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PROBLEM AREAS IN LEGAL ETHICS

Submitted to:
Atty. Annabelle B. Caazares-Mindalano
College of Law
Mindanao State University-Iligan Extension
Iligan City

In partial fulfilment of
the requirements for the course
Problem Areas In Legal Ethics
Bachelors of Law

Submitted by:

Ahmad U. Abduljalil
March 2017

Introduction
In all kinds of professions, irrespective of its nature and character, you
will discover rules or conventions that define ethics. Each profession has its
own self-imposed directives, forbidden, admirable, and culpable behavior.
Thus, when one becomes a part of a certain field or profession, the degree of
his responsibility towards himself and more importantly to other people
evidently grows as a result.

Ethics are of primary importance to each and every man or woman,


and that reaches across the board throughout the persons career and how
he presents himself in his field. The late Chief Justice of the Philippine
Supreme Court, Manuel V. Moran, defined the term legal ethics as the
embodiment of all principles of morality and refinement that should govern
the conduct of every member of the bar. It is that branch of moral science
of which treats of the duties which an attorney owes to the court, to his
client, to his colleagues in the profession and to the public. (Malcolm, Legal
and Judicial Ethics as cited in Agpalo 2009, p. 2)

Legal Ethics, as traditionally taught in law schools in the Philippines, is


embodied in the Code of Professional Responsibility. But what happens when
these particular rules of conduct become the primary source of a lawyers
dilemma. Constantly, there are situations that will bring to fore the lawyers
moral judgment as to the bounds of what he may or may not do. This may in
turn, clash with the lawyers set of values and personal beliefs so that even if
the law may allow their some elbow room, he may not be comfortable with
using that space.

This paper aims to explain three (3) specific prevalent problems which
may confront lawyers and judges in the exercise of the profession. As such, it
likewise would like to enlighten what rules lawyers adhere to in order to be
truthful and ethical in their practice without sacrificing their profession.

Unauthorized Practice
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, G.R. No. 100113,
September 3, 1991)

One is regarded as a practicing lawyer when he is engaged in the


practice of law, who by license is an officer of the court and is empowered to
appear, prosecute and defend a clients cause. A practicing lawyer is a
member of the Philippine Bar who appears for and in behalf of parties in
courts of law and quasi-judicial agencies. However, according to the Supreme
Court practice of law is not limited to the conduct of cases in court. It
includes legal advice and counseling, and the preparation of legal
instruments and contracts by which legal rights are secured which may or
may not be.

The practice of law is not a natural, property or constitutional right but


a mere privilege, a privilege clothed with public interest because a lawyer
owes substantial duties not only to his client, but also to his brethren in the
profession, to the courts, and to the nation. (In the Matter of the IBP
Membership Dues Delinquency of Atty. Marcial A. Edillon (IBP Administrative
Case No. MDD-1, A.M. No. 1928, August 3, 1978

The practice of law is a privilege accorded only to those who measure


up to a certain rigid standards of mental and moral fitness. These standards
are neither dispensed with nor lowered after admission. (In re: Disbarment
Proceedings Against Atty. Diosdado Q. Gutierrez, A.M. No. L-363, July 31,
1962

In this regard all prisoners whether under preventive detention or


serving final sentence cannot practice their profession nor engage in any
business or occupation, or hold office, elective or appointive, while in
detention. This is a necessary consequence of arrest and detention. (People
v. Maceda, G.R. Nos. 89591-96, Jan. 24, 2000)
Though the law recognizes the right of an individual to represent himself in
any case to which he is a party. He is still restricted to the same rules of evidence and
procedure as those qualified to practice lawnot being a lawyer himself, runs the risk
of falling into the snares and hazards of his own ignorance. (Cruz v. Mijares, et al., G.R.
No. 154464, Sept. 11, 2008)

Even non-lawyers can practice law.

A law student who has successfully completed third year of the regular four-year
prescribed law curriculum and is enrolled in a recognized law schools clinical legal
education program approved by the Supreme Court. (Rule 138-A, Sec. 1, Rules of
Court)

It is important to note that Such law student may appear without compensation
in any civil, criminal or administrative case before any trial court, tribunal, board or
officer, to represent indigent clients accepted by the legal clinic of the law school.
(Rule 138-A, Sec. 1, Rules of Court)

The appearance of the law student shall be under the DIRECT supervision and
control of a member of the Integrated Bar of the Philippines. (Rule 138-A, Sec.2, Rules
of Court)
The phrase direct supervision and control requires no less than the physical
presence of the supervising lawyer during the hearing. This is in accordance with the
threefold rationale behind the Law Student Practice Rule, to wit:

) To ensure that there will be no miscarriage of justice as a result of incompetence or


inexperience of law students, who not having as yet passed the test of professional
competence, are presumably not fully equipped to act as counsels on their own;

b) To provide a mechanism by which the accredited law school clinic may be able to
protect itself from any potential vicarious liability arising from some culpable action by
their law students; and
) To ensure consistency with the fundamental principle that no person is allowed to
practice a particular profession without possessing the qualifications, particularly a
license, as required by law. (In re: Need that Law Student Practicing Under Rule 138-A
Be Actually Supervised During Trial, Bar Matter No. 730, June 13, 1997)

Any and all pleadings, motions, briefs, memoranda or other papers to be filed,
must be signed by the supervising attorney for and in behalf of the legal clinic. (Rule
138-A, Sec. 2, Rules of Court)

A party to a litigation in person OR through the aid of an agent or friend


appointed by him for that purpose in cases which the MTC has jurisdiction. (Rule 138,
Sec. 34, Rules of Court)

A party to the litigation before any other court. (Rule 138, Sec. 34, Rules of
Court)

In criminal cases before the MTC and a duly licensed member of the Bar is not
available, the court may appoint any person of good repute for probity and ability in
the province to defend the accused. (Rule 116, Sec. 7, Rules of Court)

Non-lawyers may appear before the NLRC or any Labor Arbiter only If they
represent themselves; or If they represent their organization or members thereof. (Art.
222, Labor Code of the Philippines, P.D. 442)

Under the Cadastral Act, any person can represent himself or a claimant before
the Cadastral Court. (The Cadastral Act, Act 2259, Sec. 9)

Above all these considerations, the law provides sanctions for practice and
appearance without authority

A disbarred attorney until his re-admission or a suspended lawyer during his is


prohibited from engaging in the practice of law; and any such person who assumes to
be an attorney is liable for contempt of court (punishable by fine or imprisonment or
both in the discretion of the court.

If the unauthorized practice on the part of a person who assumes to be an


attorney causes damage to a party is liable for estafa.

A government official forbidden to practice law may be held criminally liable for
violating Secs. 7 (b) and 11 of Republic Act 6713 or the Code of Conduct and Ethical
Standards for Public Officials and Employees.

Section 7. Prohibited Acts and Transactions .

(b) Outside employment and other activities related thereto. - Public officials and
employees during their incumbency shall not:

(1) Own, control, manage or accept employment as officer, employee,


consultant, counsel, broker, agent, trustee or nominee in any private enterprise
regulated, supervised or licensed by their office unless expressly allowed by law; (2)
Engage in the private practice of their profession unless authorized by the Constitution
or law, provided, that such practice will not conflict or tend to conflict with their official
functions; or

(3) Recommend any person to any position in a private enterprise which has a
regular or pending official transaction with their office.

Section 11. Penalties. - (a) Any public official or employee, regardless of whether
or not he holds office or employment in a casual, temporary, holdover, permanent or
regular capacity, committing any violation of this Act shall be punished with a fine not
exceeding the equivalent of six (6) months' salary or suspension not exceeding one (1)
year, or removal depending on the gravity of the offense after due notice and hearing
by the appropriate body or agency. If the violation is punishable by a heavier penalty
under another law, he shall be prosecuted under the latter statute. Violations of
Sections 7, 8 or 9 of this Act shall be punishable with imprisonment not exceeding five
(5) years, or a fine not exceeding five thousand pesos (P5,000), or both, and, in the
discretion of the court of competent jurisdiction, disqualification to hold public office.

(b) Any violation hereof proven in a proper administrative proceeding shall be


sufficient cause for removal or dismissal of a public official or employee, even if no
criminal prosecution is instituted against him. (c) Private individuals who participate in
conspiracy as co-principals, accomplices or accessories, with public officials or
employees, in violation of this Act, shall be subject to the same penal liabilities as the
public officials or employees and shall be tried jointly with them. (d) The official or
employee concerned may bring an action against any person who obtains or uses a
report for any purpose prohibited by Section 8 (D) of this Act. The Court in which such
action is brought may assess against such person a penalty in any amount not to
exceed twenty-five thousand pesos (P25,000). If another sanction hereunder or under
any other law is heavier, the latter shall apply.

(4) An officer or employee of the civil service, who as a lawyer, engages in the
practice of law without a written permit from the department head concerned may be
held administratively liable.

(5) Disbarment.

(6) Suspension.
Solicitation of Legal Services

Law is a profession and not a trade because its basic ideal is to render public
service and secure justice for those who seek its aid. The gaining of a livelihood is only
a secondary consideration.

Rule 2.03, Canon 2, CPR provides that a lawyer shall not do or permit to be done
any act designated primarily to solicit legal business.

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. 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.

The practice of law is a noble profession and not a business because it treats of
the most important interests of man, namely: life, liberty and property. The lawyers
first duty is to maintain good administration of justice. In maintaining the causes
confided to him, he should delay no man for money or malice. He should not reject for
any personal reason the causes of the defenseless and the oppressed. Pecuniary
rewards are but a secondary importance. The profession of law is more a mission than
a business profession and therefore its object is not material reward but promote the
administration of justice; hence, where a lawyer in the pursuit of his calling finds
conformity with professional ethics difficult, he should other vocation.
Thus in one case decided by the Spreme Cuurt, an an attorney agreed to give
of his professional fees to an intermediary or commission agent and he also bound
himself not to deal directly with the clients. Can he be subject to disciplinary action?

The answer is yes. The agreement is void because it was tantamount to


malpractice which is the practice of soliciting cases of law for the purpose of gain
either personally or through paid agents or brokers. Malpractice ordinarily refers to
any malfeasance or dereliction of duty committed by a lawyer. The meaning of
malpractice is in consonance with the notion that the practice of law is a profession
not a business. The lawyer may not seek or obtain employment by himself or through
others, to do so would be unprofessional. (Tan Tek A lawyer may not advertise his
profession. Standard of profession condemn a lawyer who advertises his talents in a
manner similar to a merchant advertising his goods. Solicitation, in order to be proper
should be compatible with the dignity of the legal profession. If made in modest and
decorous manner, it would bring no injury to the lawyer or to the bar.

The use of professional cards carrying the name of the lawyer, his title, his office
and his residence maybe proper. Announcements in periodicals or magazines
regarding the opening of a law office or the foundation of a law partnership containing
only names and addresses are proper.

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.

It is clear therefore in this case that an act of unethical solicitation of legal


services constitutes malpractice and therefore may subject an erring lawyer from
disbarment.
Engaging in unlawful, dishonest, immoral or deceitful conduct.

A lawyer may be disciplined for any conduct, in his professional or private


capacity, that renders him unfit to continue to be an officer of the court. Canon 1 of
the Code of Professional Responsibility commands all lawyers to uphold at all times the
dignity and integrity of the legal profession. Specifically, Rule 1.01 thereof provides:

Rule 1.01A lawyer shall not engage in unlawful, dishonest and immoral or
deceitful conduct.

Section 27, Rule 138 of the Rules of Court, which provides:

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, or other gross misconduct
in such office, grossly immoral conduct, or by reason of his conviction of a crime
involving moral turpitude, or for any violation of the oath which he is required to take
before the admission to practice, or for a willful disobedience appearing as attorney for
a party to a case without authority to so do.
Unlawful conduct is an act or omission which is against the law. (Legal
and Judicial Ethics, Agpalo 2009, p. 72)

An immoral or deceitful conduct is one that involves moral turpitude.


(Legal and Judicial Ethics, Agpalo 2009, p. 72)

Immoral conduct connotes conduct that shows indifference to the


moral norms of society and the opinion of good and respectable members of
the community. For such conduct to warrant disciplinary action, the same
must be grossly immoral, that is, it must be so corrupt and false as to
constitute a criminal act or so unprincipled as to be reprehensible to a high
degree. (Ui vs. Bonifacio, A.C. No. 3319, June 8, 2000)

That conduct which is willful, flagrant, or shameless, and which shows


a moral indifference to the opinion of the good and respectable members of
the community. (Arciga vs. Maniwang, A.M. No. 1608, August 14, 1981)

Not confined to sexual conduct, but includes conduct inconsistent with


rectitude, or indicative of corruption, indecency, depravity and dissoluteness.
(Advincula vs. Macabata, A.C. No. 7204, March 7, 2007)

Moral Turpitude means anything which is done contrary to justice,


honesty, modesty or good morals, or to any act of vileness, baseness or
depravity in the private and social duties that a man owes his fellowmen or
to society, contrary to the accepted rule of right and duty between man and
man. (Legal and Judicial Ethics, Agpalo 2009, p. 106)
Instances of gross immorality:
(1) Abandonment of wife and cohabiting with another woman.
(Obusan vs. Obusan, A.M. 1392, April 2, 1984)

(2) A lawyer who had carnal knowledge with a woman through a


promise of marriage which he did not fulfill. (Quingwa vs.
Puno, A.C. No. 389, February 28, 1987)
(3) Seduction of a woman who is the niece of a married woman
with whom the respondent lawyer had adulterous relations.
(Royong vs. Oblena, G.R. No. 376, April 30, 1963)
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(4) Delivering bribe money to a judge on request of the clients.
(Lee vs. Abastillas, A.M. No. RTJ-92-863 and AC. No. 3815,
July 11, 1994)

A member of the bar may be removed or suspended from office as an


attorney for any deceit, malpractice, or misconduct in office. The word
"conduct" used in the rules is not limited to conduct exhibited in connection
with the performance of the lawyer's professional duties but it also refers to
any misconduct, although not connected with his professional duties, that
would show him to be unfit for the office and unworthy of the privileges
which his license and the law confer upon him. The grounds expressed in
Section 27, Rule 138, of the Rules of Court are not limitative and are broad
enough to cover any misconduct, including dishonesty, of a lawyer in his
professional or private capacity. Such misdeed puts his moral fiber, as well as
his fitness to continue in the advocacy of law, in serious doubt. Atty.Adaza's
issuance of worthless checks and his contumacious refusal to comply with his
just obligation for nearly eight years is appalling and hardly deserves
compassion from the Court. (Orbe v. Atty. Adaza, A.C. No. 5252, May 20,
2004)

Thus an act of converting his secretary into a mistress is grossly


immoral which no civilized society in the world can countenance. The
subsequent detention and torture of the complainant is gross misconduct
[which] only a beast may be able to do. Certainly, it is in violation Canon 1 of
the Code of Professional Responsibility.

When a lawyers moral character is assailed, such that his right to


continue practicing his cherished profession is imperiled, it behooves him to
meet the charges squarely and present evidence, to the satisfaction of the
investigating body and this Court, that he is morally fit to keep his name in
the Roll of Attorneys. Atty. Velasquez has not discharged the burden.
(Mecaral v. Velasquez, A.C. No. 8392, June 29, 2010)

The law is not a trade nor craft but a profession. Its basic ideal is to
render public service and to secure justice for those who seek its aid. If it has
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to remain an honorable profession and attain its basic ideal, lawyers should
not only master its tenets and principles but should also, by their lives,
accord continuing fidelity to them. By extorting money from his client
through deceit, Limon has sullied the integrity of his brethren in the law and
has indirectly eroded the peoples confidence in the judicial system. He is
disbarred for immoral, deceitful and unlawful conduct. (Docena v. Atty.
Limon, A.C. No. 2387, Sept. 10, 1998)

By certifying as true and correct the Statement of Votesin question,


Atty. Llorente and Atty. Salayon committed a breach of Rule 1.01 of the Code
which stipulates that a lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct. By express provision of Canon 6, this is made
applicable to lawyers in the government service. In addition, they likewise
violated their oath of office as lawyers to do no falsehood. (Pimentel, Jr. v.
Atty. Llorente and Atty. Salayon, A.C. No. 4680, Aug. 29, 2000)

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