You are on page 1of 7

PROBLEM AREAS IN LEGAL ETHICS

SUMMER 2018

LEGAL ETHICS
Body of all principles of morality and refinement that should govern the conduct of every
member of the bar.
Branch of moral science which treats of duties which an attorney owes to the court, to his
client, to his colleagues, and to the public.
1. Memorize Lawyer’s Oath
I, do solemnly swear that I will maintain allegiance to the Republic of the Philippines, I
will support the 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 fidelity as well to the courts as to my clients; and I impose upon myself these
voluntary obligations without any mental reservation or purpose of evasion. So help me
God.
2. Instances when recovery of attorney’s fees on the basis of quantum meruit is authorized.
Quantum meruit (“as much as he deserves”; should only apply when there is no
agreement)
Recission of the agreement- contract is rendered void- counsel was not able to finish the
case – the litigatnt is questioning the validity of the
3. Attorney as an officer of the court
Officers of the court and who are empowered to appear, prosecute and defend a client’s
cause.
A lawyer is answerable not only to his client but also to the court of which he is an officer.
First duty is not to client but to the administration of justice; justice trumps client interest
candid and truthful to the court; do no falsehood; not misquote/misrepresent; not misuse
rules of procedure; respect court and its orders; not file multiple actions

Disciplinary authority is under the supreme court and administration of justice


4. Duty of a lawyer to inform the court of change of his address.
Notice of change of address
Without his address being recorded in the case, a lawyer will not be entitled to be served
with judicial notice.
Without informing the court in writing of such change, a notice served at the attorney’s
original address is binding upon the client.
Insofar as the court is concerned, the last address on record is the place where all notices
shall be served until the court is officially informed to the contrary.
5. Duty not to refuse a client on the basis of belief of guilt.
In the defense of a person accused of crime, by all fair and honorable means, regardless of
his personal opinion as to the guilt of the accused, to present every defense that the law
permits, to the end that no person may be deprived of life or liberty, but by due process of
law. (Duties of a Lawyer.
He 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. (Canon
14, Rule 14.01)
In a criminal action, it is the “right of the lawyer to undertake the defense of a person
accused of crime, regardless of his personal opinion as to the guilt of the accused;
otherwise, innocent persons, victims only of suspicious circumstances, might be denied
proper defense.”
6. Reasons why an administrative proceeding is sui generis.
[D]isciplinary proceedings [against lawyers] are sui generis. Neither purely civil nor
purely criminal, x x x [they do] not involve x x x a trial of an action or a suit, but [are]
rather investigation[s] by the Court into the conduct of its officers. Not being intended to
inflict punishment, [they are] in no sense a criminal prosecution. Accordingly, there is
neither a plaintiff nor a prosecutor therein. [They] may be initiated by the Court motu
proprio. Public interest is [their] primary objective, and the real question for
determination is whether or not the attorney is still a fit person to be allowed the
privileges as such. Hence, in the exercise of its disciplinary powers, the Court merely calls
upon a member of the Bar to account for his actuations as an officer of the Court with the
end in view of preserving the purity of the legal profession and the proper and honest
administration of justice by purging the profession of members who by their misconduct
have prove[n] themselves no longer worthy to be entrusted with the duties and
responsibilities pertaining to the office of an attorney. (Heck v. Santos; case 10)
7. Judges should observe impartiality in court proceedings. Instances when a judge can intervene
or question the witness.

The Code of Judicial Conduct provides:


CANON 3 A JUDGE SHOULD PERFORM OFFICIAL DUTIES HONESTLY, AND WITH
IMPARTIALITY AND DILIGENCE

A judge may properly intervene in the presentation of evidence to expedite and prevent
unnecessary waste of time and clarify obscure and incomplete details
􏰀 But judge should limit himself to asking clarificatory questions and this right should be
sparingly and judiciously used
􏰀 Ex parte hearings for provisional remedies is only allowed when there is necessity for
quick action and the judge has endeavored to counteract the effect of the counsel’s
absence
􏰀 There is undue interference in questioning witnesses if the questions propounded by
the judge tend to build or bolster the case for one of the parties
8. Testimony of a lawyer against a former client.
Alam ko case toh. Parang may illegal ata na ginawa yung client or something like that
pero may rule rin na

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.

9. Rule on the right of the client to dismiss his lawyer.


A client can terminate the relationship at any time with or without cause.
10. Right of a lawyer to withdraw as counsel.
An attorney, however, being an officer of the court, enjoys no similar right. He may be
permitted to withdraw from the case only with the consent of the client or that of the
court.
11. Conflict of interest in representing a client against a former client of a colleague from the same
law firm.
 As such, a lawyer is prohibited from representing new clients whose interests oppose
those of a former client in any manner, whether or not they are parties in the same
action or on totally unrelated cases. The prohibition is founded on the principles of
public policy and good taste. Anglo v. Valencia et. al. (founded on principle of conflict of
interest; Besides the public policy and good taste BS, court did not state a more concrete
reason)
12. Grounds for inhibition of a judge.
Rule 137
Section 1. Disqualification of judges. - No judge or judicial officer shall sit in any case in
which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or
otherwise, or in which he is related to either party within the sixth degree of
consanguinity or affinity, or to counsel within the fourth degree, computed according to
the rules of civil law, or in which he has been executor, administrator, guardian, trustee or
counsel, or in which he has presided in any inferior court when his ruling or decision is
the subject of review, without the written consent of all parties in interest, signed by them
and entered upon the record.
A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a
case, for just or valid reasons other than those mentioned above.
- rooted in the Constitution, specifically Article III, the Bill of Rights, which requires that
a hearing is conducted before an impartial and disinterested tribunal because
unquestionably, every litigant is entitled to nothing less than the cold neutrality of an
impartial judge. (Ariel “Aga” Muhlach v. Executive Judge Ma. Angela Acompañado-
Arroyo; case 62)
13. Unauthorized practice of law; what constitutes the practice of law. (Cayetano v. Monsod; case
1)
 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."
14. Acquittal in a criminal case and its effect on disbarment proceedings.
No effect.

It must be emphasized that a disbarment proceeding, being administrative in nature, is


separate and distinct from a criminal action filed against a lawyer and they may proceed
independently of each other. A finding of guilt in the criminal case does not necessarily
mean a finding of liability in the administrative case. In the same way, the dismissal of a
criminal case on the ground of insufficiency of evidence against an accused, who is also a
respondent in an administrative case, does not necessarily exculpate him administratively
because the quantum of evidence required is different. (Cobalt Resources v. Aguado;
pegasus; case 57)

15. Duty of a law partner who accepts public office.

A partner who accepts public office should withdraw from the firm; exception
Rule 3.03. Where a partner accepts public office, he shall withdraw from the firm and his
name shall be dropped from the firm name unless the law allows him to practice law
concurrently.

The purpose of the rule is to prevent the law firm from using his name to attract legal
business and to avoid suspicion of undue influence.

When any of the public officials are absolutely prohibited, they cease, as a general rule, to
engage in private practice of law and the right to practice is suspended during tenure of
office.
Lawyer member of the Legislature not absolutely prohibited.
Prohibited only from appearing as counsel in:
1. Any court of justice.
2. Electoral Tribunals.
3. Quasi-Judicial or Administrative bodies.
What is prohibited is to “personally appear.”
The word “appearance” includes:
1. Arguing a case before any such body.
2. Filing a pleading on behalf of a client as “by simply filing a formal motion, plea or
answer”.

Neither can he allow his name to appear in such pleading by itself or as part of a firm
name under the signature of another qualified lawyer because the signature of an agent
amounts to signing of a non-qualified senator or congressman, the office of an attorney
being originally of agency, and because he will, by such act, be appearing in court or
quasi-judicial or administrative body in violation of the constitutional restriction.
“He cannot do indirectly what the Constitution prohibits directly”.

16. Factors that should be considered in determining the amount to be awarded as attorney’s fees
on a quantum meruit or 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 service rendered or required;
(b) the novelty and difficulty 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 proffered
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 benefits resulting to the client from
the service;
(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.

17. Motion for Inhibition of judges.

The Code of Judicial Conduct provides:


Rule 3.12 – A judge should take no part in 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 matters 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 subject of review
d. The judge is related by consanguinity or affinity to a party litigant within the 6th
degree or to counsel within the 4th degree;
e. The judge knows that the judge’s spouse or child has a financial interest, as heir,
legatee, creditor, fiduciary, 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 filed before rendition of judgment by the judge; can’t
be raised first time on appeal.
If a judge denies petition for disqualification, the ultimate test: is whether or not the
complaint was deprived of a fair and impartial trial. Remedy: seek new trial.

18. Rule in Use of name in a law firm of a newly appointed government official.

Rule 3.03. Where a partner accepts public office, he shall withdraw from the firm and his
name shall be dropped from the firm name unless the law allows him to practice law
concurrently.

The purpose of the rule is to prevent the law firm from using his name to attract legal
business and to avoid suspicion of undue influence.

19. A lawyer as counsel and as witness in the same case.


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.

The rule prohibits the practice of the lawyer taking the witness stand and asking
questions to him and answering them as a witness.

While the law does not disqualify a lawyer from being a witness and an advocate at the
same time in a case, the practice is violative of the rule on professional conduct.

It would also be improper for a lawyer to accept employment in a case where it would be
his duty to attack the testimony to be given by his partner on behalf of the opposite side.

The underlying reason for the impropriety of a lawyer acting in such dual capacity:
The function of a witness is to tell the facts.
The function of an advocate is that of a partisan.

It is difficult to distinguish between the zeal of an advocate and the fairness and
impartiality of a disinterested witness.

It is hard to disassociate his relation to his client as an attorney and his relation to the
party as a witness.

20. Persons exempted from MCLE compliance.


SECTION 1. Parties exempted from the MCLE. -- The following members of the Bar are
exempt from the MCLE requirement:
(a) The President and the Vice President of the Philippines, and the Secretaries and
Undersecretaries of Executive Departments;
(b) Senators and Members of the House of Representatives;
(c) The Chief Justice and Associate Justices of the Supreme Court, incumbent and retired
members of the judiciary, incumbent members of the Judicial and Bar Council and
incumbent court lawyers covered by the Philippine Judicial Academy program of
continuing judicial education;
(d) The Chief State Counsel, Chief State Prosecutor and Assistant Secretaries of the
Department of Justice;
(e) The Solicitor General and the Assistant Solicitors General;
(f) The Government Corporate Counsel, Deputy and Assistant Government Corporate
Counsel;
(g) The Chairmen and Members of the Constitutional Commissions;
(h) The Ombudsman, the Overall Deputy Ombudsman, the Deputy Ombudsman and the
Special Prosecutor of the Office of the Ombudsman;
(i) Heads of government agencies exercising quasi-judicial functions;
(j) Incumbent deans, bar reviewers and professors of law who have teaching experience
for at least ten (10) years in accredited law schools;
(k) The Chancellor, Vice-Chancellor and members of the Corps of Professors and
Professorial Lecturers of the Philippine Judicial Academy; and
(l) Governors and Mayors.

SEC. 2. Other parties exempted from the MCLE. The following Members of the Bar are
likewise exempt:
(a) Those who are not in law practice, private or public.
(b) Those who have retired from law practice with the approval of the IBP Board of
Governors.
- physical disabilities
- post -graduate studies abroad
- expertise in law (stated in case 60)

21. Absolute prohibition on government lawyers who cannot practice law while employed in the
government.
WHO MAY NOT PRACTICE LAW?
Relative Prohibition
1. Senators and members of the
House of Representatives
(prohibition to appear)
2. Members of the Sanggunian.
Absolute Prohibition
1. All members of the Judiciary
2. Judges and other officials as employees of the Supreme Court.
3. Government prosecutors.
4. President, Vice President, members of the cabinet.
5. Members of Constitutional Commissions.
6. Ombudsman and his deputies.
7. Solicitor General and Assistant Solicitor General
8. All governors, city and municipal mayors.
9. Those prohibited by special laws – retired members of the judiciary.

22. Privileged information between and among partners in a law firm.

Rule 21.04 - A lawyer may disclose the affairs of a client of the firm to partners or
associates thereof unless prohibited by the client.

Since retainer of a lawyer is retainer of the whole firm, unless prohibited by the client.
23. Amicus Curiae
Amicus Curiae is: An experienced and impartial attorney invited by the court to appear
and help in the disposition of issues submitted to it. It implies friendly intervention of
counsel to call the attention of the court to some matters of law or facts which might
otherwise escape its notice and in regard to which it might go wrong. Appears in court not
to represent any particular party but only to assist the court.

24. The fourfold duties of lawyer to society, legal profession, the court and the client.

FOUR-FOLD DUTIES OF A LAWYER

1. Duties to SOCIETY – should not violate his responsibility to society, exemplar for
righteousness, ready to render legal aid, foster social reforms, guardian of due process,
aware of special role in the solution of special problems and be always ready to lend
assistance in the study and solution of social problems.

2. Duties to the LEGAL PROFESSION – candor, fairness, courtesy and truthfulness,


avoid encroachment in the business of other lawyers, uphold the honor of the profession.

3. Duties to the COURT – respect or defend against criticisms, uphold authority and
dignity, obey order and processes, assist in the administration of justice.

4. Duties to the CLIENT – entire devotion to client’s interest.

25. Attorney-Client Relationship


An attorney is more than a mere agent or servant because he possesses special powers of
trust and confidence reposed on him by his client.

The lawyer is also as independent as a judge, with powers entirely different from and
superior to those of an ordinary agent. Moreover, he is an officer of the court. The relation
of attorney and client is strictly personal and highly confidential.
26. Restriction on former official who may not accept certain employment; should not accept any
work or employment from anyone that will involve or relate to the matter in which he intervened
as public official.
The key to unlock Rule 6.03 lies in comprehending.
1. The meaning of “matter” referred to in the rules.
2. The metes and bounds of the “intervention” made by the former government lawyer on
the “matter.”

The American Bar Association, in its Formal Opinion 342, defined “matter” as:
Any discrete, isolatable act as well as identifiable transaction and not merely an act of
drafting, enforcing or interpreting government or agency procedures, regulations or laws,
or briefing abstract principles of law.

The “matter” or the act of Atty. Mendoza as Solicitor General is “advising the Central
Bank on how to proceed with Genbank’s liquidation is held not to be the “matter”
contemplated by Rule 6.03.

Clearly, ABA Formal Opinion 342 stresses that Atty. Mendoza’s acts didnot fall within the
scope of the term “matter.”

It is given that respondent Mendoza had nothing to do with the decision of the Central
Bank to liquidate Genbank and did not even participate in the sale of Genbank to Allied
Bank. The “matter” which he got himself involved was informing the Central bank on the
procedure by law to liquidate Genbank. It is not the same as the subject “matter” of the
civil case of sequestration of stocks owned by Tan in Allied Bank on the alleged ground
that they are illgotten. This case does not involve the liquidation of Genbank. Whether the
shares of stock of Allied Bank are illgotten is far removed from the issue of the dissolution
and liquidation of Genbank.

It is also submitted that the Court should apply Rule 6.03 in all its strictness for it
correctly disfavors lawyers who “switch sides” and intended to avoid conflict of loyalties.
It is claimed that “switching sides” carries the danger that former government employee
may compromise confidential official information in the process.

The act of respondent Mendoza in informing the Central Bank on the procedure how to
liquidate Genbank is a different matter from the subject matter of Civil Case No. 0005
which is about
sequestration of the shares of respondents Tan in Allied Bank. There is no switching sides
for no two sides are involved.

27. Rule on privileged communication on matters disclosed by prospective client.


Rule 15.02. A lawyer shall be bound by the rule on privileged communication in respect of
matters disclosed to him by a prospective client.

Matters disclosed by a prospective client to a lawyer are protected by the rule on


privileged communications even if the prospective client does not thereafter retain the
lawyer or the lawyer declines the employment.

Reason: To make the prospective client discuss freely whatever he wishes with the lawyer
without fear that what he discloses will not be divulged nor used against him and for the
lawyer to be equally free to obtain information from such prospective client.

28. When is there conflict of interest.


 There is conflict of interest when a lawyer represents inconsistent interests of two or
more opposing parties. The test is "whether or not in behalf of one client, it is the
lawyer’s duty to fight for an issue or claim, but it is his duty to oppose it for the other
client. In brief, if he argues for one client, this argument will be opposed by him when he
argues for the other client." This rule covers not only cases in which confidential
communications have been confided, but also those in which no confidence has been
bestowed or will be used.
 Also, there is conflict of interests if the acceptance of the new retainer will require the
attorney to perform an act which will injuriously affect his first client in any matter in
which he represents him and also whether he will be called upon in his new relation to
use against his first client any knowledge acquired through their connection.
 Another test of the inconsistency of interests is whether the acceptance of a new relation
will prevent an attorney from the full discharge of his duty of undivided fidelity and
loyalty to his client or invite suspicion of unfaithfulness or double dealing in the
performance thereof.

29. Lawyering is not a business or trade.


It is not a business, using bargain counter methods to reap large profits. The gaining of
livelihood is not a profession, but a secondary consideration.

Profession – A calling requiring specialized knowledge and often requiring long academic
preparation. In fixing fees, remember that “the profession is a branch of the
administration of justice and not a mere money-making trade.”
Law advocacy is not capital that yields profits. A calling, unlike mercantile pursuits which
enjoy a greater deal of freedom from government interference, is impressed with public
interest.

30. Prohibition on solicitation/advertising.


The Code of Professional Responsibility, particularly the ethical rule against advertising
or solicitation of professional employment, rests on the fundamental postulate that the
practice of law is a profession.

GOOD LUCK!!!