In Partial Fulfillment of the Terms Required for the subject Problem Areas in Legal Ethics

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A Position Paper Is submitted

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By Sibayan, Maylyn P. Section III - A

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To Atty. Molly Abiog

22 February 2011

University of the Cordilleras COLLEGE OF LAW Problem Areas in Legal Ethics

WHETHER OR NOT A LAWYER WHO IS A RESPONDENT IN SEVERAL CIVIL AND CRIMINAL CASES CONSTITUTE IMMORALITY

The ethics of those associated with the legal system have always been suspect. The ability of lawyers to argue either side of an issue raises suspicion. Lawyers have always been associated with trouble, and the sociology of trouble
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tells

us that trouble is frequently the root of deviance, discord, and dismay. Durkheim, the founder of sociology, once said trouble has the same meaning as crime. Being in trouble or being around trouble does not mean lawyers are the same as criminals, but it is saying that the very nature of legal work may contain built-in "counterproductive incentives that work against the practice of ethical behavior since the practice of law frequently involves ethical dilemmas where there is conflict between obligations to one client and to the legal system and society. 2

From the onset, it is evident that one of the most persistent criticisms of a lawyers ethics is that lawyers are permitted or required to act in ways that they would not consider proper in their personal conduct. Thus, professional responsibility may require a lawyer to advise a husband who seeks custody of his children in an annulment of marriage proceeding to prove that the husband is more competent and very much able to support the children compared that of his wife who is jobless and adulterous. Such advice may hurt the husbands wife and children, a phenomenon which common morality may decree as immoral.

EMERSON & MESSINGER 1977 ZITRIN & LANGFORD 2000

The key point is that legal morality does not deviate from common morality. First, lawyers justify their action by appealing to a legal-related obligation; second, lawyers justify this obligation by showing that it is necessary to the legal profession; third, lawyers justify the legal profession by pointing to institutional context like the adversary system that gives rise to it; and fourth, lawyers demonstrate that the institution is a morally worthy one. Hence, lawyers can appeal to the social institution in which they operate under to defend their acts.

In conclusion, the lawyers contentious role that conflicts with the notion of common morality is professionalism incompatible with human decency. Lawyers rely upon a set of professional ethical standards that are integral to their definition of legal profession. The judiciary as well as the bar associations control entry into the legal profession, not only by testing knowledge of law, but by doing background checks. With this, the Code of Professional Responsibility had become the basis for ongoing training, or continuing legal education designed to discipline attorney misconduct. 

PREFATORY STATEMENT

In elucidating whether the lawyers conduct and notion of legal professional responsibility initiate divergence from common perceptions of morality, an essential starting point is to briefly explicate some form of understanding in relation to the moral values the lawyers conduct ostensibly subverts. In actual fact, providing a definitive answer which encapsulates the various perspectives espoused in relation to the notion of morality is a somewhat unfeasible task as the concept remains elusive.

Morality is defined by culture and religion. It is not an adjective designation unless one specifies the context. Regardless of what rule or code or behavior can be named, we can find culture or religion that praises it while others condemn it.

THE LEGAL PROFESSIONAL APPROACH TO ETHICS. www.yahoo.com/legalethics.htm

Nevertheless one feature has remained dogmatically constant throughout the various interpretations advocated and that is the importance of moral sense. It has been conveyed that moral duty is the action which will cause better to exist than any other possible alternative. 1

Similarly, it has been advocated that morality gives rise to an obligation to prevent that which is bad unless that would require the sacrifice of something of comparable moral significance. Hence, one is required to place himself in the shoes of others. Without this fundamental imaginative acknowledgment of others, one cannot begin to reason about what is morally right or wrong.

DISCUSSION OF BASIS OF ARGUMENT TO WARRANT THAT MERE EXISTENCE OF SEVERAL PENDING CIVIL AND CRIMINAL CASES AGAINST A LAWYER DOES NOT CONSTITUTE IMMORALITY

Lawyers are licensed to practice law by the highest court of the state, the Supreme Court. When they are sworn-in, all lawyers take an oath to uphold the laws of the Philippines and to be governed by the Code of Professional Responsibility which governs the conduct of lawyers and establishes a very high standard for them.

Canon 11 of the Code of Professional Responsibility states that: A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others. A lawyer is an officer of the Court. It is a lawyer's sworn and moral duty to help build and not unnecessarily destroy the peoples high esteem and regard for the courts. This is essential to the proper administration of justice.

ZITRIN & LANGFORD 2000

Most lawyers are reputable. They are trained to utilize every available legal avenue to resolve a client's case. Since the legal system and the attorney-client relationship are founded on trust, only a few lawyers ever betray that trust. When breaches occur, not only are the individual clients hurt by the lawyer's misconduct, but the entire legal system is damaged.

Thus, the best that can be done is to have a legal system that approximates justice by having structures or processes which uphold values of fairness, equity, and equality. The Supreme Court, as well as its disciplinary bodies knows that even if only a few lawyers engage in misconduct and immorality, it is their responsibility to resolve it in a manner that maintains the public trust and confidence in the judicial system. Unless a lawyer has violated the Code of Professional Responsibility, a lawyers reputation is likely to be protected. 1

ARGUMENTS

Criminal and civil cases are altogether different from administrative matters, and each must be disposed of according to the facts and the law applicable to it.

In Emmanuel Ymson Velasco v. Judge Adoracion G. Angeles, the Supreme Court ruled that an act unrelated to a judge's discharge of judicial functions may give rise to administrative liability even when such act constitutes a violation of penal law. When the issue is administrative liability, the quantum of proof required is only substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Evidence to support a conviction in a criminal case is not necessary, and the dismissal of the criminal case against the

DAVID DANDA. 2010 LAWYER MAGAZINE

respondent in an administrative case is not a ground for the dismissal of the administrative case. Conversely, conviction in the criminal case will not automatically warrant a finding of guilt in the administrative case. 1

In Nunez v. Atty. Arturo B. Astorga the Court held that the mere existence of pending criminal charge against the respondent lawyer cannot be a ground for disbarment or suspension of the latter. To hold otherwise would open the door to harassment of attorneys through the mere filing of numerous criminal cases against them. 2

By parity of reasoning, the fact of the existence of several civil and criminal cases against a lawyer does not necessarily warrant punishment. The existence of a presumption indicating the guilt of the accused lawyer does not in itself destroy the constitutional presumption of innocence unless the inculpating presumption, together with all the evidence, or the lack of any evidence or explanation, proves the accused lawyer's guilt beyond reasonable doubt. Until the accused lawyers guilt is shown in this manner, the presumption of innocence continues.

In Mangubat v. Sandiganbayan, the Supreme Court held that respondent Sandiganbayan did not act with grave abuse of discretion, correctible by certiorari, when it ruled that despite convictions, "Preagido has still in her favor the constitutional presumption of innocence x x x (and until) a promulgation of final conviction is made, this constitutional mandate prevails." The Supreme Court therein further held that such

RE: CONVICTION OF JUDGE ADORACION G. ANGELES, REGIONAL TRIAL COURT, BRANCH 121, CALOOCAN CITY IN CRIMINAL CASE NOS. Q-97-69655 to 56 FOR CHILD ABUSE A.M. No. 069-545-RTC January 31, 2008
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EDUARDO L. NUEZ, EUGENIO O. NUEZ, ELISA NUEZ-ALVARICO and IMELDA L. NUEZ vs. ATTY. ARTURO B. ASTORGA AC No. 6131 February 28, 2005

ruling is not bereft of legal or logical foundation and cannot, in any sense, be characterized as a whimsical or capricious exercise of judgment. 1

Moreover, it is established that any administrative complaint leveled against a lawyer must always be examined with a discriminating eye, for its consequential effects are, by their nature, highly penal, such that the respondent lawyer stands to face the sanction of dismissal or disbarment. The filing of criminal cases against lawyers may be used as tools to harass them and may in the long run create adverse consequences.

Prima facie evidence of the existence of several civil and criminal cases pending against a lawyer does not constitute immorality.

Lawyers are bound to maintain not only a high standard of legal proficiency, but also of morality, including honesty, integrity and fair dealing. Lawyers are at all times subject to the watchful public eye and community approbation.

While a lawyer admits the existence of various pending criminal and civil cases against him, he has yet to be convicted of any of them and is presumed innocent until otherwise proven. Such admission of a lawyer that there are various cases filed or pending against him does not ipso facto constitute serious misconduct. 1Neither does it constitute immorality.

Immoral conduct involves acts that are willful, flagrant, or shameless that shows a moral indifference to the opinion of the upright and respectable members of the community. On the other hand, immoral conduct is gross when it is so corrupt as to constitute a criminal act, or so unprincipled as to be reprehensible to a high degree, or

EDUARDO L. NUEZ, EUGENIO O. NUEZ, ELISA NUEZ-ALVARICO and IMELDA L. NUEZ vs. ATTY. ARTURO B. ASTORGA AC No. 6131 February 28, 2005

when committed under such scandalous or revolting circumstances as to shock the community's sense of decency. 1

The mere existence of various pending criminal and civil cases against a lawyer does not mean that it is contrary to honesty, justice, decency and morality and such is not a violation of the requirement of good moral character required by the Rules of Court.

CONCLUSION

There are situations that one person may find very annoying which do not constitute immorality. Lawyers are human. A mistake or an error in judgment is not immorality or considered unethical conduct. An honest disagreement about how a case should be handled or should have been handled does not constitute misconduct. Neither does a mistake. For example, a case's failed outcome does not mean that the lawyer violated the ethical standards. Since litigation is adversarial, by definition, many legal matters will not be resolved in a manner favorable to the losing party. Although a client may be dissatisfied with the outcome of his case, a complaint may not constitute grounds for disciplinary action.

Invariably, in any business enterprise, consumer problems can arise. It is of no difference for lawyers and the people they deal with. A lawyer's language may be forceful but should always be dignified; emphatic but respectful, as befitting an advocate. Arguments, whether written or oral, should be gracious to both court and

MAELOTISEA S. GARRIDO vs. ATTYS. ANGEL E. GARRIDO and ROMANA P. VALENCIA A.C. No. 6593 February 4, 2010

opposing counsel, and should use such language as may be properly addressed by one person to another.1

Moral character is not a subjective term but one that corresponds to objective reality. To have good moral character, a person must have the personal characteristics of being good. It is not enough that he or she has a good reputation, i.e., the opinion generally entertained about a person or the estimate in which he or she is held by the public in the place where she is known. The requirement of good moral character has four general purposes, namely: (1) to protect the public; (2) to protect the public image of lawyers; (3) to protect prospective clients; and (4) to protect errant lawyers from themselves. 2

Possession of good moral character is both a condition precedent and a continuing requirement to warrant admission to the bar and to retain membership in the legal profession. Admission to the bar does not preclude a subsequent judicial inquiry, upon proper complaint, into any question concerning the mental or moral fitness of the respondent before he became a lawyer. Admission to the practice only creates the rebuttable presumption that the applicant has all the qualifications to become a lawyer which may be refuted by clear and convincing evidence to the contrary even after admission to the Bar.

Admission to the practice of law is a component of the administration of justice and is a matter of public interest because it involves service to the public. The admission qualifications are also qualifications for the continued enjoyment of the privilege to practice law. Further, lack of qualifications or the violation of the standards

RE: CONVICTION OF JUDGE ADORACION G. ANGELES, REGIONAL TRIAL COURT, BRANCH 121, CALOOCAN CITY IN CRIMINAL CASE NOS. Q-97-69655 to 56 FOR CHILD ABUSE A.M. No. 069-545-RTC January 31, 2008
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MAELOTISEA S. GARRIDO vs. ATTYS. ANGEL E. GARRIDO and ROMANA P. VALENCIA A.C. No. 6593 February 4, 2010

for the practice of law, like criminal cases, is a matter of public concern that the State may inquire into through the Supreme Court.

Article VIII Section 5(5) of the Constitution recognizes the disciplinary authority of the Court over the members of the Bar to be merely incidental to the Court's exclusive power to admit applicants to the practice of law. Reinforcing the implementation of this constitutional authority is Section 27, Rule 138 of the Rules of Court which expressly states that a member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for, among others, any deceit, grossly immoral conduct, or violation of the oath that he is required to take before admission to the practice of law. 1

Nearly all lawyers are competent and respectable people who uphold their legal and professional obligations. However, lawyers sometimes make mistakes. In some cases, the problem between a lawyer and his or her client does not constitute a violation of ethical rules. However, the Supreme Court and its disciplinary bodies are anxious to see such conduct are corrected, and will generally suggest steps to the lawyer which he or she must take to correct that conduct and to prevent its recurrence.

The Supreme Court and its disciplinary body recognize that action should be taken to prevent unethical conduct and to restore confidence and trust when misconduct occurs. The purpose of lawyer discipline is to protect the public from future acts of immorality and professional misconduct and to establish and maintain high ethical standards in the legal profession. The lawyer discipline system is designed to protect the public by disciplining a lawyer if he or she violated the Code of Professional Responsibility. The purpose of the disciplinary procedure is to determine whether an ethical violation has occurred and, if so, what discipline should be imposed upon the

MAELOTISEA S. GARRIDO vs. ATTYS. ANGEL E. GARRIDO and ROMANA P. VALENCIA A.C. No. 6593 February 4, 2010

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lawyer. These procedures are designed to provide a thorough review of allegations of immorality and to resolve the matter in a way that is fair.

A lawyer may be disciplined only if any of the provisions governing the legal professional conduct have been violated. A lawyer who violates these standards of conduct may be disciplined and given penalties ranging from a private reprimand to permanent loss of the privilege to practice law or disbarment. However, disbarment and suspension of a lawyer are the most severe forms of disciplinary action; thus, they should be imposed with great caution. They should be meted out only for duly proven serious administrative charges. 1

A lawyer accused of immorality is adversely impacted whether or not he or she is ultimately found to have violated the Code of Professional Responsibility. More than a mere claim of alleged immorality because of the existence of several criminal and civil cases against a lawyer takes evidence --- legal proof to justify disciplinary penalties. Hence, regardless of any alleged crime, a lawyer is innocent until proven guilty and is entitled to the best defense available.

Prima facie evidence of professional misconduct does not constitute sufficient warranting the disbarment or suspension of a lawyer. In disciplinary proceedings against a member of the bar, clearly preponderant evidence is required to establish liability. Thus, whether a lawyers acts violated the ethical standards of the Philippine bar and constituted grounds for his disbarment or suspension in this jurisdiction must still be determined and established in a proper proceeding in which he may adduce evidence on his behalf. 2

EDUARDO L. NUEZ, EUGENIO O. NUEZ, ELISA NUEZ-ALVARICO and IMELDA L. NUEZ vs. ATTY. ARTURO B. ASTORGA AC No. 6131 February 28, 2005
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RE INFORMATION ON ATTY. JAIME VELASCO LOPEZ A.M.NO. 07-4-11 SC, August 05, 2008

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Without clear and convincing evidence that a lawyer committed acts that allegedly constituted serious misconduct, the mere existence of pending criminal charges cannot be a ground for disbarment or suspension of respondent lawyers. To hold otherwise would open the door to harassment of attorneys through the mere filing of numerous criminal cases against them. 1

EDUARDO L. NUEZ, EUGENIO O. NUEZ, ELISA NUEZ-ALVARICO and IMELDA L. NUEZ vs. ATTY. ARTURO B. ASTORGA AC No. 6131 February 28, 2005

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