pay a
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high price for the honor - his private and oicial conduct must at all
times be free from the appearance of impropriety. (Jagueta vs.
Boncaros, 60 SCRA 27 [1974]). And the lawyer who is thereafter
appointed thereto must perforce be presumed to have solemnly
bound himself to a way of conduct free from any hint or suspicion of
impropriety. The imputation of illicit sexual acts upon the incumbent
judge must be proven by substantial evidence, which is the quantum
of proof required in administrative cases. (Alfonso vs. Judge Modesto
Luanson, Dec. 7, 1993,46 SCAD 603).
Q - Judge Enrique A. Cube was, on May 31, 1993 appointed
Presiding Judge of Metropolitan Trial Court, Branch 22, Manila.
Subsequently, information was received by the Judicial and Bar
Council that he was previously dismissed in 1972 as Assistant
Fiscal of Pasay City for gross misconduct and dereliction of duty
for failure to prosecute a criminal case which led to its dismissal
with prejudice.
Cube applied for appointment to the Judiciary sometime in
1992. In the Personal Data Sheet he was required to
accomplish, one of the questions asked was: "Have you ever
been retired, dismissed, forced to resign from any employment
for reason other than lack of funds or dropped from the rolls?
His answer was "Optional under RA 1145."
RA 1145 is entitled "An Act Creating the Philippine Coconut
Administration..." and does not deal with retirement, optional or
otherwise. Cube's Services Record made no mention of his
having been employed in this agency.
Cube explained that his removal in 1972 was WITHOUT
PREJUDICE. He was in fact appointed to a municipal government
position. Can he be dismissed? Why?
ANS. – Yes.
The circumstance that his dismissal was without prejudice is not
material, and neither is his subsequent appointment to a municipal
position. What is important is his non-disclosure or concealment of the
fact that in 1972, he was REMOVED as Asst. Fiscal. That fact was
deliberately suppressed. He did not retire, as he declared in his data
sheet. He was removed for gross misconduct and dereliction of duty in
the prosecution of a smuggling case.
"It behooves every prospective appointee to the judiciary to
apprise the appointing authority of every matter bearing on his itness
for judicial oice, including such circumstances as may relect on his
integrity and probity. These are qualiications speciically required by
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the Constitution."
The fact alone of his concealment of his previous dismissal from
the public service, which the Judicial and Bar Council would have taken
into consideration in acting on his application, is clear proof of his lack
of the said qualiications and renders him unworthy to sit as judge.
Judge Cube committed an act of dishonesty that rendered him
unit to be appointed to, and to remain now in, the Judiciary, he has
tarnished with his falsehood. He was DISMISSED with prejudice to his
reappointment to any position in the government, including
government-owned or -controlled corporations, and with forfeiture of all
retirement beneits. (Re: Inquiry on the Appointment of Judge Enrique
A. Cube, AM No. 93-7-4280 METC, Oct. 13, 1993, 45 SCAD 301).
Q
- A 14-year old girl, Cristina Junio iled with the Provincial
Prosecutor's oice a complaint for acts of lasciviousness
against Judge Rivera of Alaminos, Pangasinan. The
investigating oicer recommended that the judge be
absolved of the administrative case. Is the recommendation
proper? Why?
ANS. - No. In dismissing the Judge, the Supreme Court said that exacting
standards of morality and decency from those who serve in the
judiciary have been set. A member of the judiciary is judged not
only by his oficial acts but also by his private morals, to the extent
that such private morals are externalized in his behavior. The judge
failed to measure up to those demanding standards. He was found
guilty of gross misconduct and conduct prejudicial to the interest of
the judiciary. (Junio vs. Judge Pedro Rivera, Aug. 30, 1993).
Q - Provincial Prosecutor G. Olarte iled an information for
murder against F. Banite withoutrecommendation for bail in
the sala of Judge Tarriela, presiding judge Branch 44 RTC of
Mamburao, Occidental Mindoro. On January 3, 1992, the
accused was arraigned where he pleaded not guilty. However,
on January 18, 1992, prosecutor Olarte amended the informa
tion against Banite without leave of court to homicide and
recommended a bail of P20,OOO.OO. Judge Tarriela ordered
Olarte to explain his action. Thereafter, on February 4, 1992,
Mrs. Zubiri, supervising steno-reporter of the provincial
prosecutor on orders of Olarte went to Judge Aguilar herein
respondent, who was then the executive and presiding judge of
Branch 45 RTC of San Jose, Occidental Mindoro, to request for
the release of the accused Banite on bail. On the same day,
Judge Aguilar signed and issued the order approving the
property bond and the release of the accused on bail.
Complainants herein charged respondent judge with grave
abuse of discretion, since the case was being tried in the sala of
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Judge Tarriela. Is the judge guilty of abuse of authority? Why?
ANS. -Yes. Respondent Judge is guilty of grave abuse of authority. The case
was iled in Branch 44, hence, respondent judge who presides in
Branch 45, had no power to act on the request to release on bail
accused Banite. It was irregular for respondent judge to entertain the
request considering that it did not appear that a formal motion had
been iled by the accused to that efect.
Respondent judge should endeavor at all times to maintain the
conidence and high respect accorded to those who wield the gavel of
justice. Circular No. 13 enjoins judges to conduct themselves strictly in
accordance with the mandate of existing laws and the code of judicial
conduct that they be exemplars in their communities and the living
personiication of justice and the rule of law.
Respondent judge's action shows such lack of familiarity with the
laws, rules and regulations as to undermine the public conidence in
the integrity of our courts.
Moreover, the record does not show that at that time respondent
judge ordered Banite's release, judge Tarriela was absent or
unavailable and could not have acted on the request. (Cuaresma vs.
Judge Aguilar, Sept. 3, 1993, 44 SCAD 451).
Q
- Hermina Alvos, claiming to be the niece of Paz Ramirez,
surviving spouse of the late Ambrocio Pingco, iled with the
RTC a petition for settlement of the estate of Ambrocio.
Respondent Judge appointed Alvos as special administrator.
Counsel for Alvos iled an urgent motion stating that
parcels of land belonging to Ambrocio and his wife were sold
to complainant Uy and requested the Court to direct the
Register of Deeds to freeze any transaction without the
signature of Alvos involving said properties and later
requested the titles issued to Uy be cancelled. Respondent
Judge ordered the cancellation and reinstatement of the
names of the spouses Ambrocio and Paz. Uy iled with the
CA a petition to annul the order with a prayer for a
temporary restraining order to prevent the judge from
further proceeding against him.
Despite the decision of CA and the pendency of the
petition for review to SC, respondent judge continued
issuing various orders resulting in the issuance of new titles
to the properties in the name of persons stated in the
project of partition to the damage and prejudice of
complainant. Furthermore, even after the SC had airmed
the ruling of the CA that respondent judge has no
jurisdiction to entertssain further proceedings concerning
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the ownership of the properties, respondent judge still in an
attempt to defeat the proscription imposed by the higher
judicial authority, issued orders approving the sale of the
properties to the further prejudice of' the complainants,
hence, this complaint against Judge Capulong. Is the judge
guilty? Why?
ANS.
- Yes. The actuation of respondent judge clearly stressed her
blatant dis obedience to the lawful orders of superior courts and
belie any claims that she rendered the erroneous orders in good
faith as would excuse her from administrative liability.
Time and time again the Supreme Court emphasized that the
judge is the visible representation of law and justice from whom the
people draw their will and awareness to obey the law. For the judge to
return that regard, the latter must be the irst to abide by the law and
weave an example for the others to follow. The judge should be
studiously careful to avoid even the slightest infraction to the law. To
fulill this mission, the judge should keep abreast of the law, the rulings
and doctrines of the Supreme Court. If the judge is already aware of
them, the latter should not deliberately refrain from applying them;
otherwise, such omission can never be excused. (Uy vs. Capulong, AM
No. RTJ -91-766, April 7, 1993)
Q
- The accused was the brother-in-law of the judge being the
husband of her sister. She did not inhibit herself. A judgment
acquitting the accused was rendered. Is the actuation of the
judge correct or proper? Why?
ANS.
- No, the judge violated and deliberately disregarded Rule
3.12(d), Canon 3 of the Code of Judicial conduct considering that
the accused is her brother-in-law and did not obtain the consent
of the parties. She even interceded to obtain settlement, hence,
bias was then present on her part, thereby necessarily blinding
her impartiality and irreparably afecting the cold neutrality she is
supposed to possess. She should have voluntarily disqualiied
herself.
She may not be liable for rendering unjust judgment, but
may only be guilty of gross ignorance of the law. (Ubarra vs.
Judge Mapalad, March 22, 1993).
Q - Alisangco bought a stolen carabao. A complaint was iled
for the violation of No. 1612 (which the respondent Judge
erroneously claim to be the Anti-Cattle Rustling Law of
1979 when in reality, it is the Anti-Fencing Law of
1979)against complainant Alisangco as one of the ac-
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cused. Consequently, Judge Tabiliran immediately issued a
warrant for Alisangco's arrest without irst determining
his participation in the ofense charged and set the bond
at P20,OOO.OO. Alisangco posted cash bond after which
he was served with a subpoena directing him to appear
for arraignment and preliminary investigation. On such
date, Alisangco no longer appeared because he had
earlier iled a waiver of his right to a preliminary
investigation. In view of his non-appearance, Judge
Tabiliran issued an order to arrest Alisangco and requiring
the latter to show cause why his bond should not be
coniscated. Before the arrest could be efected, the
latter's counsel intervened by iling a motion to lift the
order of arrest. The respondent Judge, however, had not
acted on the said motion. Hence, this complaint for grave
abuse of authority, ignorance of the law and conduct
unbecoming of a presiding judge. Decide.
ANS.
-Considering that the MTC only had preliminary jurisdiction over
the case, the respondent judge did not have any authority to set the
case for arraignment. All it could do was to calendar the same for
preliminary investigation. There is no law or rule requiring an
arraignment during the preliminary investigation. The arraignment
must be conducted by the court having jurisdiction to try the case
on its merits. Thus, in this case, the RTC has exclusive original
jurisdiction by reason of the prescribed penalty. Hence, respondent
Judge in this case did not know the proper procedure on the matter
or simply chose to ignore the same.
It was duly proven that the waiver of preliminary investigation
was iled by the complainant. Respondent judge exhibited ignorance
of procedural law or plainly abused his authority when he issued a
warrant for the arrest of the complainant and ordered the latter to
show cause why his bond should not be coniscated. Even if the
waiver was not seen by him because it was not attached to the
expediente of the case, the most that the court could have done
from the complainant's failure to appear was to consider him as
having waived his right to a preliminary investigation or declare
such preliminary investigation closed and terminated as to him. It is
settled that even if an accused had expressed his desire to be given
an opportunity to be present at the preliminary investigation, but
later changed his mind and renounced his right, he cannot be
compelled to be present in the said investigation, (Alisangco vs.
Judge Tabiliran, June 30, 1993, 42 SCAD 797).
Q
- State Prosecutor Zuno iled an administrative
complaint against Judge Dizon for gross ignorance of the
law because he acquitted the defendants in four cases of
illegal possession of irearms. Judge Dizon anchored his
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decision on the case of People vs. Asuncion, 161 SCRA
490, which ruled that the prosecution must show that
other than mere possession of an unlicensed irearm, the
perpetrator had the intent to use the same. However, said
ruling inds no application in the said cases. The rule
steadfastly laid down in cases of illegal possession of
irearms is that mere possession is suicient to warrant
conviction. The ofense is covered by special law and is
malum prohibitum; hence, intent to use is not an
ingredient of the crime and need not therefore be alleged
in the information. The commission of the act being
prohibited by reason of public policy, it suices that the
prohibited article be found in the possession of the
accused, it not being necessary to allege or prove intent
to use.
At the investigation, it was found that Judge Dizon's
erroneous adherence to the ruling in People VB. Asuncion
showed his ignorance of the history and development of
the irearm law; and that he failed to ascertain irst if the
facts of the cases he relied upon are similar to the four
criminal cases iled by State Prosecutor Zuno. Is Judge
Dizon guilty of gross incompetence, gross ignorance of
the law and of knowingly rendering incorrect judgment?
Why?
ANS.
-Yes. In dismissing him, the Supreme Court said that Judge Dizon
is once more before the Supreme Court to answer charges, which
are practically a repetition of an earlier case against him. As before,
he stubbornly insists that malice or criminal intent should be proved
even in crimes punished by special laws or laws which are mala
prohibita. The Supreme Court found him guilty of having acted with
gross incompetence and gross ignorance of the law, as to be almost
deliberate and tantamount to knowingly rendering incorrect and
unjust judgment. (Article 204, RPC).
A judge should be the embodiment of competence, integrity and
independence. He should be faithful to the law and maintain
professional competence. In every case, he should endeavor diligently
to ascertain the facts and the applicable law answered by partisan
interests, public opinion or fear of criticism. When it has been clearly
demonstrated, as in this case, not only once but four times, that the
judge is either grossly incompetent or grossly ignorant of the penal
laws especially those involving crimes committed by transients, like
smuggling of foreign currency and irearms, through the international
airport in Pasay City, where his court sits, he becomes unit to
discharge his judicial oice. More than mere ignorance of applicable
laws and jurisprudence, his intransigence and persistence in error will
make people lose their faith in him as an administrator of justice. Having lost his right to be addressed by the respectful appellation of
"Honorable Judge" he has likewise lost his right to continue in the
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judicial service. (Senior State Prosecutor Zuno vs. Judge Dizon, June 23,
1993, 42 SCAD 601).
Q
- The judge in an ejectment suit rendered a judgment, the
dispositive portion of which reads:
"Wherefore, in view of the foregoing considerations, it is
hereby respectfully
Prayed that judgment be rendered in accordance with the
plaintif's prayer in their complaint in the above-entitled
case."
In a petition for certiorari, the Court declared it void. But
respondent judge changed and amended his earlier decision
ordering the defendants to vacate the premises, hence, the
complaint for gross ignorance of the law and incompetence.
Will the complaint prosper? Why?
ANS.
-Yes. A judge should exhibit an industry and application
commensurate with the duties imposed upon him and he should be
conscientious, studious and thorough. He did not only issue a
manifestly void decision, he even granted the motion for its execution
and issued the corresponding writ with full knowledge that there was
nothing to execute; exhibiting once more his ineiciency, carelessness,
negligence or even his incompetence. (Santos vs. Judge Orlando
Paguio, Nov. 16, 1993, 46 SCAD 295).
Q
- After due notice and hearing and upon the iling of a
bond, the MTCC of Tangub City then presided over by Judge
Salvanera directed the defendants to vacate the ishpond in
question and restore the possession to Nique. The defendants iled a motion to lift the restraining order but the court
maintained it. They iled a second motion for reconsideration
and Judge Salvanera lifted the restraining order and
delivered the possession of the property to them.
Consequently, Nique iled a petition for certiorari in the
CA to annul Judge Salvanera's order. The CA referred the
case to the RTC which has concurrent jurisdiction over the
case. The RTC set aside Judge Salvanera's order and directed
him to reinstate the writ of preliminary mandatory injunction
and restore the petitioner in the peaceful possession and
occupation of the ishpond.
After the RTC decision had become inal and executory,
Nique iled a motion for execution. The motion was heard by
Judge Zapatos who had succeeded Judge Salvanera. The defendants iled a motion to lift the preliminary injunction but
opposed by Nique. However, Judge Zapatos denied the
motion for execution and dissolved the writ of preliminary
mandatory in junction, which the RTC had ordered to be
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reinstated. Hence, this complaint iled by Nique against
Zapatos charging him with gross ignorance of the law and
failure to perform an act which he had been directed to do.
On theother hand, Judge Zapatos contended that he is
authorized under Sees. 6 and 7, Rule 58 of Rules of Court to
dissolve an injunction reinstated by the RTC since it
appeared that after the injunction was issued, there was a
change in the situation of the parties and that a writ of
preliminary mandatory injunction is an interlocutory order
that remains at all times within the control of the court that
issued it before inal judgment on the merits of the case. Is
the judge guilty? Why?
ANS.
-Yes, because a judge occupying a court that is lower in rank
than the RTC, owes respect to the latter and is bound by the
disposition or decision of said appellate court upon a petition for
review of an order issued by him. His act of reversing the inal
judgment of the RTC instead of complying with his mandatory and
ministerial duty of executing the same, is the height of audacity,
arrogance and presumption on his part for if the decision of the RTC
was unacceptable to the defendants, their remedy was to appeal it
to a higher court. Having failed to do that, they, as well as the lower
court, were bound by the judgment. There was no avoiding
compliance with it for the execution of a inal judgment is a
ministerial duty of the trial court. (Nique vs. Zapatos, A.M. No. MTJ92-655, March 1993).
Q
- The judge admitted that during days he had no hearings,
he stayed at his house to make some research, resolve
motions, make decisions. Anyway, his house was near the
court, so he can be easily reached. Is the act of the judge
proper? Why?
ANS.
-No, because a judge must report to his oice even if he has
no hearing on regular days. In Circular No. 13 dated 1 July 1987, the
Supreme Court stressed the need for punctuality and the faithful
observance of oice hours, with Judges being enjoined to strictly
observe the requirement of eight (8) hours of service a day. This was
reiterated in Administrative Circular No.1 of 28 January 1988. Also
under the Interim Rules Implementing Batas Pambansa BIg. 129,
Judges of the Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts are required, on a rotation basis to
report on Saturdays from 8:00 a.m. to 1:00 p.m. primarily to act on
petitions for bail and similar matters, while all Executive Judges,
whether in single or multiple salas, are mandated to remain on duty
on Saturday afternoons.
In Ubaldino A. Lacuron vs. Judge Pablo Atienza (Adm. Matter No.
RTJ-90-456, 14 January 1992), it was said that the law regulating court
sessions does not permit any "day of' from regular oice hours to
enable a judge to engage exclusively in research or decision-writing, no
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matter how important. In Siasico vs. Sales (71 SCRA 139, 146 [1976]),
the Supreme Court stated:
"Reasons of public policy, the preservation of the good image of
the judiciary, and avoidance of all appearances of impropriety, require
that a judge should hold oice at the regular place of business of the
court and not at his residence. A judge holding oice in his house
makes criticism that his oicial actuation cannot bear public scrutiny,
more particularly of his co-oicials in the local government. All these
would have deterred respondent from the course of action he had
taken had he possessed some sense of decorum and good judgment."
(Mendoza vs. Judge Rodolfo Mabutas, June 17, 1993,42 SCAD 423).
Q
- An ejectment suit was iled. A judgment was rendered; the
writ of execution was issued after ive (5) years. Furthermore,
the movant was not a party; nor even a substituted party. Is
the judge guilty of impropriety? Why?
ANS.
-Yes, because a judge's oicial conduct should be free from
the appearance of impropriety, in his personal behavior, not only
upon the bench and in the performance of judicial duties, but
also his everyday life, should be beyond reproach, and he should
administer his oice with due regard to the integrity of the
system of the law itself, remembering that he is not a depository
of arbitrary power, but a judge under the sanction of law. (Canons
3 and 18, Code of Judicial Ethics).
The movant had not yet been substituted as a party; the
writ of demolition was issued despite the fact that his court
ceased to have authority to enforce the decision by motion. The
least explanation is that, he was unaware of the Rules. If he was
cognizant of said rules, then he deliberately ignored them to extend beneit to a party who happened to be his compadre. In
such a case, he allowed a relationship to inluence his action to
the prejudice of the complainant. (Vda. De Coronel vs. Judge
Danan, et al., Aug. 9, 1993, 43 SCAD 926).
Q
- Who has the power to investigate a judge who falsiied
his certiicate of service?
ANS.
The Supreme Court in Maceda vs. Vasquez, et al., G.R. No.
102781, April 22, 1993, held that the power to investigate a
complaint against a judgess for alleged falsiication of his
certiication of service is lodged in the Supreme Court, thru the
Court Administrator. The Ombudsman is powerless to do so under
the principle of separation of powers.
If it is a criminal case, the Ombudsman has the power to
investigate the judge.
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Q
ANS.
- A judge acquitted the accused in a case for violation of the Central Bank Act because intent to violate
the law was not proven. He repeated the same mistake in
another case for violation of another special law
speciically the attempt to
smuggle irearms into and out of the country. He was
removed twice. Explain the reason.
-The reason for such dismissal twice could be traced from
the fact that such mistake cannot be ascribed to a simple
mistake of judgment but to gross ignorance of the law, if not
deliberate disregard of the same. It is tantamount to knowingly
rendering unjust and incorrect judgment. A judge should be the
embodiment of competence, integrity and independence. He
should be faithful to the law and maintain professional competence. (Padilla vs. Dizon, 158 SCRA 127; Senior State
Prosecutor Jovencito ZUllO, Jr. vs. Dizon, June 23, 1993, 42 SCAD
601).
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Q
157
- Are there any distinctions between the court and the judge?
ANS. - Yes. The court is an entity and the person who occupies the position is
the judge. A court may exist without a judge. There may be a judge
without a court. (Pamintuan vs. Llorente, 29 Phil. 346).
Q
- What do you understand by the principle that the administration
of justice is a shared responsibility of the judge and the lawyer?
ANS. - It means that it is the duty of both counsel and judge to maintain not to
destroy, the high esteem and regard for courts. Any act on the part of one
or the other that tends to undermine the people's respect for, and
conidence in, the administration of justice is to be avoided. And this,
even if both may have to restrain pride from taking the better part of their
system. (Lugue vs. Kayanan, 29 SCRA 173). The relations of judge and
lawyer should be founded on mutual respect and on a deep appreciation
by one of the duties of the other. (Romero vs. Valle, 147 SCRA 197)
Q
- Explain the principle that a judge should not only be impartial
but must also appear impartial.
ANS. - The sole purpose of courts of justice is to enforce the laws uniformly and
impartially, without regard to persons or their circumstances or to
opinions of men. A judge should at all times be wholly free, disinterested,
impartial and independent. Elementary due process requires a hearing
before an impartial and disinterested tribunal. A judge has both the duty
of rendering a just decision and the duty of doing it in a manner
completely free from suspicion as to its fairness and as to his integrity.
Judges therefore, should not only be impartial but they should also appear
impartial. (Tan, Jr. vs. Gallado, 73 SCRA 315).
Q
- Should a judge succumb to pressure from whatever source?
Why?
ANS. - No. To do so is equivalent to a case of betrayal of the public trust
reposed on a judge as an arbiter of the law and a revelation of his/her
weak moral character. A judge is expected to be fearless in his/her pursuit
to render justice, to be unafraid to displease any person, interest or power
and to be equipped with a moral iber strong enough in his/her oice.
(Ramirez vs. Corpuz-Macandog, 144 SCRA 462).
Q
- How do you describe the appearance of a judge in his oicial
and personal conduct?
ANS. - A judge's oicial conduct and his behavior in the performance
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158
of judicial duties should be free from the appearance of impropriety
and must be beyond reproach. (Alagas vs. Reyes, 131 SCRA 445; Li vs.
Niyares, 65 SCRA 167). Even his personal behavior in his everyday life
should be beyond reproach. He should avoid even the slightest
infraction of the law. (Cabrera vs. Pajares, 142 SCRA 127).
Q
- How do you explain the fact that a judge should be like Caesar's
wife?
ANS. - A judge should be like Caesar's wife because a judge must not only be
pure but must also appear to be so. Appearance is as important as reality
in the performance of judicial functions. Like Caesar's wife, a judge must
not only be pure but must be beyond suspicion. (Palang vs. Zosa, 58 SCRA
776). A judge has the duty not only to render a just and impartial decision,
but also render it in such a manner as to be free from any suspicion as to
its fairness and impartiality, and also as to the judge's integrity. (Martinez
vs. Gironella, 65 SCRA 245).
Q
- Explain the rule that a judge should not seek publicity for
personal vainglory.
ANS. - It means that judges should be prohibited from seeking publicity for
vanity or self-gloriication. Judges are not actors or actresses or
politicians. They are also prohibited from making public comments on
any pending or impending case. Judges must not be moved by a desire
to cater to public opinion to the detriment of justice. (Go vs. CA, 206
SCRA 165).
Q
- Maya judge invite the press during the hearing of a sensational
case? Why?
ANS. - No. A judge should not allow unnecessary taking of Pictures of the
court .proceedings. He should not allow the broadcasting of proceedings
over the radio or allow the televising of the proceedings. The reason is
that, such fanfare and publicity detract from the dignity of the court
proceedings for the parties involved tend to become more self-conscious
on their appearances rather than the truth of the facts and substance of
the issues. The administration of justice would then ultimately sufer as
the judge might be inluenced by the public clamor engendered by the
publicity. Finally, a judge should not seek publicity for his personal
vainglory.
Q
- When may a judge intervene during the presentation of
evidence?
ANS - A judge may intervene during the presentation of evidence in order to
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expedite and prevent unnecessary waste of time. (Domanico vs. CA, 122
SCRA 218). He may intervene to profound clariicatory questions. (People
vs. Muit, 117 SCRA 696). He should, however, limit himself only to
clariicatory questions and not to ask searching questions after the
witness had given direct testimony. (Valdez vs. Aquilizan, 133 SCRA 150).
His act should be done sparingly and not throughout the proceedings.
(People vs. Ibanson, 120 SCRA 679).
Q
- What constitutes undue interference by the judge in the
presentation of evidence?
ANS. - There is undue interference if the judge will extensively profound
questions to the witnesses which will have the efect of or will tend to
build or bolster the case of one of the parties.
Q
- Give the reason behind the rule that a judge should not
interfere in the presentation of evidence.
ANS. - A judge should not only be impartial, but he should appear to be so. If he
profounds questions to help build the case of a party, he would come out
biased against or partial in favor of a party. A judge interference may
likewise prevent the proper presentation of the case, and the
ascertainment of the truth in respect thereto.
Q
- An MTC judge was present during the meeting of his relatives
before the DARAB. He even suggested the review of the land
reform coverage and even talked to those who refused to obey
the writ of execution issued by the DARAB. Is the act of the
judge proper?
ANS. - No, because as a member of the Bench, he should have realized that
his presence, opinion and participation in any proceeding could slant
the evaluation and resolution of the case in favor of the party he
identiies himself with. A judge need not utter any word for his sheer
presence, as a member of the Judiciary, would be suicient suggestion
of persuasion and inluence. (Garcia, et al. vs. Valdez, A.M. No. MTJ-981156, July 13, 1998, 96 SCAD 170).
Q
- If a judge renders a judgment on the day after a case is
submitted for decision, is the act proper? Why?
ANS. - Yes, there is nothing anomalous in the act of the judge, as it is even an
evidence of his intention to dispose of cases with dispatch. The immediate
resolution of the decision was no more than his compliance with his duty
as a judge to dispose of the court's business promptly and decide cases
within required periods. Instead of being punished, he should even be
commended for his close attention to duty. (Fule vs. CA, et al., G.R. No.
112212, March 2,1998,92 SCAD 14).
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- Why should a judge decide a case within the reglementary
period provided for by the Rules?
ANS. - A judge should decide a case within the reglementary period because
failure to do so constitutes gross dereliction of duty. A judge should decide
a case promptly and expeditiously, for it cannot be denied that justice
delayed is justice denied. Delay in the disposition of cases undermines the
people's faith and conidence on the judiciary. Hence, judges are enjoined
to decide cases with dispatch. Their failure to do so constitutes gross
ineiciency and warrants the imposition of administrative sanctions on
them. (Fe T. Bernardo vs. Judge Amelia A Fabros, A.M. No. MTJ-99-1l89,
May 12, 1999, citing Sanchez vs. Vestil, AM. No. MTJ-981419, October 13,
1998, 100 SCAD 147).
Q
- A judge admitted that she failed to decide a case within the
reglementary period provided for the by the Rules. Her reason
was that there was oversight on her part. Is the reason proper?
Why?
ANS. - No. A judge is expected to keep his own record of cases so that he
may act on them promptly without undue delay. It is incumbent upon
him to devise an eicient recording and iling system in his court so
that no disorderliness can afect the low of cases and their speedy
disposition. x x x Proper and eicient court management is as much his
responsibility. He is the one directly responsible for the proper
discharge of his oicial functions. (See Fe T. Bernardo vs. Judge Amelia
A Fabros, AM. No. MTJ-99-1l89, 106 SCAD 425, May 12, 1999).
Q
- When may a judge be subjected to disciplinary action for his
errors? Explain.
ANS. - For liability to attach for gross negligence of the law, the assailed order,
decision or actuation of a judge must not only be found erroneous but,
most importantly, it must be established that the judge was moved by
bad faith, dishonesty, hatred, or some other like motive. (Dela Cruz vs.
Concepcion, 54 SCAD 640, '235 SCRA 597).
Q
- When is a judge liable for rendering an unjust judgment?
Explain.
ANS. - A judge may be held liable for rendering an unjust judgment when he
acts in bad faith, malice, revenge, or some other motive. (Heirs of the late
Nasser Yasin vs. Felix, 66 SCAD 157, 250 SCRA 545).
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161
- Discuss the import of the rule on voluntary inhibition of judges.
ANS. - The import of the rule on voluntary inhibition of judges is that the
decision on whether or not to inhibit is left to the sound discretion and
conscience of the trial judge based on his rational and logical assessment
of the circumstances prevailing in the case brought before him. It makes
clear to the occupants of the Bench that outside of pecuniary interest,
relationship or previous participation in the matter that calls for
adjudication, there might be other causes that could conceivably erode
the trait of objectivity, thus calling for inhibition. This is to betray a sense
of realism, for the factors that lead to preference or predelictions are
many and varied.
In the inal reckoning, there is really no hard and fast rule when it
comes to the inhibition of judges. Each case should be treated diferently
and decided based on its peculiar circumstances. The issue of voluntary
inhibition is primarily a matter of conscience and sound discretion on the
part of the judge. It is a subjective test the result of which the reviewing
tribunal will not disturb in the absence of any manifest inding of
arbitrariness and whimsicality. The discretion given to trial judges is an
acknowledgment of the fact that these judges are in a better position to
determine the issue of inhibition as they are the ones who directly deal
with parties-litigants in their courtrooms. (People vs. Gallermo, G.R. No.
123546, July 7, 1998, 95 SCAD 579).
Q
- A complaint was iled against a judge for reprehensible
conduct in engaging in the, ,publication of a gossip tabloid,
The Mirror, as editor and legal adviser and as a gossipmongering columnist of a local newspaper, Sun Star Clark.
Complainant alleged that respondent used his newspaper
column to ventilate his biases or personal anger at people or
institutions. For instance, when respondent failed to receive
payment from the Oice of the Governor for advertisement in
exchange for a congratulatory messages in the maiden issue of
The Mirror, respondent placed a blank space purportedly for
the governor's message, and expressed contempt with a few
lines underneath a picture of the governor. Complainant
believes that respondent judge should not engage in active,
sensational, and free-for-all journalistic writing because such
act degrades the judicial system and compromises his
impartiality as an administrator of justice. He likewise
persistently attacked the governor for his movie-making
activities.
Can the judge be dismissed for his acts? Why?
ANS. - Yes. The Code of Judicial Conduct mandates that a judge should avoid
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impropriety and the appearance of impropriety in all activities. The
personal behavior of a judge not only upon the Bench but also in his
everyday life should be above reproach and free from the appearance
of impropriety.
There is a diference between freedom of expression and
compromising the dignity of the Court through publications of
emotional outburst and destructive criticisms. Respondent's writing of
active and vicious editorials compromises his duties as judge in the
impartial administration of justice, for his views printed on newspapers
relect on his oice as well as on the public oicers that he challenges.
From the standpoint of conduct and demeanor expected of a judge,
resort to intemperate language only detracts from the respect due a
member of the judiciary and becomes self-destructive.
Moreover, in persistently attacking the moviemaking activities of the
provincial governor and repeatedly threatening to ile an action against a
public oicer, respondent encourages litigation and causes dissension
against the public oicer concerned. As a judge, respondent's role is to
maintain equanimity and not instigate litigation. This is not to say that
one cannot question the improper activities of government oicials if
there are any. However, it is not proper for a judge to write publications of
carelessly-worded editorials in local newspapers. (Benalfre J. Galang vs.
Judge Abelardo H. Santos, A.M. No. MTJ-99-1197, May 26, 1999).
Q
- After the hearing of the petition for bail, the court issued an
order denying the same on the ground that the evidence of
guilt
is strong.
The
petitioner
iled a
motion
for
reconsideration, but was denied, the court ruling that it has already clearly spelled out the grounds relied upon in the denial
of the motion. The accused asked for the inhibition of the
judge contending that because of the actuations of the judge,
he has already become biased, hence, he stands no chance at
all in court presided by the judge. Is the motion proper? Why?
ANS. - No. The orders denying the petition for bail and the motion for
reconsideration do not suiciently prove bias and prejudice to
disqualify the judge under Sec. 1, Rule 37 of the Rules of Court. For
such bias and prejudice, to be a ground for disqualiication, must be
shown to have stemmed from an extrajudicial source, and result in an
opinion on the merits on some basis other than what the judge learned
from his participation in the case. Opinions formed in the course of
judicial proceedings, as long as they are based on the evidence
presented and conduct observed by the judge, even if found later on
as erroneous, do not prove personal bias or prejudice on the part of the
judge. Extrinsic evidence is required to establish bias, bad faith, malice
or corrupt purpose, in addition to palpable error which may be inferred
from the decision or order itself. (Victorio Aleria, Jr. vs. Hon. Alejandro
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Velez, Jr., G.R. No. 127400, November 16, 1998, 100 SCAD 720, citing
Webb vs. People, 85 SCAD 66, 276 SCRA 243).
Q
- A judge ordered the release of the accused knowing that the
cash deposit for his bail was not yet suicient. Is he liable for his
act? Why?
ANS. - Yes, because the error was gross and patent violation of law and the
rules on bail. While it is true that a judge may not be held administratively
accountable for every erroneous order or decision (Guillermo vs. Reyes,
58 SCAD 130, 240 SCRA 154), yet if the error is gross or patent, malicious,
deliberate or in evident bad faith, he may still be liable. The reason for
this is that he is expected to have a more than cursory acquaintance with
the rules on bail. Failure to follow basic legal commands embodied in the
law and the rules constitutes gross ignorance of the law (Del Rosario, Jr.
vs. Bartolome, 81 SCAD 281, 270 SCRA 645; Aurillo vs. Francisco, 54
SCAD 352, 235 SCRA 283) from which no one may be excused, not even a
judge. (Evelyn De Austria vs. Judge Orlando D. Beltran, A.M. No. RTJ-981406, September 1, 1999).
Q
- Maya judge be held administratively accountable for every
erroneous order or decision he rendered? Why?
ANS. - No. As a rule, a judge may not be held administratively accountable for
every erroneous order or decision he renders. To unjustiiably hold
otherwise, assuming that he has erred, would be short of harassment and
would make his position doubly unbearable, for no one called upon to try
the facts or interpret the law in the process of administering justice can
be infallible in his judgment. The error must be gross or patent, malicious,
deliberate or in evident bad faith. It is only in this latter instance when the
judge acts fraudulently or with gross ignorance, that administrative
sanctions are called for as an imperative duty of this Court. (Evelyn de
Austria vs. Judge Orlando D. Beltran, A.M. No. RTJ-98-1406, September 1,
1999; Panganiban vs. Judge Pablo B. Francisco, et al., A.M. No. RTJ-981425, November 16, 1999).
Q
- Give examples of defenses of a judge charged with ignorance of
the law.
ANS. - Good faith and absence of malice, corrupt motives or improper
considerations are suicient defenses in which a judge charged with
ignorance of the law can ind refuge. (Evelyn de Austria vS. Judge Orlando
D. Beltran, A.M. No. RTJ-98-1406, September 1, 1999, citing Guillermo vs.
Reyes, 58 SCAD 130, 240 SCRA 154).
Q
- Are the acts of a judge in his judicial capacity subject of
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disciplinary action? Is the rule absolute? Explain.
ANS. -No. As a matter of public policy, in the absence of fraud, dishonesty or
corruption, the acts of a judge in his judicial capacity are generally not
subject to disciplinary action, even though such acts are erroneous.
(Morada vs. Judge Tayao, 48 SCAD 131, 229 SCRA 723, citing Louis Vuitton
S.A. vs. Judge Villanueva, 216 SCRA 121; Mendoza vS. Villaluz, 106 SCRA
664). As has been stated in the recent case of Santos vs. Judge Jose
Orlino, A.M. No. RTJ-98-1418, September 25, 1998, 98 SCAD 752:
"The fundamental propositions governing responsibility for judicial error were
more recently summarized in 'In Re: Joaquin T. Borromeo,' 59 SCAD 1
[1995J, 241 SCRA (1995). There the Court stressed inter alia that given
the nature of the judicial function and the power vested in the SC and the
lower courts established by law, administrative or criminal complaints are
neither alternative nor cumulative to judicial remedies where such are
available, and must wait on the result thereof Existing doctrine is that
judges are not liable for what they do in the exercise of their judicial
functions when acting within their legal powers and jurisdiction. (Alzua, et
al. vs. Johnson, 21 Phil. 308, 326; Sec. 9, Act No. 190). Certain it is that a
judge may not be held administratively accountable for every erroneous
order or decision he renders. (Rodrigo
vs. Quijano, 79 SCRA 10). To hold, otherwise, would be to render judicial
oice untenable, for no one called upon to try the facts or interpret the
law in the process of administering justice can be infallible in his
judgment. (See Lopez vs. Corpuz, 78 SCRA 374; Pilipinas Bank vs. TironaLiwag, 190 SCRA 834). The error must be gross or patent, deliberate and
malicious or incurred with evident bad faith. (Quizon vs. Baltazar, Jr., 65
SCRA 293)."
If an alleged error of a judge cannot amount to gross misconduct
and bereft of any persuasive showing of deliberate or malicious intent to
cause prejudice to any party, the administrative complaint against him
insofar as the charge for gross misconduct is concerned, must be
dismissed for want of factual basis. (Jewel F. Canson vs. Hon. Francis F.
Garchitorena, et al., SB-99-9-J, July 28, 1999).
Q
- An applicant for a position was told by the judge that in
exchange for his signature on her employment, she would
become his girlfriend. Thereafter, he went on to kiss her against
her will. After learning that her application had been approved,
he called her to his chamber and said that she was already his
girlfriend. He went on to embrace her, kiss her, and touch her
right breast. Can the judge be punished? Why?
ANS. - Yes, because not only did he fail to live up to high moral standards of
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the judiciary, he even transgressed to ordinary norms of decency
expected of every person. The conduct of a judge, whether oicial
or private, must be beyond reproach and above suspicion. A
member of the Bench must not only be a good judge; he or she
must also be a good person. (Dawa vs. De Asa, 96 SCAD 373, 292
SCRA 703). This is necessary so as not to erode the faith and
conidence of the public in the judiciary. (Naval vs. Panday, 84 SCAD
691, 275 SCRA 654). In the inal analysis, such faith and conidence
is anchored on the highest standard of integrity and moral
uprightness that judges are expected to possess. As ruled in Junio
vs. Rivera, Jr., 44 SCAD 308, 225 SCRA 688:
"All judges on all levels of the judicial hierarchy, from this Court down to
the Municipal or Metropolitan Trial Courts, are bound to observe the
above exacting standards. There is however, a special reason for
requiring compliance with those standards from those who are front
liners of the judicial department. As such, a judge is the most visible
living representation of the country's legal and judicial system. He is
the judicial oficer who on a day-to-day basis deals with the disputes
arising among simple, rural people who comprise the great bulk of our
population. He is the judicial oicer who comes into closest and most
frequent contact with our people. The judiciary as a whole and its ability
to dispense justice are inevitably measured in terms of the public and
private acts of judges in the grass roots level. It is essential, therefore,
if the judiciary is to engage and retain the respect and conidence of
our nation, that this Court insist that municipal judges and all other
judges live up to the high standards demanded by our case law and the
Code of Judicial Conduct, and by our policy."
The judge's lustful conduct was aggravated by the fact that he was
the superior of the complainant. Instead of acting in loco parentis
toward his subordinate employee, he took advantage of his position and
preyed on her. (Ana May M. Simbajon vs. Judge Rogelio M. Esteban, A.M.
No. MTJ-98-1162, August 11,1999, citing Talens-Dabon vs. Arceo, 72
SCAD 527, 259 SCRA 354).
Q
ANS. -
- Will the retirement of a judge preclude the inding of any
administrative liability on his part? Why?
No. The retirement of a judge or any judicial oicer from the service
does not preclude the inding of any administrative liability to which he
shall still be answerable. In Gallo vs. Cordero, 61 SCAD 956, 245 SCRA
219, it was said that since the court had this jurisdiction at the time of
the iling of the administrative complaint it was not lost by the mere
fact that the respondent public oicial had ceased in oice during the
pendency of his case. The Court retains its jurisdiction either to
pronounce the respondent oicial innocent of the charges or declare
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him guilty thereof. A contrary rule would be fraught with injustice and
pregnant with dreadful and dangerous implications. If innocent,
respondent oicial merits vindication of his name and integrity as he
leaves the government which he has served well and faithfully; if
guilty, he deserves to receive the corresponding censure and a penalty
proper and imposable under the situation. (Villa Macasasa, et at. vs.
Judge Fausto H. Imbing, A.M. No. RTJ-99-1470, August 16, 1999).
- A judge should act beyond reproach and suspicion. Does this
mandate include his personal behavior? Why?
Q
ANS. -
Yes. A judge should conduct himself beyond suspicion and reproach,
and be free from appearance of impropriety in his personal
behavior, not only in his oicial duties, but also in his everyday life.
No position demands greater moral righteousness and uprightness
than a seat in the judiciary. A judge must be the epitome of integrity
and justice. (Assn. of Court Employee vs. Tupas, July 12, 1989).
Q
- State how a judge should conduct himself in the performance
of his duties and in his dealings with others.
ANS.
-The court exists to promote justice (Canon 2, Canons of Judicial
Ethics); accordingly, the judge's oicial conduct should be free from
appearance of impropriety, and his personal behavior, not only upon
the bench and in the performance of oicial duties, but also in his
everyday life, should be beyond reproach. (Canon 3, id.). He is the
visible representation of the law and, more importantly, of justice.
(Oice of the Court Administrator vs. Gines, 43 SCAD 76, 224 SCRA
262 [1993]; Inciong vs. De Guia, 154 SCRA 93 [1987]; Dela Paz vs.
Inutan, 64 SCRA 540 [1975]). He should administer his oice with a
due regard to the integrity of the system of the law itself, remembering
that he is not a depositary power, but a judge under the sanction of
law. (Canon 18; Guillen, et al. vs. Judge Nicolas, A.M. MTJ-98-1166, 101
SCAD 397, December 4, 1998, citing Caamic vs. Galapon, 56 SCAD 14,
237 SCRA 390).
Q
-Describe the duty of a judge whenever an accused pleads guilty
to a capital ofense.
ANS. -Trial courts must exercise meticulous care in accepting a plea of guilty in
a capital ofense. Judges are duty-bound to be extra solicitous in seeing to
it that when an accused pleads guilty, he understands fully the meaning
of his plea and the import of his inevitable conviction. (People vs.
Gonzaga, 127 SCRA 158). Courts must proceed with more care where the
possible punishment is in its severest form, like death, for the reason that
the execution of such a sentence is irrevocable. Experience has shown
that innocent persons have at times pleaded guilty. (People vs. Albert, 66
SCAD 456, 251 SCRA 136). Only a clear, deinite and unconditional plea of
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guilty by the accused must be accepted by trial courts. (ibid.). There is no
such rule which provides that simply because the accused pleaded guilty
to the charge that his conviction should automatically follow. (People vs.
Mendoza, 42 SCAD 118,231 SCRA 264). A judge should always be an
embodiment of competence. (Rule 1.01, Canon1, Code of Judicial
Conduct). As an administrator of justice, it is imperative that the trial
judge carry out his duties ably and competently so as not to erode public
conidence in the judiciary. (People vs. Sevillano, et al., G.R. No. 129058,
105 SCAD 296, March 29, 1999).
Q
- In a criminal case for falsiication and use of falsiied document,
the judge was charged with impartiality for having failed to
inhibit himself despite the fact that he was related to the accused
within the fourth degree of ainity, thewife of the accused being
the irst cousin of the judge. Was the act of the judge proper?
Explain.
ANS.-No. Under Rule 137, Sec. 1 of the Rules of Court, ajudge who is related
within the sixth degree of consanguinity or ainity to a party in a case is
disqualiied from sitting in the case without the consent of all parties,
expressed in writing, signed by them, and entered upon the record. This
prohibition is not limited to cases in which he acts by resolving motions
and issuing orders as respondent judge has done in the subject criminal
case. The purpose of the prohibition is to prevent not only a conlict of
interest but also the appearance of impropriety on the part of the judge. A
judge should take no part in a proceeding where his impartiality might
reasonably be questioned (Canon 3, Rule 3.12) and he should administer
justice impartially and without delay. (Canon 1, Rule 1.02; Lazo vs. Judge
Antonio Tiong, A.M. No. MTJ-98-1173, December 15, 1998, 101 SCAD 692).
Q
- A judge was caught in the act of demanding and receiving
money from a party-litigant. Is the act suicient to remove him?
Why?
ANS. -Yes. A judge should always be a symbol of rectitude and propriety,
comporting himself in a manner that will raise no doubt whatsoever about
his honesty. (Yuson vs. Noel, 45 SCAD 116,227 SCRA 1). The conduct of
respondent judge shows that he can be inluenced by monetary
considerations. His act of demanding and receiving money from a partylitigant constitutes serious misconduct in oice. It is this kind of gross and
launting misconduct, no matter how nominal the amount involved on the
part of those who are charged with the responsibility of administering the
law and rendering justice quickly, which erodes the respect for law and
the court. (Oice of the Court Administrator vs. Gaticales, 208 SCRA 508).
The respondent judge tainted the image of the Judiciary to which he
owes fealty and the obligation to keep it at all times unsullied and worthy
of the people's trust. (Garcia vs. Dela Penia, 48 SCAD 171, 229 conduct.
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He violated the established norms of judicial behavior and the best
interest of the judiciary demands that he be dismissed from service.
Q
- What are some of the grounds for the dismissal of a judge?
State the reasons.
ANS. - Some acts that may warrant dismissal of a judge:
(c)
acceptance of bribe;
(d)
holding oice and conducting hearings at his residence;
(c)
use of physical violence against the personnel of his court who
failed to deliver the entire volume of nipa ordered by him for the
roof of his house; (lmpao vs. Makilala, A.M. No. MTJ-88-184, October
13, 1989, 178 SCRA 541).
(d)
receiving money from litigants and borrowing from them without
paying back;
(f)
ordering a litigant to install an air-conditioning unit for the car of his
wife. (Ompoc vs. Torres, Sept. 17, 1989).
Reasons:
Members of the judiciary should display not only the highest
integrity but at all times conduct themselves in such a manner as to be
beyond reproach and suspicion. The respect and conidence of the public
may justiiably be eroded if the conduct of an erring judge is condemned.
(Paredes vs. Buduha, Dec. 7, 1989).
Q
- An RTC judge was ined and required to pay an amount
equivalent to three (3) months salary. He dismissed six
informations for violation ofBP BIg. 22 because the checks
were undated,hence, were mere promissory notes; the issuance did not constitute criminal acts; that their collection can
be properly made in a civil case. Was the act of the judge
proper? Why?
ANS. -No, in fact, the judge was ined for ignorance of the law. His opinion that
the checks were invalid because they were not dated also revealed his
unfamiliarity with Sec. 6 of the Negotiable Instrument Law. (Torres vs.
Pedrosa, Aug. 22, 1989). It is the duty of a judge to keep abreast with the
law and jurisprudence.
Q
-Maya judge be subjected to disciplinary action in case of mis
appreciation of evidence? Is the rule absolute? Explain.
ANS. -No. In Miranda vs. Manalastas, Dec. 21, 1989, the Supreme Court said
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that mere error in the appreciation of evidence, unless so gross and
patent as to produce an inference of ignorance or bad faith or that the
judge unknowingly rendered an unjust judgment, are irrelevant in
administrative proceedings against the judge. A judge is not infallible in
his judgment. All that is expected of him is that he follows the rules
prescribed to ensure fair and impartial hearing.
A judge may not be administratively liable for erroneous ruling.
Q
- If a party iled an administrative case against a judge, will this
incident constitute a ground to disqualify the judge from trying
the case? Why?
ANS. - No. In Aparicio vs. Andal, July 25, 1989, the Supreme Court said that the
mere iling of an administrative case does not constitute a ground to
disqualify a judge from hearing the case, otherwise, many cases would
have to be kept pending or there might not be enough judges to handle
all the cases pending in all courts. There must irst be a showing of
arbitrariness or prejudice before the judge can be considered partial or
bias.
Hence, if a judge denies the motion to inhibit him, his continued
cognizance of the case pending before him is proper, if no TRO or
injunction is issued against him.
Q
- State the efect if a judge shows signs of partiality and prejudgment in a case. Why?
ANS. - The judge can be inhibited from further trying the case.
Q
ANS.
Partiality and pre-judgment can be just and valid reasons for the
judge to voluntarily inhibit himself. But mere suspicion that he is partial is
not enough. There must be evidence to prove the charge. (Fecundo vs.
Benjamin, Dec. 18, 1989). A litigant is entitled to the fairness and cold
neutrality of an impartial judge.
- Madam C sought the assistance of a judge in expediting
the intestate estate proceedings of her deceased common-law
husband. He, however, took advantage of her helplessness and
state of material depredation and took her as his mistress. Was
the act of the judge proper? Why?
-No, because a judge should personify judicial integrity and
exemplify honesty in public service. The personal behavior of a judge,
both in the performance of oicial duties and in private life should be
above suspicion. The exploitation of women becomes reprehensible
when the ofender commits injustice by the brute force of his position
of power and authority. (Calanog case).
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Q
- Maya judge be held to answer for an erroneous decision which
he rendered? Why?
ANS. -A judge cannot be held to account or answer, criminally, civilly, or
administratively for an erroneous decision rendered by him in good faith.
While the Supreme Court does not require perfection and infallibility, it
reasonably expects a faithful and intelligent discharge of duty by those
who are selected to ill the positions of administrators of justice.
Q
- A judge has already retired when an administrative case was
iled against him. Is he still within the court's jurisdiction? Why?
ANS. - Yes. Even if a judge has already retired before the administrative case
was iled against him, the Supre me Court held that the court has not lost
its jurisdiction over him even if his retirement has been approved, for his
retirement beneits have not yet been paid. The reason for this is that the
people would have no remedy left anymore. By reason of public policy,
the Court must assert and maintain jurisdiction for acts performed in
oice which are inimical to the service and prejudicial to the interest of
the litigants and the general public.
Q
-Maya judge who exercises his judicial function be made liable for
damages? Why?
ANS. -A judge who exercises his judicial functions cannot be liable for damages.
The test of liability is not jurisdiction, but the nature of the question which
is being determined when the error complained of is committed by the
court. (Aparicio vs. Andal, G.R. No. 8658793, July 25, 1989). He is not
liable even though there is in reality absolute failure of jurisdiction over
the subject matter. For, judges are excluded from liability under Art. 32,
New Civil Code, provided, their acts do not constitute a violation of the
Revised Penal Code.
Q
- An RTC Judge was removed on charges of immorality and
conduct unbecoming of a public oicial. It was alleged that he
maintained a mistress, having been the father of two children
with her, inspite his being a married man. Is the act of the judge
proper? Why?
ANS. -No, because the judge has behaved in a manner not becoming of his
robes and as a model of rectitude, betrayed the people's high
expectations, and diminished the esteem in which they hold the judiciary
in general.
The circumstances show a lack of circumspection and delicadeza on
the part of the respondent judge by failing to avoid situations that make
him suspect to committing immorality and worse, having that suspicion
conirmed especially so that under Canon 1, Rule 1.01, a judge should be
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the embodiment of competence, integrity, probity and independence.
The Code of Judicial Ethics mandates that the conduct of a judge must
be free from impropriety not only with respect to the performance of his
judicial duties, but also to his behavior outside his sala and as a private
individual. There is no dichotomy of morality: a public oicial is also judged
by his private morals. The Code dictates that a judge, in order to promote
public conidence in the integrity and impartiality of the judiciary, must
behave with propriety at all times. A judge's oicial life can not simply be
detached or separated from his personal existence. Thus:
"Being the subject of constant public scrutiny, a judge should freely and
willingly accept restrictions on conduct that might be viewed as
burdensome by the ordinary citizen."
Q
- Explain the res ipsa loquitor doctrine in the investigation of
errant judges.
ANS. -In these res ipsa loquitur resolutions, there was on the face of the
assailed decisions an inexplicable grave error bereft of any redeeming
feature, a patent railroading of a case to bring about an unjust decision, or
a manifestly deliberate intent to wreak an injustice against a hapless
party.
The res ipsa loquitur doctrine does not accept or dispense with the
necessity of proving the facts on which the inference or evil intent is had.
It merely expresses the clearly sound and reasonable conclusion that
when such facts are admitted or are already shown by the record, and no
credible explanation that would negative the strong inference of evil
intent is forthcoming, no further hearing to establish them to support a
judgment as to the culpability of a respondent is necessary. (In re: Judge
Baltazar Dizon, Adm. Case No. 3086, May 31, 1989).
Q
- In Clemencio Sabitsana, Jr. vs. Judge Adriano Villamore, RTJ
No. 90-474, Oct. 4, 1991, a complaint was iled alleging that in
his monthly certiicates of service, he made it appear that he
had resolved all cases submitted for decision within the 90-day
period when in truth, he had 15 cases undecided from 5 years
back or from March 1985. Was the act of the judge proper?
Why?
ANS. -No. A member of the Bench cannot pay mere lip service to the 90-day
requirement, but should, in fact, persevere in its implementation. The
Certiicate of Service is not merely a means to one's paycheck, but an
instrument by which the Courts can fulill the constitutional mandate of
the people's right to a speedy disposition of cases. Thus, it has been
ruled:
"The people's faith in the administration of justice, especially those who
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belong to the low income group, would be greatly impaired if decisions are
long in coming, more so from trial courts which unlike collegiate tribunals
where there is a need for extended deliberation, could be expected to act
with dispatch." (Magdamo vs. Pahimulin, Adm. Matter No. 662-MJ, 30
September 1976, 73 SCRA 110).
Q
- Should a judge show undue interest in a pending case before
another court? Why?
ANS. -No. Cardinal is the rule that a judge should avoid impropriety in all
activities. The Canons mince no words in mandating that a judge shall
refrain from inluencing in any manner the outcome of litigation or dispute
pending before another Court. (Canon 2, Rule 2.04). Interference by
members of the Bench in pending suits with the end in view of inluencing
the course or the result of litigation does not only subvert the
independence of the judiciary but also undermines the people's faith in its
integrity and impartiality. (Commentaries on the Code of Judicial Conduct).
On this point, Impao vs. Makilala (A.M. No. MTJ-88-184, October 13, 1989,
178 SCRA 541) expounds:
"It is an important judicial norm that a judge's private as well as
oicial conduct must at all times be free from the appearance of impropriety." (Lugue vs. Kayanan, G.R. No. L
26828, August 29, 1969,29 SCRA 165; x x x). As held by this Court in the
case of Dela Paz vs. Inutan, Adm. Matter No. 201 MJ, June 30, 1975, 64
SCRA 540:
"The judge is the visible representation of the law and, more
importantly, of justice. From him, the people draw their will and
awareness to obey the law. They see in him an intermediary of justice
between two conlicting interests, especially in the station of municipal
judges, like respondent Judge, who have that close and direct contact
with the people before anybody else in the judiciary. Thus, for the judge
to return that regard, he must be the irst to abide by the law and weave
an example for the others to follow."
Q
- If a judge reconsiders his decision/order, can he be charged
administratively? Why?
ANS. -No. It is the prerogative of a judge to correct his own decision before it
becomes inal and executory, so as to make it conform to the evidence
presented and the applicable laws. (Baguyo vs. Leviste, 107 SCRA 35).
The rule is true for as long as the judge is in good faith which is always
possessed.
A judge is not administratively accountable for every erroneous
ruling or decision rendered, provided, he acts in good faith and without
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ANS.
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173
malice. (Mendoza vs. Villaluz, 106 SCRA 664). The proper remedy of the
aggrieved party is not an administrative charge against the judge but an
appeal or petition for review of his decision. (Martin vs. Judge Placido
Vallarta, A.M. No. MTJ-90-495, Aug. 12, 1991).
- What is the efect if a judge allows the release of an accused
who was convicted of a non-bailable ofense? Why?
- The judge is guilty of gross misconduct when he allowed accused
individuals duly convicted of non-bailable ofenses and drug pushers at
that - to enjoy provisional liberty by way of bail. Under the facts obtaining in these cases, good faith cannot be presumed on the part of the
respondent judge. The suspicious circumstances attending the cases in
point are far too glaring to ignore. (Villa vs. Amonoy, A.C. RTJ-89-395,
Feb. 13, 1991).
- How do you describe the oice of a judge? Explain.
ANS. -The oice of a judge exists for one solemn end – to promote justice by
administering it fairly and impartially. (Gonzales vs. Austria M. Abaya, 176
SCRA 634). The judge is the visible representation of the law and of
justice. From him, the people draw their will and awareness to obey the
law. As such, he should avoid even the slightest infraction of the law.
(Inciong vs. De Guia, 154 SCRA 93; Dela Paz vs. Inutan, 64 SCRA 56, 177
SCRA 435). In Santos vs. Lumang, it was said that a judge who, through
gross ignorance of the laws or serious misconduct, frustrates the people's
search for justice, commits a rank disservice to the cause of justice which
calls for rectiication and the imposition of appropriate disciplinary
measures. In Summers vs. Ozaeta, 81 Phil. 754, it has been said that a
judge's position demands equanimity, prudence, fortitude and courage.
Q
- For failure to pay a just debt, a judge was inedP20,OOO.OO.
Was the penalty proper? Why?
ANS. -Yes. Willful failure to pay a just debt is a serious ofense under Rule 140 of
the Rules of Court, as amended by the resolution of the Supreme Court,
dated July 25, 1974. The amount involved (P4,500.00) is not big. He could
easily have paid it, but it appears that he was bent on frustrating the
complainant's best eforts to obtain satisfaction of her lawful claim, apparently for no other intention than to annoy and oppress her for having
haled him and his wife into court. While an ejectment case is supposed to
be summary in nature, respondent judge, through dilatory tactics,
stretched the trial over a period of ten (10) years, and dragged the case
all the way from the municipal court to the Court of Appeals. After the
decision had become inal, he delayed payment for two more years. He
came across only after the complainant in exasperation had iled this
administrative charge against him.
Respondent judge's conduct toward the complainant was oppressive
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and unbecoming a member of the judiciary. He used his position and his
legal knowledge to welsh on a just debt and to harass his creditor. His
example erodes public faith in the capacity of courts to administer justice.
He violated Rule 2.0l. Canon 2 of the Code of Judicial conduct which requires that "a judge should so behave at all times as to promote public
conidence in the integrity and impartiality of the judiciary. (De Julio vs.
Judge Benjamin Vega, A.M. No. RTJ-89-406, July 18, 1991).
Q
- What should the Oice of the Ombudsman do if a criminal
complaint against judge is iled with that oice? Why?
ANS. -Where a criminal complaint against a judge or other court employees
arises from their administrative duties, the Ombudsman must defer action
on said complaint and refer the same to the Supreme Court for
determination whether said judge or court employee had acted within the
scope of their administrative duties. This is so because Article VIII, Section
6 of the 1987 Constitution exclusively vests in the Supreme Court
administrative supervision over all courts and court personnel, from the
Presiding Justice of the Court of Appeals down to the lowest municipal trial
court clerk. By virtue of this power, it is only the Supreme Court that can
oversee the judges and court personnel's compliance with all laws, and
take the proper administrative action against them if they commit any
violation thereof. No other branch of government may intrude into this
power, without running afoul of the doctrine of separation of powers.
(Maceda vs. Vasquez, 221 SCRA 464, April 22, 1993).
Q
- Mayan action of a judge in the exercise of his judicial function
be the subject of a disciplinary action? Is the rule absolute?
ANS. -No. As a general rule, the acts done by a judge in his judicial capacity are
not subject to disciplinary action, even though erroneous. These acts
become subject to disciplinary power only when they are attended by
fraud, dishonesty, corruption or bad faith. (Abiera vs. Maceda, 52 SCAD
581, 233 SCRA 520, June 30, 1994).
A judge is not administratively accountable for every erroneous
ruling or decision rendered, provided, he acts in good faith and without
malice. (Martin vs. Vallarta, 200 SCRA 469, Aug. 12, 1991).
Good faith and absence of malice, corrupt motives and improper
consideration are suicient defenses that may be availed of by a judicial
oicer charged with ignorance of the law and promulgation of an unjust
decision from being held accountable for errors of judgment, on the
premise that no one called upon to try the fact or interpret the law in the
administration of justice can be infallible. (Pilipinas Bank vs. Tirona-Liwag,
190 SCRA 834, Oct. 18, 1990).
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Q
- State the concept and elements of knowingly rendering unjust
judgment.
ANS. - Knowingly rendering an unjust judgment is both a criminal and an
administrative charge. As a crime, it is punished under Art. 204 of the
RPC, the elements of which are: (a) the ofender is a judge; (b) he
renders a judgment in a case submitted to him for decision; (c) the
judgment is unjust; and (d) the judge knows that his judgment is
unjust. The gist of the ofense therefore is that an unjust judgment be
rendered maliciously or in bad faith, that is, knowing it to be unjust.
An unjust judgment is one which is contrary to law or is not
supported by the evidence, or both. The source of an unjust judgment
may be error or ill-will. There is no liability at all when required to exercise
his judgment or discretion. A judge is not liable criminally for any error
which he commits, provided he acts in good faith. Bad faith is therefore
the ground of liability. If in rendering judgment the judge fully knew that
the same was unjust in the sense aforesaid, then he acted maliciously and
must have been actuated and prevailed upon by hatred, envy, revenge,
greed, or some other similar motive. Mere error therefore in the
interpretation or application of the law does not constitute the crime.
The nature of the administrative charge of knowingly rendering an
unjust judgment is the same as the criminal charge. Thus, it must be
established that the judge rendered a judgment or decision not supported
by law and/or evidence and that he must be actuated by hatred, envy,
revenge, greed, or some other similar motive.
If for every error of a judge he should be punished, then perhaps no
judge, however good, competent and dedicated he may be, can ever
hope to retire from the judicial service without a tarnished image.
Somehow along the way he may commit mistakes, however, honest. This
does not exclude members of appellate courts who are not always in
agreement in their views. Anyone belonging to the minority opinion may
generally be considered in error, and yet, he is not punished because
each one is entitled to express himself. This privilege should extend to
trial judges so long as the error is not motivated by fraud, dishonesty,
corruption, or any other evil motive. (Dela Cruz vs. Concepcion, 54 SCAD
640, 235 SCRA 597, Aug. 25, 1994).
Q
-If a judge is charged and the complainant has lost interest in
prosecuting the case, will the case be dismissed? Why?
ANS. -No. The fact the complainant has lost interest in prosecuting the
administrative case against a judge will not necessarily warrant a
dismissal thereof. Once charges have been iled, the Supreme Court
may not be divested of its jurisdiction to investigate and ascertain the
truth of the matter alleged in the complaint. The Supreme Court has an
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interest in the conduct of members of the Judiciary and in improving
the delivery of justice to the people, and its eforts in that direction
may not be derailed by the complainant's desistance from further
prosecuting the case he or she initiated.
To condition administrative actions upon the will of every
complainant, who may, for one reason or another, condone a
detestable act, is to strip the Court of its supervisory power to
discipline erring members of the Judiciary. Deinitely, personal interests
are not
material or controlling. What is involved here is a matter of public interest
considering that a judge is no ordinary citizen but an oicer of the court
whose personal behavior not only upon the bench and in the performance
of judicial duties, but also in his everyday life, should be beyond reproach.
(Imbing vs. Tiongson, 48 SCAD 101,229 SCRA 690, Feb. 7, 1994).
Q -. X applied for the position of an RTC judge without revealing
that he has two pending cases. Is the act of X proper? Why?
ANS. -No. A judge is held guilty of gross misrepresentation when he failed to
disclose that he was facing two serious criminal charges when he
accepted appointment and subsequently qualiied as RTC judge. The
argument that he had not yet been convicted and should be presumed
innocent is beside the point, and so is the contention that the crimes of
homicide and attempted homicide do not involve moral turpitude. The
important consideration is that he had a duty to inform the appointing
authority and the SC to determine on the basis of his record his eligibility
for the position he was seeking. (Oice of the Court Administrator vs.
Estacion, Jr., 181 SCRA 33, Jan. 11, 1990).
Q
- Why should a judge regulate his extrajudicialactivities?
ANS. -Judges are enjoined not only to regulate their extrajudicial activities in
order to minimize the risk of conlict with their judicial duties but also
prohibited from engaging in the private practice of law. (Balayan vs.
Ocampo, 218 SCRA 13, Jan. 29, 1993).
Q
- May a judge issue a subpoena to a person whohas no case in his
sala? Why?
ANS. -No. In the absence of a case in his sala in connection with which a party
could be subpoenaed, a judge has absolutely no power or authority to
issue a subpoena to such party.
The judge, in using a subpoena form for criminal cases to
summon a party upon the request of another who had no case before
his court, invited legitimate criticism against his oice as an instrument
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of oppression. His act constitutes ignorance of the law and oppression
which should warrant disciplinary sanction. (Caamic vs. Galapon, Jr., 56
SCAD 14, 237 SCRA 390, October 7, 1994).
- Maya judge meet one of the parties i;n a case inside his
chambers without the other party and meddle with the issues
confronting the parties on the pretext of settling it? Why?
-No. In the absence of their lawyers, a judge ought not to meddle
in issues confronting the parties even on the pretext of settling their
cases as such act would compromise the integrity of his oice. Judges
are cautioned to avoid in-chamber sessions without the other party and
his counsel present, and to observe prudence at all times in their
conduct to the end that they not only act impartially and with propriety
but are also perceived to be impartial and proper.
The act of a judge in meeting with complainants without the
presence of counsel and warning them not to tell anyone, and demanding
money under the guise of forging peace between the parties constitutes
grave misconduct. (Capuno vs. Jaramillo, Jr., 53 SCAD 329, 234 SCRA 212,
July 20, 1994).
Q
- Maya judge solemnize marriage without marriage license? Why?
ANS .- No. For solemnizing marriages even without the requisite marriage
license, a judge is deemed to have actually triled with the law's concern
for the institution of marriage and the legal efects lowing from civil
status, which should merit administrative sanction, without prejudice to
the civil and criminalliabilities he may have incurred as well. (Cosca vs.
Palaypayon, Jr., 55 SCAD 759,237 SCRA 249, Sept. 30, 1994).
Q
ANS.
- During the incumbency of a judge, he sent out handbills
indicating his intention to run for a congressional seat. Was
the act of the judge proper? Why?
-No. A judge acted improperly when he sent out letters/handbills
manifesting his intention to run as a congressional candidate while
still the incumbent judge and prior to the commencement of the
campaign period. He took advantage of his position to boost his
candidacy, demeaned the stature of his oice and must be
pronounced guilty of gross misconduct. (Vistan vs. Nicolas, 201
SCRA 524, Sept. 13, 1991).
Q
- Should a judge report to his oice even if he has no hearings?
Why?
ANS. -Yes. A judge must report to his oice even if he has no hearings on
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regular days. The law regulating court sessions does not permit any "day
of' from regular oice hours to enable the judge to engage exclusively in
research or decision-making, no matter how important. (Mendoza vs.
Mabutas, 42 SCAD 423, 225 SCRA 411, June 17, 1993).
Q
- A judge used his chambers as his family's residence. Was the
ANS. -No. A judge cannot use his chambers as his family's residence even with
the Governor's permission. Government property is for oicial use only
and not for the personal use of the oicial. (Presado vs. Geova, 42 SCAD
507, 223 SCRA 489, June 21, 1993). Court rooms cannot be used as
judge's living quarters. (Felongco vs. Dictado, 42 SCAD 700, 223 SCRA
696).
Q
- If the order of a judge was questioned before a higher court,
should he appear personally to seek a reversal of the order that is
unfavorable to his action? Why?
ANS. -No. The judge whose order is under attack is merely a nominal party.
Wherefore, a judge, in his oicial capacity should not be made to
appear as a party seeking reversal of a decision that is unfavorable to
the action taken by him. A decent regard for the judicial hierarchy bars
a judge from suing against the adverse opinion of a higher court.
(Santiago vs. CA, 184 SCRA 690, April 27, 1990).
Q
- The judge failed to render judgment in a case within the
reglementary period. His reason is the failure of the
stenographer to transcribe the notes. Was the contention
proper?
ANS. -
No. A delay in the transcription of stenographic notes cannot be
considered a valid reason for the delay in rendering judgment in a
case. With or without the transcribed stenographic notes, the 90-day
period for deciding cases should be adhered to. (Balagot vs.
Opinion, 195 SCRA 429, March 20, 1991).
In one case, the Supreme Court said that the failure to decide a
case particularly one involving a simple violation of the Bouncing
Checks Law for over ive years is an inordinate amount of
procrastination tantamount to gross negligence. It is not enough for
judges to pen their decisions; it is also important to promulgate and
make them known to all concerned at the earliest possible time and
within the mandated period. (Soyangco vs. Maglalang, 196 SCRA 5,
April
19, 1991).
Q
- Describe the power of courts to cite persons in contempt.
ANS. -The power to declare a person in contempt of court and in dealing with
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him accordingly is an inherent power lodged in courts of justice to be used
as a means to protect and preserve the dignity of the court, the solemnity
of the proceedings therein and the administration of justice from callous
misbehavior, ofensive personalities, and contumacious refusal to comply
with court orders.
And as in all other power of the court, the contempt power,
however, plenary it may seem, must be exercised judiciously and
sparingly.
Clearly then, judges are enjoined to exercise utmost restraint in the
use of their contempt powers. They are expected to avail of the contempt
power only as a last resort when all other alternative courses of action are
exhausted in the pursuit of maintaining respect to the court and its
processes. Thus, when a less harsh remedy presents itself to the judge, he
should at all times hesitate to use his contempt power, and instead opt for
the less harsh remedy. (De Guia vs. Guerrero, Jr., 54 SCAD 1,234 SCRA
625, August 1, 1994).
Q
- Is "immorality" as a ground for imposition of ad.
ministrative sanctions limited to illicit sexual intercourse alone?
ANS.
-No. Immorality has not been conined to sexual matters, but
inCludes conduct inconsistent with rectitude, or indicative of corruption,
indecency, depravity, and dissoluteness; or is willful, lagrant or
shameless conduct showing moral indiference to opinions of respectable
members of the community, and as inconsiderate attitude toward good
order and public welfare. (Black's Law Dictionary, Sixth ed., 1990, 751;
cited in Alfonso vs. Judge Juanson, Adm. Matter No. RTJ-92-904, Dec. 7,
1993,46 SCAD 603).
For, it has been held that there is no dichotomy of morality; a public
oicial is also judged by his private morals. The Code of Judicial Ethics
dictates that a judge, in order to promote public conidence in the
integrity and impartiality of the judiciary, must behave with propriety at
all times. A judge's oicial life can not simply be detached or separated
from his personal existence. (Junio vs. Rivera Jr., 44 SCAD 308, 225 SCRA
688, Aug. 30, 1993).
In Sicat vs. Alcantara, et al., 161 SCRA 284, May 11, 1988,
wherein the respondent judge was chargedwith immorality for having
an illicit afair with a married female court employee, the Supreme
Court declared:
"The personal and oicial actuations of every member of the Bench
must be beyond reproach and above suspicion. The faith and conidence
of the public in the administration of justice cannot be maintained if a
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judge who dispenses it is not equipped with the cardinal judicial virtue of
moral integrity, and if he obtusely continues to commit an afront to
public decency. In fact, moral integrity is more than a virtue; it is a
necessity in the Judiciary."
In another case where a municipal judge was charged with having
illicit relations with a concubine under scandalous circumstances, it was
stated that if good moral character is required of a lawyer, with more
reason should that requirement be exacted of a member of the Judiciary
who at all times is expected to observe irreproachable behavior and is
bound not to outrage public decency. Thus, even as an ordinary lawyer, a
judge has to conform to the strict standards of conduct demanded of
members of the profession. Deinitely, fathering a child with a woman
other than his lawful wife fails to meet these standards. A judge sufers
from moral obtuseness or has a weird notion of morality in public oice
when he labors under the delusion that he can be a judge and at the
same time have a mistress in deiance of the mores and sense of morality
of the community. (lmbing vs. Tiongson, 48 SCAD 101,229 SCRA 690, Feb.
7, 1994).
Q
- Explain the basic reason for disqualiication of judges.
ANS. -
Q
The underlying reason for the Rule on Disqualiication of Judges
under Sec. 1, Rule 137, Rules of Court, is to ensure that a judge, sitting
in a case, will at all times be free from inclinations or prejudices and be
well capable to render a just and independent judgment. A litigant, we
often hear, is entitled to nothing less than the cold neutrality of a
judge. Due process requires it. Indeed, he not only must be able to so
act without bias but should even appear to be so. Impartiality is a state
of mind; hence, the need for some kind of manifestation of its reality.
Verily, a judge may, in the exercise of his sound discretion, inhibit
himself voluntarily from sitting in a case, but it should be based on good,
sound or ethical grounds, or for just and valid reasons. It is not enough
that a party throws some tenuous allegations of partiality at the judge. No
less than imperative is that it is the judge's sacred duty to administer justice without fear or favor. (Parayno vs. Meneses, 50 SCAD 170,231 SCRA
807, April 26, 1994).
- Why should a judge who is related to a party in a case pending
in his sala disqualify himself?
ANS. -
The rule of compulsory disqualiication of a judge to hear a case
where the judge is related to either party within the sixth degree of
consanguinity or ainity rests on the salutary principle that no judge
should preside in a case in which he is not wholly free, disinterested,
impartial and independent. A judge has both the duty of rendering a
just decision and the duty of doing it in a manner completely free from
suspicion as to its fairness and as to his integrity. The law conclusively
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presumes that a judge cannot objectively or impartially sit in such a
case and, for that reason, prohibits him and strikes at his authority to
hear and decide it, in the absence of written consent of all parties
concerned. The purpose is to preserve the people's faith and
conidence in the courts of justice. (Garcia vs. Dela Peiia, 48 SCAD 171,
229 SCRA 766).
- The respondent was charged with immorality and violation
of the Code of Judicial Ethics. The acts were allegedly committed
when he was still a practitioner. The complainant alleged that
respondent had carnal knowledge with his wife in at least ive (5)
occasions without specifying the dates. In fact, his wife allegedly
admitted having sexual intercourse with him. Now that he is a
judge, can he be removed for those acts he committed when he
was still a practitioner? Explain.
Q
ANS.
-No, for the acts were done before he became a judge. Proof of
prior immoral conduct cannot be the basis for his administrative
discipline. The respondent may have undergone moral reformation
after his appointment, or his appointment could have completely
transformed him upon the solemn realization that apublic oice is a
public trust and public oicers and employees must at all times be
accountable to the people, serve them with utmost responsibility,
integrity, loyalty and eiciency, act with patriotism and justice, and
lead modest lives. (Section 1, Article XI,1987 Constitution). It would be
unreasonable and unfair to presume that since he had wandered from
the path of moral righteousness, he could never retrace his steps and
walk proud and tall again in the path. No man is beyond reformation
and redemption. A lawyer who aspires for the exalted position of a
magistrate knows, or ought to know, that he must pay a high price for
the honor - his private and oicial conduct must at all times be free
from the appearance of impropriety. (Jagueta vs. Boncaros, 60 SCRA 27
[1974]). And the lawyer who is thereafter appointed thereto must
perforce be presumed to have solemnly bound himself to a way of
conduct free from any hint or suspicion of impropriety. The imputation
of illicit sexual acts upon the incumbent judge must be proven by
substantial evidence, which is the quantum of proof required in
administrative cases. (Alfonso vs. Judge Modesto Luanson, Dec. 7,
1993,46 SCAD 603).
Q - Judge Enrique A. Cube was, on May 31, 1993 appointed Presiding
Judge of Metropolitan Trial Court, Branch 22, Manila. Subsequently,
information was received by the Judicial and Bar Council that he was
previously dismissed in 1972 as Assistant Fiscal of Pasay City for
gross misconduct and dereliction of duty for failure to prosecute a
criminal case which led to its dismissal with prejudice.
Cube applied for appointment to the Judiciary sometime in
1992. In the Personal Data Sheet he was required to accomplish,
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one of the questions asked was: "Have you ever been retired,
dismissed, forced to resign from any employment for reason
other than lack of funds or dropped from the rolls? His answer
was "Optional under RA 1145."
RA 1145 is entitled "An Act Creating the Philippine Coconut
Administration..." and does not deal with retirement, optional or
otherwise. Cube's Services Record made no mention of his having
been employed in this agency.
Cube explained that his removal in 1972 was WITHOUT
PREJUDICE. He was in fact appointed to a municipal government
position.
ANS. - YES Can he be dismissed? Why?
The circumstance that his dismissal was without prejudice is not material,
and neither is his subsequent appointment to a municipal position. What is
important is his non-disclosure or concealment of the fact that in 1972, he
was REMOVED as Asst. Fiscal. That fact was deliberately suppressed. He did
not retire, as he declared in his data sheet. He was removed for gross
misconduct and dereliction of duty in the prosecution of a smuggling case.
"It behooves every prospective appointee to the judiciary to apprise
the appointing authority of every matter bearing on his itness for judicial
oice, including such circumstances as may relect on his integrity and
probity. These are qualiications speciically required by the Constitution."
The fact alone of his concealment of his previous dismissal from the
public service, which the Judicial and Bar Council would have taken into
consideration in acting on his application, is clear proof of his lack of the
said qualiications and renders him unworthy to sit as judge.
Q
Judge Cube committed an act of dishonesty that rendered him unit
to be appointed to, and to remain now in, the Judiciary, he has tarnished
with his falsehood. He was DISMISSED with prejudice to his reappointment
to any position in the government, including government-owned or
-controlled corporations, and with forfeiture of all retirement beneits. (Re:
Inquiry on the Appointment of Judge Enrique A. Cube, AM No. 93-7-4280
METC, Oct. 13, 1993, 45 SCAD 301).
- A 14-year old girl, Cristina Junio iled with the Provincial Prosecutor's
oice a complaint for acts of lasciviousness against Judge Rivera of
Alaminos, Pangasinan. The investigating oicer recommended that the
judge be absolved of the administrative case. Is the recommendation
proper? Why?
ANS. - No. In dismissing the Judge, the Supreme Court said that exacting
standards of morality and decency from those who serve in the
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judiciary have been set. A member of the judiciary is judged not only
by his oficial acts but also by his private morals, to the extent that
such private morals are externalized in his behavior. The judge failed to
measure up to those demanding standards. He was found guilty of
gross misconduct and conduct prejudicial to the interest of the
judiciary. (Junio vs. Judge Pedro Rivera, Aug. 30, 1993).
Q - Provincial Prosecutor G. Olarte iled an information for murder
against F. Banite withoutrecommendation for bail in the sala of
Judge Tarriela, presiding judge Branch 44 RTC of Mamburao,
Occidental Mindoro. On January 3, 1992, the accused was
arraigned where he pleaded not guilty. However, on January 18,
1992, prosecutor Olarte amended the informa tion against Banite
without leave of court to homicide and recommended a bail of
P20,OOO.OO. Judge Tarriela ordered Olarte to explain his action.
Thereafter, on February 4, 1992, Mrs. Zubiri, supervising stenoreporter of the provincial prosecutor on orders of Olarte went to
Judge Aguilar herein respondent, who was then the executive and
presiding judge of Branch 45 RTC of San Jose, Occidental Mindoro,
to request for the release of the accused Banite on bail. On the
same day, Judge Aguilar signed and issued the order approving
the property bond and the release of the accused on bail.
Complainants herein charged respondent judge with grave abuse
of discretion, since the case was being tried in the sala of Judge
Tarriela. Is the judge guilty of abuse of authority? Why?
ANS. -Yes. Respondent Judge is guilty of grave abuse of authority. The case was
iled in Branch 44, hence, respondent judge who presides in Branch 45,
had no power to act on the request to release on bail accused Banite. It
was irregular for respondent judge to entertain the request considering
that it did not appear that a formal motion had been iled by the accused
to that efect.
Respondent judge should endeavor at all times to maintain the
conidence and high respect accorded to those who wield the gavel of
justice. Circular No. 13 enjoins judges to conduct themselves strictly in
accordance with the mandate of existing laws and the code of judicial
conduct that they be exemplars in their communities and the living
personiication of justice and the rule of law.
Respondent judge's action shows such lack of familiarity with the
laws, rules and regulations as to undermine the public conidence in the
integrity of our courts.
Moreover, the record does not show that at that time respondent
judge ordered Banite's release, judge Tarriela was absent or unavailable
and could not have acted on the request. (Cuaresma vs. Judge Aguilar,
Sept. 3, 1993, 44 SCAD 451).
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- Hermina Alvos, claiming to be the niece of Paz Ramirez,
surviving spouse of the late Ambrocio Pingco, iled with the RTC
a petition for settlement of the estate of Ambrocio. Respondent
Judge appointed Alvos as special administrator.
Counsel for Alvos iled an urgent motion stating that
parcels of land belonging to Ambrocio and his wife were sold
to complainant Uy and requested the Court to direct the Register of Deeds to freeze any transaction without the signature of
Alvos involving said properties and later requested the titles
issued to Uy be cancelled. Respondent Judge ordered the cancellation and reinstatement of the names of the spouses
Ambrocio and Paz. Uy iled with the CA a petition to annul the
order with a prayer for a temporary restraining order to
prevent the judge from further proceeding against him.
Despite the decision of CA and the pendency of the petition
for review to SC, respondent judge continued issuing various
orders resulting in the issuance of new titles to the properties
in the name of persons stated in the project of partition to the
damage and prejudice of complainant. Furthermore, even after
the SC had airmed the ruling of the CA that respondent judge
has no jurisdiction to entertssain further proceedings
concerning the ownership of the properties, respondent judge
still in an attempt to defeat the proscription imposed by the
higher judicial authority, issued orders approving the sale of
the properties to the further prejudice of' the complainants,
hence, this complaint against Judge Capulong. Is the judge
guilty? Why?
ANS.
Q
- Yes. The actuation of respondent judge clearly stressed her
blatant dis obedience to the lawful orders of superior courts and belie
any claims that she rendered the erroneous orders in good faith as
would excuse her from administrative liability.
Time and time again the Supreme Court emphasized that the judge
is the visible representation of law and justice from whom the people draw
their will and awareness to obey the law. For the judge to return that
regard, the latter must be the irst to abide by the law and weave an
example for the others to follow. The judge should be studiously careful to
avoid even the slightest infraction to the law. To fulill this mission, the
judge should keep abreast of the law, the rulings and doctrines of the
Supreme Court. If the judge is already aware of them, the latter should
not deliberately refrain from applying them; otherwise, such omission can
never be excused. (Uy vs. Capulong, AM No. RTJ -91-766, April 7, 1993)
- The accused was the brother-in-law of the judge being the
husband of her sister. She did not inhibit herself. A judgment
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acquitting the accused was rendered. Is the actuation of the
judge correct or proper? Why?
ANS.
- No, the judge violated and deliberately disregarded Rule 3.12(d),
Canon 3 of the Code of Judicial conduct considering that the
accused is her brother-in-law and did not obtain the consent of the
parties. She even interceded to obtain settlement, hence, bias was
then present on her part, thereby necessarily blinding her
impartiality and irreparably afecting the cold neutrality she is
supposed to possess. She should have voluntarily disqualiied
herself.
She may not be liable for rendering unjust judgment, but may
only be guilty of gross ignorance of the law. (Ubarra vs. Judge
Mapalad, March 22, 1993).
Q - Alisangco bought a stolen carabao. A complaint was iled
for the violation of No. 1612 (which the respondent Judge
erroneously claim to be the Anti-Cattle Rustling Law of 1979
when in reality, it is the Anti-Fencing Law of 1979)against
complainant Alisangco as one of the accused. Consequently,
Judge Tabiliran immediately issued a warrant for Alisangco's
arrest without irst determining his participation in the
ofense charged and set the bond at P20,OOO.OO. Alisangco
posted cash bond after which he was served with a
subpoena directing him to appear for arraignment and
preliminary investigation. On such date, Alisangco no longer
appeared because he had earlier iled a waiver of his right
to a preliminary investigation. In view of his nonappearance, Judge Tabiliran issued an order to arrest
Alisangco and requiring the latter to show cause why his
bond should not be coniscated. Before the arrest could be
efected, the latter's counsel intervened by iling a motion to
lift the order of arrest. The respondent Judge, however, had
not acted on the said motion. Hence, this complaint for
grave abuse of authority, ignorance of the law and conduct
unbecoming of a presiding judge. Decide.
ANS.
-Considering that the MTC only had preliminary jurisdiction over the
case, the respondent judge did not have any authority to set the case
for arraignment. All it could do was to calendar the same for preliminary investigation. There is no law or rule requiring an arraignment
during the preliminary investigation. The arraignment must be
conducted by the court having jurisdiction to try the case on its merits.
Thus, in this case, the RTC has exclusive original jurisdiction by reason
of the prescribed penalty. Hence, respondent Judge in this case did not
know the proper procedure on the matter or simply chose to ignore the
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same.
It was duly proven that the waiver of preliminary investigation
was iled by the complainant. Respondent judge exhibited ignorance of
procedural law or plainly abused his authority when he issued a
warrant for the arrest of the complainant and ordered the latter to
show cause why his bond should not be coniscated. Even if the waiver
was not seen by him because it was not attached to the expediente of
the case, the most that the court could have done from the
complainant's failure to appear was to consider him as having waived
his right to a preliminary investigation or declare such preliminary
investigation closed and terminated as to him. It is settled that even if
an accused had expressed his desire to be given an opportunity to be
present at the preliminary investigation, but later changed his mind
and renounced his right, he cannot be compelled to be present in the
said investigation, (Alisangco vs. Judge Tabiliran, June 30, 1993, 42
SCAD 797).
Q
- State Prosecutor Zuno iled an administrative complaint
against Judge Dizon for gross ignorance of the law because
he acquitted the defendants in four cases of illegal
possession of irearms. Judge Dizon anchored his decision
on the case of People vs. Asuncion, 161 SCRA 490, which
ruled that the prosecution must show that other than mere
possession of an unlicensed irearm, the perpetrator had the
intent to use the same. However, said ruling inds no
application in the said cases. The rule steadfastly laid down
in cases of illegal possession of irearms is that mere
possession is suicient to warrant conviction. The ofense is
covered by special law and is malum prohibitum; hence, intent to use is not an ingredient of the crime and need not
therefore be alleged in the information. The commission of
the act being prohibited by reason of public policy, it
suices that the prohibited article be found in the
possession of the accused, it not being necessary to allege
or prove intent to use.
At the investigation, it was found that Judge Dizon's
erroneous adherence to the ruling in People VB. Asuncion
showed his ignorance of the history and development of the
irearm law; and that he failed to ascertain irst if the facts
of the cases he relied upon are similar to the four criminal
cases iled by State Prosecutor Zuno. Is Judge Dizon guilty of
gross incompetence, gross ignorance of the law and of
knowingly rendering incorrect judgment? Why?
ANS.
-Yes. In dismissing him, the Supreme Court said that Judge Dizon is
once more before the Supreme Court to answer charges, which are
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practically a repetition of an earlier case against him. As before, he
stubbornly insists that malice or criminal intent should be proved even
in crimes punished by special laws or laws which are mala prohibita.
The Supreme Court found him guilty of having acted with gross
incompetence and gross ignorance of the law, as to be almost
deliberate and tantamount to knowingly rendering incorrect and unjust
judgment. (Article 204, RPC).
A judge should be the embodiment of competence, integrity and
independence. He should be faithful to the law and maintain professional
competence. In every case, he should endeavor diligently to ascertain the
facts and the applicable law answered by partisan interests, public opinion
or fear of criticism. When it has been clearly demonstrated, as in this
case, not only once but four times, that the judge is either grossly
incompetent or grossly ignorant of the penal laws especially those
involving crimes committed by transients, like smuggling of foreign
currency and irearms, through the international airport in Pasay City,
where his court sits, he becomes unit to discharge his judicial oice. More
than mere ignorance of applicable laws and jurisprudence, his intransigence and persistence in error will make people lose their faith in him as
an administrator of justice. Having lost his right to be addressed by the
respectful appellation of "Honorable Judge" he has likewise lost his right to
continue in the judicial service. (Senior State Prosecutor Zuno vs. Judge
Dizon, June 23, 1993, 42 SCAD 601).
Q
- The judge in an ejectment suit rendered a judgment, the
dispositive portion of which reads:
"Wherefore, in view of the foregoing considerations, it is
hereby respectfully
Prayed that judgment be rendered in accordance with the
plaintif's prayer in their complaint in the above-entitled case."
In a petition for certiorari, the Court declared it void. But
respondent judge changed
and amended his earlier decision ordering the defendants to
vacate the premises, hence, the complaint for gross ignorance
of the law and incompetence. Will the complaint prosper?
Why?
ANS.
-Yes. A judge should exhibit an industry and application
commensurate with the duties imposed upon him and he should be
conscientious, studious and thorough. He did not only issue a manifestly
void decision, he even granted the motion for its execution and issued the
corresponding writ with full knowledge that there was nothing to execute;
exhibiting once more his ineiciency, carelessness, negligence or even his
incompetence. (Santos vs. Judge Orlando Paguio, Nov. 16, 1993, 46 SCAD
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295).
Q
- After due notice and hearing and upon the iling of a
bond, the MTCC of Tangub City then presided over by Judge
Salvanera directed the defendants to vacate the ishpond in
question and restore the possession to Nique. The defendants
iled a motion to lift the restraining order but the court
maintained it. They iled a second motion for reconsideration
and Judge Salvanera lifted the restraining order and delivered
the possession of the property to them.
Consequently, Nique iled a petition for certiorari in the CA
to annul Judge Salvanera's order. The CA referred the case to
the RTC which has concurrent jurisdiction over the case. The
RTC set aside Judge Salvanera's order and directed him to
reinstate the writ of preliminary mandatory injunction and
restore the petitioner in the peaceful possession and
occupation of the ishpond.
After the RTC decision had become inal and executory,
Nique iled a motion for execution. The motion was heard by
Judge Zapatos who had succeeded Judge Salvanera. The defendants iled a motion to lift the preliminary injunction but
opposed by Nique. However, Judge Zapatos denied the motion
for execution and dissolved the writ of preliminary mandatory
in junction, which the RTC had ordered to be reinstated. Hence,
this complaint iled by Nique against Zapatos charging him
with gross ignorance of the law and failure to perform an act
which he had been directed to do. On theother hand, Judge
Zapatos contended that he is authorized under Sees. 6 and 7,
Rule 58 of Rules of Court to dissolve an injunction reinstated
by the RTC since it appeared that after the injunction was
issued, there was a change in the situation of the parties and
that a writ of preliminary mandatory injunction is an
interlocutory order that remains at all times within the control
of the court that issued it before inal judgment on the merits
of the case. Is the judge guilty? Why?
ANS.
-Yes, because a judge occupying a court that is lower in rank than
the RTC, owes respect to the latter and is bound by the disposition or
decision of said appellate court upon a petition for review of an order
issued by him. His act of reversing the inal judgment of the RTC
instead of complying with his mandatory and ministerial duty of
executing the same, is the height of audacity, arrogance and
presumption on his part for if the decision of the RTC was unacceptable
to the defendants, their remedy was to appeal it to a higher court.
Having failed to do that, they, as well as the lower court, were bound
by the judgment. There was no avoiding compliance with it for the ex-
188
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ecution of a inal judgment is a ministerial duty of the trial court.
(Nique vs. Zapatos, A.M. No. MTJ-92-655, March 1993).
Q
- The judge admitted that during days he had no hearings,
he stayed at his house to make some research, resolve motions,
make decisions. Anyway, his house was near the court, so he can
be easily reached. Is the act of the judge proper? Why?
ANS.
-No, because a judge must report to his oice even if he has no
hearing on regular days. In Circular No. 13 dated 1 July 1987, the
Supreme Court stressed the need for punctuality and the faithful
observance of oice hours, with Judges being enjoined to strictly
observe the requirement of eight (8) hours of service a day. This was
reiterated in Administrative Circular No.1 of 28 January 1988. Also
under the Interim Rules Implementing Batas Pambansa BIg. 129, Judges
of the Metropolitan Trial Courts, Municipal Trial Courts and Municipal
Circuit Trial Courts are required, on a rotation basis to report on
Saturdays from 8:00 a.m. to 1:00 p.m. primarily to act on petitions for
bail and similar matters, while all Executive Judges, whether in single or
multiple salas, are mandated to remain on duty on Saturday
afternoons.
In Ubaldino A. Lacuron vs. Judge Pablo Atienza (Adm. Matter No. RTJ90-456, 14 January 1992), it was said that the law regulating court
sessions does not permit any "day of' from regular oice hours to enable
a judge to engage exclusively in research or decision-writing, no matter
how important. In Siasico vs. Sales (71 SCRA 139, 146 [1976]), the
Supreme Court stated:
"Reasons of public policy, the preservation of the good image of the
judiciary, and avoidance of all appearances of impropriety, require that a
judge should hold oice at the regular place of business of the court and
not at his residence. A judge holding oice in his house makes criticism
that his oicial actuation cannot bear public scrutiny, more particularly of
his co-oicials in the local government. All these would have deterred
respondent from the course of action he had taken had he possessed
some sense of decorum and good judgment." (Mendoza vs. Judge Rodolfo
Mabutas, June 17, 1993,42 SCAD 423).
Q
- An ejectment suit was iled. A judgment was rendered; the
writ of execution was issued after ive (5) years. Furthermore, the
movant was not a party; nor even a substituted party. Is the
judge guilty of impropriety? Why?
ANS.
-Yes, because a judge's oicial conduct should be free from
the appearance of impropriety, in his personal behavior, not only
upon the bench and in the performance of judicial duties, but also
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his everyday life, should be beyond reproach, and he should
administer his oice with due regard to the integrity of the system
of the law itself, remembering that he is not a depository of
arbitrary power, but a judge under the sanction of law. (Canons 3
and 18, Code of Judicial Ethics).
The movant had not yet been substituted as a party; the writ
of demolition was issued despite the fact that his court ceased to
have authority to enforce the decision by motion. The least
explanation is that, he was unaware of the Rules. If he was
cognizant of said rules, then he deliberately ignored them to extend
beneit to a party who happened to be his compadre. In such a
case, he allowed a relationship to inluence his action to the
prejudice of the complainant. (Vda. De Coronel vs. Judge Danan, et
al., Aug. 9, 1993, 43 SCAD 926).
Q
- Who has the power to investigate a judge who falsiied his
certiicate of service?
ANS.
The Supreme Court in Maceda vs. Vasquez, et al., G.R. No.
102781, April 22, 1993, held that the power to investigate a
complaint against a judgess for alleged falsiication of his
certiication of service is lodged in the Supreme Court, thru the
Court Administrator. The Ombudsman is powerless to do so under
the principle of separation of powers.
If it is a criminal case, the Ombudsman has the power to investigate
the judge.
Q
ANS.
- A judge acquitted the accused in a case for violation
of the Central Bank Act because intent to violate the law
was not proven. He repeated the same mistake in another
case for violation of another special law speciically the
attempt to
smuggle irearms into and out of the country. He was
removed twice. Explain the reason.
-The reason for such dismissal twice could be traced from the
fact that such mistake cannot be ascribed to a simple mistake of
judgment but to gross ignorance of the law, if not deliberate
disregard of the same. It is tantamount to knowingly rendering
unjust and incorrect judgment. A judge should be the embodiment
of competence, integrity and independence. He should be faithful to
the law and maintain professional competence. (Padilla vs. Dizon,
158 SCRA 127; Senior State Prosecutor Jovencito Zunio, Jr. vs. Dizon,
June 23, 1993, 42 SCAD 601).
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Republic of the Philippines
Supreme Court
Manila
EN BANC
A.M. No. 02-8-13-SC
2004 Rules on Notarial Practice
RESOLUTION
Acting on the compliance dated 05 July 2004 and on the proposed Rules on
Notarial Practice of 2004 Submitted by the Sub-Committee for the Study,
Drafting and Formulation of the Rules Governing the Appointment of Notaries
Public and the Performance and Exercise of Their Oicial Functions, of the
Committees on Revision of the Rules of Court and on Legal Education and Bar
Matters, the Court Resolved to APPROVE the proposed Rules on Notarial Practice
of 2004, with modiications, thus:
2004 RULES ON NOTARIAL PRACTICE
RULE I
IMPLEMENTATION
SECTION 1. Title. - These Rules shall be known as the 2004 Rules on
Notarial Practice.
SEC. 2. Purposes. - These Rules shall be applied and construed to advance
the following purposes:
(a) to promote, serve, and protect public interest;
(b) to simplify, clarify, and modernize the rules governing notaries
public; and
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(c) to foster ethical conduct among notaries public.
SEC. 3. Interpretation. - Unless the context of these Rules otherwise
indicates, words in the singular include the plural, and words in the plural
include the singular.
RULE II
DEFINITIONS
SECTION 1. Acknowledgment. - "Acknowledgment" refers to an act in
which an individual on a single occasion:
(a)
appears in person before the notary public and presents an
integrally complete instrument or document;
(b)
is attested to be personally known to the notary public or
identiied by the notary public through competent evidence of
identity as deined by these Rules; and
(c)
represents to the notary public that the signature on the
instrument or document was voluntarily aixed by him for the
purposes stated in the instrument or document, declares that he
has executed the instrument or document as his free and voluntary
act and deed, and, if he acts in a particular representative capacity,
that he has the authority to sign in that capacity.
SEC. 2. Airmation or Oath. - The term "Airmation" or "Oath" refers to an
act in which an individual on a single occasion:
(a) appears in person before the notary public;
(b) is personally known to the notary public or identiied by the
notary public through competent evidence of identity as deined
by these Rules; and
(c) avows under penalty of law to the whole truth of the contents of
the instrument or document.
SEC. 3. Commission. - "Commission" refers to the grant of authority to
perform notarial acts and to the written evidence of the authority.
SEC. 4. Copy Certiication. - "Copy Certiication" refers to a notarial act in
which a notary public:
(a) is presented with an instrument or document that is neither a
vital record, a public record, nor publicly recordable;
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(b)copies or supervises the copying of the instrument or document;
(c) compares the instrument or document with the copy; and
(d)determines that the copy is accurate and complete.
SEC. 5. Notarial Register. - "Notarial Register" refers to a permanently
bound book with numbered pages containing a chronological record of
notarial acts performed by a notary public.
SEC. 6. Jurat. - "Jurat" refers to an act in which an individual on a single
occasion:
(a) appears in person before the notary public and presents an
instrument or document;
(b)is personally known to the notary public or identiied by the
notary public through competent evidence of identity as deined
by these Rules;
(c) signs the instrument or document in the presence of the notary;
and
(d)takes an oath or airmation before the notary public as to such
instrument or document.
SEC. 7. Notarial Act and Notarization. - "Notarial Act" and "Notarization"
refer to any act that a notary public is empowered to perform under these
Rules.
SEC. 8. Notarial Certiicate. - "Notarial Certiicate" refers to the part of, or
attachment to, a notarized instrument or document that is completed by
the notary public, bears the notary's signature and seal, and states the
facts attested to by the notary public in a particular notarization as
provided for by these Rules.
SEC. 9. Notary Public and Notary. - "Notary Public" and "Notary" refer to
any person commissioned to perform oicial acts under these Rules.
SEC. 10. Principal. - "Principal" refers to a person appearing before the
notary public whose act is the subject of notarization.
SEC. 11. Regular Place of Work or Business. - The term "regular place of
work or business" refers to a stationary oice in the city or province
wherein the notary public renders legal and notarial services.
SEC. 12. Competent Evidence of Identity. - The phrase “competent
evidence of identity" refers to the identiication of an individual based on:
(a) at least one current identiication document issued by an oicial
agency bearing the photograph and signature of the individual;
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(b) the oath or airmation of one credible witness not privy to the
instrument, document or transaction who is personally known to
the notary public and who personally knows the individual, or of
two credible witnesses neither of whom is privy to the
instrument, document or transaction who each personally knows
the individual and shows to the notary public documentary
identiication.
SEC. 13. Oicial Seal or Seal. - "Oicial seal" or "Seal" refers to a device
for aixing a mark, image or impression on all papers oicially signed by
the notary public conforming the requisites prescribed by these Rules.
SEC. 14. Signature Witnessing. - The term "signature witnessing" refers to
a notarial act in which an individual on a single occasion.
(a) appears in person before the notary public and presents an
instrument or document;
(b)is personally known to the notary public or identiied by the
notary public through competent evidence of identity as deined
by these Rules; and
(c) signs the instrument or document in the presence of the notary
public.
SEC. 15. Court. - "Court" refers to the Supreme Court of the Philippines.
SEC. 16. Petitioner. - "Petitioner" refers to a person who applies for a
notarial commission.
SEC. 17. Oice of the Court Administrator. - "Oice of the Court
Administrator" refers to the Oice of the Court Administrator of the
Supreme Court.
SEC. 18. Executive Judge. - "Executive Judge" refers to the Executive
Judge of the Regional Trial Court of a city or province who issues a notarial
commission.
SEC. 19. Vendor. - "Vendor" under these Rules refers to a seller of a
notarial seal and shall include a wholesaler or retailer.
SEC. 20. Manufacturer. - "Manufacturer" under these Rules refers to one
who produces a notarial seal and shall include an engraver and seal
maker.
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RULE III
COMMISSIONING OF NOTARY PUBLIC
SECTION 1. Qualiications. - A notarial commission may be issued by an
Executive Judge to any qualiied person who submits a petition in
accordance with these Rules.
To be eligible for commissioning as notary public, the petitioner:
(1)must be a citizen of the Philippines;
(2)must be over twenty-one (21) years of age;
(3)must be a resident in the Philippines for at least one (1) year and
maintains a regular place of work or business in the city or
province where the commission is to be issued;
(4)must be a member of the Philippine Bar in good standing with
clearances from the Oice of the Bar Conidant of the Supreme
Court and the Integrated Bar of the Philippines; and
(5)must not have been convicted in the irst instance of any crime
involving moral turpitude.
SEC. 2. Form of the Petition and Supporting Documents. - Every petition
for a notarial commission shall be in writing, veriied, and shall include the
following:
(a) a statement containing the petitioner's personal qualiications,
including the petitioner's date of birth, residence, telephone
number, professional tax receipt, roll of attorney's number and
IBP membership number;
(b)certiication of good moral character of the petitioner by at least
two (2) executive oicers of the local chapter of the Integrated
Bar of the Philippines where he is applying for commission;
(c) proof of payment for the iling of the petition as required by
these Rules; and
(d)three (3) passport-size color photographs with light background
taken within thirty (30) days of the application. The photograph
should not be retouched. The petitioner shall sign his name at
the bottom part of the photographs.
SEC. 3. Application Fee. - Every petitioner for a notarial commission shall
pay the application fee as prescribed in the Rules of Court.
SEC. 4. Summary Hearing on the Petition. - The Executive Judge shall
conduct a summary hearing on the petition and shall grant the same if:
(a) the petition is suicient in form and substance;
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(b)the petitioner proves the allegations contained in the petition;
and
(c) the petitioner establishes to the satisfaction of tile Executive
Judge that he has read and fully understood these Rules.
The Executive Judge shall forthwith issue a commission and a Certiicate
of Authorization to Purchase a Notarial Seal in favor of the petitioner.
SEC. 5. Notice of Summary Hearing.
(a) The notice of summary hearing shall be published in a
newspaper of general circulation in the city or province where
the hearing shall be conducted and posted in a conspicuous
place in the oices of the Executive Judge and of the Clerk of
Court. The cost of the publication shall be borne by the
petitioner. The notice may include more than one petitioner.
(b)The notice shall be substantially in the following form:
NOTICE OF HEARING
Notice is hereby given that a summary hearing on the
petition for notarial commission of (name of petitioner)
shall be held on (date) at (place) at (time). Any person
who has any cause or reason to object to the grant of the
petition may ile a veriied written opposition thereto,
received by the undersigned before the date of the
summary hearing.
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Executive Judge
SEC. 6. Opposition to Petition. - Any person who has any cause or reason
to object to the grant of the petition may ile a veriied written opposition
thereto. The opposition must be received by the Executive Judge before
the date of the summary hearing.
SEC. 7. Form of Notarial Commission. - The commissioning of a notary
public shall be in a formal order signed by the Executive Judge
substantially in the following form:
REPUBLIC OF THE PHILIPPINES
REGIONAL TRIAL COURT OF ------------------This is to certify that (name of notary public) of (regular
place of work or business) in (city or province) was on this
(date) day of (month) two thousand and (year)
commissioned by the undersigned as a notary public, within
and for the said jurisdiction, for a term ending the thirtyirst day of December (year).
________________________
Executive Judge
SEC. 8. Period Of Validity of Certiicate of Authorization to Purchase a
Notarial Seal. - The Certiicate of Authorization to Purchase a Notarial Seal
shall be valid for a period of three (3) months from date of issue, unless
extended by the Executive Judge.
A mark, image or impression of the seal that may be purchased by the
notary public pursuant to the Certiicate shall be presented to the
Executive Judge for approval prior to use.
SEC. 9. Form of Certiicate of Authorization to Purchase a Notarial Seal. The Certiicate of Authorization to Purchase a Notarial Seal shall
substantially be in the following form:
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REPUBLIC OF THE PHILIPPINES
REGIONAL TRIAL COURT OF ____________
CERTIFICATE OF AUTHORIZATION TO PURCHASE A NOTARIAL SEAL:
This is to authorize (name of notary public) of (city or
province) who was commissioned by the undersigned as a
notary public, within and for the said jurisdiction, for a term
ending, the thirty-irst of December (year) to purchase a
notarial seal.
Issued this (day) of (month) (year).
______________________
Executive Judge
SEC. 10. Oicial Seal of Notary Public. - Every person commissioned as
notary public shall have only one oicial seal of oice in accordance with
these Rules.
SEC. 11. Jurisdiction and Term. - A person commissioned as notary public
may perform notarial acts in any place within the territorial jurisdiction of
the commissioning court for a period of two (2) years commencing the
irst day of January of the year in which the commissioning is made,
unless earlier revoked or the notary public has resigned under these Rules
and the Rules of Court.
SEC. 12. Register of Notaries Public. - The Executive Judge shall keep and
maintain a Register of Notaries Public in his jurisdiction which shall
contain, among others, the dates of issuance or revocation or suspension
of notarial commissions, and the resignation or death of notaries public.
Tile Executive Judge shall furnish the Oice of the Court Administrator
information and data recorded in the register of notaries public. The Oice
of the Court Administrator shall keep a permanent, complete and updated
database of such records.
SEC. 13. Renewal of Commission. - A notary public may ile a written
application with the Executive Judge for the renewal of his commission
within forty-ive (45) days before the expiration thereof. A mark, image or
impression of the seal of the notary public shall be attached to the
application.
Failure to ile said application will result in the deletion of the name of the
notary public in the register of notaries public.
The notary public thus removed from the Register of Notaries Public may
only be reinstated therein after he is issued a new commission in
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accordance with these Rules.
SEC. 14. Action on Application for Renewal of Commission. - The Executive
Judge shall, upon payment of the application fee mentioned in Section 3
above of this Rule, act on an application for the renewal of a commission
within thirty (30) days from receipt thereof. If the application is denied,
the Executive Judge shall state the reasons therefor.
RULE IV
POWERS AND LIMITATIONS OF NOT ARIES PUBLIC
SECTION 1. Powers. - (a) A notary public is empowered to perform the
following notarial acts:
(1)acknowledgments;
(2)oaths and airmations;
(3)jurats;
(4)signature witnessings;
(5)copy certiications; and
(6)any other act authorized by these Rules.
(b) A notary public is authorized to certify the aixing of a signature by
thumb or other mark on an instrument or document presented for
notarization if:
(1)the thumb or other mark is aixed in the presence of the notary
public and of two (2) disinterested and unafected witnesses to
the instrument or document;
(2)both witnesses sign their own names in addition to the thumb or
other mark;
(3)the notary public writes below the thumb or other mark: "Thumb
or Other Mark aixed by (name of signatory by mark) in the
presence of (names and addresses of witnesses) and
undersigned notary public"; and
(4)the notary public notarizes the signature by thumb or other mark
through an acknowledgment, jurat, or signature witnessing.
(c) A notary public is authorized to sign on behalf of a person who is
physically unable to sign or make a mark on an instrument or document
if:
(1)the notary public is directed by the person unable to sign or
make a mark to sign on his behalf;
(2)the signature of the notary public is aixed in the presence of
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two disinterested and unafected witnesses to the instrument or
document;
(3)both witnesses sign their own names;
(4)the notary public writes below this signature: "Signature aixed
by notary in presence of (names and addresses of person and
two [2] witnesses)"; and
(5)the notary public notarizes his signature by acknowledgment or
jurat.
SEC. 2. Prohibitions. - (a) A notary public shall not perform a notarial act
outside his regular place of work or business; provided, however, that on
certain exceptional occasions or situations, a notarial act may be
performed at the request of the parties in the following sites located
within his territorial jurisdiction:
(1)public oices, convention halls, and similar places where oaths of
oice may be administered;
(2)public function areas in hotels and similar places for the signing
of instruments or documents requiring notarization;
(3)hospitals and other medical institutions where a party to an
instrument or document is conined for treatment; and
(4)any place where a party to an instrument or document requiring
notarization is under detention.
(b) A person shall not perform a notarial act if the person involved as signatory to the instrument or document –
(1)is not in the notary's presence personally at the time of the
notarization; and
(2)is not personally known to the notary public or otherwise
identiied by the notary public through competent evidence of
identity as deined by these Rules.
SEC. 3. Disqualiications. - A notary public is disqualiied from performing
a notarial act if he:
(a) is a party to the instrument or document that is to be notarized;
(b)will receive, as a direct or indirect result, any commission, fee,
advantage, right, title, interest, cash, property, or other
consideration, except as provided by these Rules and by law; or
(c) is a spouse, common-law partner, ancestor, descendant, or
relative by ainity or consanguinity of tile principal within the
fourth civil degree.
SEC. 4. Refusal to Notarize. - A notary public shall not perform any
notarial act described in these Rules for any person requesting such
an act even if he tenders the appropriate fee speciied by these
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Rules if:
(a) the notary knows or has good reason to believe that the notarial
act or transaction is unlawful or immoral;
(b)the signatory shows a demeanor which engenders in the mind of
the notary public reasonable doubt as to the former's knowledge
of the consequences of the transaction requiring a notarial act;
and
(c) in the notary's judgment, the signatory is not acting of his or her
own free will.
SEC. 5. False or Incomplete Certiicate. - A notary public shall not:
(a) execute a certiicate containing information known or believed
by the notary to be false.
(b) aix an oicial signature or seal on a notarial certiicate that is
incomplete.
SEC. 6. Improper Instruments or Documents. - A notary public shall not
notarize:
(a) a blank or incomplete instrument or document;
(b) an instrument or document without appropriate
notarial
certiication.
RULE V
FEES OF NOTARY PUBLIC
SECTION 1. Imposition and Waiver of Fees. - For performing a notarial
act, a notary public may charge the maximum fee as prescribed by the
supreme Court unless he waives the fee in whole or in part.
SEC. 2. Travel Fees and Expenses. - A notary public may charge travel
fees and expenses separate and apart from the notarial fees prescribed in
the preceding section when traveling to perform a notarial act if the
notary public and the person requesting the notarial act agree prior to the
travel.
SEC. 3. Prohibited Fees. - No fee or compensation of any kind, except
those expressly prescribed and allowed herein, shall be collected or
received for any notarial service.
SEC. 4. Payment or Refund of Fees. - A notary public shall not require
payment of any fees speciied herein prior to the performance of a
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notarial act unless otherwise agreed upon.
Any travel fees and expenses paid to a notary public prior to the
performance of a notarial act are not subject to refund if the notary public
had already traveled but failed to complete in whole or in part the notarial
act for reasons beyond his control and without negligence on his part.
SEC. 5. Notice of Fees. - A notary public who charges a fee for notarial
services shall issue a receipt registered with the Bureau of Intemal
Revenue and keep a journal of notarial fees. He shall enter in the journal
all fees charged for services rendered.
A notary public shall post in a conspicuous place in his oice a complete
schedule of chargeable notarial fees.
RULE VI
NOTARIAL REGISTER
SECTION 1. Form of Notarial Register. - (a) A notary public shall keep,
maintain, protect and provide for lawful inspection as provided in these
Rules, a chronological oicial notarial register of notarial acts consisting of
a permanently bound book with numbered pages.
The register shall be kept in books to be furnished by the Solicitor General
to any notary public upon request and upon payment of the cost thereof.
The register shall be duly paged, and on the irst page, the Solicitor
General shall certify the number of pages of which the book consists.
For purposes of this provision, a Memorandum of Agreement or
Understanding may be entered into by the Oice of the Solicitor General
and the Oice of the Court Administrator.
(b) A notary public shall keep only one active notarial register at any
given time.
SEC. 2. Entries in the Notarial Register. - (a) For every notarial act, the
notary shall record in the notarial register at the time of notarization the
following:
(1) the entry number and page number;
(2) the date and time of day of the notarial act;
(3) the type of notarial act;
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(4) the title or description of the instrument, document or
proceeding;
(5) the name and address of each principal;
(6) the competent evidence of identity as deined by these Rules if
the signatory is not personally known to the notary
(7) the name and address of each credible witness swearing to or
airming the person's identity;
(8) the fee charged for the notarial act;
(9) the address where the notarization was performed if not in the
notary's regular place of work or business; and
(10) any other circumstance the notary public may deem of
signiicance or relevance.
(b) A notary public shall record in the notarial register the reasons and
circumstances for not completing a notarial act.
(c) A notary public shall record in the notarial register the circumstances
of any request to inspect or copy an entry in the notarial register,
including the requester's name, address, signature, thumbmark or other
recognized identiier, and evidence of identity. The reasons for refusal to
allow inspection or copying of a journal entry shall also be recorded.
(d) When the instrument or document is a contract, the notary public shall
keep an original copy thereof as part of his records and enter in said
records a brief description of the substance thereof and shall give to each
entry a consecutive number, beginning with number one in each calendar
year. He shall also retain a duplicate original copy for the Clerk of Court.
(e) The notary public shall give to each instrument or document executed,
sworn to, or acknowledged before him a number corresponding to the one
in his register, and shall also state on the instrument or document the
pages of his register on which the same is recorded. No blank line shall be
left between entries.
(f) In case of a protest of any draft, bill of exchange or promissory note,
the notary public shall make a full and true record of all proceedings in
relation thereto and shall note therein whether the demand for the sum of
money was made, by whom, when, and where; whether he presented
such draft, bill or note; whether notices were given, to whom and in what
manner; where the same was made, when and to whom and where
directed; and of every other fact touching the same.
(g) At the end of each week, the notary public shall certify in his notarial
register the number of instruments or documents executed, sworn to,
acknowledged, or protested before him; or if none, this certiicate shall
show this fact.
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(h) A certiied copy of each month's entries and a duplicate original copy
of any instrument acknowledged before the notary public shall, within the
irst ten (10) days of the month following, be forwarded to the Clerk of
Court and shall be under the responsibility of such oicer. If there is no
entry to certify for the month, the notary shall forward a statement to this
efect in lieu of certiied copies herein required.
SEC. 3. Signatures and Thumbmarks. - At the time of notarization, the
notary's notarial register shall be signed or a thumb or other mark aixed
by each:
(a) principal;
(b)credible witness swearing or airming to the identity of a
principal; and
(c) witness to a signature by thumb or other mark, or to a signing by
the notary public on behalf of a person physically unable to sign.
SEC. 4. Inspection, Copying and Disposal. - (a) In the notary's presence,
any person may inspect an entry in the notarial register, during regular
business hours, provided;
(1) the person's identity is personally known to the notary public or
proven through competent evidence of identity as deined in
these Rules;
(2) the person aixes a signature and thumb or other mark or other
recognized identiier, in the notarial register in a separate, dated
entry;
(3) the person speciies the month, year, type of instrument or
document, and name of the principal in the notarial act or acts
sought; and
(4) the person is shown only the entry or entries speciied by him.
(b) The notarial register may be examined by a law enforcement oicer in
the course of an oicial investigation or by virtue of a court order.
(c) If the notary public has a reasonable ground to believe that a person
has a criminal intent or wrongful motive in requesting information from
the notarial register, the notary shall deny access to any entry or entries
therein.
SEC. 5. Loss, Destruction or Damage of Notarial Register. - (a) In case the
notarial register is stolen, lost, destroyed, damaged, or otherwise
rendered unusable or illegible as a record of notarial acts, the notary
public shall, within ten (10) days after informing the appropriate law
enforcement agency in the case of theft or vandalism, notify the
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Executive Judge by any means providing a proper receipt or
acknowledgment, including registered mail and also provide a copy or
number of any pertinent police report.
(b) Upon revocation or expiration of a notarial commission, or death of the
notary public, the notarial register and notarial records shall immediately
be delivered to the oice of the Executive Judge.
SEC. 6. Issuance of Certiied True Copies. - The notary public shall supply
a certiied true copy of the notarial record, or any part thereof, to any
person applying for such copy upon payment of the legal fees.
RULE VII
SIGNA TURE AND SEAL OF NOTARY PUBLIC
SECTION 1. Oicial Signature. - In notarizing a paper instrument or
document, a notary public shall:
(a) sign by hand on the notarial certiicate only the name indicated
and as appearing on the notary's commission shall:
(b)not sign using a facsimile stamp or printing device; and
(c) aix his oicial signature only at the time the notarial act is
performed.
SEC. 2. Oicial Seal. - (a) Every person commissioned as notary public
shall have a seal of oice, to be procured at his own expense, which shall
not be possessed or owned by any other person. It shall be of metal,
circular in shape, two inches in diameter, and shall have the name of the
city or province and the word "Philippines" and his own name on the
margin and the roll of attorney's number on the face thereof, with the
words "notary public" across the center. A mark, image or impression of
such seal shall be made directly on the paper or parchment on which the
writing appears.
(b) The oicial seal shall be aixed only at the time the notarial act is
performed and shall be clearly impressed by the notary public on every
page of the instrument or document notarized.
(c) When not in use, the oicial seal shall be kept safe and secure and
shall be accessible only to the notary public or the person duly authorized
by him.
(d) Within ive (5) days after the oicial seal of a notary public is stolen,
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lost, damaged or other otherwise rendered unserviceable in aixing a
legible image, the notary public, after informing the appropriate law
enforcement agency, shall notify the Executive Judge in writing, providing
proper receipt or acknowledgment, including registered mail, and in the
event of a crime committed, provide a copy or entry number of the
appropriate police record. Upon receipt of such notice. if found in order by
the Executive Judge, the latter shall order the notary public to cause
notice of such loss or damage to be published, once a week for three (3)
consecutive weeks, in a newspaper of general circulation in the city or
province where the notary public is commissioned. Thereafter. the
Executive Judge shall issue to the notary public a new Certiicate of
Authorization to Purchase a Notarial Seal.
(e) Within ive (5) days after the death or resignation of the notary public,
or the revocation or expiration of a notarial commission, the oicial seal
shall be surrendered to the Executive Judge and shall be destroyed or
defaced in public during oice hours. In the event that the missing, lost or
damaged seal is later found or surrendered, it shall be delivered by the
notary public to the Executive Judge to be disposed of in accordance with
this section. Failure to efect such surrender shall constitute contempt of
court. In the event of death of the notary public, the person in possession
of the oicial seal shall have the duty to surrender it to the Executive
Judge.
SEC. 3. Seal Image. - The notary public shall aix a single, clear, legible,
permanent, and photographically reproducible mark, image or impression
of the oicial seal beside his signature on the notarial certiicate of a
paper instrument or document.
SEC. 4. Obtaining and Providing Seal. - (a) A vendor or manufacturer of
notarial seals may not sell said product without a written authorization
from the Executive Judge.
(b) Upon written application and after payment of the application fee, the
Executive Judge may issue an authorization to sell to a vendor or
manufacturer of notarial seals after veriication and investigation of the
latter's qualiications. The Executive Judge shall charge an authorization
fee in the amount of PhP 4,000 for the vendor and PhP 8,000 for the
manufacturer. If a manufacturer is also a vendor, he shall only pay the
manufacturer's authorization fee.
(c) The authorization shall be in efect for a period of four (4) years from
the date of its issuance and may be renewed by the Executive Judge for a
similar period upon payment of the authorization fee mentioned in the
preceding paragraph.
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(d) A vendor or manufacturer shall not sell a seal to a buyer except upon
submission of a certiied copy of the commission and the Certiicate of
Authorization to Purchase a Notarial Seal issued by the Executive Judge. A
notary public obtaining a new seal as a result of change of name shall
present to the vendor or manufacturer a certiied copy of the Conirmation
of the Change of Name issued by the Executive Judge.
(e) Only one seal may be sold by a vendor or manufacturer for each
Certiicate of Authorization to Purchase a Notarial Seal.
(f) After the sale, the vendor or manufacturer shall aix a mark, image or
impression of the seal to the Certiicate of Authorization to Purchase a
Notarial Seal and submit the completed Certiicate to the Executive Judge.
Copies of the Certiicate of Authorization to Purchase a Notarial Seal and
the buyer's commission shall be kept in the iles of the vendor or
manufacturer for four (4) years after the sale.
(g) A notary public obtaining a new seal as a result of change of name
shall present to the vendor a certiied copy of the order conirming the
change of name issued by the Executive Judge.
RULE VIII
NOTARIAL CERTIFICA TES
SECTION 1. Form of Notarial Certiicate. - The notarial form used for any
notarial instrument or document shall conform to all the requisites
prescribed herein, the Rules of Court and all other provisions of issuances
by the Supreme Court and in applicable laws.
SEC. 2. Contents of the Concluding Part of the Notarial Certiicate. – The
notarial certiicate shall include the following:
(a) the name of the notary public as exactly indicated in the
commission;
(b) the serial number of the commission of the notary public; (c) the
words "Notary Public" and the province or city where the notary
public is commissioned, the expiration date of the commission,
the oice address of the notary public; and (d) the roll of
attorney's number, the professional tax receipt number and the
place and date of issuance thereof, and the IBP membership
number.
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RULE IX
CERTIFICA TE OF AUTHORITY OF NOTARIES PUBLIC
SECTION 1. Certiicate of Authority for a Notarial Act. - A certiicate of
authority evidencing the authenticity of the oicial seal and signature of a
notary public shall be issued by the Executive Judge upon request in
substantially the following form:
CERTIFICATE OF AUTHORITY FOR A NOTARIAL ACT
I, (name, title, jurisdiction of the Executive Judge), certify that
(name of notary public), the person named in the seal and
signature on the attached document, is a Notary Public in and for
the (City/Municipality/Province) of the Republic of the Philippines
and authorized to act as such at the time of the document's
notarization.
IN WITNESS WHEREOF, I have aixed below my signature
and seal of this oice this (date) day of (month) (year).
_________________
(oicial signature)
(seal of Executive Judge)
RULE X
CHANGES OF STATUS OF NOTARY PUBLIC
SECTION 1. Change of Name and Address.
Within ten (10) days after the change of name of the notary public
by court order or by marriage, or after ceasing to maintain the
regular place of work or business, the notary public shall submit a
signed and dated notice of such fact to the Executive Judge.
The notary public shall not notarize until:
(a) he receives from the Executive Judge a conirmation of the
new name of the notary public and/or change of regular
place of work or business; and
(b)a new seal bearing the new name has been obtained.
The foregoing notwithstanding, until the aforementioned steps have been
completed, the notary public may continue to use the former name or
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regular place of work or business in performing notarial acts for three (3)
months from the date of the change, which may be extended once for
valid and just cause by the Executive Judge for another period not
exceeding three (3) months.
SEC. 2. Resignation. - A notary public may resign his commission by
personally submitting a written, dated and signed formal notice to the
Executive Judge together with his notarial seal, notarial register and
records. Efective from the date indicated in the notice, he shall
immediately cease to perform notarial acts. In the event of his incapacity
to personally appear, the submission of the notice may be performed by
his duly authorized representative.
SEC. 3. Publication of Resignation. - The Executive Judge shall
immediately order the Clerk of Court to post in a conspicuous place in the
oices of the Executive Judge and of the Clerk of Court the names of
notaries public who have resigned their notarial commissions and the
efective dates of their resignation.
RULE XI
REVOCA T/ON OF COMMISSION AND DISCIPLINARY SANCTIONS
SECTION 1. Revocation and Administrative Sanctions. - (a) The Executive
Judge shall revoke a notarial commission for any ground on which an
application for a commission may be denied.
(b) In addition, the Executive Judge may revoke the commission of, or
impose appropriate administrative sanctions upon, any notary public who:
(1)fails to keep a notarial register;
(2)fails to make the proper entry or entries in his notarial register
concerning his notarial acts;
(3)fails to send the copy of the entries to the Executive Judge within
the irst ten (10) days of the month following;
(4)fails to aix to acknowledgments the date of expiration of his
commission;
(5)fails to submit his notarial register, when illed, to the Executive
Judge;
(6)fails to make his report, within a reasonable time, to the
Executive Judge concerning the performance of his duties, as
may be required by the judge;
(7)fails to require the presence of a principal at the time of the
notarial act;
(8)fails to identify a principal on the basis of personal knowledge or
competent evidence;
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(9)executes a false or incomplete certiicate under Section 5, Rule
IV;
(10) knowingly performs or fails to perform any other act
prohibited or mandated by these Rules; and
(11) commits any other dereliction or act which in the judgment of
the Executive Judge constitutes good cause for revocation of
commission or imposition of administrative sanction.
(c) Upon veriied complaint by an interested, afected or aggrieved
person, the notary public shall be required to ile a veriied answer to the
complaint. If the answer of the notary public is not satisfactory, the
Executive Judge shall conduct a summary hearing. if the allegations of the
complaint are not proven, the complaint shall be dismissed. If the charges
are duly established, the Executive Judge shall impose the appropriate
administrative sanctions. in either case, the aggrieved party may appeal
the decision to the Supreme Court for review. Pending the appeal, an
order imposing disciplinary sanctions shall be immediately executory,
unless otherwise ordered by the Supreme Court.
(d) The Executive Judge may motu proprio initiate administrative
proceedings against a notary public, subject to the procedures prescribed
in paragraph (c) above and impose the appropriate administrative
sanctions on the grounds mentioned in the preceding paragraphs (a) and
(b).
SEC. 2. Supervision and Monitoring of Notaries Public. - The Executive
Judge shall at all times exercise supervision over notaries public and shall
closely monitor their activities.
SEC. 3. Publication of Revocations and Administrative Sanctions. - The
Executive Judge shall immediately order the Clerk of Court to post in a
conspicuous place in the oices of the Executive Judge and of the Clerk of
Court the names of notaries public who have been administratively
sanctioned or whose notarial commissions have been revoked.
SEC. 4. Death of Notary Public. - If a notary public dies before fulilling the
obligations in Section 4(e), Rule VI and Section 2(e), Rule VII, the
Executive Judge, upon being notiied of such death, shall forthwith cause
compliance with the provisions of these sections.
RULE XII
SPECIAL PROVISIONS
SECTION 1. Punishable Acts. - The Executive Judge shall cause the
prosecution of any person who:
FOR PRIVATE AND PERSONAL USE ONLY
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(a)
(b)
knowingly acts or ott1erwise impersonates a notary public.
knowingly obtains, conceals, defaces, or destroys the seal,
notarial register, or oicial records of a notary public; and
(c) knowingly solicits, coerces, or in any way inluences a notary
public to commit oicial misconduct.
SEC 2. Reports to the Supreme Court. - The Executive Judge concerned
shall submit semestral reports to the Supreme Court on discipline and
prosecution of notaries public.
RULE XIII
REPEALING AND EFFECTIVITY PROVISIONS
SECTION 1. Repeal. - All rules and parts of rules, including issuances of
the Supreme Court inconsistent herewith, are hereby repealed or
accordingly modiied.
SEC. 2. Efective Date. - These Rules shall take efect on the irst day of
August 2004, and shall be published in a newspaper of general circulation
in the Philippines which provides suiciently wide circulation.
Promulgated this 6th day of July, 2004.