Professional Documents
Culture Documents
Problem Areas in Legal Ethics
Problem Areas in Legal Ethics
Form 28- Attorneys Oath, Rules of Court, Rex Publishing Company, 2008 ed. p. 585
INTRODUCTION
Lawyering is not a trade or business. It is a noble profession whose duty
includes upholding the Constitution and obeying the laws of the land. However,
it is of no secret that like other professions, it is also a means of livelihood to
many members of the bar. It is this so-called conflict between duty and
occupation that brings an endless balancing of interests of an honourable
lawyer and a clever entrepreneur.
This paper would like to explain what rules lawyers adhere to in order to
be truthful and ethical in their practice without sacrificing the livelihood aspect
of their profession.
Included in this paper are the common issues that affects solicitation of
legal services. Sample bar examination questions and as well as some cases
pertaining to this unethical act.
Solicitation is defined as a petition for request, enticement or
allurement . While Legal services refers to an act of giving helpful activity
regarding legal matters.2
When one solicits, it means that a person do some acts which would tend
to attract somebody to what that person would like to have . Applying this
concept to legal services, the idea of soliciting would pertain to the means that a
lawyer do in order to gain profit by attracting the legal need of a potential
client. Of course, what is being talked about here is the unethical aspect of
soliciting legal services. Part of this paper therefore, is to also explain the ethical
way of soliciting legal services.
Also at the end of this paper is the answer to the question: what would be
the consequence of practicing an unethical act of soliciting legal services. This
would pertain to the penalty that a lawyer could face if ever he do acts in the
nature of unethical solicitation which are violative of their lawyers oath of
upholding the Constitution and obeying the laws of the land.
BRIEF HISTORY OF LEGAL ETHICS
It is of no secret that our code of ethics in the legal profession came from
foreign laws. Notably it was based on the American Bar Associations Canons of
Professional Ethics in 1908. This was adopted in the Philippines in 1917.
Eventually the Philippines created its own code of professional ethics to lawyers
Dictionary.reference.com/browse/service
which one may sustain the highest eminence without making much
money;
The primary basis for the creation of the code of legal ethics for lawyers in
the Philippines is Art. 8, Sec. 5[5] of the 1987 Constitution which provides that:
The Supreme Court shall have the following powers: x x x
Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts,
the admission to the practice of law, the Integrated Bar, and legal
assistance to the underprivileged. Such rules shall provide a
simplified and inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade, and shall not
diminish, increase, or modify substantive rights. Rules of procedure
of special courts and quasi-judicial bodies shall remain effective
unless disapproved by the Supreme Court.
DISCUSSION
APPLICABLE LAWS
In the discussion for solicitation for legal services, it is important to note the
specific rules under the Code of Professional Responsibility which applies to
this topic. These rules are based on the lawyers oath cited in the first page of
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this paper. To be reminded, the following quotation from the lawyers oath shall
serve to aid the readers memory with regard to solicitation for legal services.
The lawyers oath says:
x x x 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 x x x
At the outset, the following are the applicable rules under the Rules of Court
Under the rules of the Code of Professional Responsibility, the following are
listed:
CANON 1- A lawyer shall uphold the constitution, obey the laws of the land and
promote respect for law and legal processes.
Rule 2.03.A lawyer shall not do or permit to be done any act designed
Rule 2.04.A lawyer shall not charge rates lower than those customarily
prescribed, unless the circumstances so warrant.
CANON 3- A lawyer in making known his legal services shall use only true, honest, air,
dignified and objective information or statement of facts.
Rule 3.04- A lawyer shall not pay or give anything of value to representatives of the
mass media in anticipation of, or in return for, publicity to attract legal business.
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:
Each of these category would be discussed below together with the relevant
cases.
I. Using deceptive qualifications or legal services
Here are some cases which pertains to a deceptive act of a lawyer
in order to solicit legal services as lifted from the books of Dean Ernesto
Pineda and Dean Rufus Rodriguez. Some of the synopsis of the cases are
also adopted for clearer understanding of the application of soliciting
business in the legal profession.
CASE ONE
Synopsis: Respondent, in deceiving the complainant by assuring her
that he could give her visa and travel documents and that despite
spurious documents nothing untoward would happen, is guilty of
violating Canon 1 of the Code of Professional Responsibility
SEBASTIAN vs. CALIS
314 SCRA 1
CASE TWO
IN RE: TAGORDA
53 Phil 37
Facts/Held: Atty. Tagorda distributed cards where he advertised that:
As a notary public, he can execute for you a deed of sale for the
purchase of land as required by the cadastral office, can renew lost
documents of young animals, can make your application and final
requisites for your homestead, and execute any kind of affidavit. As a
lawyer, he can help you collect your loans, altogether long overdue, as
well as any complaints for or against you. He offers free consultation
and is willing to help the poor.
He was suspended7
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Same, p. 66
CASE TWO
THE DIRECTOR OF RELIGIOUS AFFAIRS vs. BAYOT
74 Phil 579
FACTS: The respondet Atty. Bayot is charged with malpractice for having
published an advertisement in the Sunday Tribune of June 13, 1943, which
reads follows:
Marriage license promptly secured thru our assistance & the
annoyance of delay or publicity avoided if desired, and marriage
arranged to wishes of parties. Consultation any matter free for the
poor. Everything confidential. xxx
CASE THREE
ULEP VS.THE LEGAL CLINIC
223 SCRA 378
FACTS: Petitioner prays this Court to order the respondent to cease and desist
from issuing the following advertisements:
SECRET MARRIAGE?
P560.00 for a valid marriage.
Info on DIVORCE, ABSENCE, ANNULMENT.
VISA.
THE LEGAL CLINIC, INC.
x x x
Same, p. 69
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HELD: The Supreme Court enjoined the said corporation from issuing or
causing the publication or dissemination of any advertisement in any form
which is of the same or similar tenor and purpose of as above.
These advertisements are contrary to Rule 2.03 and Rule 3.01 of the
Code of Professional Responsibility.
The prime incorporator, major stockholder and proprietor of the Legal
Clinic, Inc. being a member of the Philippine Bar is reprimanded with a stern
warning not to repeat the same or similar act.10
It can be gleaned from the above cases that false advertisements to solicit
legal services are probably the most common of the unethical solicitation of
legal services. At this point, the authors of this paper would like to call the
readers attention regarding the websites of big law firms in the country.
Without mentioning any names of the law firms, the authors have found out
that whenever one would go to the websites of these law firms, their expertise
are displayed in their websites. Are these not tantamount to solicitation of legal
services also? The authors believe that they are because there seems to be a
hidden intent on the part of these law firms to solicit business by stating what
their expertise are. For example, in a law firm in Makati, their website would
provide that they are entertaining tax cases, mining cases and intellectual
property cases. If this is continued, what would then happen to the small law
firms? It is believed and as will be discussed later that the best advertisement of
a law firm would be by word of mouth. This would be discussed later.
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Corollary to this are the fees charged by a notary public as cited under
Rule 141, Sec. 12 of the Rules of Court. This could be a proper subject of
amendment because of its seemingly low rates but, nevertheless, the Rule
provides for the standard to follow in charging notarial fees. The Rule provides:
Sec. 12. Notaries.- No notary public shall charge or receive for any
service rendered by him any fee, remuneration or compensation in
excess of those expressly prescribed in the following schedule:
a.
For protests of drafts, bills of exchange, or promissory notes for nonacceptance or non-payment, and for notice thereof, ONE HUNDRED (P100)
PESOS;
b.
For the registration of such protest and filing or safekeeping of the
same, ONE HUNDRED (P100);
c. For authenticating powers of attorney, ONE HUNDRED PESOS;
d.
For sworn statement concerning correctness of any account or other
document, ONE HUNDRED PESOS;
e. For each oath or affirmation, ONE HUNDRED PESOS;
f.
For receiving evidence of indebtedness to be sent outside , ONE
HUNDRED PESOS;
g.
For issuing a certifiedcopy of all or part of his notarial register or
notarial records, for each page, ONE HUNDRED PESOS;
h. For taking depositions, for each page, ONE HUNDRED PESOS; and
i.
For acknowledging other documents not enumerated in this section,
ONE HUNDRED PESOS.
Rule 3.01- A lawyer shall not use or permit the use of any false,
fraudulent, misleading, deceptive, undignified, self-laudatory or unfair
statement or claim regarding his qualifications or legal services.
Thus, if a group of lawyers would like to establish a law firm, they cannot
use a false name or include in their partnership name the name of a person who
is not a lawyer. It does not mean that if a person is well-known he could just be
included in their firm name just to falsely misrepresent that they can be trusted.
Also if a partner died, there should be an indication that such partner died in
their firm name. This is usually done by placing some marks above the name of
the deceased partner such as a cross or an asterisk. If a Filipino lawyer is also
using the name of a foreign law firm, he is likewise prohibited by law to practice
under the name of such a firm. A good case for this one is the case of Dacanay
vs. Baker & McKenzie.
CASE ONE
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This canon refers to all kinds of media. The fastest rising means of
advertising legal services at this point would be the internet. In the Philippines
though, since not all households get access to the internet, still the most
popular means of soliciting legal services through the media would still be the
radio and the television. However, the giving of a legal advice in good faith in
different should not be completely abhorred. \
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A. A calling card, 2x 2in size, bearing his name in bold print, office,
residence and e-mail addresses, telephone and facsiline numbers.
ETHICAL- a lawyer, in making known his legal services shall use only
true, honest, dignified, and objective information or statement of facts.
B. A business card, 3x 4 in size, indicating the aforementioned data
with his photo, 1x 1 in size.
UNETHICAL- the size of the card and the inclusion of the lawyers photo
in it smacks of commercialism
C. A pictonal press release in a broadsheet newspaper made by the
attorney showing him being congratulated by the attorney showing him being
for winning a multi-million damage suit against the company in the Supreme
Court.
UNETHICAL- a lawyer should not resort to indirect advertisements,
such as procuring his photograph to be published in a newspaper in connection
with the case he is handling. He should not pay or give something of value to
representatives of the mass media in anticipation of, or return of, publicity to
attract legal business.
D. The same press release made by his client in a tabloid.
ETHICAL- the lawyer can no longer be held responsible for the action of
his client. However, it would be unethical if he knew about his clients intention
to publish and he did not stop it.
E. A small announcement in BALITA, a tabloid in Filipino, that the
attorney is giving free legal advice for September 2002. [2002 Bar exams]
UNETHICAL- the announcement in a newspaper that he will give free
legal advice to indigents is a form of self-praise.
9. Facing disciplinary charges for advertising as a lawyer, Atty. A argues that
although the calling card of his businessman friend indicates his law office and
his legal specially, the law office is locateds store. Decided. [2001 Bar]
This appears to be a circumvention of the prohibition on improper
advertising. There is no valid reason why the lawyers businessman friend
should be handling out calling cards which contains the lawyers law office and
legal specialty, even if his office is located in his friends store. What makes it
more objectionable is the statement of his supposed legal specialty.
10. A lawyer advertised in the newspaper the following.
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Rule 2.03.A lawyer shall not do or permit to be done any act designed
12. A businessman is looking for new retainer. He approached you and asked
for your schedule of fees or charges. He informed you of the professional fees he
is presently paying his retainer, which is actually lower than your rates. He said
that if your rates are lower, he would engage your services.
Will you lower your rates in order to get the client? Explain. [2005 Bar exam]
NO, I would not.
Rule 2.04. provides that A lawyer shall not charge rates lower than those
customarily prescribed, unless the circumstances so warrant.
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Rule 2.04. provides that A lawyer shall not charge rates lower than those
customarily prescribed, unless the circumstances so warrant.
CONCLUSION
Penalty
The penalty for an improper solicitation of legal services is provided by the
following rule:
Rule 138, Sec. 27 Disbarment or suspension of attorneys by Supreme
Court; grounds therefor. A member of the bar may be disbarred or
suspended from his office as attorney by the Supreme Court for any
deceit , malpractice xxx. The practice of soliciting cases at law for the
purpose of gain, either personally or through paid agents or brokers,
constitutes malpractice.
REFERENCES
1. 1987 Philippine Constitution
2. 1997 Rules of Court
3. Code of Professional Ethics
4. Ernesto Pineda, Legal Ethics
5. Dennis B. Funa, Legal and Judicial Ethics with bar
examination questions
6. Rufus Rodrigues, Legal Ethics
7. Agpalo, Legal Ethics
8. Answers to Bar examination questions in legal ethics and
practical exercises, 1975 to 2007.
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