Professional Documents
Culture Documents
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LEGAL ETHICS
REVIEWER
Legal ethics will guard against the abuses and ills of the profession
such as dishonesty, deceit, immorality, negligence, slothness, lack of
diligence and the many forms of malpractice of the members of the
bar. On the positive side, it will raise the standard of the legal
profession, encourage and enhance the respect for the law, assure an
effective and efficient administration of justice, assist in the keeping
and maintenance of law and order in coordination with the other
departments of government. It also provides the basis for weeding out
the unfit and the misfits in the legal profession for the protection of the
public. (Pineda, Legal and Judicial Ethics, 1994 Ed., pp.1 and 2).
DEFINITION OF TERMS
Attorney-at-law/Counsel-at-law/Attorney/Counsel Abogado/Boceros:
- that class of persons who are licensed officers of the
courts, empowered to appear, prosecute and defend; and
upon whom peculiar duties, responsibilities, and liabilities
are developed the law as a consequence (Cui v. Cui, 120
Phil. 729).
Attorney of Record - one who has filed a notice of appearance and who
hence is formally mentioned in" court records as the official
attorney of the party. Person whom the client has named as
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his agent upon whom service of papers may be made.
(Reynolds v. Reynolds, Cal.2d580).
Advocate - The general and popular name for a lawyer who pleads on
behalf of someone else.
The Supreme Court has the power to control and regulate the practice of
law. Thus, the Constitution, under Article VIII, Sec. 5 (5) provides:
The "Bar Confidant acts as a sort of liaison officer between the court
and the Bar Chairman on the other hand, 'and the individual
members of the committee on the other. He is at the same time a
deputy clerk of .court.
Admission of examinees is always subject to the final approval of
the court.
Practice of Law
The practice of law is a PRIVILEGE granted only to those who possess
the STRICT INTELLECTUAL AND MORAL QUALIFICATIONS required of
lawyers who are instruments In the effective and efficient
administration of justice. (In Re: Argosino, 1997).
Attorney's Oath
The lawyer’s oath is not mere facile words, drift and hollow, but a
sacred trust that must be upheld and kept inviolable. (Sebastian vs.
Calis, 1999)
It is NOT a mere ceremony or formality for practicing law. Every lawyer
should at all times weigh his actions according to the sworn promises
he made when taking the lawyer’s oath. (In Re: Argosino, 1997, In Re:
Arthur M. Cuevas, 1998).
-No because the payment of said fee was not made during the
pendency of the litigation but only after the judgment has been
rendered in the case handled by the lawyer. (Fabillo vs. lAC, 195
SCRA 28, March 11, 1991).
-No, they are independent of the contingent fees. The fact that a
lawyer may have been paid substantially (in initial fees) while the
case was dragging is no justification for denying him the full
amount under the contingent fee contract with a client. (Law Firm
of Raymundo Armovit vs. CA, 202 SCRA 16, Sept. 27, 1991).
Q -If a lawyer claims and enforces his claim for attorney's fees,
is he required to pay docket fees? Why?
-Yes. A motion for attorney's fees is in the nature of an action
commenced by a lawyer against his client for attorney's fees, hence,
docket fees should have been priory paid before the court could law-
fully act on said motion, and decide it. It may be true that the claim
for attorney's fees was but an incident in the main case, still, It is
not an escape valve from the payment of docket fees because as in
all actions, whether separate or as an offshoot of a pending
proceedings, the payment of docket fees is mandatory. (Lacson vs.
Reyes, 182 SCRA 729, Feb. 26, 1990).
- No. An administrator or executor may be allowed fees for necessary expenses he has
incurred but he may not recover attorney's fees from the estate. Where the
administrator is himself the counsel for the heirs, it is the latter who must pay
attorney's fees. (Lacson vs. Reyes, supra)
- They are:
(1)misconduct, negligence or carelessness;
(2)abandonment or withdrawal without client's consent;
(3)representing adverse interest.
- It does not:
(a) mean that he attached the funds which came to his
possession in some other capacity;
(b) extend to the funds of client's principal; or
(c) extend to subject matter of the action.
Rule on Advertisements
General Rule: No advertisements allowed. The most worthy and
effective advertisement possible is the establishment of a well-
merited reputation for professional capacity and fidelity to trust.
Lawyers may not advertise their services or expertise nor should
not resort to indirect advertisements for professional
employment, such as furnishing or inspiring newspaper
comments, or procuring his photograph to be published in
connection with causes in which the lawyer has been engaged or
concerning the manner of their conduct, the magnitude of the
interest involved, the importance of the lawyer's position, and all
other self-laudation.
RULE 2.04 - A lawyer shall not charge rates lower than those
customarily prescribed unless the circumstances so warrant.
A lawyer cannot delay the approval of a compromise agreement
entered into between parties, just because his attorney's fees were
not provided for in the agreement.
Rule: A lawyer cannot compromise the case without client's
consent (special. authority).
Exception: Lawyer has exclusive management of the procedural
aspect of the litigation lawyer is confronted with an emergency
and prompt/urgent action is necessary to protect clients interest
and there's no opportunity for consultation, the lawyer may
compromise.
Rule: Refrain from charging rates lower than the customary rates.
Valid Justification: relatives, co-lawyers, too poor.
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.
RULE 3.02 - In the choice of a firm name, no false, misleading or
assumed name shall be used. The continued use of the name of a
deceased partner is permissible provided that the firm indicates in all its
communications that said partner is deceased.
-No. Rule 1.01, Chapter 1 entitled The Lawyer and Society of the Code of
Professional Responsibility which requires that a lawyer shall not engage in
unlawful, dishonest, immoral and deceitful conduct does not limit itself to
conduct exhibited in connection with the performance of professional duties.
His propinquity for employing deceit and misrepresentations as well as his
cavalier attitude towards incurring debts without the least intention of
repaying them is reprehensible. This disturbing behavior cannot be tolerated
especially if the lawyer is an officer of the court.
- They are:
Q - What is barratry?
RULE 7.03 - A lawyer shall not engage in conduct that adversely reflects
on his fitness to practice law, nor shall he, whether in public or private life,
behave in scandalous manner to the discredit of the legal profession.
Upright character; not mere absence of bad character.
A lawyer must at all times conduct himself properly as not to put
into question his
Avoid scandalous conduct; not only required to refrain from
adulterous relationships or the keeping of mistress but must also
behave himself as to avoid scandalizing the public by creating the
belief that he is flouting those moral standards. .
RULE 8.01 - A lawyer shall not, in his professional dealings, use language
which is abusive, offensive or otherwise improper.
RULE 8.02 - A lawyer shall not, directly or indirectly, encroach upon the
professional employment of another lawyer; however, it is the right of any
lawyer, without fear or favor, to give proper advice and assistance to those
seeking relief against unfaithful or neglectful counsel.
It is the duty of a lawyer to inform the SC or the IBP of such malpractice to
the end
that the malpractitioner be properly disciplined.
Not to use in pleadings and in practice the following: disrespectful,
abusive and abrasive language, offensive personalities, unfounded
accusations or intemperate words tending to obstruct, embarrass or
influence the court in administering justice.
RULE 9.01 - A lawyer shall not delegate to any unqualified person the
performance of any task which by law may only be performed by a member
of the Bar in good standing.
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:
a) Where there is a pre-existing agreement with a partner or associate
that, upon the latter's death, money shall be paid over a reasonable
period of time to his estate or to persons specified in the agreement; or
b) Where a lawyer undertakes to complete unfinished legal business of a
deceased lawyer; or
Lawyer should deal only with counsel, even if there's a fair agreement.
Lawyer may however, interview any witness or prospective witness for the
opposing side..;
Limitation: avoid influencing witness in recital and conduct.
-He shall conduct himself with courtesy, fairness and candor towards
his colleagues and should avoid harassing tactics against opposing
counsel. (Canon 8). He should not use language which is abusive,
offensive or otherwise improper. (Canon 8.01). He should not encroach
upon the professional employment of another lawyer. (Canon 8.02).
Q - May a lawyer divide a fee for legal services with one who is
not licensed to practice law? Is the rule absolute?
- A lawyer shall not divide or stipulate to divide a fee for legal services
with persons not licensed to practice law. The rule is not absolute as
there are exceptions like:
RULE 10.01 - A lawyer shall not do any falsehood, nor consent to the
doing of any in Court; nor shall he mislead, or allow the Court to be misled by
any artifice;
RULE 10.02 - A lawyer shall not knowingly misquote or misrepresent the
contents of a paper, the language or the text of a decision or authority, or
knowingly cite as law a provision already rendered inoperative by repeal or
amendment or assert as a fact that which has not been proved;
RULE 10.03 - A lawyer shall observe the rules of procedure and shall not
misuse them to defeat the ends of justice.
Judge-lawyer relationship: based on independence and self-respect.
Cases of falsehood:
a. Stating in the Deed of Sale that property is free from all liens and
encumbrances
when not so
b. Encashing check payable to a deceased cousin by signing the latter's
name on
the check
c. Falsifying a power of attorney and using it in collecting the money due
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to the
principal.
d. Alleging in one pleading that the clients were mere lessees and in
another
pleading that the same clients were owners
e. Presenting falsified documents in court which he knows to be false
f. Filing false charges on groundless suits
g. Using in pleadings the IBP number of another lawyer
h. Unsolicited appearances
i. Use of fictitious residence certificate
j. Misquotation/misrepresentation
k. Citing a repealed or amended provision
J. Asserting a fact not proved
m. Verbatim reproductions down to the last word and punctuation mark
n. Slight typo mistake: not sufficient to place him in contempt
The public duties of the attorney take precedence over his private duties.
His first duty is to the courts. Where duties to the courts conflict with his
duties to his clients, the latter must yield to the former.
Lawyers must be respectful not only in actions but also in the use of
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language whether in oral arguments or in pleadings.
Must exert efforts that others (including clients, witnesses) shall deal with
the courts and judicial officers with respect.
Criticisms of courts must not spill the walls of decency. There is a wide
difference between fair criticism and abuse and slander of courts and
judges. Intemperate and unfair criticism is a gross violation of the duty to
respect the courts. It amounts to misconduct which subjects the lawyer to
disciplinary action.
RULE 12.01 - A lawyer shall not appear for trial unless he has
adequately prepared himself on the law and the facts of his case, the
evidence he will adduce and the order of its preference. He should also be
ready with the original documents for comparison with the copies
Newly hired counsel: must acquaint himself with all the antecedent
proceedings and
processes that have transpired in the record prior to his takeover.
RULE 12.02 - A lawyer shall not file multiple actions arising from the same
cause.
Forum shopping - omission to disclose pendency of appeal or prior
dismissal of his
case by a court of concurrent jurisdiction with intent of seeking a
favorable opinion.
RULE 12.03 - A lawyer shall not, after extensions of time to file pleadings,
memoranda or briefs, let. The period lapse without submitting the same or
offering an explanation for his failure to do so.
RULE 12.04 - A lawyer shall not unduly delay a case, impede the execution
of a judgment or misuse Court processes.
RULE 12.05 - A lawyer shall refrain from talking to his witness during a
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break or recess in the trial, while the witness is still under examination.
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
RULE 13.02 - A lawyer shall not make public statements in the media
regarding a pending case tending to arouse public opinion for or against a
party.
The judge has the corresponding duty not to conveyor permit others to
convey the
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impression that they are in a special position to influence the judge.
Lawyer is equally, guilty as the client if he induces the latter to cause the
publicity.
Q- Who has the power to regulate the admission to the bar and
the practice of law?
The Supreme Court, as regulator and guardian of the legal profession,
has plenary disciplinary authority over attorneys. The authority to
discipline lawyers stems from the Court's Constitutional mandate to
regulate admission to the practice of law, which includes as well
authority to regulate the practice itself of law. (Zaldivar vs.
Sandiganbayan, 166 SCRA 316 [1988]).
It is the cardinal condition that criticisms of courts shall be bona fide and
shall not spill over the walls of decency and propriety. A wide chasm
exists between fair criticisms, on the one hand, and abuse and slander of
courts and the judges on the other. Intemperate and unfair criticism is
gross violation of the duty of respect to courts. It is such a misconduct
that subjects a lawyer to disciplinary action.
The lawyer's duty to render respectful subordination to the courts is
essential to the orderly administration of justice. Hence, in the assertion of
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their clients' rights, lawyers even those gifted with superior intellect are
enjoined to give due respect to the courts. (Zaldivar vs. Gonzales, supra).
No. In Aparicio vs. Andal, et al., July 25, 1989, it was said that filing of
baseless cases against a judge is improper. He was admonished
because a lawyer has a basic duty to conduct himself with good fidelity
to the courts, to be courteous, fair, not be combative and bellicose.
(Sangalang vs. Gaston, Aug. 30, 1989; In re: Laureta).
A lawyer who files multiple petitions may be held liable for willful
violation of his duties as an attorney. The filing of multiple petitions
constitutes abuse of the Court's processes and improper conduct that
tends to impede, obstruct and degrade the due administration of
justice. Claim of good faith alone is not enough to be exonerated from
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contempt. (Kalilid Wood Industries Corp. vs. CA, 197 SCRA 735, May
31,1991; Eternal Gardens Memorial Park Corp. vs. CA, et al., August 5,
1998, 97 SCAD 93).
Complainant's (lawyer) wanton disregard of the Supreme Court's stern
warning not to file baseless and frivolous complaints and his adamant
refusal to abide by Canon 11, Rule 11.03 and Rule 11.04 of the Code of
Professional Responsibility have shown his unfitness to hold the license
to practice law. (Balaoing vs. Calderon, 221 SCRA 533).
a.) A lawyer shall observe the rules of procedure and shall not misuse
them to defeat the ends of justice. (Canon 10.03, Canon 10, CPR); and
b.) A lawyer shall not file multiple actions from the same cause. (Rule
12.02, Canon 12, CPR).
-The lawyer has the duty to keep abreast with jurisprudence. In filing
a motion for extension of time to file Motion for Reconsideration with
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the MTC, or RTC or Court of Appeals, he has failed to observe the re-
sponsibility imposed on him as a member of the Bar to keep abreast
with the latest developments in the law. (Uy vs. CA, et al., G.R. No.
126337, February 12, 1998, 91 SCAD 715).
RULE 14.02 - A lawyer shall not decline, except for serious and sufficient
cause, an appointment as counsel de oficio or as amicus curiae,
or a request from the Integrated Bar of the Philippines or any of
its chapters for rendition of free legal aid.
Requisites of Privileged
Communication:
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a. Atty.-client relationship (or a kind of consultancy relationship with a
prospective
Client .
b. Communication made by client to lawyer in the course of lawyer's
professional
employment .
c. Communication is intended to be confidential (see Rule 130, Sec. 21(b),
Rules of
Court)
RULE 15.04- A lawyer may, with the written consent of all concerned,
act as mediator, conciliator or arbitrator in settling disputes.
RULE 15.05 - A lawyer when advising his client, shall give a candid and
honest opinion on the merits and probable results of the client's
case, neither overstating nor understating the prospects of the
case.
RULE 15.06 - A lawyer shall not state or imply that he is able to influence
any public official, tribunal or legislative body.
RULE 15.07 - A lawyer shall impress upon his client compliance with the
laws and the principles of fairness.
RULE 16.01 - A lawyer shall account for all the money or property
collected or received for or from the client.
RULE 16.02 - A lawyer shall keep the funds of each client separate and
apart from his own and those of others kept by him
RULE 16.03 - A lawyer shall deliver the funds and property of his client
when due or upon demand. However, he shall have a lien over
the funds and may apply so much thereof as may be necessary
to satisfy his lawful fees and disbursements, giving notice
promptly thereafter to his client. He shall also have a lien to the
same extent on all judgments and executions he has secured for
his client as provided for in the Rules of Court.
Attorney’s Liens - an attorney shall have a lien upon the funds, documents
and
Papers of his client which have lawfully come into his possession and may
retain the same until his lawful fees and disbursements have been paid,
and may apply such fines to the satisfaction thereof. He shall also have a
lien to the same extent upon all
Judgments for the payment of money, and executions issued in pursuance
of such
Judgments which he has secured in a litigation of his client, from and after
the time when he shall have caused a statement of his claim of such lien
to be entered upon the records of the court rendering such judgment, or
issuing such execution and shall have caused written notice thereof to be
delivered to his client and to the adverse party; and he shall have the
same right and power over such judgments and executions as his client
would have to enforce his lien and secure the payment of his fees and
disbursements. (Sec. 37, Rule 138, Revised Rules of Court)
RULE 16.04 - A lawyer shall not borrow money from his client unless the
client's interests are fully protected by the nature of the case or
by independent advice. Neither shall a lawyer lend money to a
client except, when in the interest of justice, he has to advance
necessary expenses in a legal matter he is handling for the
client.
Attorney's lien is not an excuse for non-rendition of accounting.
Failure to deliver upon demand gives rise to the presumption that he has
misappropriated the funds for his own use to the prejudice of the client
and in violation of the trust reposed in him.
Notify client if retaining lien shall be implemented.
When a lawyer enforces a charging lien against his Client, the client-
lawyer relationship is terminated.
The principle behind Rule 16.04 is to prevent the lawyer from taking
advantage of his influence over the client or to avoid acquiring a financial
interest in the outcome of the case.
It is the duty of the lawyer at the time of retainer to disclose to the client
all the Circumstances of his relations to the parties and any interest in, or
connection with, The controversy which might influence the client in the
selection of counsel.
The lawyer owes loyalty to his client even after the relation of attorney
and client has terminated. (Lorenzana Food Corp. vs. Daria, 197 SCRA428)
It is not good practice to permit him afterwards to defend in another case
other persons against his former client under the pretext that the case is
distinct from and independent of the former case.
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RULE 18.02 - A lawyer shall not handle any legal matter without adequate
preparation.
RULE 18.03 - A lawyer shall not neglect a legal matter entrusted to him, and
his negligence in connection therewith shall render him liable.
RULE 18.04 - A lawyer shall keep the client informed of the status of his
case and shall respond within a reasonable time to the client's
request for information.
RULE 19.02 - A lawyer who has received information that his client has,
in the course of the representation, perpetrated a fraud upon a
person or tribunal, shall promptly call upon the client to rectify
the same, and failing which he shall terminate the relationship
with such client in accordance with the Rules of Court.
RULE 19.03 - A lawyer shall not allow his client to dictate the procedure in
handling the case.
Lawyer should do his best efforts to restrain and to prevent his clients
from perpetrating acts which he himself ought not to do. Or else,
withdraw. But lawyer shall not volunteer the information about the
client's commission of fraud anyone counter to duty to maintain client’s
confidence and secrets.
Attorney's Fees
a. Ordinary attorney's fee - the reasonable compensation paid to a
lawyer by his client for the legal services he has rendered to the
latter. The basis for this compensation is the fact of his employment
by and his agreement with the client.
b. Extraordinary attorney's fee.. an indemnity for damages ordered by
the court
to be paid by the losing party In litigation. The basis for this is any of
the cases provided for by law where such award can be made, such as
those authorized in Article 2208 of the Civil Code, and is payable NOT to
the lawyer but to the client, unless they have agreed that the award shall
pertain to the lawyer as additional compensation or as part thereof.
2. A petition for attorney's fees may be filed before the judgment in favor of
the client is satisfied or the proceeds thereof delivered to the client.
RULE 20.02 - A lawyer shall, in cases of referral, with the consent of the
client, be entitled to a division of fees in proportion to the work
performed and responsibility assumed.
RULE 20.03 - A lawyer shall not, without the full knowledge and consent of
the client, accept any fee, reward, costs, commission, interest,
rebate or forwarding allowance or other compensation
whatsoever related to his professional employment from anyone
other than the client.
Exception. A lawyer may receive compensation from a person other than
his client when the latter has full knowledge and approval thereof. (Rule
138, sec. 20[e], Revised Rules of Court}
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RULE 20.04 - A lawyer shall avoid controversies with clients concerning his
compensation and shall resort to judicial action only to prevent
imposition, injustice and fraud.
Unauthorized counsel: Not entitled to attorney's
fees.
When counsel cannot recover full amount despite written contract for
attorney’s fees:
a. When he withdraws before the case is finished
b. Justified dismissal ()f 'attorney (payment: in quantum meruit only)
The reason for the award of attorney's fees must be stated in the text of
the decision; otherwise, if It is stated only in the dispositive portion of the
decision, the same must be disallowed on appeal.
RULE 21.01 - A lawyer shall not reveal the confidences or secrets of his
client except:
a) When authorized by the client after acquainting him of the
consequences of the disclosure;
b) When required by law;
c) When necessary to collect his fees or to defend himself, his
employees or associates or by judicial action.
When properly authorized after having been fully informed of the
consequences to
reveal his confidences/secrets, then there is a valid waiver. .
RULE 21.02 - A lawyer shall not, to the disadvantage of his client, use
information acquired in the course of employment, nor shall he use the same
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to his own advantage or that of third person, unless the client with full
knowledge of the circumstance consents thereto.
RULE 21.03 - A lawyer shall not, without the written consent of his client,
give information from his files to an outside agency seeking such
information for auditing, statistical bookkeeping, accounting,
data processing, or any similar purpose.
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.
RULE 21.05 - A lawyer shall adopt such measures as may be required to
prevent those whose services are utilized by him, from disclosing
or using confidences or secrets of the client.
RULE 21.06 - A lawyer shall avoid indiscreet conversation about a client's
affairs even with members of his family.
RULE 21.07 - A lawyer shall not reveal that he has been consulted about a
particular case except to avoid possible conflict of interest.
RULE 22.01 - A lawyer may withdraw his services in any of the following
cases:
a) When the client pursues an illegal or immoral course of
conduct in connection with the matter he is handling;
b) When the client insists that the lawyer pursue conduct
violative of these canons and rules;
c) When his inability to work with co-counsel will not promote the
best interest of the client;
d) When the mental or physical condition of the lawyer renders it
difficult for him to carry out the employment effectively;
e) When the client deliberately fails to pay the fees for the
services or fails to comply with the retainer agreement;
f) When the lawyer is elected or appointed to public office; and
g) Other similar cases.
h) Kinds of Appearance:
(a) General appearance is when the party comes to court either as plaintiff
or defendant and seeks general reliefs from the court for satisfaction of his
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claims or counterclaims respectively.
Withdrawal as counsel for a' client, an attorney may only retire from a
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case either by written consent of his client or by permission of the court
after due notice and hearing, in which event the attorney should see to it
that the name of the new attorney is recorded in the case.
An attorney who could not get the written consent of his, client must
make an application to the court, for the relation does not terminate
formally until there is a withdrawal of record. Counsel has no right to
presume that the court would grant his withdrawal and therefore must still
appear on the date of hearing.
A lawyer cannot recover compensation from one who did not employ or
authorize his employment, however valuable the results of his services
may have been to such
person. In similar cases, no compensation when:
a. Client conducts himself in a manner which tends to degrade his
attorney; b. Client refuses to extend cooperation;
c. Client stops having contact with him.
LIABILITIES OF LAWYERS
Civil Liability
a. Client is prejudiced by lawyer’s negligence or misconduct b. Breach
of fiduciary obligation
b. Breach of fiduciary obligation
c. Civil liability to third persons
d. Libelous words in pleadings; violation of communication privilege
e. Liability for costs of suit (treble costs) - when lawyer is made liable
for
insisting on client's patently unmeritorious case or interposing appeal
merely to delay litigation
Criminal Liability
a. Prejudicing client through malicious breach of professional duty
b. Revealing client's secrets
c. Representing adverse interests
d. Introducing false evidence
e. Misappropriating client's funds (estafa)
Contempt of Court
a. Kinds of Contempt:
1. Direct - consists of misbehavior in the presence of or so near a
court
or judge as to interrupt or obstruct the proceedings before
the court or
the administration of justice; punished summarily.
2. Indirect - one committed away from the court involving
disobedience of or resistance to a lawful writ, process, order,
judgment or command of the court, or tending to belittle,
degrade, obstruct, interrupt or embarrass the court.
3. Civil- failure to do something ordered by the court which is
for the
benefit of a party.
4. Criminal - any conduct directed against the authority or
dignity of the
court.
The exercise of the power to punish contempt has a twofold
aspect, namely
(1)the proper punishment of the guilty party for his disrespect
to the court or its order; and
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(2)to compel his performance of some act or duty required of
him by the court which he refuses to perform. A civil
contempt is the failure to do something ordered to be done
by a court or a judge for the benefit of the opposing party
therein; and a criminal contempt is conduct directed against
the authority and dignity of a court or of a judge, as in
unlawfully assailing or discrediting the authority or dignity of
a court or of a judge, or in doing a duly forbidden act. Where
the punishment imposed, whether against a party to a suit
or a stranger, is wholly or primarily to protect or vindicate
the dignity and power, either by fine payable to the
government or by imprisonment, or both, it is deemed a
judgment in criminal case. Where the punishment is by fine
directed to be paid to a party in the nature of damages for
the wrong inflicted, or by imprisonment as coercive measure
to enforce the performance of some act for the benefit of the
party or in aid of the final judgment or decree rendered in his
behalf, the contempt judgment will, if made before final
decree, be treated as in the nature of an interlocutory order,
or, if made after final decree, as a remedial in nature, and
may be reviewed only on appeal from the final decree, or in
such other mode as is appropriate to the review of
judgments in civil cases. The question of whether the
contempt committed is civil or criminal, does not affect the
jurisdiction or the power of a court to punish the same.(Halili
vs. CIR, 136 SCRA 112)
b. Acts Constituting Contempt:
1. Misbehavior
2. Disobedience
3. Publication concerning pending
litigation
4. Publication tending to degrade -the
court disrespectful language in
Pleadings
5. Misleading the court or obstructing
justice
6. Unauthorized practice of law
7. Belligerent attitude
8. Unlawful retention of client's funds
The power to punish for contempt and the power to disbar are separate
and distinct, and that the exercise of one does not exclude the exercise of
the other. (People vs.
Godoy, 243 SCRA 64)
REINSTATEMENT
Criterion. The applicant must, like a candidate for admission to the Bar,
satisfy the Court that he is a person of good moral character - a fit and
proper person to practice law. The Court will take into consideration the
applicant's character and standing prior to the disbarment, the nature and
character of the charge for which he was disbarred, his conduct
subsequent to the disbarment, and the time that has elapsed between the
disbarment and the application for reinstatement. Whether or not the
applicant shall be reinstated rests on the discretion of the court.
(Prudential Bank VS. Benjamin Grecia, 192 SCRA 381).
PARDON
Exceptions:
a. Property is acquired by lawyer through a contingent fee
arrangement
b. Any of the 4.e.Ie.ments of Art. 1491 is missing
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Q - State the basic responsibilities of a lawyer to his client.
3. A lawyer shall hold in trust all moneys and properties of his client
that may come into his possessions;
6. A lawyer shall represent his client with zeal within the bounds of the
law;
8. A lawyer shall preserve the confidence and secrets of his client even
after the attorney-client relationship is terminated; and
9. A lawyer shall withdraw his services only for good cause and upon
notice appropriate in the circumstances.
Where a lawyer did not file an answer for his client despite an
extension of time therefor having been granted, resulting in an
adverse judgment and then failed to appear and then allowed the
period to file a petition for relief to lapse, and thereafter did not file a
petition for annulment of the judgment in the appellate court despite
being asked by his client to do so, he is guilty of gross and inexcusable
negligence that effectively denied the client of her day in court,
depriving her of her property without due process of law. In this case,
the client is not bound by the actions of counsel. (Legarda vs. Court of
Appeals, 195 SCRA 418). But where the client knew all along that their
counsel was not attending to their case, did not take steps to change
counselor attend to their cases until it was too late, and continued to
retain the service of the negligent counsel despite full knowledge of
his lapses, they cannot raise that negligence to warrant reversal of the
adverse decision. (Boyer-Roxas vs. Court of Appeals, 211 SCRA
470).
Yes, because the interest of the estate and that of the creditors are
adverse to each other. By representing the creditors when his
accounting firm prepared and computed the claims of the two creditors
while his law firm represented the estate, there was clearly a conflict
between them which stands as debtor and that of the two claimants
who are creditors in the estate. He thus, undoubtedly placed his law
firm in a position where his loyalty to his client could be doubted. In the
estate proceedings, the duty of respondent's law firm was to contest
the claims of these two creditors but which claims were prepared by
respondent's accounting firm. Even if the claims were valid and did not
prejudice the estate, the set-up is still undesirable. The test to
determine whether there is a conflict of interest in the representation is
probability, not certainty of conflict. It was respondent's duty to inhibit
either of his firms from said proceedings to avoid the probability of
conflict of interest. (Nakpil vs. Valdes, supra).
- No, for the complainant was not charging the respondent with breach
of ethics for being the common accountant of the estate and the two
creditors. He was charged for allowing his accounting firm to represent
two creditors of the estate and, at the same time, allowing his law firm
to represent the estate in the proceedings where these claims were
presented. The act is a breach of professional ethics and undesirable as
it placed respondent's and his law firm's loyalty under a cloud of doubt.
Even granting that respondent's misconduct refers to his accountancy
practice, it would not prevent the Court from disciplining him as a
member of the Bar. The rule is settled that a lawyer may be suspended
or disbarred for ANY misconduct, even if it pertains to his private
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activities, as long as it shows him to be wanting in moral character,
honesty, probity or good demeanor. (Nadayag vs. Grageda, 55 SCAD
713, 237 SCRA 202). Possession of good moral character is not only a
prerequisite to admission to the bar but also a continuing requirement
to the practice of law.
Public confidence in law and lawyers may be eroded by the
irresponsible and improper conduct of a member of the Bar. Thus, a
lawyer should determine his conduct by acting in a manner that would
promote public confidence in the integrity of the legal profession.
Members of the Bar are expected to always live up to the standards
embodied in the Code of Professional Responsibility as the relationship
between an attorney and his client is highly fiduciary in nature and
demands utmost fidelity and good faith. (lgual vs. Javier, 69 SCAD
117,254 SCRA 416). In the case at bar, respondent exhibited less than
full fidelity to his duty to observe candor, fairness and loyalty in his
dealings and transactions with his clients. (Canon 15, Code of
Professional Responsibility; Nakpil vs. Valdez, A.C. No. 2040, March 4,
1998, 92 SCAD 66).
Q - May a client terminate his lawyer and cite the effects of the
same?
. - Yes, a client has the right to terminate his lawyer at any time with or
without just cause. If it
is without just cause, he must fully pay the compensation agreed upon.
If it is with just cause, the payment of compensation is based on
quantum meruit.
(b)In San Jose vs. Cruz, 57 Phil. 794, it was said that an attorney owes
loyalty to his client not only in the case in which he has represented
him but also after the relation of attorney and client has terminated
and it is not a good practice to permit him afterwards to defend in
another case other persons against his former client under the
pretext that the case is distinct from, and independent of the former
case.
For it is a rule that:
(c) In Maria Tinia vs. Atty. Amado Ocampo, A.C. No. 2285 and other
companion cases, Aug. 12, 1991, it was said that the prohibition
against conflict of interest in representation of clients is prohibited
because the relation of lawyer and client is one of trust and
confidence of the highest degree, and because of the principles of
public policy and good taste. An attorney has the duty to preserve
fullest confidence of his client and represent him with undivided
loyalty. Once this confidence is abused, the entire profession suffers.
(In re: De la Rosa).
. - He must account for the same, otherwise, his conduct shows his
unfitness for the confidence and trust reposed in him, or showing such
lack of personal honesty or good moral character as to render him
unworthy of public confidence, a ground for disbarment. (Navarro vs.
Meneses, 91 SCAD 285, 285 SCRA 586; 19ual vs. Javier, 69 SCAD 117,
March 7,1996; Castillo vs. Taguines, 69 SCAD 291, March 11, 1996;
Jaime Curimatmat, et al. vs. Atty. Felipe Gojat, A.C. No. 4411, June 10,
1999).
As a rule, a lawyer is not barred from dealing with his client but the
business transaction must be characterized with utmost honesty and
good faith. The measure of good faith which an attorney is required
to exercise in his dealings with his client is a much higher standard
than is required in business dealings where the parties trade at arms
length. Business transactions between the lawyer and his client are
disfavored and discouraged by the policy of the law.
. - The relation between an attorney and his client is highly fiduciary and
very delicate, exacting and confidential, requiring a high degree of
fidelity and good faith. In view of that special relationship, lawyers are
bound to promptly account for money or property received by them on
behalf of their clients and failure to do so constitutes professional
misconduct. The fact that a lawyer has a lien for fees on money in his
hands collected for his client does not relieve him from the duty of
promptly accounting for the funds received. (Licuanan vs. Melo, A.C.
2361, 9 Feb. 89).
- A lawyer must protect the rights and interests of his client and not to
take advantage of him. He should be more circumspect in dealing with
the properties of his client instead of concentrating only on his
attorney's fees. (Fornilda vs. Branch 164, RC, 169 SCRA 376).
But where that relationship is created, the lawyer has the obligation to
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attend to and protect the integrity of his client. Hence, a lawyer was
warned for his inexcusable negligence to appear for pre-trial.
(Agravante vs. Patriarca, 183 SCRA 113 [1990]).
Hence, in Gutierrez vs. Zulueta, 187 SCRA 64, a lawyer was suspended
for one year for his failure to exercise due diligence in protecting and
attending to the interest of his client. He failed to file the brief to the
prejudice of his client. He attributed the negligence to his secretary
which was not accepted.
- A lawyer owes fidelity to the cause of his client but not at the expense
of truth and the administration of justice. Practice of law must not
serve as an instrument for the harassment of the complainant and the
misuse of judicial processes. (Garcia vs. Francisco, 220 SCRA 512,
March 30, 1993).
As officers of the court, counsels are under obligation to advise
their client against making untenable and inconsistent claims. Lawyers
are not merely hired employees who must unquestionably do the
bidding of their client, however, unreasonable this may be when tested
by their own expert appreciation of the pertinent facts and the
applicable law and jurisprudence. Counsel must counsel. (Periquet vs.
NLRC, 196 SCRA 724, June 22,1990).
- No more.
A contract of services does not violate Art. 1491, NCC prohibiting lawyers
from acquiring by purchase even at a public or judicial auction, properties
and rights which are the objects of litigation in which they may take part by
virtue of their profession, if the purchase takes place after the litigation.
(Fabillo vs. IAC, March 11, 1991). The rule has to be so because the public
policy that is sought to be preserved no longer exists, as there can be no
more undue influence that the lawyer may exert against his client.
- No. The Civil Code provides the persons disqualified to buy referred
to in Arts. .1490 and 1491, are also disqualified to become lessees of
the things mentioned therein. (Art. 1646). A lawyer of the administrator
of an estate failed to secure the approval of the court in various
contracts of lease between the estate and the lawyer's family
partnership. It was said that the lease contracts are covered by the
prohibition against any acquisition or lease by a lawyer of properties
involved in litigations in which he takes part. To rule otherwise would
lend stamp of judicial approval on an arrangement which, in effect,
circumvents that which is directly prohibited by law. (Mananquil vs.
Atty. Villegas, Adm. Matter 2430, Aug. 30, 1990).
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Q - May a lawyer appropriate money received for his client? Why?
- No. In Quilban vs. Robinol, 171 SCRA 768, the Supreme Court said that a
lawyer cannot unilaterally appropriate his client's money not only because
he is bound by a written agreement but because it is highly improper for
him to have done so. His contention that he has! the right to retain
possession of the money until his attorney fees are paid is not meritorious.
He is bereft of a legal right to retain his client's funds intended for any
purpose. For doing so, he was disbarred, for he rendered himself unfit to
continue in the practice. He did not only violate his oath "not to delay any
man for money" and but also "to conduct himself with all good fidelity to
his client.
DISBARMENT
No. A lawyer may be disbarred for grounds provided by the rules and such
causes analogous to the same.
The lawyer's oath (Rule 138, Section 17, Rules of Court; People vs.
De Luna, 102 Phil. 968), imposes upon every lawyer the duty to
delay no man for money or malice. The lawyer's oath is a
source of his obligations and its violation is a ground for his
suspension, disbarment or other disciplinary action. (Legal Eth-
ics, Ruben E. Agpalo, 1983 Edition, pp. 66-67).
In disbarring the lawyer, the Supreme Court said the acts of dishonesty
and oppression committed by a public official have demonstrated his
unfitness to practice the high and noble calling of the law. (Bautista vs.
Judge Guevarra, 142 SCRA 632).
- No. The Supreme Court said that respondent's lack of good moral
character is only too evident. He has resorted to conflicting
submissions before the Supreme Court to suit himself. He has also
engaged in devious tactics with complainant in order to serve his
purpose. In so doing, he has violated Canon 10 of the Code of
Professional Responsibility, which provides that "a lawyer owes candor,
fairness and good faith to the court" as well as Rule 10.01 thereof
which states that "a lawyer should do no falsehood nor consent to the
doing of any in court, nor shall he mislead, or allow the court to be
misled by any artifice". Courts are entitled to expect only complete
candor and honesty from the lawyers appearing and pleading before
them. (Chavez v. Viola, Adm. Case No. 2162, 19 April 1991, 196 SCRA
10). Respondent, through his actuations, has been lacking in the
candor required of him not only as a member of the Bar but also as an
officer of the public from being advised and represented in legal
matters by incompetent and unreliable persons over whom, the judicial
department can exercise little control.
Q - A was not allowed to take his oath as a lawyer and sign the
attorney's roll. Ten years later, he was allowed to do so, upon
testimonials signed by some people as to his moral character
and civic consciousness. But before he was able to do so, the
original complainants in the malpractice case moved for a
reconsideration contending that while being a Land
Investigator at the Bureau of Lands, he was able to procure a
falsified free patent over a public land which he used to secure
a loan by means of a real estate mortgage which he did not
pay. Is the resolution of the Supreme Court revoking the
resolution allowing him to sign the attorney's roll and take his
oath proper? Why?
Yes, because he does not possess the required good moral character to
be a member of the Bar. The law requires that a lawyer must be of
good moral character and this is required not only in his membership in
the Bar, but also in the performance of his duties as a public officer.
- Yes. In fact, the case of Ismaela Dimagiba vs. Atty. Jose Montalvo, Jr.,
A.C. No. 1420, Oct. 15, 1991, is a classic example of a lawyer who was
disbarred for malpractice, for stretching to almost half of century a
litigation arising from the probate of a will of the late Benedicto de los
Reyes. It appeared that the probate case was filed on January 1955. In
delaying the case for almost half a century, he violated his oath not to
delay any man for money-or malice, besmirched the name of an
honorable profession, and has proven himself unworthy of the trust
reposed in him by law as an officer of the Court.
- Yes. In Bolivar vs. Simbol, 16 SCRA 623, the Supreme Court found
the respondent guilty of "grossly immoral conduct" because he
made a dupe of complainant, living on her bounty and allowing her
to spend for his schooling and other personal necessities while dan-
gling before her the mirage of a marriage, marrying another girl as
soon as he had finished his studies, keeping his marriage a secret
while continuing to demand money from complainant. The Court
held such acts "indicative of a character not worthy of a member of
the Bar."
Yes. In Mariano Joson vs. Atty. Gloria Baltazar, A.C. No. 575, Feb.
14, 1991, a lawyer was suspended for notarizing documents without
notarial commission. The Supreme Court called it "irreprehensible",
constituting not only malpractice but also commission of separate
crime of falsification of public documents. (See: In the Matter of
Disbarment of Dominador Flores; City Fiscal Lozada vs. Flores, 21 SCRA
1267). Notarization of a private document converts such document into
a public one and renders it admissible in court without further proof of
its authenticity. (Sec. 24, Rule 132; Antellon vs. Barcelona, 37 Phil.
148). Courts, administrative agencies and the public at large must be
able to rely upon the acknowledgment executed by a notary public and
appended to a private instrument. Notarization is not an empty routine;
to the contrary, it engages public interest in a substantial degree and
the protection of that interest requires preventing those who are not
qualified or authorized to act as notaries public from posing upon the
public and the courts and administrative offices generally. (Rebolleda
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vs. Intermediate Appellate Court, 155 SCRA 520).
- Yes. To receive money for a client and fail to remit the same, a lawyer
may be disbarred because it is a clear breach of the lawyer's oath to
which he swore to observe. In Licuanan vs. Melo, 170 SCRA 100, a
lawyer collected rentals of his client's apartments but failed to remit
the same despite inquiries. It was held as a clear malpractice and
unprofessional for him to misappropriate said funds. He displayed lack
of honesty and good moral character. (See also Navarro vs. Meneses III,
CBD, AC No. 313, January 30, 1998,91 SCAD 285).
- They are:
1) There is no need to refer the case to the OSG for the initiation of
the charges;
2) The Supreme Court has the authority to confront and prevent a
substantive evil which is the degradation of the justice system of
the country and the destruction of the standards of professional
conduct required of the members of the bar;
3) The imposition of indefinite suspension is not cruel or unusual
punishment.
- For, as has been said in Tolosa vs. Cargo, March 3, 1989, a lawyer
must not only comply with the rigorous standards of conduct
appropriately required of a member of the bar. He must not only
be .seen of good moral character, and leading the good lines in
accordance with the highest standards of the community.
1) be verified;
2) state clearly and concisely the facts complained of;
3) be supported by affidavits of persons having personal knowledge of
acts therein alleged, or document which may substantiate it;
4) be filed with six (6) copies furnished the Secretary of the IBP or any
of its chapters.
6. The Board of Governors shall have the power to review the decision
of the Investigator. Its decision shall be promulgated within a period
not exceeding 30 days from the next meeting of the Board following
the submission of the report of the Investigator:
. - Proceedings for the disbarment of members of the bar are not in any
sense civil actions where there is a plaintiff and the respondent is the
defendant. Disciplinary proceedings involve no private interest and
afford no redress for private grievance. They are undertaken for the
purpose of preserving courts of justice from the official ministration of
persons unfit to practice. The attorney is called to answer to the court
for his conduct as an officer of the court. The complainant or the
person who called the attention of the court to the attorney's alleged
misconduct is in no sense a party, and has generally no interest in the
outcome except as all good citizens may have in the proper
administration of justice. (De Vera vs. Pineda, 213 SCRA 434, Sept. 2,
1992, citing Tajan vs. Hon. Vicente Cusi, Jr., 57 SCRA 154, May 30,
1974).
- Yes, for in fact, the Supreme Court said that this is not a court of
vengeance but of justice. The respondent's contrition, so noticeably
absent of his earlier pleadings, has washed clean the offense of his disre-
spect. His remorse has softened his arrogance and made up for his
misconduct.
Respondent Raul M. Gonzales' suspension from the practice of
law for more than four (4) years has given him ample time and
opportunity to amend his erring ways, rehabilitate himself, and thus,
prove himself worthy once again to enjoy the privileges of membership
of the Bar.
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For the proper guidance of respondent Raul M. Gonzales, the SC
reiterated a time-honored rule that the practice of law is a privilege
burdened with conditions. Adherence to the rigid standards of mental
fitness, maintenance of the highest degree of morality and faithful
compliance with the rules of the legal profession are the conditions
required for remaining a member of good standing of the bar and for
enjoying the privilege to practice law. The Supreme Court, as guardian
of the legal profession, has ultimate disciplinary power over attorneys.
This authority to discipline its members is not only a right, but a
bounden duty as well. The Court cannot, and will not, tolerate any
outbursts from its members without running the risk of disorder, chaos
and anarchy in the administration of justice. That is why respect and
fidelity to the Court is demanded of its members "not for the sake ofthe
temporary incumbent of the judicial office, but for the maintenance of
its supreme importance."
The Supreme Court further said:
"Like the prodigal son in the Biblical story, respondent Raul M.
Gonzales comes before Us repentant. The passage of years has indeed
the effect of making people wiser and humbler, as it has to respondent
Raul M. Gonzales. We are convinced of his sincerity to "reiterate his
oath to conduct himself as a lawyer according to the best of his
knowledge and discretion, x x x and to restate his fealty to the
institution which is the Supreme Court x x x. "
In Bolivar vs. Simbol, 16 SCRA 623, the Court found the respondent
guilty of "grossly immoral conduct" because he made "a dupe
of complainant living on her bounty and allowing her to spend
for his schooling and other personal necessities while dangling
before her the mirage of a marriage, marrying another girl as
soon as he had finished his studies, keeping his marriage a
secret while continuing to demand money from complainant. x
x x." The Court held such acts "indicative of a character not
worthy of a member of the Bar."
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The SC said that the conduct of respondent Jordan Terre in
inveigling complainant Dorothy Terre to contract in a second
marriage with him; in abandoning complainant Dorothy Terre
after she had cared for him and supported him through law
school, leaving her without means for the safe delivery of his
own child; in contracting a second marriage with Helina
Malicdem while his first marriage with complainant Dorothy
Terre was subsisting, constituted "grossly immoral conduct"
under Section 27 of Rule 138 of the Rules of Court, affording
more than sufficient basis for disbarment of respondent Jordan
Terre. He was unworthy of admission to the Bar in the first
place. The Court will correct this error forthwith. (Terre vs.
Terre, July 3, 1992).
Q -A lawyer enticed his 85-year old aunt to entrust all her money
to him. He later on refused to return it. Can he be disbarred?
Why?
JUDICIAL ETHICS
JUDICIAL ETHICS
is the branch of moral science which treats of the right and
proper conduct to be observed by all judges in trying and deciding
controversies brought before them for adjudication which conduct must
be demonstrative of impartiality, integrity, competence, independence
and freedom from improprieties. This freedom from improprieties must
be observed in both the public and private life of a judge - being the
visible representation of the law.
Judge - a public officer who, by virtue of his office, is clothed with judicial
authority. A public officer lawfully appointed to decide litigated questions
in accordance with law (People VS. MananttJn, 5 SCRA 687). This refers to
persons only. There may be a judge without a court.
.
De jure judge - one who is exercising the office of judge as a matter of
right, an officer of a court who has been duly and legally elected or
appointed and whose term has not expired. An officer of the law fully
vested with all of the powers and functions conceded under the law to a
judge, which relate to the administration of justice within the jurisdiction
over which he presides (Luna V$. Rodriguez, 37 Phil. 191).
Qualifications to be Judges:
1. Citizen of the Philippines
2. Member of the Bar (Sec. 7(2), Art. VIII, 1987 Constitution)
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3. Must be a person of proven competence, integrity, probity and
independence
(Sec. 7(3), Art. VIII, 1987 Constitution)
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Qualifications of Justices and Judges under the Judiciary
Reorganization Act
of 1980 (B.P. 129):
1. Presiding Justice and Associate Justices of the Court of Appeals shall have
the same qualifications as those provided in the Constitution, for Justices
of the Supreme Court (Sec. 5)
2. RTC judges shall be natural born citizens of the Philippines, at least 35
years 0 age and for at least ten years, has been engaged in the practice
of law in the Philippines or has held a public office in the Philippines
requiring admission to the practice of law as an indispensable requisite
(Sec. 15).
3. MTC judges shall be natural born citizens of the Philippines, at least 30
years of age, and for at least five years, has been engaged in the practice
of law in the Philippines, or has held a public office in the Philippines
requiring admission to the practice of law as an indispensable requisite.
PREAMBLE
CANON 1
RULE 1.02 - A judge should administer justice impartially and without delay.
RULE 1.03-A judge should be vigilant against any attempt to subvert the
independence of the judiciary and should forthwith resist any pressure from
whatever source intended to influence the performance of official functions.
Judges should avoid even the slightest infraction of the law.
CANON 2
RULE 2.02- A judge should not seek publicity for personal vainglory.
RULE 2.03- A judge shall not allow family, social, or other relationships to
influence judicial conduct or judgement. The prestige of judicial office shall
not be used or lent to advance the private interest of others, nor convey or
permit others to convey the impression that they are in a special position to
influence the judge.
RULE 2.04- A judge should refrain from influencing in any manner the
outcome of litigation or dispute pending before an-other court or
administrative agency.
A judge must be beyond suspicion. He has the duty not only to render a
just and impartial decision but also to render it in such a manner as to be
free from any suspicion as to its fairness and impartiality, and also as to
his integrity.
Judges must not use or permit the use of any undignified self-laudatory
statement regarding their qualifications or legal services.
A judge must not allow anyone to ride on his prestige. He should not
create the impression that someone or some people are so close to him to
enjoy his favor.
CANON 3
RULE 3.01- A judges shall be faithful to the law and maintain professional
competence.
RULE 3.03- A judge shall maintain order and proper decorum in the court.
Conduct of trial must not be attended with fanfare and publicity; not
permit pictures or broadcasting.
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RULE 3.05 - A judge shall dispose of the court's business promptly and
decide cases within the required periods
RULE 3.06 - While a judge may, to promote justice, prevent waste of time or
clear up some obscurity, properly intervene in the presentation of evidence
during the trial, it should always be borne in mind that undue interference
may prevent the proper presentation of the cause or the ascertainment of
truth.
RULE 3.07 - A judge should abstain from making public comments on any
pending or impending case and should require similar restraint on the part of
court personnel.
A judge must properly organize his court to ensure prompt and convenient
dispatch of its business (Canon 8, Canons of Judicial Ethics)
Ascertain that the records of all cases are properly kept and managed.
May summarily punish any person including lawyers and court personnel
for direct contempt for misbehavior committed in the presence of or so
near a court or a judge as to obstruct or interrupt the proceedings before
the same (Rule 71, Revised Rules of Court)
Every court has the inherent power among others, to preserve and enforce
orders in its immediate presence to compel obedience to its judgments,
orders and processes and to control, In furtherance of justice the conduct of
its ministerial officers (Sec. 5,
Rule 135 ~O, Revised Rules of Court) .
Judge Was the power to appoint, but the power to dismiss court
employees is vested
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in the Supreme Court.
ADMINISTRATIVE RESPONSIBILITIES
DISQUALIFICATION
e) the judge knows that the judge's spouse or child has a financial
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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.
REMITTAL OF DISQUALIFICATION
RULE 3.13 -A judge disqualified by the terms of Rule 3.12 may, instead
of withdrawing from the proceeding, disclose on the record the basis of
disqualification. If, based on such disclosure, the parties and lawyers
independently of the judge's participation, all agree in writing that the reason
for the inhibition is immaterial or insubstantial, the judge may then
participate in the proceeding. The agreement, signed by all parties and law-
yers, shall be incorporated in the record of the proceeding.
Rule 4.01 - A judge may, to the extent that the following activities do
not impair the performance of judicial duties or case doubt on the
judge's impartiality:
a. speak, write, lecture, teach or participate in activities
concerning the law, the legal system and the
administration of justice;
b. appear at a public hearing before a legislative or
executive body on matters concerning the .law, the
legal system or the administration of Justice and
otherwise consult with them on matters concerning the
administration of justice;
c. serve on any organization devoted to the improvement
of the law, the legal system or the administration of
justice.
If has not enough time to spare (such as when caseload is too heavy
prudence dictates, he must concentrate on his judicial duties.
CANON 5
A JUDGE SHOULD REGULATE EXTRA-JUDICIAL ACTIVITIES TO
MINIMIZE THE RISK OF CONFLICT WITH JUDICIAL DUTIES
ADVOCATIONAL, CIVIC AND CHARITABLE ACTIVITIES.
RULE 5.01 - A judge may engage in the following activities provided that
they do not interfere with the performance of judicial duties or detract from
the dignity of the court:
a) write, teach and speak on non-legal subjects;
b) engage in the arts, sports, and other special recreational
activities;
c) participate in civic and charitable activities;
d) serve as an officer, director, trustee, or non-legal advi-
sor of a non-profit or non political educational, religious, charitable,
fraternal, or civic organization.
FINANCIAL ACTIVITIES
RULE 5.02 - A judge shall refrain from financial and business dealing
that tend to reflect adversely on the court's impartiality, interfere with the
proper performance of judicial activities or increase involvement with
lawyers or persons likely to come before the court. A judge should so
manage investments and other financial interests as to minimize the
number of cases giving grounds for disqualifications.
RULE 5.03 - Subject to the provisions of the proceeding rule, a judge may
hold and manage investments but should not
serve as officer, director, manager, advisor, or employee of any business
except as director of a family business of the judge.
RULE 5.04 -A judge or any immediate member of the family shall not accept
a gift, bequest, factor or loan from anyone except as may be allowed by law.
General Rule: Avoid taking or receiving loans from litigants (Sec. 2 [b]
and [c] of R.A. 3019, and Sec. 16, art. VIII of the Constitution)
FIDUCIARY ACTIVITIES
RULE 5.07 - A judge shall not engage in the private practice of law. Unless
prohibited by the Constitution or law, a judge may engage in the practice of
any other profession provided that such practice will not conflict or tend to
conflict with judicial functions.
FINANCIAL DISCLOSURE
RULE 5.08 - A judge shall make full financial disclosures as required by law.
POLITICAL ACTIVITIES
DATE OF EFFECTIVITY
Liabilities of Judges
Administrative Liabilities:
Civil Liabilities:
Criminal Liabilities
Notaries Public
An officer of the law fully vested with all the powers and
functions conceded under the law to a judge, which relate to the
administration of justice within the jurisdiction over which he
presides. (Lino Luna vs. Rodriguez, 37 Phil. 191).
A judge who is in all respect legally appointed and qualified as
such and whose term of office has not expired. (Tayko vs.
Capistrano, 53 Phil. 872).
4. De Facto judge – A judge who in good faith continues to act and is
recognized by common error after the abolition of his court by
statute is deemed judge de facto of the new court which succeeds
to the jurisdiction of that presided over by him. (US. vs. Abalos, 1
Phil. 76).
An officer who is not fully invested with all of the powers and
duties conceded to judges, but is exercising the office of judge
under some color of right. ( Lino Luna vs. Rodriguez, ibid.)
The acts of a de facto judge are just as valid for all purposes as
those of a de jure judge so far as the public or third persons who
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are interested therein are concerned. x x x. The decision of a de
facto judge cannot be collaterally attacked. (Nacionalista Party vs.
De Vera, 85 Phil. 132).
The decision of a judge is void, if on the day it is promulgated,
the judge ceased to be a judge. (Rodriguez vs. Tesorero de
Filipinas, 84 Phil. 368; Ong Sui vs. Paredes, 17 SCRA 661; People
vs. Solis, CA-G.R. No. 141117-R, November 20, 1965).
Q - Are there any distinctions between the court and the judge?
ANS. - Yes. The court is an entity and the person who occupies the position is
the judge. A court may exist without a judge. There may be a judge
without a court. (Pamintuan vs. Llorente, 29 Phil. 346).
ANS. - It means that it is the duty of both counsel and judge to maintain not
to destroy, the high esteem and regard for courts. Any act on the part
of one or the other that tends to undermine the people's respect for,
and confidence in, the administration of justice is to be avoided. And
this, even if both may have to restrain pride from taking the better part
of their system. (Lugue vs. Kayanan, 29 SCRA 173). The relations of
judge and lawyer should be founded on mutual respect and on a deep
appreciation by one of the duties of the other. (Romero vs. Valle, 147
SCRA 197)
ANS. - The sole purpose of courts of justice is to enforce the laws uniformly
and impartially, without regard to persons or their circumstances or to
opinions of men. A judge should at all times be wholly free, disinter-
ested, impartial and independent. Elementary due process requires a
hearing before an impartial and disinterested tribunal. A judge has both
the duty of rendering a just decision and the duty of doing it in a
manner completely free from suspicion as to its fairness and as to his
integrity. Judges therefore, should not only be impartial but they should
also appear impartial. (Tan, Jr. vs. Gallado, 73 SCRA 315).
Q - Should a judge succumb to pressure from whatever source?
Why?
ANS. - A judge should be like Caesar's wife because a judge must not only be
pure but must also appear to be so. Appearance is as important as
reality in the performance of judicial functions. Like Caesar's wife, a
judge must not only be pure but must be beyond suspicion. (Palang vs.
Zosa, 58 SCRA 776). A judge has the duty not only to render a just and
impartial decision, but also render it in such a manner as to be free
from any suspicion as to its fairness and impartiality, and also as to the
judge's integrity. (Martinez vs. Gironella, 65 SCRA 245).
Q - Explain the rule that a judge should not seek publicity for
personal vainglory.
ANS. - No. A judge should not allow unnecessary taking of Pictures of the
court .proceedings. He should not allow the broadcasting of
proceedings over the radio or allow the televising of the proceedings.
The reason is that, such fanfare and publicity detract from the dignity
of the court proceedings for the parties involved tend to become more
self-conscious on their appearances rather than the truth of the facts
and substance of the issues. The administration of justice would then
ultimately suffer as the judge might be influenced by the public clamor
engendered by the publicity. Finally, a judge should not seek publicity
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for his personal vainglory.
ANS. - A judge should not only be impartial, but he should appear to be so. If
he profounds questions to help build the case of a party, he would
come out biased against or partial in favor of a party. A judge inter-
ference may likewise prevent the proper presentation of the case, and
the ascertainment of the truth in respect thereto.
ANS. - A judge should decide a case within the reglementary period because
failure to do so constitutes gross dereliction of duty. A judge should
decide a case promptly and expeditiously, for it cannot be denied that
justice delayed is justice denied. Delay in the disposition of cases
undermines the people's faith and confidence on the judiciary. Hence,
judges are enjoined to decide cases with dispatch. Their failure to do so
constitutes gross inefficiency and warrants the imposition of ad-
ministrative sanctions on them. (Fe T. Bernardo vs. Judge Amelia A
Fabros, A.M. No. MTJ-99-1l89, May 12, 1999, citing Sanchez vs. Vestil,
AM. No. MTJ-981419, October 13, 1998, 100 SCAD 147).
ANS. - For liability to attach for gross negligence of the law, the assailed
order, decision or actuation of a judge must not only be found
erroneous but, most importantly, it must be established that the judge
was moved by bad faith, dishonesty, hatred, or some other like motive.
(Dela Cruz vs. Concepcion, 54 SCAD 640, '235 SCRA 597).
ANS. - A judge may be held liable for rendering an unjust judgment when he
acts in bad faith, malice, revenge, or some other motive. (Heirs of the
late Nasser Yasin vs. Felix, 66 SCAD 157, 250 SCRA 545).
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Q - Discuss the import of the rule on voluntary inhibition of
judges.
ANS. - The import of the rule on voluntary inhibition of judges is that the
decision on whether or not to inhibit is left to the sound discretion and
conscience of the trial judge based on his rational and logical as-
sessment of the circumstances prevailing in the case brought before
him. It makes clear to the occupants of the Bench that outside of
pecuniary interest, relationship or previous participation in the matter
that calls for adjudication, there might be other causes that could
conceivably erode the trait of objectivity, thus calling for inhibition. This
is to betray a sense of realism, for the factors that lead to preference or
predelictions are many and varied.
In the final reckoning, there is really no hard and fast rule when it
comes to the inhibition of judges. Each case should be treated
differently and decided based on its peculiar circumstances. The issue
of voluntary inhibition is primarily a matter of conscience and sound
discretion on the part of the judge. It is a subjective test the result of
which the reviewing tribunal will not disturb in the absence of any
manifest finding of arbitrariness and whimsicality. The discretion given
to trial judges is an acknowledgment of the fact that these judges are
in a better position to determine the issue of inhibition as they are the
ones who directly deal with parties-litigants in their courtrooms.
(People vs. Gallermo, G.R. No. 123546, July 7, 1998, 95 SCAD 579).
ANS. - Yes. The Code of Judicial Conduct mandates that a judge should
avoid impropriety and the appearance of impropriety in all activities.
The personal behavior of a judge not only upon the Bench but also in
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his everyday life should be above reproach and free from the
appearance of impropriety.
There is a difference between freedom of expression and
compromising the dignity of the Court through publications of
emotional outburst and destructive criticisms. Respondent's writing
of active and vicious editorials compromises his duties as judge in
the impartial administration of justice, for his views printed on
newspapers reflect on his office as well as on the public officers that
he challenges. From the standpoint of conduct and demeanor
expected of a judge, resort to intemperate language only detracts
from the respect due a member of the judiciary and becomes self-
destructive.
Moreover, in persistently attacking the moviemaking activities of
the provincial governor and repeatedly threatening to file an action
against a public officer, respondent encourages litigation and causes
dissension against the public officer concerned. As a judge,
respondent's role is to maintain equanimity and not instigate litigation.
This is not to say that one cannot question the improper activities of
government officials if there are any. However, it is not proper for a
judge to write publications of carelessly-worded editorials in local
newspapers. (Benalfre J. Galang vs. Judge Abelardo H. Santos, A.M. No.
MTJ-99-1197, May 26, 1999).
Q - After the hearing of the petition for bail, the court issued
an order denying the same on the ground that the evidence
of guilt is strong. The petitioner filed a motion for
reconsideration, but was denied, the court ruling that it has
already clearly spelled out the grounds relied upon in the
denial of the motion. The accused asked for the inhibition of
the judge contending that because of the actuations of the
judge, he has already become biased, hence, he stands no
chance at all in court presided by the judge. Is the motion
proper? Why?
ANS. - No. The orders denying the petition for bail and the motion for
reconsideration do not sufficiently prove bias and prejudice to
disqualify the judge under Sec. 1, Rule 37 of the Rules of Court. For
such bias and prejudice, to be a ground for disqualification, must be
shown to have stemmed from an extrajudicial source, and result in
an opinion on the merits on some basis other than what the judge
learned from his participation in the case. Opinions formed in the
course of judicial proceedings, as long as they are based on the
evidence presented and conduct observed by the judge, even if
found later on as erroneous, do not prove personal bias or prejudice
on the part of the judge. Extrinsic evidence is required to establish
bias, bad faith, malice or corrupt purpose, in addition to palpable
error which may be inferred from the decision or order itself.
(Victorio Aleria, Jr. vs. Hon. Alejandro Velez, Jr., G.R. No. 127400,
November 16, 1998, 100 SCAD 720, citing Webb vs. People, 85
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SCAD 66, 276 SCRA 243).
ANS. - Yes, because the error was gross and patent violation of law and the
rules on bail. While it is true that a judge may not be held
administratively accountable for every erroneous order or decision
(Guillermo vs. Reyes, 58 SCAD 130, 240 SCRA 154), yet if the error is
gross or patent, malicious, deliberate or in evident bad faith, he may
still be liable. The reason for this is that he is expected to have a more
than cursory acquaintance with the rules on bail. Failure to follow basic
legal commands embodied in the law and the rules constitutes gross
ignorance of the law (Del Rosario, Jr. vs. Bartolome, 81 SCAD 281, 270
SCRA 645; Aurillo vs. Francisco, 54 SCAD 352, 235 SCRA 283) from
which no one may be excused, not even a judge. (Evelyn De Austria vs.
Judge Orlando D. Beltran, A.M. No. RTJ-98-1406, September 1, 1999).
(c) use of physical violence against the personnel of his court who
failed to deliver the entire volume of nipa ordered by him for the
roof of his house; (lmpao vs. Makilala, A.M. No. MTJ-88-184, Oc-
tober 13, 1989, 178 SCRA 541).
(d) receiving money from litigants and borrowing from them without
paying back;
Reasons:
ANS. -No, in fact, the judge was fined for ignorance of the law. His opinion
that the checks were invalid because they were not dated also
revealed his unfamiliarity with Sec. 6 of the Negotiable Instrument Law.
(Torres vs. Pedrosa, Aug. 22, 1989). It is the duty of a judge to keep
abreast with the law and jurisprudence.
ANS. - The judge can be inhibited from further trying the case.
Partiality and pre-judgment can be just and valid reasons for the
judge to voluntarily inhibit himself. But mere suspicion that he is partial
is not enough. There must be evidence to prove the charge. (Fecundo
vs. Benjamin, Dec. 18, 1989). A litigant is entitled to the fairness and
cold neutrality of an impartial judge.
ANS. - Yes. Even if a judge has already retired before the administrative case
was filed against him, the Supre me Court held that the court has not
lost its jurisdiction over him even if his retirement has been approved,
for his retirement benefits have not yet been paid. The reason for this
is that the people would have no remedy left anymore. By reason of
public policy, the Court must assert and maintain jurisdiction for acts
performed in office which are inimical to the service and prejudicial to
the interest of the litigants and the general public.
ANS. -In these res ipsa loquitur resolutions, there was on the face of the
assailed decisions an inexplicable grave error bereft of any redeeming
feature, a patent railroading of a case to bring about an unjust deci-
sion, or a manifestly deliberate intent to wreak an injustice against a
hapless party.
The res ipsa loquitur doctrine does not accept or dispense with
the necessity of proving the facts on which the inference or evil intent
is had. It merely expresses the clearly sound and reasonable conclusion
that when such facts are admitted or are already shown by the record,
and no credible explanation that would negative the strong inference of
evil intent is forthcoming, no further hearing to establish them to
support a judgment as to the culpability of a respondent is necessary.
(In re: Judge Baltazar Dizon, Adm. Case No. 3086, May 31, 1989).
ANS. -No. Cardinal is the rule that a judge should avoid impropriety in all
activities. The Canons mince no words in mandating that a judge shall
refrain from influencing in any manner the outcome of litigation or
dispute pending before another Court. (Canon 2, Rule 2.04).
Interference by members of the Bench in pending suits with the end in
view of influencing the course or the result of litigation does not only
subvert the independence of the judiciary but also undermines the
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people's faith in its integrity and impartiality. (Commentaries on the
Code of Judicial Conduct). On this point, Impao vs. Makilala (A.M. No.
MTJ-88-184, October 13, 1989, 178 SCRA 541) expounds:
ANS. -No. It is the prerogative of a judge to correct his own decision before it
becomes final and executory, so as to make it conform to the evidence
presented and the applicable laws. (Baguyo vs. Leviste, 107 SCRA 35).
The rule is true for as long as the judge is in good faith which is always
possessed.
A judge is not administratively accountable for every erroneous
ruling or decision rendered, provided, he acts in good faith and without
malice. (Mendoza vs. Villaluz, 106 SCRA 664). The proper remedy of the
aggrieved party is not an administrative charge against the judge but
an appeal or petition for review of his decision. (Martin vs. Judge
Placido Vallarta, A.M. No. MTJ-90-495, Aug. 12, 1991).
ANS. -The office of a judge exists for one solemn end – to promote justice by
administering it fairly and impartially. (Gonzales vs. Austria M. Abaya,
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176 SCRA 634). The judge is the visible representation of the law and
of justice. From him, the people draw their will and awareness to obey
the law. As such, he should avoid even the slightest infraction of the
law. (Inciong vs. De Guia, 154 SCRA 93; Dela Paz vs. Inutan, 64 SCRA
56, 177 SCRA 435). In Santos vs. Lumang, it was said that a judge who,
through gross ignorance of the laws or serious misconduct, frustrates
the people's search for justice, commits a rank disservice to the cause
of justice which calls for rectification and the imposition of appropriate
disciplinary measures. In Summers vs. Ozaeta, 81 Phil. 754, it has been
said that a judge's position demands equanimity, prudence, fortitude
and courage.
ANS. -Yes. Willful failure to pay a just debt is a serious offense under Rule
140 of the Rules of Court, as amended by the resolution of the
Supreme Court, dated July 25, 1974. The amount involved (P4,500.00)
is not big. He could easily have paid it, but it appears that he was bent
on frustrating the complainant's best efforts to obtain satisfaction of
her lawful claim, apparently for no other intention than to annoy and
oppress her for having haled him and his wife into court. While an
ejectment case is supposed to be summary in nature, respondent
judge, through dilatory tactics, stretched the trial over a period of ten
(10) years, and dragged the case all the way from the municipal court
to the Court of Appeals. After the decision had become final, he
delayed payment for two more years. He came across only after the
complainant in exasperation had filed this administrative charge
against him.
ANS. -No. As a general rule, the acts done by a judge in his judicial capacity
are not subject to disciplinary action, even though erroneous. These
acts become subject to disciplinary power only when they are attended
by fraud, dishonesty, corruption or bad faith. (Abiera vs. Maceda, 52
SCAD 581, 233 SCRA 520, June 30, 1994).
A judge is not administratively accountable for every erroneous
ruling or decision rendered, provided, he acts in good faith and without
malice. (Martin vs. Vallarta, 200 SCRA 469, Aug. 12, 1991).
ANS. -Judges are enjoined not only to regulate their extrajudicial activities in
order to minimize the risk of conflict with their judicial duties but also
prohibited from engaging in the private practice of law. (Balayan vs.
Ocampo, 218 SCRA 13, Jan. 29, 1993).
ANS. -No. In the absence of a case in his sala in connection with which a
party could be subpoenaed, a judge has absolutely no power or
authority to issue a subpoena to such party.
The judge, in using a subpoena form for criminal cases to
summon a party upon the request of another who had no case
before his court, invited legitimate criticism against his office as an
instrument of oppression. His act constitutes ignorance of the law
and oppression which should warrant disciplinary sanction. (Caamic
vs. Galapon, Jr., 56 SCAD 14, 237 SCRA 390, October 7, 1994).
Q - May a judge meet one of the parties i;n a case inside his
chambers without the other party and meddle with the issues
confronting the parties on the pretext of settling it? Why?
ANS. -No. In the absence of their lawyers, a judge ought not to
meddle in issues confronting the parties even on the pretext of
settling their cases as such act would compromise the integrity of
his office. Judges are cautioned to avoid in-chamber sessions without
the other party and his counsel present, and to observe prudence at
all times in their conduct to the end that they not only act
impartially and with propriety but are also perceived to be impartial
and proper.
ANS. -Yes. A judge must report to his office even if he has no hearings on
regular days. The law regulating court sessions does not permit any
"day off' from regular office hours to enable the judge to engage
exclusively in research or decision-making, no matter how important.
(Mendoza vs. Mabutas, 42 SCAD 423, 225 SCRA 411, June 17, 1993).
ANS. -No. A judge cannot use his chambers as his family's residence even
with the Governor's permission. Government property is for official use
only and not for the personal use of the official. (Presado vs. Geova, 42
SCAD 507, 223 SCRA 489, June 21, 1993). Court rooms cannot be used
as judge's living quarters. (Felongco vs. Dictado, 42 SCAD 700, 223
SCRA 696).
ANS. -The power to declare a person in contempt of court and in dealing with
him accordingly is an inherent power lodged in courts of justice to be
used as a means to protect and preserve the dignity of the court, the
solemnity of the proceedings therein and the administration of justice
from callous misbehavior, offensive personalities, and contumacious
refusal to comply with court orders.
And as in all other power of the court, the contempt power,
however, plenary it may seem, must be exercised judiciously and
sparingly.
ANS. -No. Immorality has not been confined to sexual matters, but
inCludes conduct inconsistent with rectitude, or indicative of
corruption, indecency, depravity, and dissoluteness; or is willful,
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flagrant or shameless conduct showing moral indifference to opinions
of respectable members of the community, and as inconsiderate
attitude toward good order and public welfare. (Black's Law Dictionary,
Sixth ed., 1990, 751; cited in Alfonso vs. Judge Juanson, Adm. Matter
No. RTJ-92-904, Dec. 7, 1993,46 SCAD 603).
For, it has been held that there is no dichotomy of morality; a
public official is also judged by his private morals. The Code of Judicial
Ethics dictates that a judge, in order to promote public confidence in
the integrity and impartiality of the judiciary, must behave with
propriety at all times. A judge's official life can not simply be detached
or separated from his personal existence. (Junio vs. Rivera Jr., 44 SCAD
308, 225 SCRA 688, Aug. 30, 1993).
In Sicat vs. Alcantara, et al., 161 SCRA 284, May 11, 1988,
wherein the respondent judge was chargedwith immorality for
having an illicit affair with a married female court employee, the
Supreme Court declared:
ANS. – Yes.
ANS. -Yes. Respondent Judge is guilty of grave abuse of authority. The case
was filed in Branch 44, hence, respondent judge who presides in
Branch 45, had no power to act on the request to release on bail
accused Banite. It was irregular for respondent judge to entertain the
request considering that it did not appear that a formal motion had
been filed by the accused to that effect.
Respondent judge should endeavor at all times to maintain the
confidence and high respect accorded to those who wield the gavel of
justice. Circular No. 13 enjoins judges to conduct themselves strictly in
accordance with the mandate of existing laws and the code of judicial
conduct that they be exemplars in their communities and the living
personification of justice and the rule of law.
Respondent judge's action shows such lack of familiarity with the
laws, rules and regulations as to undermine the public confidence in
the integrity of our courts.
Moreover, the record does not show that at that time respondent
judge ordered Banite's release, judge Tarriela was absent or
unavailable and could not have acted on the request. (Cuaresma vs.
Judge Aguilar, Sept. 3, 1993, 44 SCAD 451).
ANS. -Considering that the MTC only had preliminary jurisdiction over
the case, the respondent judge did not have any authority to set the
case for arraignment. All it could do was to calendar the same for
preliminary investigation. There is no law or rule requiring an
arraignment during the preliminary investigation. The arraignment
must be conducted by the court having jurisdiction to try the case
on its merits. Thus, in this case, the RTC has exclusive original
jurisdiction by reason of the prescribed penalty. Hence, respondent
Judge in this case did not know the proper procedure on the matter
or simply chose to ignore the same.
It was duly proven that the waiver of preliminary investigation
was filed by the complainant. Respondent judge exhibited ignorance
of procedural law or plainly abused his authority when he issued a
warrant for the arrest of the complainant and ordered the latter to
show cause why his bond should not be confiscated. Even if the
waiver was not seen by him because it was not attached to the
expediente of the case, the most that the court could have done
from the complainant's failure to appear was to consider him as
having waived his right to a preliminary investigation or declare
such preliminary investigation closed and terminated as to him. It is
settled that even if an accused had expressed his desire to be given
an opportunity to be present at the preliminary investigation, but
later changed his mind and renounced his right, he cannot be
compelled to be present in the said investigation, (Alisangco vs.
Judge Tabiliran, June 30, 1993, 42 SCAD 797).
ANS. The Supreme Court in Maceda vs. Vasquez, et al., G.R. No.
102781, April 22, 1993, held that the power to investigate a
complaint against a judgess for alleged falsification of his
certification of service is lodged in the Supreme Court, thru the
Court Administrator. The Ombudsman is powerless to do so under
the principle of separation of powers.
If it is a criminal case, the Ombudsman has the power to
investigate the judge.
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Q - A judge acquitted the accused in a case for vio-
lation of the Central Bank Act because intent to violate
the law was not proven. He repeated the same mistake in
another case for violation of another special law
specifically the attempt to
smuggle firearms into and out of the country. He was
removed twice. Explain the reason.
ANS. -The reason for such dismissal twice could be traced from
the fact that such mistake cannot be ascribed to a simple
mistake of judgment but to gross ignorance of the law, if not
deliberate disregard of the same. It is tantamount to knowingly
rendering unjust and incorrect judgment. A judge should be the
embodiment of competence, integrity and independence. He
should be faithful to the law and maintain professional com-
petence. (Padilla vs. Dizon, 158 SCRA 127; Senior State
Prosecutor Jovencito ZUllO, Jr. vs. Dizon, June 23, 1993, 42 SCAD
601).
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Q - Are there any distinctions between the court and the judge?
ANS. - Yes. The court is an entity and the person who occupies the position is
the judge. A court may exist without a judge. There may be a judge
without a court. (Pamintuan vs. Llorente, 29 Phil. 346).
ANS. - It means that it is the duty of both counsel and judge to maintain not to
destroy, the high esteem and regard for courts. Any act on the part of one
or the other that tends to undermine the people's respect for, and
confidence in, the administration of justice is to be avoided. And this,
even if both may have to restrain pride from taking the better part of their
system. (Lugue vs. Kayanan, 29 SCRA 173). The relations of judge and
lawyer should be founded on mutual respect and on a deep appreciation
by one of the duties of the other. (Romero vs. Valle, 147 SCRA 197)
ANS. - The sole purpose of courts of justice is to enforce the laws uniformly and
impartially, without regard to persons or their circumstances or to
opinions of men. A judge should at all times be wholly free, disinterested,
impartial and independent. Elementary due process requires a hearing
before an impartial and disinterested tribunal. A judge has both the duty
of rendering a just decision and the duty of doing it in a manner
completely free from suspicion as to its fairness and as to his integrity.
Judges therefore, should not only be impartial but they should also appear
impartial. (Tan, Jr. vs. Gallado, 73 SCRA 315).
Q - Should a judge succumb to pressure from whatever source?
Why?
Q - How do you explain the fact that a judge should be like Caesar's
wife?
ANS. - A judge should be like Caesar's wife because a judge must not only be
pure but must also appear to be so. Appearance is as important as reality
in the performance of judicial functions. Like Caesar's wife, a judge must
not only be pure but must be beyond suspicion. (Palang vs. Zosa, 58 SCRA
776). A judge has the duty not only to render a just and impartial decision,
but also render it in such a manner as to be free from any suspicion as to
its fairness and impartiality, and also as to the judge's integrity. (Martinez
vs. Gironella, 65 SCRA 245).
Q - Explain the rule that a judge should not seek publicity for
personal vainglory.
ANS. - It means that judges should be prohibited from seeking publicity for
vanity or self-glorification. Judges are not actors or actresses or
politicians. They are also prohibited from making public comments on
any pending or impending case. Judges must not be moved by a desire
to cater to public opinion to the detriment of justice. (Go vs. CA, 206
SCRA 165).
ANS. - No. A judge should not allow unnecessary taking of Pictures of the
court .proceedings. He should not allow the broadcasting of proceedings
over the radio or allow the televising of the proceedings. The reason is
that, such fanfare and publicity detract from the dignity of the court
proceedings for the parties involved tend to become more self-conscious
on their appearances rather than the truth of the facts and substance of
the issues. The administration of justice would then ultimately suffer as
the judge might be influenced by the public clamor engendered by the
publicity. Finally, a judge should not seek publicity for his personal
vainglory.
ANS. - A judge should not only be impartial, but he should appear to be so. If he
profounds questions to help build the case of a party, he would come out
biased against or partial in favor of a party. A judge interference may
likewise prevent the proper presentation of the case, and the
ascertainment of the truth in respect thereto.
ANS. - A judge should decide a case within the reglementary period because
failure to do so constitutes gross dereliction of duty. A judge should decide
a case promptly and expeditiously, for it cannot be denied that justice
delayed is justice denied. Delay in the disposition of cases undermines the
people's faith and confidence on the judiciary. Hence, judges are enjoined
to decide cases with dispatch. Their failure to do so constitutes gross
inefficiency and warrants the imposition of administrative sanctions on
them. (Fe T. Bernardo vs. Judge Amelia A Fabros, A.M. No. MTJ-99-1l89,
May 12, 1999, citing Sanchez vs. Vestil, AM. No. MTJ-981419, October 13,
1998, 100 SCAD 147).
ANS. - For liability to attach for gross negligence of the law, the assailed order,
decision or actuation of a judge must not only be found erroneous but,
most importantly, it must be established that the judge was moved by
bad faith, dishonesty, hatred, or some other like motive. (Dela Cruz vs.
Concepcion, 54 SCAD 640, '235 SCRA 597).
ANS. - A judge may be held liable for rendering an unjust judgment when he
acts in bad faith, malice, revenge, or some other motive. (Heirs of the late
Nasser Yasin vs. Felix, 66 SCAD 157, 250 SCRA 545).
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Q - Discuss the import of the rule on voluntary inhibition of judges.
ANS. - The import of the rule on voluntary inhibition of judges is that the
decision on whether or not to inhibit is left to the sound discretion and
conscience of the trial judge based on his rational and logical assessment
of the circumstances prevailing in the case brought before him. It makes
clear to the occupants of the Bench that outside of pecuniary interest,
relationship or previous participation in the matter that calls for
adjudication, there might be other causes that could conceivably erode
the trait of objectivity, thus calling for inhibition. This is to betray a sense
of realism, for the factors that lead to preference or predelictions are
many and varied.
In the final reckoning, there is really no hard and fast rule when it
comes to the inhibition of judges. Each case should be treated differently
and decided based on its peculiar circumstances. The issue of voluntary
inhibition is primarily a matter of conscience and sound discretion on the
part of the judge. It is a subjective test the result of which the reviewing
tribunal will not disturb in the absence of any manifest finding of
arbitrariness and whimsicality. The discretion given to trial judges is an
acknowledgment of the fact that these judges are in a better position to
determine the issue of inhibition as they are the ones who directly deal
with parties-litigants in their courtrooms. (People vs. Gallermo, G.R. No.
123546, July 7, 1998, 95 SCAD 579).
ANS. - Yes. The Code of Judicial Conduct mandates that a judge should avoid
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impropriety and the appearance of impropriety in all activities. The
personal behavior of a judge not only upon the Bench but also in his
everyday life should be above reproach and free from the appearance
of impropriety.
There is a difference between freedom of expression and
compromising the dignity of the Court through publications of
emotional outburst and destructive criticisms. Respondent's writing of
active and vicious editorials compromises his duties as judge in the
impartial administration of justice, for his views printed on newspapers
reflect on his office as well as on the public officers that he challenges.
From the standpoint of conduct and demeanor expected of a judge,
resort to intemperate language only detracts from the respect due a
member of the judiciary and becomes self-destructive.
Moreover, in persistently attacking the moviemaking activities of the
provincial governor and repeatedly threatening to file an action against a
public officer, respondent encourages litigation and causes dissension
against the public officer concerned. As a judge, respondent's role is to
maintain equanimity and not instigate litigation. This is not to say that
one cannot question the improper activities of government officials if
there are any. However, it is not proper for a judge to write publications of
carelessly-worded editorials in local newspapers. (Benalfre J. Galang vs.
Judge Abelardo H. Santos, A.M. No. MTJ-99-1197, May 26, 1999).
Q - After the hearing of the petition for bail, the court issued an
order denying the same on the ground that the evidence of
guilt is strong. The petitioner filed a motion for
reconsideration, but was denied, the court ruling that it has al-
ready clearly spelled out the grounds relied upon in the denial
of the motion. The accused asked for the inhibition of the
judge contending that because of the actuations of the judge,
he has already become biased, hence, he stands no chance at
all in court presided by the judge. Is the motion proper? Why?
ANS. - No. The orders denying the petition for bail and the motion for
reconsideration do not sufficiently prove bias and prejudice to
disqualify the judge under Sec. 1, Rule 37 of the Rules of Court. For
such bias and prejudice, to be a ground for disqualification, must be
shown to have stemmed from an extrajudicial source, and result in an
opinion on the merits on some basis other than what the judge learned
from his participation in the case. Opinions formed in the course of
judicial proceedings, as long as they are based on the evidence
presented and conduct observed by the judge, even if found later on
as erroneous, do not prove personal bias or prejudice on the part of the
judge. Extrinsic evidence is required to establish bias, bad faith, malice
or corrupt purpose, in addition to palpable error which may be inferred
from the decision or order itself. (Victorio Aleria, Jr. vs. Hon. Alejandro
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Velez, Jr., G.R. No. 127400, November 16, 1998, 100 SCAD 720, citing
Webb vs. People, 85 SCAD 66, 276 SCRA 243).
ANS. - Yes, because the error was gross and patent violation of law and the
rules on bail. While it is true that a judge may not be held administratively
accountable for every erroneous order or decision (Guillermo vs. Reyes,
58 SCAD 130, 240 SCRA 154), yet if the error is gross or patent, malicious,
deliberate or in evident bad faith, he may still be liable. The reason for
this is that he is expected to have a more than cursory acquaintance with
the rules on bail. Failure to follow basic legal commands embodied in the
law and the rules constitutes gross ignorance of the law (Del Rosario, Jr.
vs. Bartolome, 81 SCAD 281, 270 SCRA 645; Aurillo vs. Francisco, 54
SCAD 352, 235 SCRA 283) from which no one may be excused, not even a
judge. (Evelyn De Austria vs. Judge Orlando D. Beltran, A.M. No. RTJ-98-
1406, September 1, 1999).
ANS. - No. As a rule, a judge may not be held administratively accountable for
every erroneous order or decision he renders. To unjustifiably hold
otherwise, assuming that he has erred, would be short of harassment and
would make his position doubly unbearable, for no one called upon to try
the facts or interpret the law in the process of administering justice can
be infallible in his judgment. The error must be gross or patent, malicious,
deliberate or in evident bad faith. It is only in this latter instance when the
judge acts fraudulently or with gross ignorance, that administrative
sanctions are called for as an imperative duty of this Court. (Evelyn de
Austria vs. Judge Orlando D. Beltran, A.M. No. RTJ-98-1406, September 1,
1999; Panganiban vs. Judge Pablo B. Francisco, et al., A.M. No. RTJ-98-
1425, November 16, 1999).
The judge's lustful conduct was aggravated by the fact that he was
the superior of the complainant. Instead of acting in loco parentis
toward his subordinate employee, he took advantage of his position and
preyed on her. (Ana May M. Simbajon vs. Judge Rogelio M. Esteban, A.M.
No. MTJ-98-1162, August 11,1999, citing Talens-Dabon vs. Arceo, 72
SCAD 527, 259 SCRA 354).
(c) use of physical violence against the personnel of his court who
failed to deliver the entire volume of nipa ordered by him for the
roof of his house; (lmpao vs. Makilala, A.M. No. MTJ-88-184, October
13, 1989, 178 SCRA 541).
(d) receiving money from litigants and borrowing from them without
paying back;
(f) ordering a litigant to install an air-conditioning unit for the car of his
wife. (Ompoc vs. Torres, Sept. 17, 1989).
Reasons:
ANS. -No, in fact, the judge was fined for ignorance of the law. His opinion that
the checks were invalid because they were not dated also revealed his
unfamiliarity with Sec. 6 of the Negotiable Instrument Law. (Torres vs.
Pedrosa, Aug. 22, 1989). It is the duty of a judge to keep abreast with the
law and jurisprudence.
ANS. - The judge can be inhibited from further trying the case.
Partiality and pre-judgment can be just and valid reasons for the
judge to voluntarily inhibit himself. But mere suspicion that he is partial is
not enough. There must be evidence to prove the charge. (Fecundo vs.
Benjamin, Dec. 18, 1989). A litigant is entitled to the fairness and cold
neutrality of an impartial judge.
Q - Madam C sought the assistance of a judge in expediting
the intestate estate proceedings of her deceased common-law
husband. He, however, took advantage of her helplessness and
state of material depredation and took her as his mistress. Was
the act of the judge proper? Why?
ANS. -No, because a judge should personify judicial integrity and
exemplify honesty in public service. The personal behavior of a judge,
both in the performance of official duties and in private life should be
above suspicion. The exploitation of women becomes reprehensible
when the offender commits injustice by the brute force of his position
of power and authority. (Calanog case).
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Q - Maya judge be held to answer for an erroneous decision which
he rendered? Why?
ANS. - Yes. Even if a judge has already retired before the administrative case
was filed against him, the Supre me Court held that the court has not lost
its jurisdiction over him even if his retirement has been approved, for his
retirement benefits have not yet been paid. The reason for this is that the
people would have no remedy left anymore. By reason of public policy,
the Court must assert and maintain jurisdiction for acts performed in
office which are inimical to the service and prejudicial to the interest of
the litigants and the general public.
Q -Maya judge who exercises his judicial function be made liable for
damages? Why?
ANS. -A judge who exercises his judicial functions cannot be liable for damages.
The test of liability is not jurisdiction, but the nature of the question which
is being determined when the error complained of is committed by the
court. (Aparicio vs. Andal, G.R. No. 8658793, July 25, 1989). He is not
liable even though there is in reality absolute failure of jurisdiction over
the subject matter. For, judges are excluded from liability under Art. 32,
New Civil Code, provided, their acts do not constitute a violation of the
Revised Penal Code.
Q - An RTC Judge was removed on charges of immorality and
conduct unbecoming of a public official. It was alleged that he
maintained a mistress, having been the father of two children
with her, inspite his being a married man. Is the act of the judge
proper? Why?
ANS. -No, because the judge has behaved in a manner not becoming of his
robes and as a model of rectitude, betrayed the people's high
expectations, and diminished the esteem in which they hold the judiciary
in general.
ANS. -In these res ipsa loquitur resolutions, there was on the face of the
assailed decisions an inexplicable grave error bereft of any redeeming
feature, a patent railroading of a case to bring about an unjust decision, or
a manifestly deliberate intent to wreak an injustice against a hapless
party.
The res ipsa loquitur doctrine does not accept or dispense with the
necessity of proving the facts on which the inference or evil intent is had.
It merely expresses the clearly sound and reasonable conclusion that
when such facts are admitted or are already shown by the record, and no
credible explanation that would negative the strong inference of evil
intent is forthcoming, no further hearing to establish them to support a
judgment as to the culpability of a respondent is necessary. (In re: Judge
Baltazar Dizon, Adm. Case No. 3086, May 31, 1989).
ANS. -No. Cardinal is the rule that a judge should avoid impropriety in all
activities. The Canons mince no words in mandating that a judge shall
refrain from influencing in any manner the outcome of litigation or dispute
pending before another Court. (Canon 2, Rule 2.04). Interference by
members of the Bench in pending suits with the end in view of influencing
the course or the result of litigation does not only subvert the
independence of the judiciary but also undermines the people's faith in its
integrity and impartiality. (Commentaries on the Code of Judicial Conduct).
On this point, Impao vs. Makilala (A.M. No. MTJ-88-184, October 13, 1989,
178 SCRA 541) expounds:
ANS. -No. It is the prerogative of a judge to correct his own decision before it
becomes final and executory, so as to make it conform to the evidence
presented and the applicable laws. (Baguyo vs. Leviste, 107 SCRA 35).
The rule is true for as long as the judge is in good faith which is always
possessed.
A judge is not administratively accountable for every erroneous
ruling or decision rendered, provided, he acts in good faith and without
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malice. (Mendoza vs. Villaluz, 106 SCRA 664). The proper remedy of the
aggrieved party is not an administrative charge against the judge but an
appeal or petition for review of his decision. (Martin vs. Judge Placido
Vallarta, A.M. No. MTJ-90-495, Aug. 12, 1991).
Q - What is the effect if a judge allows the release of an accused
who was convicted of a non-bailable offense? Why?
ANS. - The judge is guilty of gross misconduct when he allowed accused
individuals duly convicted of non-bailable offenses and drug pushers at
that - to enjoy provisional liberty by way of bail. Under the facts obtain-
ing in these cases, good faith cannot be presumed on the part of the
respondent judge. The suspicious circumstances attending the cases in
point are far too glaring to ignore. (Villa vs. Amonoy, A.C. RTJ-89-395,
Feb. 13, 1991).
Q - How do you describe the office of a judge? Explain.
ANS. -The office of a judge exists for one solemn end – to promote justice by
administering it fairly and impartially. (Gonzales vs. Austria M. Abaya, 176
SCRA 634). The judge is the visible representation of the law and of
justice. From him, the people draw their will and awareness to obey the
law. As such, he should avoid even the slightest infraction of the law.
(Inciong vs. De Guia, 154 SCRA 93; Dela Paz vs. Inutan, 64 SCRA 56, 177
SCRA 435). In Santos vs. Lumang, it was said that a judge who, through
gross ignorance of the laws or serious misconduct, frustrates the people's
search for justice, commits a rank disservice to the cause of justice which
calls for rectification and the imposition of appropriate disciplinary
measures. In Summers vs. Ozaeta, 81 Phil. 754, it has been said that a
judge's position demands equanimity, prudence, fortitude and courage.
ANS. -Yes. Willful failure to pay a just debt is a serious offense under Rule 140 of
the Rules of Court, as amended by the resolution of the Supreme Court,
dated July 25, 1974. The amount involved (P4,500.00) is not big. He could
easily have paid it, but it appears that he was bent on frustrating the
complainant's best efforts to obtain satisfaction of her lawful claim, ap-
parently for no other intention than to annoy and oppress her for having
haled him and his wife into court. While an ejectment case is supposed to
be summary in nature, respondent judge, through dilatory tactics,
stretched the trial over a period of ten (10) years, and dragged the case
all the way from the municipal court to the Court of Appeals. After the
decision had become final, he delayed payment for two more years. He
came across only after the complainant in exasperation had filed this
administrative charge against him.
ANS. -No. As a general rule, the acts done by a judge in his judicial capacity are
not subject to disciplinary action, even though erroneous. These acts
become subject to disciplinary power only when they are attended by
fraud, dishonesty, corruption or bad faith. (Abiera vs. Maceda, 52 SCAD
581, 233 SCRA 520, June 30, 1994).
A judge is not administratively accountable for every erroneous
ruling or decision rendered, provided, he acts in good faith and without
malice. (Martin vs. Vallarta, 200 SCRA 469, Aug. 12, 1991).
ANS. -Judges are enjoined not only to regulate their extrajudicial activities in
order to minimize the risk of conflict with their judicial duties but also
prohibited from engaging in the private practice of law. (Balayan vs.
Ocampo, 218 SCRA 13, Jan. 29, 1993).
ANS. -No. In the absence of a case in his sala in connection with which a party
could be subpoenaed, a judge has absolutely no power or authority to
issue a subpoena to such party.
The judge, in using a subpoena form for criminal cases to
summon a party upon the request of another who had no case before
his court, invited legitimate criticism against his office as an instrument
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of oppression. His act constitutes ignorance of the law and oppression
which should warrant disciplinary sanction. (Caamic vs. Galapon, Jr., 56
SCAD 14, 237 SCRA 390, October 7, 1994).
Q - Maya judge meet one of the parties i;n a case inside his
chambers without the other party and meddle with the issues
confronting the parties on the pretext of settling it? Why?
ANS. -No. In the absence of their lawyers, a judge ought not to meddle
in issues confronting the parties even on the pretext of settling their
cases as such act would compromise the integrity of his office. Judges
are cautioned to avoid in-chamber sessions without the other party and
his counsel present, and to observe prudence at all times in their
conduct to the end that they not only act impartially and with propriety
but are also perceived to be impartial and proper.
ANS. -Yes. A judge must report to his office even if he has no hearings on
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regular days. The law regulating court sessions does not permit any "day
off' from regular office hours to enable the judge to engage exclusively in
research or decision-making, no matter how important. (Mendoza vs.
Mabutas, 42 SCAD 423, 225 SCRA 411, June 17, 1993).
ANS. -No. A judge cannot use his chambers as his family's residence even with
the Governor's permission. Government property is for official use only
and not for the personal use of the official. (Presado vs. Geova, 42 SCAD
507, 223 SCRA 489, June 21, 1993). Court rooms cannot be used as
judge's living quarters. (Felongco vs. Dictado, 42 SCAD 700, 223 SCRA
696).
ANS. -The power to declare a person in contempt of court and in dealing with
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him accordingly is an inherent power lodged in courts of justice to be used
as a means to protect and preserve the dignity of the court, the solemnity
of the proceedings therein and the administration of justice from callous
misbehavior, offensive personalities, and contumacious refusal to comply
with court orders.
And as in all other power of the court, the contempt power,
however, plenary it may seem, must be exercised judiciously and
sparingly.
ANS. -No. Immorality has not been confined to sexual matters, but
inCludes conduct inconsistent with rectitude, or indicative of corruption,
indecency, depravity, and dissoluteness; or is willful, flagrant or
shameless conduct showing moral indifference to opinions of respectable
members of the community, and as inconsiderate attitude toward good
order and public welfare. (Black's Law Dictionary, Sixth ed., 1990, 751;
cited in Alfonso vs. Judge Juanson, Adm. Matter No. RTJ-92-904, Dec. 7,
1993,46 SCAD 603).
For, it has been held that there is no dichotomy of morality; a public
official is also judged by his private morals. The Code of Judicial Ethics
dictates that a judge, in order to promote public confidence in the
integrity and impartiality of the judiciary, must behave with propriety at
all times. A judge's official life can not simply be detached or separated
from his personal existence. (Junio vs. Rivera Jr., 44 SCAD 308, 225 SCRA
688, Aug. 30, 1993).
In Sicat vs. Alcantara, et al., 161 SCRA 284, May 11, 1988,
wherein the respondent judge was chargedwith immorality for having
an illicit affair with a married female court employee, the Supreme
Court declared:
The circumstance that his dismissal was without prejudice is not material,
and neither is his subsequent appointment to a municipal position. What is
important is his non-disclosure or concealment of the fact that in 1972, he
was REMOVED as Asst. Fiscal. That fact was deliberately suppressed. He did
not retire, as he declared in his data sheet. He was removed for gross
misconduct and dereliction of duty in the prosecution of a smuggling case.
The fact alone of his concealment of his previous dismissal from the
public service, which the Judicial and Bar Council would have taken into
consideration in acting on his application, is clear proof of his lack of the
said qualifications and renders him unworthy to sit as judge.
Judge Cube committed an act of dishonesty that rendered him unfit
to be appointed to, and to remain now in, the Judiciary, he has tarnished
with his falsehood. He was DISMISSED with prejudice to his reappointment
to any position in the government, including government-owned or
-controlled corporations, and with forfeiture of all retirement benefits. (Re:
Inquiry on the Appointment of Judge Enrique A. Cube, AM No. 93-7-4280
METC, Oct. 13, 1993, 45 SCAD 301).
Q - A 14-year old girl, Cristina Junio filed with the Provincial Prosecutor's
office a complaint for acts of lasciviousness against Judge Rivera of
Alaminos, Pangasinan. The investigating officer recommended that the
judge be absolved of the administrative case. Is the recommendation
proper? Why?
ANS. - No. In dismissing the Judge, the Supreme Court said that exacting
standards of morality and decency from those who serve in the
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judiciary have been set. A member of the judiciary is judged not only
by his official acts but also by his private morals, to the extent that
such private morals are externalized in his behavior. The judge failed to
measure up to those demanding standards. He was found guilty of
gross misconduct and conduct prejudicial to the interest of the
judiciary. (Junio vs. Judge Pedro Rivera, Aug. 30, 1993).
Moreover, the record does not show that at that time respondent
judge ordered Banite's release, judge Tarriela was absent or unavailable
and could not have acted on the request. (Cuaresma vs. Judge Aguilar,
Sept. 3, 1993, 44 SCAD 451).
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ANS. -Considering that the MTC only had preliminary jurisdiction over the
case, the respondent judge did not have any authority to set the case
for arraignment. All it could do was to calendar the same for prelimi-
nary investigation. There is no law or rule requiring an arraignment
during the preliminary investigation. The arraignment must be
conducted by the court having jurisdiction to try the case on its merits.
Thus, in this case, the RTC has exclusive original jurisdiction by reason
of the prescribed penalty. Hence, respondent Judge in this case did not
know the proper procedure on the matter or simply chose to ignore the
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same.
It was duly proven that the waiver of preliminary investigation
was filed by the complainant. Respondent judge exhibited ignorance of
procedural law or plainly abused his authority when he issued a
warrant for the arrest of the complainant and ordered the latter to
show cause why his bond should not be confiscated. Even if the waiver
was not seen by him because it was not attached to the expediente of
the case, the most that the court could have done from the
complainant's failure to appear was to consider him as having waived
his right to a preliminary investigation or declare such preliminary
investigation closed and terminated as to him. It is settled that even if
an accused had expressed his desire to be given an opportunity to be
present at the preliminary investigation, but later changed his mind
and renounced his right, he cannot be compelled to be present in the
said investigation, (Alisangco vs. Judge Tabiliran, June 30, 1993, 42
SCAD 797).
In Ubaldino A. Lacuron vs. Judge Pablo Atienza (Adm. Matter No. RTJ-
90-456, 14 January 1992), it was said that the law regulating court
sessions does not permit any "day off' from regular office hours to enable
a judge to engage exclusively in research or decision-writing, no matter
how important. In Siasico vs. Sales (71 SCRA 139, 146 [1976]), the
Supreme Court stated:
The movant had not yet been substituted as a party; the writ
of demolition was issued despite the fact that his court ceased to
have authority to enforce the decision by motion. The least
explanation is that, he was unaware of the Rules. If he was
cognizant of said rules, then he deliberately ignored them to extend
benefit to a party who happened to be his compadre. In such a
case, he allowed a relationship to influence his action to the
prejudice of the complainant. (Vda. De Coronel vs. Judge Danan, et
al., Aug. 9, 1993, 43 SCAD 926).
ANS. The Supreme Court in Maceda vs. Vasquez, et al., G.R. No.
102781, April 22, 1993, held that the power to investigate a
complaint against a judgess for alleged falsification of his
certification of service is lodged in the Supreme Court, thru the
Court Administrator. The Ombudsman is powerless to do so under
the principle of separation of powers.
If it is a criminal case, the Ombudsman has the power to investigate
the judge.
EN BANC
RESOLUTION
Acting on the compliance dated 05 July 2004 and on the proposed Rules on
Notarial Practice of 2004 Submitted by the Sub-Committee for the Study,
Drafting and Formulation of the Rules Governing the Appointment of Notaries
Public and the Performance and Exercise of Their Official Functions, of the
Committees on Revision of the Rules of Court and on Legal Education and Bar
Matters, the Court Resolved to APPROVE the proposed Rules on Notarial Practice
of 2004, with modifications, thus:
RULE I
IMPLEMENTATION
RULE II
DEFINITIONS
SEC. 9. Notary Public and Notary. - "Notary Public" and "Notary" refer to
any person commissioned to perform official acts under these Rules.
SEC. 11. Regular Place of Work or Business. - The term "regular place of
work or business" refers to a stationary office in the city or province
wherein the notary public renders legal and notarial services.
SEC. 13. Official Seal or Seal. - "Official seal" or "Seal" refers to a device
for affixing a mark, image or impression on all papers officially signed by
the notary public conforming the requisites prescribed by these Rules.
SEC. 15. Court. - "Court" refers to the Supreme Court of the Philippines.
NOTICE OF HEARING
SEC. 6. Opposition to Petition. - Any person who has any cause or reason
to object to the grant of the petition may file a verified written opposition
thereto. The opposition must be received by the Executive Judge before
the date of the summary hearing.
________________________
Executive Judge
SEC. 12. Register of Notaries Public. - The Executive Judge shall keep and
maintain a Register of Notaries Public in his jurisdiction which shall
contain, among others, the dates of issuance or revocation or suspension
of notarial commissions, and the resignation or death of notaries public.
Tile Executive Judge shall furnish the Office of the Court Administrator
information and data recorded in the register of notaries public. The Office
of the Court Administrator shall keep a permanent, complete and updated
database of such records.
Failure to file said application will result in the deletion of the name of the
notary public in the register of notaries public.
The notary public thus removed from the Register of Notaries Public may
only be reinstated therein after he is issued a new commission in
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accordance with these Rules.
RULE IV
(1)acknowledgments;
(2)oaths and affirmations;
(3)jurats;
(4)signature witnessings;
(5)copy certifications; and
(6)any other act authorized by these Rules.
SEC. 2. Prohibitions. - (a) A notary public shall not perform a notarial act
outside his regular place of work or business; provided, however, that on
certain exceptional occasions or situations, a notarial act may be
performed at the request of the parties in the following sites located
within his territorial jurisdiction:
(b) A person shall not perform a notarial act if the person involved as -
signatory to the instrument or document –
(1)is not in the notary's presence personally at the time of the
notarization; and
(2)is not personally known to the notary public or otherwise
identified by the notary public through competent evidence of
identity as defined by these Rules.
(a) the notary knows or has good reason to believe that the notarial
act or transaction is unlawful or immoral;
(b)the signatory shows a demeanor which engenders in the mind of
the notary public reasonable doubt as to the former's knowledge
of the consequences of the transaction requiring a notarial act;
and
(c) in the notary's judgment, the signatory is not acting of his or her
own free will.
RULE V
FEES OF NOTARY PUBLIC
SEC. 2. Travel Fees and Expenses. - A notary public may charge travel
fees and expenses separate and apart from the notarial fees prescribed in
the preceding section when traveling to perform a notarial act if the
notary public and the person requesting the notarial act agree prior to the
travel.
Any travel fees and expenses paid to a notary public prior to the
performance of a notarial act are not subject to refund if the notary public
had already traveled but failed to complete in whole or in part the notarial
act for reasons beyond his control and without negligence on his part.
SEC. 5. Notice of Fees. - A notary public who charges a fee for notarial
services shall issue a receipt registered with the Bureau of Intemal
Revenue and keep a journal of notarial fees. He shall enter in the journal
all fees charged for services rendered.
RULE VI
NOTARIAL REGISTER
(b) A notary public shall keep only one active notarial register at any
given time.
SEC. 2. Entries in the Notarial Register. - (a) For every notarial act, the
notary shall record in the notarial register at the time of notarization the
following:
(b) A notary public shall record in the notarial register the reasons and
circumstances for not completing a notarial act.
(c) A notary public shall record in the notarial register the circumstances
of any request to inspect or copy an entry in the notarial register,
including the requester's name, address, signature, thumbmark or other
recognized identifier, and evidence of identity. The reasons for refusal to
allow inspection or copying of a journal entry shall also be recorded.
(d) When the instrument or document is a contract, the notary public shall
keep an original copy thereof as part of his records and enter in said
records a brief description of the substance thereof and shall give to each
entry a consecutive number, beginning with number one in each calendar
year. He shall also retain a duplicate original copy for the Clerk of Court.
(e) The notary public shall give to each instrument or document executed,
sworn to, or acknowledged before him a number corresponding to the one
in his register, and shall also state on the instrument or document the
pages of his register on which the same is recorded. No blank line shall be
left between entries.
(g) At the end of each week, the notary public shall certify in his notarial
register the number of instruments or documents executed, sworn to,
acknowledged, or protested before him; or if none, this certificate shall
show this fact.
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(h) A certified copy of each month's entries and a duplicate original copy
of any instrument acknowledged before the notary public shall, within the
first ten (10) days of the month following, be forwarded to the Clerk of
Court and shall be under the responsibility of such officer. If there is no
entry to certify for the month, the notary shall forward a statement to this
effect in lieu of certified copies herein required.
(a) principal;
(b)credible witness swearing or affirming to the identity of a
principal; and
(c) witness to a signature by thumb or other mark, or to a signing by
the notary public on behalf of a person physically unable to sign.
(c) If the notary public has a reasonable ground to believe that a person
has a criminal intent or wrongful motive in requesting information from
the notarial register, the notary shall deny access to any entry or entries
therein.
SEC. 6. Issuance of Certified True Copies. - The notary public shall supply
a certified true copy of the notarial record, or any part thereof, to any
person applying for such copy upon payment of the legal fees.
RULE VII
SIGNA TURE AND SEAL OF NOTARY PUBLIC
(a) sign by hand on the notarial certificate only the name indicated
and as appearing on the notary's commission shall:
(b)not sign using a facsimile stamp or printing device; and
(c) affix his official signature only at the time the notarial act is
performed.
(b) The official seal shall be affixed only at the time the notarial act is
performed and shall be clearly impressed by the notary public on every
page of the instrument or document notarized.
(c) When not in use, the official seal shall be kept safe and secure and
shall be accessible only to the notary public or the person duly authorized
by him.
(d) Within five (5) days after the official seal of a notary public is stolen,
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lost, damaged or other otherwise rendered unserviceable in affixing a
legible image, the notary public, after informing the appropriate law
enforcement agency, shall notify the Executive Judge in writing, providing
proper receipt or acknowledgment, including registered mail, and in the
event of a crime committed, provide a copy or entry number of the
appropriate police record. Upon receipt of such notice. if found in order by
the Executive Judge, the latter shall order the notary public to cause
notice of such loss or damage to be published, once a week for three (3)
consecutive weeks, in a newspaper of general circulation in the city or
province where the notary public is commissioned. Thereafter. the
Executive Judge shall issue to the notary public a new Certificate of
Authorization to Purchase a Notarial Seal.
(e) Within five (5) days after the death or resignation of the notary public,
or the revocation or expiration of a notarial commission, the official seal
shall be surrendered to the Executive Judge and shall be destroyed or
defaced in public during office hours. In the event that the missing, lost or
damaged seal is later found or surrendered, it shall be delivered by the
notary public to the Executive Judge to be disposed of in accordance with
this section. Failure to effect such surrender shall constitute contempt of
court. In the event of death of the notary public, the person in possession
of the official seal shall have the duty to surrender it to the Executive
Judge.
SEC. 3. Seal Image. - The notary public shall affix a single, clear, legible,
permanent, and photographically reproducible mark, image or impression
of the official seal beside his signature on the notarial certificate of a
paper instrument or document.
(b) Upon written application and after payment of the application fee, the
Executive Judge may issue an authorization to sell to a vendor or
manufacturer of notarial seals after verification and investigation of the
latter's qualifications. The Executive Judge shall charge an authorization
fee in the amount of PhP 4,000 for the vendor and PhP 8,000 for the
manufacturer. If a manufacturer is also a vendor, he shall only pay the
manufacturer's authorization fee.
(c) The authorization shall be in effect for a period of four (4) years from
the date of its issuance and may be renewed by the Executive Judge for a
similar period upon payment of the authorization fee mentioned in the
preceding paragraph.
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(d) A vendor or manufacturer shall not sell a seal to a buyer except upon
submission of a certified copy of the commission and the Certificate of
Authorization to Purchase a Notarial Seal issued by the Executive Judge. A
notary public obtaining a new seal as a result of change of name shall
present to the vendor or manufacturer a certified copy of the Confirmation
of the Change of Name issued by the Executive Judge.
(e) Only one seal may be sold by a vendor or manufacturer for each
Certificate of Authorization to Purchase a Notarial Seal.
(f) After the sale, the vendor or manufacturer shall affix a mark, image or
impression of the seal to the Certificate of Authorization to Purchase a
Notarial Seal and submit the completed Certificate to the Executive Judge.
Copies of the Certificate of Authorization to Purchase a Notarial Seal and
the buyer's commission shall be kept in the files of the vendor or
manufacturer for four (4) years after the sale.
RULE VIII
NOTARIAL CERTIFICA TES
SECTION 1. Form of Notarial Certificate. - The notarial form used for any
notarial instrument or document shall conform to all the requisites
prescribed herein, the Rules of Court and all other provisions of issuances
by the Supreme Court and in applicable laws.
_________________
(official signature)
(seal of Executive Judge)
RULE X
CHANGES OF STATUS OF NOTARY PUBLIC
Within ten (10) days after the change of name of the notary public
by court order or by marriage, or after ceasing to maintain the
regular place of work or business, the notary public shall submit a
signed and dated notice of such fact to the Executive Judge.
RULE XI
REVOCA T/ON OF COMMISSION AND DISCIPLINARY SANCTIONS
(b) In addition, the Executive Judge may revoke the commission of, or
impose appropriate administrative sanctions upon, any notary public who:
SEC. 4. Death of Notary Public. - If a notary public dies before fulfilling the
obligations in Section 4(e), Rule VI and Section 2(e), Rule VII, the
Executive Judge, upon being notified of such death, shall forthwith cause
compliance with the provisions of these sections.
RULE XII
SPECIAL PROVISIONS
RULE XIII
REPEALING AND EFFECTIVITY PROVISIONS
SEC. 2. Effective Date. - These Rules shall take effect on the first day of
August 2004, and shall be published in a newspaper of general circulation
in the Philippines which provides sufficiently wide circulation.