TITLE G #6 – 10

DISQUALIFICATION OF JUDICIAL OFFICERS/INHIBITION

Rule 137, Section 1. Disqualification of Judges – No judge or judicial officer shall sit in any case in which
he, or his wife or child, is pecuniarily interested as heir, legatee , creditor or otherwise, or in which he is
related to either party within the sixth degree of consanguinity or affinity, or to counsel within the
fourth degree, computed according to the rules of the civil law, or in which he has been executor,
administrator, guardian, trustee or counsel, or in which he has presided in any inferior court when his
ruling or decision is the subject of review, without the written consent of all parties in interest, signed by
the them and entered upon the record.

A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for
just or valid reasons other than those mentioned above.

Disqualification vs inhibition

As to grounds: For disqualification, the Rules enumerated the specific and exclusive grounds under
which any judge or judicial officer is disqualified from acting as such; while there are no specific grounds
for inhibition enumerated and there is merely broad basis given thereof.

As to the Application of Judicial Discretion: In disqualification, the judicial officer has no discretion to try
or sit in a case while in Inhibition, the judge may exercise his sound discretion whether to try the case of
not.

COMPULSARY DISQUALIFICATION

1. When the judge, or his wife or child, is pecuniarily interested as heir, legatee, creditor or
otherwise;
2. When the judge is related to either party within the sixth degree of consanguinity of affinity, or
to counsel within the fourth degree, computed according to the rules of civil law;
3. When the judge has been executor, administrator, guardian, trustee or counsel; or
4. When the judge has presided in any inferior court when his ruling or decision is the subject of
review, without the written consent of all parties in interest, signed by them and entered upon
the record.

COMPULSARY DISQUALIFICATION UNDER THE NEW CODE OF JUDICIAL CONDUCT OR THE BANGALORE
DRAFT

Canon 3, Section 5.

1. The judge has actual bias or prejudice concerning a party or personal knowledge of disputed
evidentiary facts concerning the proceedings;
2. The judge previously served as a lawyer or was a material witness in the matter in the
controversy;
3. The judge, or a member of his or her family, has an economic interest in the outcome of the
matter in controversy;
4. The judge served as trustee, administrator, guardian, lawyer or executor in the case or matter in
controversy, or a former associate of the judge served as counsel during their association, or the
judge or lawyer was a material witness therein;
5. The judge’s ruling in a lower court is the subject of review;
6. The judge is related by consanguinity or affinity to a party litigant within the sixth civil degree, or
to counsel within the fourth civil degree; or
7. The judge that his or her spouse or child has a financial interest, as heir, legatee, creditor,
fiduciary or otherwise, in the subject matter in controversy or in a party to the proceeding, or
any other interest that could be substantially affected by the outcome of the proceedings.
EXCEPTION TO COMPULSORY DISQUALIFICATIONS MENTION IN SECTION 5, CANON 3 OF THE NEW CODE
OF JUDICIAL CONDUCT:

CANON 3, SECTION 6 OF THE NEW CODE OF JUDICIAL ETHICS

A judge compulsorily disqualified, may, instead of withdrawing from the proceeding, disclose on the
records 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
unsubstantial, the judge may then participate in the proceeding. The agreement, signed by all parties
and lawyers, shall be incorporated in the record of the proceeding.

FAILURE TO GET THE WRITTEN CONSENT OF THE PARTIES; EFFECT:

1. The judge is deprived of his authority to continue to hear and decide the case. It does not,
however, divest the court of jurisdiction. (Goetina v. Gonzales, 41 SCRA 66); or
2. A judge who continues to hear a case in which he is disqualified under any of those enumerated
grounds may be held administratively liable thereof, except where all parties concerned have
given their written consent thereto. (Evangelista v. Baes, 61 SCRA 476).

VOLUNTARY INHIBITION TO TRY A CASE

Villamor, jr. v. Manalastas, GR No. 171247, 22 July 2015

“Other than those mentioned in Section 1, Rule 137 of the Rules of Court and Section 5, Canon 3
of the New code of Judicial Conduct, a judge may, in the exercise of his sound discretion, disqualify
himself from sitting in a case, for just or valid reason. The issue of voluntary inhibition is primarily a
matter of conscience and sound discretion on the part of the judge based on his or her rational and
logical assessment of the case.”

WHEN SHOULD A JUDGE INHIBIT HIMSELF?

Pimentel v. Salanga, G.R. No. L-27934 (Resolution), September 18, 1967)

“A judge may not be legally prohibited from sitting in litigation. But when suggestion is made of record
that he might be induced to act in favor of one party or with bias or prejudice against a litigant arising
out of circumstances reasonably capable of inciting such a state of mind, he should conduct a careful
self-examination. He should exercise his discretion in a way that people’s faith in the courts of justice is
not impair.”

CLOSE PERSONAL FRIENDSHIP WITH ONE OF THE PARTIES

Santos v. Lacurom, A.M. No. RTJ-04-1823 (resolution), August 28, 2006.

Close personal relationship is not a ground for inhibition, as long as the friendly relation with a party-
litigant does not influence his official conduct as a judge. There must be convincing proof that the judge
gave undue privileges in his court to his close friend, or that his close friend benefited from his personal
relations with the judge, or the judge used his influence, if any, to favor his close friend.

NO. 7 WITHDRAWAL FROM CASE

CANON 22: A lawyer shall withdraw his services only for good cause and upon appropriate notice in the
circumstances.

Rule 22.01 – A lawyer may withdraw his services in any of the following cases:

1. When the client pursues an illegal or immoral course of conduct in connection with the matter
he is handling;
2. When the client insists that the lawyer pursue conduct violative of these canons and rules;
3. When his inability to work with co-counsel will not promote the best interest of the client;
 4. When the mental or physical condition of the lawyer renders it difficult for him to carry out the
employment effectively;
5. When the client deliberately fails to pay the fees for the services or fails to comply with the
retainer agreement;
6. When the lawyer is elected or appointed to public office; and
7. Other similar cases.

Although a lawyer may decline to accept a case except when designated as counsel de oficio and
although his client may dismiss him at any time, he lacks the unqualified right to withdraw once he has
taken one. (Rule 136, Sec. 26, ROC; Canon 44, Canon of Professional Ethics.). It has accordingly been
held that the right of an attorney to withdraw or terminate the relation other than for sufficient cause is
considerably restricted. Among the fundamental rules of ethics is the principle that an attorney who
undertakes to conduct an action impliedly stipulates to carry to it to its conclusion. He is not at liberty
to abandon it without reasonable cause. A lawyer’s right to withdraw from a case before its final
adjudication arises only from the client’s written consent or from the court’s approval of his petition to
withdraw based on good cause. (Orcino v. Gaspar, 87 SCAD 232, 279 SCRA 379 (1997)).

MAY A CLIENT TERMINATE ATTORNEY – CLIENT RELATIONSHIP AT WILL?

- Yes. The client has the right to terminate attorney-client relationship at any time with or
without just cause. Just cause is material only in determining just compensation. (Aro v.
Nanawa, G.R. No. L-24163, (1969).

RECOVERY OF FEE AFTER TERMINATION BY THE CLIENT

1. With just cause – Yes. The discharge of a lawyer does not necessarily deprive the lawyer of his
right to be paid for his services. He may only be deprived of such right if the cause of his
dismissal constitutes in itself a sufficient legal obstacle to recovery. (Agpalo, page 403)

LIMITATION TO CLIENT’S RIGHT TO DISCHARGE HIS COUNSEL

1. Client cannot deprive counsel of his right to be paid for services rendered if dismissal is without
cause;
2. Client cannot discharge counsel as an excuse to secure repeated extension of time; and
3. Notice of discharge is required as court and adverse party are concerned.

MAY A LAWYER RECOVER FEES IF TERMINATED WITHOUT JUST CAUSE?

It depends. The following rules must be observed.

1. If he is terminated without just cause and no express written agreement as to fees, he may
receive a reasonable value of his services up to the date of his dismissal (quantum meruit);
2. If he is terminated without just cause but there is a written agreement and the fee stipulated is
absolute and reasonable, he may receive the full payment of compensation;
3. If he terminated without just cause, and he is dismissed before the conclusion of the action, he
shall receive a reasonable value of his services (quantum meruit); and
4. If he is terminated without just cause due to a contingency of the client preventing its
occurrence, he shall receive the full amount of his services. (AGPALO, SUPRA AT 403).

RULE 22.02 – A lawyer who withdraws or is discharged shall, subject to a retainer lien, immediately turn
over all papers and property to which the client is entitled, and shall cooperate with his successor on the
orderly transfer of the matter, including all information necessary for the proper handling of the matter.

DUTIES OF DISCHARGED LAWYER OR ONE WHO WITHDRAWS FROM THE ENGAGEMENT

1. Immediately turn-over all papers and property to which the client is entitle; and
 2. Cooperate with his successor in the orderly transfer of the case. (FUNA, Legal and Judicial Ethics,
supra at 374)

NO. 8, STANDING IN COURT OF PERSONS AUTHORIZED TO APPEAR FOR THE GOVERNMENT

LAWYERS AUTHORIZED TO REPRESENT THE GOVERNMENT

Rule 138, Sec. 33, ROC. – The following are authorized to represent the government:

1. Solicitor general;
2. Assistant Solicitor General;
3. Solicitor and trial Attorney;
4. State Prosecutors or special counsel in the Department of Justice;
5. Provincial and City prosecutors and their assistants and other attorneys in other legal offices of
the Government (R.A. No. 10071); and
6. Also, any official or other person appointed or designated in accordance with law to appear for
the Government of the Philippines or any of its officials (Rule 138, Sec. 33, ROC).

Note: Such lawyers have all the rights of a duly authorized member of the bar to appear in any case in
which the government has interest, direct or indirect, in which such official is charged in his official
capacity. Common qualification is membership in the bar.

WHEN A GOVERNMENT POSITION REQUIRES THAT AN OFFICER BE A MEMBER OF THE BAR AND AT THE
SAME TIME SUCH OFFICER WAS SUSPENDED TO PRACTICE LAW, DOES IT MEAN THAT HE ALSO LOSES
THE RIGHT TO HOLD SUCH OFFICE FOR THE TIME DURING WHICH HE IS SUSPENDED?

- YES. When the court orders a lawyer suspended from the practice of law, the lawyer must
desist from performing all functions requiring the application of legal knowledge within the
period of suspension. This includes desisting from holding a position in the government
requiring the authority to practice law. (Lingan v. Caubaquib, A.C. no. 5377, June 30, 2014.)

DUTIES OF LAWYERS IN THE GOVERNMENT SERVICE IN THE DISCHARGE OF THEIR OFFICIAL TASKS.

1. The primary duty of a lawyer engaged in public prosecution is not to convict but to see that
justice is done. The suppression of facts or the concealment of witnesses capable of establishing
the innocence of the accused is highly reprehensible and is a cause for disciplinary action (CPR,
Rule 6.01);
2. A lawyer in the government service shall not use his public position to promote or advance his
private interests,, nor allow the latter to interfere with public duties (CPR, Rule 6.02); and
3. A lawyer shall not after leaving government service accept engagement or employment in
connection with any matter in which he had intervened while in said service (CPR, Rule 6.03).

NO. 9, GOVERNMENT LAWYERS AND PRIVATE PRACTICE

Rule 138, Section 35 ROC – No judge or other employees of the superior courts or of the Office of the
Solicitor General, shall engage in private practice as a member of the bar or give professional advice to
clients.

- Generally, the appointment or election of an attorney to a government office disqualifies him

from engaging in the private practice of law (Rule 138, Sec. 35, ROC.). The reason for the
disqualification is that a public office is a public trust, and a public officer or employee is obliged
to perform his duties with the highest degree of responsibility, integrity, loyalty and efficiency,
but also with exclusive fidelity. The disqualification is intended to preserve the public trust in a
public office, avoid conflict of interests or a possibility thereof, assure the people of impartiality
 in the performance of public functions and thereby promote the public welfare. (Omico Mining
& Industrial Corp. v. Vellejo, 63 SCRA 285 (1975).

PROHIBITION OR DISQUALIFICATION IMPOSED ON FORMER GOVERNMENT ATTORNEYS

CPR, Rule 6.03 – A lawyer shall not, after leaving government service, accept engagement or
employment in connection with any matter in which he had intervened while in said service.

LAWYERS WHO ARE PUBLIC OFFICIALS NOT ALLOWED TO PRACTICE LAW

Under Section 7 (b) (2) of RA 6713, otherwise known as, “An Act Establishing a Code of Conduct and
Ethical Standards for Public Officials and Employees”, in addition to acts and omissions of public officials
and employees which are already provided by the Constitution and existing laws, public officials and
employees during their incumbency, shall not engage in the private practice of their profession unless
authorized by the Constitution or law, provided that, such practice will not conflict or tend to conflict
with their official functions.

The professional concerned cannot practice his profession in connection with any matter before the
office he used to be with for a period of one (1) year after resignation, retirement, or separation from
public office.

FOR PURPOSE OF ASSESSING WHETHER THERE IS A VIOLATION OF THE RESTRICTION IMPOSED ON

PUBLIC OFFICIALS TO PRACTICE LAW, WHAT CONSTITUTES PRIVATE PRACTICE OF LAW?

- The practice of law by attorneys employed in the government, to fall within the prohibition of
statute has been interpreted as customarily or habitually holding one’s self out to the public, as
a lawyer and demanding payment for such services. The appearance as counsel on one
occasion, is no conclusive as determinative of engagement in the private practice of law. the
word private practice of law implies that one must have presented himself to be in the active
and continued practice of the legal profession and that his professional services are available to
the public for a compensation, as a source of his livelihood or in consideration of his said
services.
- The isolated appearance as a private prosecutor, previously authorized by his superior, of an
assistant city attorney in a criminal case for malicious mischief before a justice of the peace
court where the offended party is his relative, does not violate Section 35, Rule 138, of the Rules
of Court, which bars certain attorneys from practicing. (People v. Villanueva, G.R. no. L-19450,
May 27, 1965.)

NO. 10 AMICUS CURIAE

Rule 138, Section 36 – Experienced and impartial attorneys may be invited by the Court to appear as
amici curiae to help in the disposition of issues submitted to it.

AMICUS CURIAE

- Literally, it means, a friend of court. He is a person with strong interest in or views on the
subject matter of an action, but not a party to the action, and may petition the court for
permission to file a brief, ostensibly on behalf of a party but actually to suggest a rationale
consistent with its own views. (PINEDA, Legal Ethics Annotated, (2009), p. 10)

AMICUS CURIAE PAR EXCELLENCE

- It refers to bar associations who appear in court as amici curiae or friends of court. (PINEDA,
Legal Ethics, supra. At 10)

LEGAL BASIS FOR THE APPEARANCE OF AMICI CURIAE

Abundo v. Manio, Jr., A.M. No. RTJ-98-1416, August 6, 1999

- Section 36, Rule 138 of the Rules of Court provides that experienced and impartial attorneys
may be invited by the court to appear as amicus curiae to help in the disposition of issues
submitted to int.