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Problem Areas in Legal Ethics Nikki T. Sia: Page 1 of 13
Problem Areas in Legal Ethics Nikki T. Sia: Page 1 of 13
documents, the complainant demanded the return of [A.C. No. 5118. September 9, 1999]
her money, however she was assured by respondent
that there was nothing to worry about for he has been MARILOU SEBASTIAN, complainant, vs. ATTY.
engaged in the business for quite sometime; with the DOROTHEO CALIS, respondent.
promise that her money will be refunded if something DECISION
goes wrong. PER CURIAM:
Weeks before her departure respondent demanded for For unlawful, dishonest, immoral or deceitful conduct
the payment of the required fee which was paid by as well as violation of his oath as lawyer, respondent
complainant, but the corresponding receipt was not Atty. Dorotheo Calis faces disbarment.
given to her.
The facts of this administrative case, as found by the
When complainant demanded for her passport, Commission on Bar Discipline of the Integrated Bar of
respondent assured the complainant that it will be the Philippines (IBP),[1] in its Report, are as follows:
given to her on her departure which was scheduled on
September 6, 1994. On said date complainant was Complainant (Marilou Sebastian) alleged that
given her passport and visa issued in the name of sometime in November, 1992, she was referred to the
Lizette P. Ferrer. Complainant left together with respondent who promised to process all necessary
Jennyfer Belo and a certain Maribel who were also documents required for complainants trip to the USA
recruits of the respondent. for a fee of One Hundred Fifty Thousand Pesos
(P150,000.00).
Upon arrival at the Singapore International Airport,
complainant together with Jennyfer Belo and Maribel On December 1, 1992 the complainant made a partial
were apprehended by the Singapore Airport Officials payment of the required fee in the amount of Twenty
for carrying spurious travel documents; Complainant Thousand Pesos (P20,000.00), which was received by
contacted the respondent through overseas telephone Ester Calis, wife of the respondent for which a receipt
call and informed him of by her predicament. From was issued.
September 6 to 9, 1994, complainant was detained at
Changi Prisons in Singapore. From the period of January 1993 to May 1994
complainant had several conferences with the
On September 9, 1994 the complainant was deported respondent regarding the processing of her travel
back to the Philippines and respondent fetched her documents. To facilitate the processing, respondent
from the airport and brought her to his residence at demanded an additional amount of Sixty Five
872-A Tres Marias Street, Sampaloc, Manila. Thousand Pesos (P65,000.00) and prevailed upon
Respondent took complainants passport with a promise complainant to resign from her job as stenographer
that he will secure new travel documents for with the Commission on Human Rights.
complainant. Since complainant opted not to pursue
with her travel, she demanded for the return of her On June 20, 1994, to expedite the processing of her
money in the amount of One Hundred Fifty Thousand travel documents complainant issued Planters
Pesos (P150,000.00). Development Bank Check No. 12026524 in the
amount of Sixty Five Thousand Pesos (P65,000.00) in
On June 4, 1996, June 18 and July 5, 1996 respondent favor of Atty. D. Calis who issued a receipt. After
made partial refunds of P15,000.00; P6,000.00; and receipt of said amount, respondent furnished the
P5,000.00. complainant copies of Supplemental to U.S.
Nonimmigrant Visa Application (Of. 156) and a list of
On December 19, 1996 the complainant through questions which would be asked during interviews.
counsel, sent a demand letter to respondent for the
refund of a remaining balance of One Hundred When complainant inquired about her passport, Atty.
Fourteen Thousand Pesos (P114,000.00) which was Calis informed the former that she will be assuming
ignored by the respondent. the name Lizette P. Ferrer married to Roberto Ferrer,
employed as sales manager of Matiao Marketing, Inc.
Sometime in March 1997 the complainant went to see the complainant was furnished documents to support
the respondent, however his wife informed her that the her assumed identity.
respondent was in Cebu attending to business matters.
Deception and other fraudulent acts by a lawyer are WHEREFORE, it is respectfully recommended that
disgraceful and dishonorable. They reveal moral flaws ATTY. DOROTHEO CALIS be SUSPENDED as a
in a lawyer. They are unacceptable practices. A lawyers member of the bar until he fully refunds the fees paid
relationship with others should be characterized by the to him by complainant and comply with the order of
highest degree of good faith, fairness and candor. This the Commission on Bar Discipline pursuant to Rule
is the essence of the lawyers oath. The lawyers oath is 139-B, Sec. 6 of the Rules of Court.[4]
The following records of the 1986 Constitutional Practice of law under modem conditions consists in no
Commission show that it has adopted a liberal small part of work performed outside of any court and
interpretation of the term "practice of law." having no immediate relation to proceedings in court.
It embraces conveyancing, the giving of legal advice
MR. FOZ. Before we suspend the session, may I make on a large variety of subjects, and the preparation and
a manifestation which I forgot to do during our review execution of legal instruments covering an extensive
of the provisions on the Commission on Audit. May I field of business and trust relations and other affairs.
be allowed to make a very brief statement? Although these transactions may have no direct
connection with court proceedings, they are always
THE PRESIDING OFFICER (Mr. Jamir). subject to become involved in litigation. They require
in many aspects a high degree of legal skill, a wide
The Commissioner will please proceed. experience with men and affairs, and great capacity for
adaptation to difficult and complex situations. These
MR. FOZ. This has to do with the qualifications of the customary functions of an attorney or counselor at law
members of the Commission on Audit. Among others, bear an intimate relation to the administration of justice
the qualifications provided for by Section I is that by the courts. No valid distinction, so far as concerns
"They must be Members of the Philippine Bar" I am the question set forth in the order, can be drawn
quoting from the provision "who have been between that part of the work of the lawyer which
engaged in the practice of law for at least ten years". involves appearance in court and that part which
involves advice and drafting of instruments in his
To avoid any misunderstanding which would result in office. It is of importance to the welfare of the public
excluding members of the Bar who are now employed that these manifold customary functions be performed
in the COA or Commission on Audit, we would like to by persons possessed of adequate learning and skill, of
make the clarification that this provision on sound moral character, and acting at all times under the
qualifications regarding members of the Bar does not heavy trust obligations to clients which rests upon all
necessarily refer or involve actual practice of law attorneys. (Moran, Comments on the Rules of Court,
outside the COA We have to interpret this to mean that Vol. 3 [1953 ed.] , p. 665-666, citing In re Opinion of
as long as the lawyers who are employed in the COA the Justices [Mass.], 194 N.E. 313, quoted in Rhode Is.
are using their legal knowledge or legal talent in their Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A.
respective work within COA, then they are qualified to 139,144). (Emphasis ours)
be considered for appointment as members or
commissioners, even chairman, of the Commission on The University of the Philippines Law Center in
Audit. conducting orientation briefing for new lawyers (1974-
1975) listed the dimensions of the practice of law in
This has been discussed by the Committee on even broader terms as advocacy, counselling and
Constitutional Commissions and Agencies and we public service.
deem it important to take it up on the floor so that this
interpretation may be made available whenever this
The test that defines law practice by looking to MR. FOZ. Yes, Mr. Presiding Officer.
traditional areas of law practice is essentially
tautologous, unhelpful defining the practice of law as MR. OPLE. Is he, in effect, saying that service in the
that which lawyers do. (Charles W. Wolfram, Modern COA by a lawyer is equivalent to the requirement of a
Legal Ethics [West Publishing Co.: Minnesota, 1986], law practice that is set forth in the Article on the
p. 593). The practice of law is defined as the Commission on Audit?
performance of any acts . . . in or out of court,
commonly understood to be the practice of law. (State MR. FOZ. We must consider the fact that the work of
Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. COA, although it is auditing, will necessarily involve
222, 140 A.2d 863, 870 [1958] [quoting Grievance legal work; it will involve legal work. And, therefore,
Comm. v. Payne, 128 Conn. 325, 22 A.2d 623, 626 lawyers who are employed in COA now would have
[1941]). Because lawyers perform almost every the necessary qualifications in accordance with the
function known in the commercial and governmental Provision on qualifications under our provisions on the
realm, such a definition would obviously be too global Commission on Audit. And, therefore, the answer is
to be workable.(Wolfram, op. cit.). yes.
The appearance of a lawyer in litigation in behalf of a MR. OPLE. Yes. So that the construction given to this
client is at once the most publicly familiar role for is that this is equivalent to the practice of law.
lawyers as well as an uncommon role for the average
lawyer. Most lawyers spend little time in courtrooms, MR. FOZ. Yes, Mr. Presiding Officer.
and a large percentage spend their entire practice
without litigating a case. (Ibid., p. 593). Nonetheless, MR. OPLE. Thank you.
many lawyers do continue to litigate and the litigating
lawyer's role colors much of both the public image and ... ( Emphasis supplied)
the self perception of the legal profession. (Ibid.).
Section 1(1), Article IX-D of the 1987 Constitution,
In this regard thus, the dominance of litigation in the provides, among others, that the Chairman and two
public mind reflects history, not reality. (Ibid.). Why is Commissioners of the Commission on Audit (COA)
this so? Recall that the late Alexander SyCip, a should either be certified public accountants with not
corporate lawyer, once articulated on the importance of less than ten years of auditing practice, or members of
a lawyer as a business counselor in this wise: "Even the Philippine Bar who have been engaged in the
today, there are still uninformed laymen whose concept practice of law for at least ten years. (emphasis
of an attorney is one who principally tries cases before supplied)
the courts. The members of the bench and bar and the
informed laymen such as businessmen, know that in Corollary to this is the term "private practitioner" and
most developed societies today, substantially more which is in many ways synonymous with the word
legal work is transacted in law offices than in the "lawyer." Today, although many lawyers do not engage
courtrooms. General practitioners of law who do both in private practice, it is still a fact that the majority of
litigation and non-litigation work also know that in lawyers are private practitioners. (Gary Munneke,
most cases they find themselves spending more time Opportunities in Law Careers [VGM Career Horizons:
doing what [is] loosely desccribe[d] as business Illinois], [1986], p. 15).
counseling than in trying cases. The business lawyer
has been described as the planner, the diagnostician At this point, it might be helpful to define private
and the trial lawyer, the surgeon. I[t] need not [be] practice. The term, as commonly understood, means
stress[ed] that in law, as in medicine, surgery should be "an individual or organization engaged in the business
avoided where internal medicine can be effective." of delivering legal services." (Ibid.). Lawyers who
(Business Star, "Corporate Finance Law," Jan. 11, practice alone are often called "sole practitioners."
1989, p. 4). Groups of lawyers are called "firms." The firm is
usually a partnership and members of the firm are the
Such corporate legal management issues deal primarily A corporate lawyer, for all intents and purposes, is a
with three (3) types of learning: (1) acquisition of lawyer who handles the legal affairs of a corporation.
insights into current advances which are of particular His areas of concern or jurisdiction may include, inter
significance to the corporate counsel; (2) an alia: corporate legal research, tax laws research, acting
introduction to usable disciplinary skins applicable to a out as corporate secretary (in board meetings),
corporate counsel's management responsibilities; and appearances in both courts and other adjudicatory
(3) a devotion to the organization and management of agencies (including the Securities and Exchange
the legal function itself. Commission), and in other capacities which require an
ability to deal with the law.
These three subject areas may be thought of as
intersecting circles, with a shared area linking them. At any rate, a corporate lawyer may assume
Otherwise known as "intersecting managerial responsibilities other than the legal affairs of the
jurisprudence," it forms a unifying theme for the business of the corporation he is representing. These
corporate counsel's total learning. include such matters as determining policy and
becoming involved in management. ( Emphasis
Some current advances in behavior and policy sciences supplied.)
affect the counsel's role. For that matter, the corporate
lawyer reviews the globalization process, including the In a big company, for example, one may have a feeling
resulting strategic repositioning that the firms he of being isolated from the action, or not understanding
provides counsel for are required to make, and the need how one's work actually fits into the work of the
to think about a corporation's; strategy at multiple orgarnization. This can be frustrating to someone who
levels. The salience of the nation-state is being reduced needs to see the results of his work first hand. In short,
as firms deal both with global multinational entities a corporate lawyer is sometimes offered this fortune to
and simultaneously with sub-national governmental be more closely involved in the running of the
units. Firms increasingly collaborate not only with business.
public entities but with each other often with those
who are competitors in other arenas. Moreover, a corporate lawyer's services may
sometimes be engaged by a multinational corporation
Also, the nature of the lawyer's participation in (MNC). Some large MNCs provide one of the few
decision-making within the corporation is rapidly opportunities available to corporate lawyers to enter
changing. The modem corporate lawyer has gained a the international law field. After all, international law
new role as a stakeholder in some cases is practiced in a relatively small number of companies
participating in the organization and operations of and law firms. Because working in a foreign country is
governance through participation on boards and other perceived by many as glamorous, tills is an area
decision-making roles. Often these new patterns coveted by corporate lawyers. In most cases, however,
develop alongside existing legal institutions and laws the overseas jobs go to experienced attorneys while the
are perceived as barriers. These trends are complicated younger attorneys do their "international practice" in
as corporations organize for global operations. law libraries. (Business Star, "Corporate Law
( Emphasis supplied) Practice," May 25,1990, p. 4).
The practising lawyer of today is familiar as well with This brings us to the inevitable, i.e., the role of the
governmental policies toward the promotion and lawyer in the realm of finance. To borrow the lines of
management of technology. New collaborative Harvard-educated lawyer Bruce Wassertein, to wit: "A
arrangements for promoting specific technologies or bad lawyer is one who fails to spot problems, a good
competitiveness more generally require approaches lawyer is one who perceives the difficulties, and the
from industry that differ from older, more adversarial excellent lawyer is one who surmounts them."
relationships and traditional forms of seeking to (Business Star, "Corporate Finance Law," Jan. 11,
influence governmental policies. And there are lessons 1989, p. 4).
Organization and Functioning of the Corporate Regarding the skills to apply by the corporate counsel,
Counsel's Office. The general counsel has emerged in three factors are apropos:
the last decade as one of the most vibrant subsets of the
legal profession. The corporate counsel hear First System Dynamics. The field of systems dynamics
responsibility for key aspects of the firm's strategic has been found an effective tool for new managerial
issues, including structuring its global operations, thinking regarding both planning and pressing
managing improved relationships with an increasingly immediate problems. An understanding of the role of
diversified body of employees, managing expanded feedback loops, inventory levels, and rates of flow,
liability exposure, creating new and varied interactions enable users to simulate all sorts of systematic
with public decision-makers, coping internally with problems physical, economic, managerial, social,
more complex make or by decisions. and psychological. New programming techniques now
make the system dynamics principles more accessible
This whole exercise drives home the thesis that to managers including corporate counsels.
knowing corporate law is not enough to make one a (Emphasis supplied)
good general corporate counsel nor to give him a full
sense of how the legal system shapes corporate Second Decision Analysis. This enables users to make
activities. And even if the corporate lawyer's aim is not better decisions involving complexity and uncertainty.
the understand all of the law's effects on corporate In the context of a law department, it can be used to
activities, he must, at the very least, also gain a appraise the settlement value of litigation, aid in
working knowledge of the management issues if only negotiation settlement, and minimize the cost and risk
to be able to grasp not only the basic legal involved in managing a portfolio of cases. (Emphasis
"constitution' or makeup of the modem corporation. supplied)
"Business Star", "The Corporate Counsel," April 10,
1991, p. 4). Third Modeling for Negotiation Management.
Computer-based models can be used directly by parties
The challenge for lawyers (both of the bar and the and mediators in all lands of negotiations. All
bench) is to have more than a passing knowledge of integrated set of such tools provide coherent and
financial law affecting each aspect of their work. Yet, effective negotiation support, including hands-on on
many would admit to ignorance of vast tracts of the instruction in these techniques. A simulation case of an
financial law territory. What transpires next is a
(2) In the same vein, may the Court reject the Upon the other hand, the separate opinion of Justice
nominee, whom the Commission has confirmed? The Isagani Cruz states that in my written opinion, I made
answer is likewise clear. use of a definition of law practice which really means
nothing because the definition says that law practice " .
(3) If the United States Senate (which is the . . is what people ordinarily mean by the practice of
confirming body in the U.S. Congress) decides to law." True I cited the definition but only by way of
confirm a Presidential nominee, it would be incredible sarcasm as evident from my statement that the
that the U.S. Supreme Court would still reverse the definition of law practice by "traditional areas of law
U.S. Senate. practice is essentially tautologous" or defining a phrase
by means of the phrase itself that is being defined.
Finally, one significant legal maxim is:
Justice Cruz goes on to say in substance that since the
We must interpret not by the letter that killeth, but by law covers almost all situations, most individuals, in
the spirit that giveth life. making use of the law, or in advising others on what
the law means, are actually practicing law. In that
Take this hypothetical case of Samson and Delilah. sense, perhaps, but we should not lose sight of the fact
Once, the procurator of Judea asked Delilah (who was that Mr. Monsod is a lawyer, a member of the
Samson's beloved) for help in capturing Samson. Philippine Bar, who has been practising law for over
Delilah agreed on condition that ten years. This is different from the acts of persons
practising law, without first becoming lawyers.
No blade shall touch his skin;
Justice Cruz also says that the Supreme Court can even
No blood shall flow from his veins. disqualify an elected President of the Philippines, say,
on the ground that he lacks one or more qualifications.
When Samson (his long hair cut by Delilah) was This matter, I greatly doubt. For one thing, how can an
captured, the procurator placed an iron rod burning action or petition be brought against the President?
white-hot two or three inches away from in front of And even assuming that he is indeed disqualified, how
Samson's eyes. This blinded the man. Upon hearing of can the action be entertained since he is the incumbent
what had happened to her beloved, Delilah was beside President?
herself with anger, and fuming with righteous fury,
accused the procurator of reneging on his word. The We now proceed:
procurator calmly replied: "Did any blade touch his
skin? Did any blood flow from his veins?" The The Commission on the basis of evidence submitted
procurator was clearly relying on the letter, not the doling the public hearings on Monsod's confirmation,
spirit of the agreement. implicitly determined that he possessed the necessary
qualifications as required by law. The judgment
In view of the foregoing, this petition is hereby rendered by the Commission in the exercise of such an
DISMISSED. acknowledged power is beyond judicial interference
except only upon a clear showing of a grave abuse of
SO ORDERED. discretion amounting to lack or excess of jurisdiction.
(Art. VIII, Sec. 1 Constitution). Thus, only where such
grave abuse of discretion is clearly shown shall the
Cayetano v Monsod Court interfere with the Commission's judgment. In the