Elliston Article

Ethics should function as the core of a lawyer's practice.

Lawyers must exercise their moral conscience as well as their technical skills.

-professional ethics explores the philosophical study of the moral problems that arise within a
profession.
-professional ethics articulates a set of ethical principles that systematically resolves the moral problems
professionals face.

four traits characterize a profession:

-a specialized body of knowledge;
-a commitment to the social good;
-an ability to regulate itself;
-and high social status.

With the professional's specialized knowledge comes power.

The public requires that the power be used for the social good.

mechanism for self-regulation:

ex: Lawyers have an ethical standard, the Model Code of Professional Responsibility 5 ("Model Code"),
whereby the profession itself may discipline its members.

What is the relationship between ethics and professionalism?

To be a professional requires professional ethics and a failure to master the skills of professional ethics
signals a failure to be a professional.

Four purposes of teaching ethics:

1. teaching ethics can raise one's moral consciousness
-Sensitizing people to the language of morals makes them aware of a moral point of view different from
a prudential, aesthetic, epistemological or political view

2. Closely related to this first objective is a second: values clarification. Defining good-bad or right-wrong
also clarifies what it means, in practical terms, to be a good doctor or good lawyer.

3. A third task in teaching ethics is the analysis of moral arguments.

4. teaching ethics may serve to provide solutions to moral problems and teach these solutions as moral
lessons.

-Just as medicine requires a careful understanding of the nature of health, law requires a careful
understanding of the nature of justice.
-Just as the doctor has techniques for securing health, the lawyer has techniques for securing justice.

The criminal justice system serves different purposes.

It has are habilitative function: to teach criminals to mend their ways.
It has a retribution function: to maintain respect for the law and to suppress acts of private vengeance.
It has a preventative function: to deter the criminal himself from committing further crimes.
It has a general deterrence function: to dissuade others from committing future crimes.
-The problems of acting justly in an often unjust and imperfect society have been compounded by
questions of the moral responsibility of lawyers for ensuring that decisions are made on the basis of
facts. -Lawyers must grapple with their duty to represent clients zealously within the bounds of the law.
-Lawyers must carefully weigh the strength of their allegiance to their client, to their code of
professional conduct and to the public.

The study of ethics shows professionals how to appraise these arguments against the canons of
consistency, coherence, validity and soundness.

Professionals seek the social good. Doing so requires the ability to identify the social good.
-The lawyer seeks it in the form of justice.

Moral considerations limit the means that professionals can use to achieve the social good.
Ex: Lawyers who conceal evidence that would incriminate an innocent client use bad means to a good
end, and jeopardize their standing as an agent of the court

-Thus, morality imposes restrictions not only on the ends that are sought, but on the ways in which we
pursue those ends.
-Whether or not one accepts these examples, some restrictions are to be imposed on the means that
lawyers can use in the pursuit of justice

it is not necessary to be a morally good person in order to be a good lawyer.

if high moral standards are a hindrance in the practice of law, then moral fitness tests and morality
generally are pointless.

That a good lawyer is sometimes immoral.

That a good lawyer is amoral.

Amoral- having or showing no concern about whether behavior is morally right or wrong

From Allan Goldman:- lawyers are not immoral or amoral; it would be permissible and sometimes
obligatory for lawyers to do things which if others did them would be suspect or even wrong.
-moral principles must be worked out within the context of a professional role

2 types of roles:
1. A strongly differentiated professional role requires unique and distinctive moral principles, different
from those of morality generally.- actions which would otherwise be wrong could, for a certain
profession, be permissible or obligatory.
Ex: it is ordinarily wrong to deceive people. But undercover police officers regularly deceive suspects
whom they believe have accepted illegal bribes or serve as fences for stolen property.
2. A weakly differentiated professional role only requires general moral principles that are qualified, but
not violated, by the institutional context.

From Monroe Freedman

-a lawyer must put his client on the stand knowing that the client intends to commit perjury
-required to facilitate his client's lying.
that the legal profession itself defends actions ordinarily judged wrong. Legal scholars continue to
challenge the principle that one must be a good person - in the ordinary moral sense - in order to be a
good lawyer.

two constraints on what lawyers can do:

1. what the criminal law prohibits: a lawyer is not morally justified in violating the criminal law in zealous
pursuit of a client's interest.
2. what the legal practice as a business requires: a lawyer cannot do what, if generally done, would
undermine the practice of law as a business.

For example, the basic principle that regulates lawyers' conduct is the injunction to represent their
clients' interests zealously within the limits of the law.50 However one quibbles over the qualification
"zealously," the point remains that the primary determinant of a lawyer's action is supposed to be the
interests of the client and the two primary constraints on a lawyer's action are what the criminal law
prohibits and what the business practice of law requires.

Beyond these constraints, morality is supposed to be neither a determinant nor a limit on a lawyer's
conduct. If it is legal and will help a client, a lawyer is obliged to do it. If it is legal and immoral but will
help a client, a lawyer is still supposed to do it. In this view, the lawyer is an agent of the client, and in
pursuing
the client's interests morality is to play no role.

we can treat lawyers as mere tools of their clients: their actions are no so much immoral as amoral.

But in their professional capacity as representatives of their clients' legal interests - which is one
distinction between lawyers and business people - morality would play no role.

Two solutions:
1. The first is to abandon the demand that lawyers be moral persons in representing their clients. But
this solution comes at a very high price, one that most would not be willing to pay. It requires that
lawyers surrender their claim to professional status. They must concede that they are no more than
technicians servicing the legal interests of clients.
2. The second solution is to recognize the centrality of ethics to the practice of law, and to make a
concerted effort to develop the conscience of the lawyer. It requires that we create and protect a sphere
of moral autonomy within which lawyers can exercise their ethical skills. It will require that lawyers align
themselves more with the courts and their peers and less with their clients.

Lawyers are not to be treated as technicians trained in the martial arts of legal combat, but professionals
regularly called upon to exercise their capacity for independent moral judgment.
Insofar as lawyers are to function as moral agents, they must have the correct moral beliefs to guide
their professional judgment.

This article has argued that ethics is essential to the practice of law insofar as lawyers are professionals.
without it, the practice of law is not truly a profession.
Gozon Article
What distinguishes a profession from the rest of human endeavor is the supposed observance of the
members of a particular profession of the tenets of professional ethics peculiar to the said profession.

The code of ethics of a given profession distinguishes the profession from the ordinary money making
activities peculiar to merchants.

If the law profession has to remain an honorable calling it is imperative that “those enrolled in its rank
should not master its tenets and principles but should also, by their lives, accord continuing fidelity to
them.

-the ethical tenets are not supposed to be interpreted by its literal meaning alone because the ethical
principles in the ethics of the profession are living social institutions. They should not be construed
according to the letter that killeth but by the spirit that giveth life.
-The ethics does not cultivate the mind, the ethics seeks to cultivate the heart of the members of the
profession.
The study of legal ethics requires both the heart and the mind. Because without the heart it would be
next to impossible to imbibe the ethics and without the mind it would mean blind obedience to the
ethics of the profession.

Background of the study- a brief overview of the foundation ethics in general, and to rekindle the
“magic” we felt in our hearts…

Ethics is defined as the practical science of morality of human conduct.

-It is a science because it consists of relatively complete and systematically arranged body of interrelated
data together with causes or reasons by which these data are known to be true.
-“the study of the right and good, i.e., right conduct in the affairs of human life, and the pursuit of good
life.

Ethics is a practical science since it provides guidelines for thought or a blue print for a course of action
-a practical science gives us knowledge with definite guidance.
vs. speculative science- A speculative science enlarges our knowledge and enhances our cultural
equipment

-Legal and Judicial Ethics collectively is a practical science because the precepts of the subject are
actually rules of conduct supposed to be observed by the members of the legal profession in the
exercise or practice of the profession inclusive of the members of the profession who are “sitting on
bench” as judges or justices, hence the subject Legal and Judicial Ethics.

“The ethics of certain profession is the code by which it regulates actions and sets standards for its
members. The professional code attempts to assure higher standards of competence in a given field,
strengthen the relationships among its members, and promote the welfare of the whole community.
Integral parts and parcels of Legal and Judicial Ethics:
-The Code of Professional Responsibility,
-The Canons of Professional Ethics,
-Canons of Judicial Ethics,
-Code of Judicial Conduct
-Rules of Mandatory Continuing Legal Education (MCLE),
-Rules 137, 138, 138-A,139-A, 139-B, 140 of the Rules of Court
-Attorney’s oath of office (Form 28, Judicial Standard Form, under Rule 144 of the
Rules of Court)

Philippine Bar Association (PBA) - voluntary organization of Filipino Lawyers

Integrated Bar of the Philippines (IBP)- membership thereto is mandatory for all lawyers who are
admitted to the bar by the Philippine Supreme Court

The law is not a trade nor a craft but a profession. Its basic ideal is to render public service and secure
justice for those who seek its aid.

“If we are to speak the law as our mistress we who are here know that she is a mistress only to be
wooed with sustained and lonely passion only to be won by straining all the faculties by which man is
likest to a god…”--- Justice Oliver Wendell Holmes

Semper fidelis- always faithful; ALWAYS FAITHFUL TO THE OATH AND ETHICS OF THE PROFESSION OF
LAW.

Importance of the Law Profession

In the Philippines, where the stability of courts and of all departments of government rests upon the
approval of the people. x x x. The future of the republic, to a great extent, depends upon our
maintenance of justice pure and unsullied. It cannot be so maintained unless the conduct and the
motives of the members of our profession [legal profession] are such as to merit the approval of all just
men.
(Preamble to the Code of Professional Ethics, adopted by the PBA from the Canons of the ABA)

A member of the Philippine Bar is also known as “lawyer”, attorney at law”, “attorney”, “abogado”,
“counselor at law’, “counsel”, “manananggol”, sometimes the lawyer is referred to as “mambabatas”.
The prefixes “Atty.”, “Abgd.”, “Mggl.” are used

Admitted to the Bar vis a vis Called to the Bar

In the Philippines when an individual is licensed to practice law that licensed individual is being referred
to as one who is “admitted to the bar”.
-privilege to appear in courts of the Philippines as an attorney and counsellor at law, from the highest
court of the land down to the lowest court, including administrative bodies exercising quasi judicial
function.

In the English Legal System an individual who is licensed to practice law is being referred to as one who
is “called to the bar”.
-“split profession” as distinguish from “fused Profession”, lawyers are classified basically into 2
categories:
Solicitor and Barrister
-The solicitor cannot appear before the superior court; the solicitor is an assistant to the barrister.
-The barrister is a superior class of lawyers via a vis the solicitor; not trained in the university school of
Law

-an attorney, who alone enjoys such privilege, owes duties not only to his client but also to the court, to
his brethren in the profession and to the public, and takes part in one of the most important functions of
the state,

The interest of the public requires that the function be faithfully discharged and rendered only by those
who are qualified, fit and honest and who possess good moral character

“A JUDGE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY and x x x SHOULD
AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES.” (Canons 1and 2 of the
Code of Judicial Conduct)

The Supreme Court en banc has the power to discipline judges of the lower courts, or order their
dismissal by a vote of majority of the members of the Supreme Court who actually took part in the
deliberations on the issues in the case and voted thereon.

Term of Office of Judges

-hold office during good behavior until they reach the compulsory retirement age of 70 or even prior
thereto the judge shall cease to hold office when he becomes incapacitated to discharge the duties of
the office of the judge (see Art. VIII, Sec. 11, 1987 Constitution)
-The Supreme Court promulgated Rule 140 of the Rules of Court to provide for the mechanism,
procedures and grounds for the removal of or disciplining judges.
-The said rule, however, does not apply to the members of the Supreme Court because the members of
the Supreme Court are removable from office, like the President…via the grounds for impeachment are
culpable violation of the Constitution, treason, bribery, other high crimes and betrayal of public trust
(see Art. XI, Sec. 2, 1987 Constitution).

RULE 140
DISCIPLINE OF JUDGES OF REGULAR AND SPECIAL COURTS AND JUSTICES OF THE COURT OF APPEALS
AND THE SANDIGANBAYAN

SECTION 1. How instituted. – Proceedings for the discipline of Judges of regular and special courts and
Justices of the Court of Appeals and the Sandiganbayan may be instituted motu proprio by the Supreme
Court or upon a verified complaint, supported by affidavits of persons who have personal knowledge of
the facts alleged therein or by documents which may substantiate said allegations, or upon an
anonymous complaint, supported by public records of indubitable integrity. The complaint shall be in
writing and shall state clearly and concisely the acts and omissions constituting violations of standards of
conduct prescribed for Judges by law, the Rules of Court, or the Code of Judicial Conduct.

SEC. 2. Action on the complaint . – If the complaint is sufficient in form and substance, a copy thereof
shall be served upon the respondent, and he shall be require to comment within ten (10) days from the
date of service. Otherwise, the same shall be dismissed.
SEC. 3. By whom complaint investigated. – Upon the filing of the respondent’s comment, or upon the
expiration of the time for filing the same and unless other pleadings or documents are required, the
Court shall refer the matter to the Office of the Court Administrator for evaluation, report and
recommendation or assign the case for investigation, report, and recommendation to a retired member
of the Supreme Court, if the respondent is a Justice of the Court of Appeals and the Sandiganbayan, or
to a Justice of the Court of Appeals, if the respondent is a judge of a Regular Trial Court or of a special
court of equivalent rank, or to a judge of the Regional Trial Court if the respondent is a Judge or an
inferior court.

SEC. 4. Hearing . – The investigating Justice or Judge shall set a day for the hearing and send notice
thereof to both parties. At such hearing, the parties may present oral and documentary evidence. If,
after due notice, the respondent fails to appear, the investigation shall proceed ex parte. The
Investigating Justice or Judge shall terminate the investigation within ninety (90) days from the date of
its commencement or within such extension as the Supreme Court may grant.

SEC. 5. Report . – Within thirty (30) days from the termination of the investigation, the investigating
Justice or Judge shall submit to the Supreme Court a report containing findings of fact and
recommendation. The report shall be accompanied by the record containing the evidence and the
pleadings filed by the parties. The report shall be confidential and shall be for exclusive use of the Court.

SEC. 6. Action. – The Court shall take such action on the report as the facts and the law may warrant.

SEC. 7. Classification of charges. – Administrative charges are classified as serious, less serious, or light.

SEC. 8. Serious charges. – Serious charges include:

1. Bribery, direct or indirect;
2. Dishonesty and violations of the Anti-Grant and Corrupt Practices Law (R.A. No. 3019).
3. Gross misconduct constituting violations of the Code of Judicial Conduct;
4. Knowingly rendering an unjust judgment or order as determined by a competent court in an
appropriate proceeding;
5. Conviction of a crime involving moral turpitude;
6. Willful failure to pay a just debt;
7. Borrowing money or property from lawyers and litigants in a case pending before the court;
8. Immorality;
9. Gross ignorance of the law or procedure;
10. Partisan political activities; and
11. Alcoholism and/or vicious habits.

SEC. 9. Less serious charges. – Less serious charges include:

1. Undue delay in rendering a decision or order, or in transmitting the records of a case;
2. Frequent and unjustified absences without leave or habitual tardiness;
3. Unauthorized practice of law;
4. Violation of Supreme Court rules, directive, and circulars;
5. Receiving additional or double compensation unless specificallyauthorized by law;
6. Untruthful statements in the certificate of service; and
7. Simple misconduct.

SEC. 10. Light charges. – Light charges include:

1. Vulgar and unbecoming conduct;
2. Gambling in public;
3. Fraternizing with lawyers and litigants with pending case/cases in his court; and
4. Undue delay in the submission of monthly reports.

SEC. 11. Sanctions. –

A. If the respondent is guilty of a serious charge, any of the following sanctions may be imposed:

1. Dismissal from the service, forfeiture of all or part of the benefits as this Court may determine, and
disqualification from reinstatement or appointment to any public office, including government-owned or
controlled corporations; Provided, however, That the forfeiture of benefits shall in no case include
accrued leave credits.

2. Suspension from office without salary and other benefits for more than three (3) but no exceeding six
(6) months; or

3. A fine of more than P20,000.00 but not exceeding P40,000.00.

B. If the respondent is guilty of a less serious charge, any of the

following sanctions shall be imposed:

1. Suspension from office without salary and other benefits for not less than one (1) nor more than three
(3) months; or

2. A fine of more than P10,000.00 but not exceeding P20,000.00.

C. If the respondent is guilty of a light charge, any of the following sanctions shall be imposed:

1. A fine of nor less than P1,000.00 but not exceeding P10,000.00; and/or
2. Censure;
3. Reprimand;
4. Admonition with warning.

SEC. 12. Confidentiality of proceedings. – Proceedings against Judges of regular and special courts and
Justices of the Court of Appeals and the Sandiganbayan shall be private and confidential, but a copy of
the decision or resolution of the Court shall be attached to the record of the respondent in the Office of
the Court Administrator.

-The legal training in the law school emphasizes the importance of the bar examination
-profession without ethics is just the same as the run off the mill activity
-success in the profession is and should always be measured by the way a lawyer adheres to the ethics
of the profession and not on the accumulation of material things.
-The development of the mind and the heart of future lawyers is a solemn duty of every legal educator
worth his salt because the future votaries of the law draw inspiration from their mentors as their role
model.

“Man made law governs inferior men but moral law governs superior men”
Shaffer Article

-ethics is thinking about morals.

-Legal ethics is thinking about the morals of someone else. It is concern with the goodness of someone
else.
-Legal ethics is thinking about my client's morals, but I am the one who is thinking.

What should I want for my client?

1. I should want my client to be right.
It is the duty of counsel to be the keeper of the conscience of the client; not to suffer him, through the
influence of his feelings or interest to do or say anything wrong in itself, of which he would afterward
repent.

The attorney's office does not destroy the man's accountability to the Creator, or loosen the duty of
obedience to law and the obligation to his neighbor; and it does not permit, much less demand ... any
manner of fraud or chicanery, for the client's sake,

Republican legal ethics says that what is important is that the client do the right thing, and that it is the
lawyer's job to see to it that his client does the right thing.

2. I should want my client to be free.

Client will be free if I serve him well, be informed.
-He will be empowered to act autonomously.
-My client will himself, make law; he will, alone, be his own ruler.
“by counseling clients candidly and fully regarding the clients' legal rights and moral responsibilities as
the lawyer perceives them, and by assisting clients to carry out their lawful decisions.

Autonomy-the right or condition of self-government.

"One's moral responsibility will ... vary depending, among other things, upon whether one has
undertaken special obligations ....

-the highest good of a human person is that he be free. That he be autonomous. That he live according
to moral principles that are his own, not his lawyer's.

The ethics of autonomy leave human context out of account

In terms of social ethics, autonomy is often seen as a guarantor of diversity in the community
-autonomy guarantees that we are not all alike; if each of us rules himself, we will be different from one
another, and our strength lies in our difference.

-what we want in our lawyers, and from our lawyers, is not the free individual but the wise individual
The meaning of the legal ethics of autonomy is that lawyers should not be moral influences on their
clients.

Lawyers should counsel their clients "regarding ... moral responsibilities as the lawyer perceives them---
Freedman
The other choice is to call them up and point out the error. That way, you are the good guy, and maybe
we can put our future relationship with them on a higher plane by setting the example.

Conditional advice-moral advice-fraternal correction-is no good unless integrity is understood. In fact, it

is not even moral advice unless integrity is understood, since moral advice depends on character and on
the perception, in the person seeking the advice, that the advisor is a person of character.

3. I should want my client to be good.

The problem with the legal ethics of rectitude was that it seemed not to understand that moral advice is
not good unless it is open to influence from the client; he who counsels his sister must be prepared to
be counseled in turn.
-…he may have some wisdom for me; it also means that he is capable of being and of becoming a good
person, and is therefore worth my giving him moral advice.

Integrity means that the lawyer has moral limits.

Because the lawyer is good, her advice is worth having, and worth giving. Its being worth having and
worth giving is a function of her character.

We heed the moral advice of a good person because the person who gives it is good. This is as true of
social ethics-of political leadership-as it is of professional ethics.