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Legal Ethics

Legal Ethics

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Published by MiGay Tan-Pelaez

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Published by: MiGay Tan-Pelaez on Aug 13, 2009
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A
TENEO
C
ENTRAL
B
AR
O
PERATIONS
2007
Legal Ethics
SUMMER REVIEWER
 
 —Head:
Maria Felicitas Ele
; Understudies:
Felippe Mart Closa, Judith Lee
 —
QuickTime™ and aTIFF (Uncompressed) decompressorare needed to see this picture.
I.
 
P
RELIMINARY
C
ONSIDERATIONS
 
§1.
 
W
HO IS A LAWYER
?§2.
 
W
HAT IS CONTEMPLATED BY THE TERM
PRACTICEOF LAW
”?§3.
 
W
HY IS IT NECESSARY TO DETERMINE WHETHER
OR
 
NOT
AN ACTIVITY IS UNDER THE DEFINITION OFPRACTICE OF LAW
?
 
§4.
 
C
AN NON
-
LAWYERS APPEAR IN COURT
?
 
§5.
 
S
PECIAL
R
ULES FOR
L
AWYERS IN
P
UBLIC
S
ERVICE
 
§1. WHO IS A LAWYER?A lawyer is one who:
1. passed the bar exams,2. taken an oath ,3. registered in the roll of attorneys,4. received a certificate of license to practicelaw from the Clerk of Court of the SupremeCourt.
After Admission he or she must:
 1. remain an IBP member in good standing byregularly paying IBP dues and otherassessments2. pay annual privilege tax3. observe the rules on proper ethics
*Santos v. Llamas (A.C. No. 4749. January 20,2000) 
The exemption granted by R.A. 7432 to senior citizens from paying individual income tax does not exempt lawyers who are likewise senior citizens from paying IBP dues and privilege tax.
REQUIREMENTS FOR ADMISSION TO THE BAR:
1. Citizen of the Philippines2. Resident of the Philippines3. At least 21 years old4. must successfully complete all prescribedcourses5. Production before the Supreme Courtsatisfactory evidence of:a. Good moral characterb. No charges against him, involvingmoral turpitude, have been filed orare pending in any court in thePhilippines.
*Tapucar vs. Tapucar. A.C. No. 4148 (1998) 
The requirement of Good Moral Character 
 
is 
 
continuing requirement; good moral character is not only a condition precedent for admission to the legal profession, but it must also remain intact [while exercising the profession 
 
 ] in order to maintain one's good standing in that exclusive and honored fraternity.
 
§2. WHAT IS CONTEMPLATED BY THE TERM“PRACTICE OF LAW”?PRACTICE OF LAW –
means any activity, in our outof court, which requires the application of law, legalprocedure, knowledge, training, and experience.
*Cayetano v. Monsod 201 SCRA 210 (citing 111ALR 23) 
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.
*In Re: Argosino (1997) 
The practice of law is a PRIVILEGE granted only to those who possess the STRICT INTELLECTUALAND MORAL QUALIFICATIONS required of lawyers who are instruments in the effective and efficient administration of justice.
§3. WHY IS IT NECESSARY TO DETERMINEWHETHER OR NOT AN ACTIVITY IS UNDERTHE DEFINITION OF PRACTICE OF LAW?
So as to determine whether the conduct or act ofa party is subject to the rules on legal ethics andthus can be regulated by the Supreme Court.
The Supreme Court has the power to control andregulate the practice of law.
1987 CONSTITUTION, SEC. 5 (5), ARTICLE VIII:Sec. 5.
The Supreme Court shall have the followingpowers:x x x(5) Promulgate rules concerning the protectionand enforcement of constitutional rights,pleading, practice and procedure in all courts,the admission to the practice of law, theIntegrated Bar, and legal assistance to the
 
Legal Ethics Summer Reviewer
 
A
TENEO
C
ENTRAL
B
AR
O
PERATIONS
2007
 
 
QuickTime™ and aTIFF (Uncompressed) decompressor
under privileged.
are needed to see this picture.
 
Although the legislature has plenary powers withrespect to legislation, such exercise must notcontravene this Constitutional provision. Thus, therequirement of passing another set of exam as aprerequisite for the practice of law in a particulargovernment agency is void.
§4. CAN NON-LAWYERS PRACTICE LAW?
Yes, provided the appearance is not habitual, withoutcompensation but subject to the following:
Non-lawyers authorized to appear in court:
1.
Cases before the MTC
Party to the litigation,in person OR through an agent or friend orappointed 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 localitywhere a duly licensed member of the Bar isnot available –
the judge may appoint a non-lawyer who is:
 
a. Resident of the provinceb. Of good repute for probity and ability to aidthe accused in his defense
(Rule 116, Sec. 7,RRC).
 4.
Legal Aid Program
 – A
senior law student 
, whois enrolled in a recognized law school’s clinicaleducation program approved by the SupremeCourt may appear before any court withoutcompensation, 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.
Before the NLRC or any Labor Arbiter
, if:a. They represent themselves, or ifb. They represent their organization ormembers thereof
(Art 222 of the Labor Code, PO 442, as amended).
 6.
Before the Cadastral Court –
under theCadastral Act, a non-lawyer can represent aclaimant
(Act 2259, Sec. 9).
§5. SPECIAL RULES FOR LAWYERS IN THEPUBLIC SERVICECODE OF PROFESSIONAL RESPONSIBILITYCANON 6
– These canons shall apply to lawyers ingovernment service in the discharge of their officialtasks.
Rule 6.01
– The primary duty of a lawyer engagedin public prosecution is not to convict but to seethat justice is done. The suppression of facts orthe concealment of witnesses capable ofestablishing the innocence of the accused ishighly reprehensible and is cause of disciplinaryaction.
 
The prosecutor should recommend the acquittal ofthe accused whose conviction is on appeal, if hefinds no legal basis to sustain the conviction.
Rule 6.02
– A lawyer in the government serviceshall not use his public position to promote oradvance his private interest, nor allow the latter tointerfere with his public duties.
Rule 6.03
– A lawyer shall not, after leavinggovernment service, accept engagements oremployment in connection with any matter inwhich he had intervened while in said service.
PUBLIC OFFICIALS
 – include elective andappointive officials and employees, permanent ortemporary, whether in the career or non-careerservice, including military and police personnel,whether or not they receive compensation,regardless of amount.
(Sec. 3(b), RA 6713).
 
*PCGG v. Sandiganbayan, GR No. 151805 (2005) 
There are, therefore, two possible interpretations of the word ‘intervene’. Under the first interpretation,‘intervene’ includes participation in a proceeding even if the intervention is irrelevant or has no effect or little influence. Under the second interpretation,‘intervene’ only includes an act of a person who has the power to influence the subject proceedings. We hold that this second meaning is more appropriate to give to the word ‘intervention’ under Rule 6.03 of the Code of Professional Responsibility in the light of its history.
Pertinent statutory provisions regarding thisRule:Sec. 3 (d) RA 3019 as amended
and 
Sec. 7 (b), RA6713Sec 3.
 
Corrupt practice of Public Officers.
Inaddition to acts or omission of public officers alreadypenalized by existing law, the following shallconstitute corrupt practice of any public officer andare hereby declared to be unlawful:X X X(d) accepting or having any member of hisfamily accept employment in a private enterprisewhich has pending official business with him duringthe pendency thereof or within one year aftertermination.
Section 7 (b) of RA 6713
prohibits officials from
Page 2 of 27
 
Legal Ethics Summer Reviewer
 
A
TENEO
C
ENTRAL
B
AR
O
PERATIONS
2007
 
 
QuickTime™ and aTIFF (Uncompressed) decompreare needed to see this pictur
doing any of the following acts:1. Own, control, manage or accept employmentas officer, employee, consultant, counsel,broker, agent, trustee or nominee in anyprivate enterprise regulated, supervised orlicensed by their office unless expresslyallowed by law.x x xThese prohibitions shall continue to apply for aperiod of one (1) year after resignation, retirement, orseparation from public office, except in the case ofsubparagraph (b) (2) above, but the professionalconcerned cannot practice his profession inconnection with any matter before the office he usedto be with, in which case the one year prohibitionshall likewise apply.
PUBLIC OFFICIALS NOT ALLOWED TO ENGAGEIN PRIVATE PRACTICE OF LAW IN THEPHILIPPINES:
1. Judges and other officials as employees ofthe Supreme Court
(Rule 148, Sec. 35, RRC)
 2. Officials and employees of the OSG
(Ibid.)
The OSG is not authorized to represent apublic official at any stage of a criminal case.3. Government prosecutors
(People v.Villanueva, 14 SCRA 109).
4. President, Vice-President, members of thecabinet, their deputies and assistants
(Art.VIII Sec. 15, 1987 Constitution).
ssore.
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 Constitution)
7. All governors, city and municipal mayors
(R.A. No. 7160, Sec. 90).
8. Those prohibited by special law
 
PUBLIC OFFICIALS WITH RESTRICTIONS IN THEPRACTICE OF LAW
1.
Art. VI, Sec. 14, 1987 Constitution
 No Senator as member of the House ofRepresentative may personally appear ascounsel before any court of justice as beforethe Electoral Tribunals, as quasi-judicial andother administration bodies
.
2.
Local Government Code
(RA 7160, Sec.91) 
 Sanggunian members may practice theirprofessions provided that if they aremembers of the Bar, they shall not:a. Appear as counsel before any court inany civil case wherein a localgovernment unit or any office, agency, orinstrumentality of the government is theadverse party;b. Appear as counsel in any criminal casewherein an officer or employee of thenational or local government is accusedof an offense committed in relation to hisoffice;c. Collect any fee for their appearance inadministrative proceedings involving thelocal government unit of which he is anofficial;d. Use property and personnel of thegovernment except when theSanggunian member concerned isdefending the interest of the government.3.
RA 910, Sec. 1 (as amended)
 A retired justice or judge receiving pensionfrom the government, cannot act as counselin any civil case in which the Government, orany of its subdivision or agencies is theadverse party or in a criminal case whereinan officer or employee of the Government isaccused of an offense in relation to his office.Misconduct in office as a public official may be aground for disciplinary action (if it is of such characteras to affect his qualification as lawyer or to showmoral delinquency).
II. BASIC PRINCIPLES OF ETHICAL BEHAVIOR
§1.
 
T
HE PRACTICE OF LAW IS NOT TRADE OR CRAFT
.
 
T
HUS
,
A LAWYER MAY NOT ADVERTISE HIS SKILL AS ATRADESMAN DOES
.
 
§1.1. R
ULE ON
A
DVERTISEMENTS
 §1.2. A
PPLICABLE
C
ANONS
I
N
E
XCEPTED
A
DVERTISING
 §1.3.
 
R
ULE ON
P
OSSIBLE
I
NDIRECT
S
OLICITATION
 §2
 
.L
AWYER AND THE
C
LIENT
R
ELATIONSHIP
.
 
§2.1.
 
R
ULES ON
A
GENCY
R
ELATIONSHIP
 §2.2.
 
L
AWYER
B
INDS
C
LIENT
 §2.3.
 
N
OTICE TO
L
AWYER IS
N
OTICE TO
C
LIENT
 §2.4.
 
P
URELY
P
ERSONAL
 §2.5.
 
F
IDUCIARY
§2.5.
A
. R
ULE ON
P
URCHASE OF
P
ROPERTY
 §2.5.
B
. C
ONFIDENTIAL
M
ATTERS BY
R
EASON OF
R
ELATIONSHIP
 §2.5.
C
.
 
C
ONFLICT OF
I
NTEREST
 §2.5.
D
. I
NDEPENDENCE OF
L
AWYER
E
VEN IF
A
GENT OF
C
LIENT
 §2.6.
 
T
ERMINATION OF
R
ELATIONSHIP
§2.7.
 
A
TTORNEY
S
F
EES
 
Page 3 of 27

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