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San Beda College of Law

MEMORY AID IN LEGAL ETHICS AND PRACTICAL EXERCISES

I. LEGAL ETHICS

PRELIMINARY MATTERS

Legal Ethics – branch of moral science which treats of the duties which an attorney owes to the court, to his client, to his colleagues in the profession and to the public. - It is the embodiment of all principles of morality and refinement that should govern the conduct of every member of the bar.

PRIMARY CHARACTERISTICS WHICH DISTINGUISH THE LEGAL PROFESSION FROM BUSINESS

1. A duty of public service

2. A relation, as an “officer of the court”, to the administration of justice involving thorough sincerity, integrity and reliability

3. A relation to clients with the highest degree of fiduciary

4. A relation to the colleagues at the bar characterized by candor, fairness and unwillingness to resort to current business methods of advertising and encroachment on their practice, or dealing directly with their clients.

PRACTICE OF LAW

CASE: Any activity in or out of court which requires the application of law, legal principle, practice or procedure and calls for legal knowledge, training and experience. (Cayetano vs Monsod, 201 SCRA 210) Strictly speaking, the word practice of law implies the customary or habitual holding of oneself to the public as a lawyer and demanding compensation for his services. [People vs. Villanueva 14 SCRA 111]

ESSENTIAL CRITERIA DETERMINATIVE OF ENGAGING IN THE PRACTICE OF

ESSENTIAL CRITERIA DETERMINATIVE OF ENGAGING IN THE PRACTICE OF

LAW: (HACA)

ESSENTIAL CRITERIA DETERMINATIVE OF ENGAGING IN THE PRACTICE OF LAW: (HACA)

1. Habituality- implies

customarily or habitually holding oneself out to the public as a lawyer

2. Compensation- implies

that one must have presented

himself to be in the active practice and that his professional services are available to the public for compensation, as a

in

source of his livelihood

consideration of his said services.

3. Application of law, legal

principle, practice, or

procedure which calls for legal knowledge, training and experience

or

4.

Attorney

client

relationship

 

PRIVATE PRACTICE

Private

practice

is more

than an

isolated appearance for it consists of frequent or customary actions, a succession of acts of the same kind.

NOTE: An isolated appearance does not amount to practice of law of a public officer if allowed by his superior in exceptional cases.

NOTE: The

natural, property or constitutional right but a mere privilege. It is not a right granted to any one who demands it but a privilege to be extended or withheld in the exercise of sound judicial discretion. It is in the nature of a franchise conferred only for merit which must be earned by hard study, learning and good conduct. It is a privilege accorded only to those who measure up to certain rigid standards of mental and moral fitness. Those standards are neither dispensed with nor lowered after admission. The attorney’s continued enjoyment of the privilege conferred depends upon his

a

practice

of

law

is

not

LEGAL ETHICS AND PRACTICAL EXERCISES COMMITTEE

L EGAL E THICS AND P RACTICAL E XERCISES C OMMITTEE
not L EGAL E THICS AND P RACTICAL E XERCISES C OMMITTEE  C HAIRPERSON :

CHAIRPERSON: Jackie Lou Bautista ASSISTANT CHAIRPERSON: Catherine Jane Vanilla SUBJECT HEADS: Ma. Ricasion Tugadi (Legal Ethics), Mary Wendy Duran(Practical Exercises) EDP: Raphy Espiritu MEMBERS: John Dale Balinan, Malou Barrios, Catherine Bool-Nuňez, Melanie Caparas, Kristian Cristobal, Remegio Dayandayan, Jr., Gerald dela Cruz, Donna Dumpit, JB Roselle Gayona, Rhea Mangubat, Joyce Marie Marquez, Rowena Mutia, Maan Salada, Melamy Salvadora, Vin- Kristine Ventura

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2005 CENTRALIZED BAR OPERATIONS

2 2005 C ENTRALIZED B AR O PERATIONS complying with the ethics and rules of 333the

complying with the ethics and rules of 333the profession. But practice of law is in the nature of a right. While the practice of law is a privilege, a lawyer cannot be prevented from practicing law except for valid reasons, the practice of law not being a matter of state’s grace or favor. He holds office during good behavior and can only be deprived of it for misconduct ascertained and declared by judgment of the Supreme Court after opportunity to be heard has been afforded him. The state cannot exclude an attorney from the practice of law in a manner or for reasons that contravene the due process or equal protection clause of the Constitution.

POWER TO REGULATE THE PRACTICE OF LAW

CASES: The Constitution [Art. VIII, Sec. 5(5)] vests this power of control and regulation in the Supreme Court. The constitutional power to admit candidates to the legal profession is a judicial function and involves the exercise of discretion. Petition to that end is filed with the Supreme Court as are other

proceedings invoking judicial function [In re: Almacen 31 SCRA 562] The SC acts through a Bar Examination Committee in the exercise of its judicial function to admit candidates to the legal profession. Thus, the Committee is composed of a member of the Court who acts as Chairman and 8 members of the bar who acts as examiners in the 8 bar subjects with one subject assigned to each. [In re Lanuevo, 66 SCRA 245] The power of the SC to regulate the practice of law includes the authority to:

1. Define the term

2. Prescribe the qualifications of a candidate to and the subjects of the bar examinations

3. Decide who will be admitted to practice

4. Discipline, suspend or disbar any unfit and unworthy member of the bar

5. Reinstate any disbarred or indefinitely suspended attorney

6. Ordain the integration of the Philippine Bar

7. Punish for contempt any person for unauthorized practice of law

8. Exercise overall supervision of the legal profession

9. Exercise any other power as may be necessary to elevate the standards of the bar and preserve its integrity.

On the other hand, the LEGISLATURE, in the exercise of its POLICE POWER may, however, enact laws regulating the practice of law to protect the public and promote the public welfare. But the legislature MAY NOT pass a law that will control the SC in the performance of its function to decide who may enjoy the privilege of practicing law and any law of that kind is unconstitutional as an invalid exercise of legislative power.

WHO MAY PRACTICE LAW?

person heretofore duly

admitted as a member of the bar, or hereafter admitted as such in

accordance with the provisions of this

in

standing, is entitled to practice law. [Sec. 1, Rule 138]

rule, and who

good and regular

Any

is

REQUIREMENTS BEFORE CANDIDATE CAN ENGAGE

IN

A

THE

PRACTICE OF LAW

 

I.

He must have been admitted to the

Bar

a. Furnishing satisfactory proof of educational, moral and other qualification;

b. Passing the bar

c. Taking the Lawyer’s Oath before the SC A lawyer’s oath signifies that the lawyer in taking such an oath accepts and affirms his ethical obligations in the performance of his duties as a lawyer and signifies likewise his awareness of his responsibilities that he

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San Beda College of Law

MEMORY AID IN LEGAL ETHICS AND PRACTICAL EXERCISES

assumes by his admission to the legal profession.

d. Signing the Attorney’s Roll and

receiving from the Clerk of Court of the SC a Certificate of the license to practice II. After his admission to the bar, a lawyer must remain in good and regular standing, which is a continuing

requirement for the practice of law. He must:

a. Remain a member of the IBP (membership therein by every attorney is made compulsory);

b. Regularly pay all IBP membership dues and other lawful assessments, as well as the annual privilege tax;

c. Faithfully observe the rules and ethics of the legal profession; and

d. Be continually subject to judicial disciplinary control.

BASIC

REQUIREMENTS

FOR

ADMISSION TO THE BAR

 

Under Section 2, 5 and 6, Rule 138, the applicant must be:

the

1. Citizen

of

Philippines;

2. At least 21 years of age;

3. Of good moral character;

(Note:

requirement.)

4. Resident

This

is

a

continuing

of

the

Philippines;

5. Must produce before the

SC satisfactory evidence of good

moral character;

6. No charges against him,

involving moral turpitude, have been filed or are pending in any

court in the Phil.

[Sec. 2, Rule

138];

7.

Must have complied with

the academic requirements;

8. Pass

the

bar

examinations.

Moral Turpitude – imports an act of baseness, vileness or depravity in the duties which one person owes to another or to society in general which is contrary to the usually accepted and customary

rule of right and duty which a person should follow.

ACADEMIC REQUIREMENTS FOR THE

ACADEMIC REQUIREMENTS FOR THE

CANDIDATES

ACADEMIC REQUIREMENTS FOR THE CANDIDATES

1. Must have already

earned a Bachelor’s Degree in Arts or Sciences (Pre-law)

2. Law Course – completed

courses in Civil Law, Commercial Law, Remedial Law, Criminal Law, Public and International Law, Political Law, Labor and Social Legislation, Medical Jurisprudence, Taxation, Legal Ethics. [Sec. 5 and 6, Rule 138]

APPEARANCE OF NON-LAWYER IN
APPEARANCE OF NON-LAWYER IN

APPEARANCE OF NON-LAWYER IN

APPEARANCE OF NON-LAWYER IN COURT

COURT

APPEARANCE OF NON-LAWYER IN COURT

MAY A NON-LAWYER APPEAR IN COURT? General Rule: Only those who are licensed to practice law can appear and handle cases in court.

Exceptions:

1. Before the MTC - a party may conduct his case or litigation in person with the aid of an agent or friend appointed by him. [Sec. 34, Rule 138]

2. Before any court – a party may conduct his litigation personally. But he gets someone to aid him and that someone must be an authorized member of the Bar [Sec. 34, Rule 138]. He is bound by the same rules in conducting the trial of his case. He cannot, after judgment, claim that he was not properly represented.

3. In a criminal case before the MTC – in a locality where a duly licensed member of the Bar is not available, the judge may appoint a non-lawyer who is a resident of that province, of good repute for probity and ability to the accused in his defense. [Sec. 7, Rule 116]

4. Student Practice Rule - A law student who has successfully completed his 3 rd year of the regular 4-year prescribed law curriculum and is enrolled in a recognized law

LEGAL ETHICS AND PRACTICAL EXERCISES COMMITTEE

L EGAL E THICS AND P RACTICAL E XERCISES C OMMITTEE
law L EGAL E THICS AND P RACTICAL E XERCISES C OMMITTEE  C HAIRPERSON :

CHAIRPERSON: Jackie Lou Bautista ASSISTANT CHAIRPERSON: Catherine Jane Vanilla SUBJECT HEADS: Ma. Ricasion Tugadi (Legal Ethics), Mary Wendy Duran(Practical Exercises) EDP: Raphy Espiritu MEMBERS: John Dale Balinan, Malou Barrios, Catherine Bool-Nuňez, Melanie Caparas, Kristian Cristobal, Remegio Dayandayan, Jr., Gerald dela Cruz, Donna Dumpit, JB Roselle Gayona, Rhea Mangubat, Joyce Marie Marquez, Rowena Mutia, Maan Salada, Melamy Salvadora, Vin- Kristine Ventura

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2005 CENTRALIZED BAR OPERATIONS

4 2005 C ENTRALIZED B AR O PERATIONS
 
 

school’s clinical legal education program approved by the SC – may appear without compensation in any civil, criminal or administrative case before any trial court, tribunal, board or officer, to represent indigent clients accepted by the Legal Clinic of the school. [Sec. 1, Rule 138-A] The student shall be under the direct supervision and control of a member of the IBP duly accredited by the law school. [Sec.

2]

Under the Labor Code – non-lawyers may appear before the NLRC or any Labor Arbiter if they (a) represent themselves; (b) represent their organization or members thereof [Art. 222, PD 442]

A non-lawyer may represent a claimant before the Cadastral Court [Sec. 9, Act. No. 2259]

licensed member of the bar, except in the municipal trial court where it may be represented by its agent or officer who need not be a lawyer.

PARTNERSHIP WITH NON-LAWYERS VOID In the formation of partnership for the practice of law, no person should be admitted or held out as a practitioner or member who is not a member of the legal profession duly authorized to practice, and amenable to professional discipline.

PRACTICE BY CORPORATION It is well settled that a corporation CANNOT engage in the practice of law. It may, however, hire an attorney to attend to and conduct its own legal business or affairs. But it

5.

6.

7.

Any person appointed to appear for the government of the Philippines in accordance with law [Sec. 33, Rule

138]

cannot practice law directly or indirectly by employing a lawyer to practice for it or to appear for others for its benefit. Reasons:

LIMITATIONS ON APPEARANCE OF NON- LAWYERS BEFORE THE COURTS

1. He should confine his work to non-adversary contentions. He should not undertake purely legal work, such as the examination or cross- examination of witnesses, or the presentation of evidence.

2. Services should not be habitually rendered.

collect

3. Should

fees.

not

charge

or

attorney’s

Binalbagan Isabela Sugar Co. 42 SCRA 302]

[PAFLU

vs.

RIGHT OF PARTY TO REPRESENT HIMSELF Civil Cases: An individual litigant has the right to conduct his litigation personally. Criminal Cases: Involving grave and less grave offenses, an accused who is a layman must always appear by counsel; he CANNOT conduct his own defense, as his right to counsel may NOT be waived without violating his right to due process of law. By a Juridical Person: A juridical person must always appear in court by a duly

1. Nature of the privilege and on the confidential and trust relation between attorney and client.

2. A corporation cannot perform the conditions required for membership in the bar, such as the possession of good moral character and other special disqualifications, the taking of an oath and becoming an officer of the court, subject to its discipline, suspension or removal.

3. The relation of trust and confidence cannot arise where the attorney is employed by a corporation to practice for it, his employer and he owing, at best, a secondary and divided loyalty to the clientele of his corporate employer.

4. The intervention of the corporation is destructive of that confidential and trust relation and is obnoxious to the law.

PERSONS AUTHORIZED TO REPRESENT THE GOVERNMENT 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 shall have all the rights of a duly

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San Beda College of Law

MEMORY AID IN LEGAL ETHICS AND PRACTICAL EXERCISES

authorized member of the bar to appear in any case in which the government has an interest, direct or indirect, or in which such official is charged in his official capacity.

RULES ON PUBLIC OFFICIALS

REGARDING PRACTICE OF LAW

PUBLIC

PRACTICE LAW IN THE PHILIPPINES

OFFICIALS

WHO

CANNOT

other

officials

superior court

2. Officials and employees

the

1. Judges

and

or

employees

of

of the Office

of the Solicitor

General

3.

Government Prosecutors

4.

President,

Vice-

President,

members

of

the

Cabinet,

their

deputies

and

assistants

5.

Chairmen and members

of

the

Constitutional

Commissions

his

deputies

and

municipal mayors

special

law are prohibited from engaging

practice of their legal

profession

in

8.

6. Ombudsman

and

city

by

7. Governors,

Those

the

who,

PUBLIC OFFICIALS WITH RESTRICTIONS IN THE PRACTICE OF LAW

1. Senators and Members of the House of Representatives

2. Members of the

Sanggunian

3.

Retired Justice or Judge

4.

Civil Service officers or

employees without permit from their respective department

heads [Noriega vs. Sison 125 SCRA 293]

word “appearance” includes not only arguing a case before any such body but also filing a pleading on behalf of a client as “by simply filing a formal motion, plea or answer”. [Ramos vs. Manalac 89 Phil 270] Neither can he allow his name to appear in such pleading by itself or as part of a firm name under the signature of another qualified lawyer because the signature of an agent amounts to signing of a non-qualified senator or congressman, the office of an attorney being originally of agency, and because he will, by such act, be appearing in court or quasi-judicial or administrative body in violation of the constitutional restriction. “He cannot do indirectly what the Constitution prohibits directly”. [In re: David 93 PHIL 461]

RESTRICTIONS IN THE PRACTICE OF LAW OF THE MEMBERS OF THE SANGGUNIAN They shall not:

1. Appear as counsel before

any court in any civil case wherein a local government unit or any office, agency or instrumentality of the government is the adverse party; 2.Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office; 3. Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is

an official. [Sec. 90, R.A. 7160]

4. Use property and

personnel of the government except when the Sanggunian member concerned is defending the interest of the government

RESTRICTIONS IN THE PRACTICE OF LAW OF MEMBERS OF LEGISLATURE

CASES: A lawyer-member of the legislature is only prohibited from appearing as counsel before any court of justice, electoral tribunals or quasi- judicial and administrative bodies. The

RESTRICTIONS IN THE PRACTICE OF LAW OF RETIRED JUSTICE/JUDGE

pension

provided under R.A. 910, no retiring justice or judge of a court of record or city or municipality judge during the time that he is receiving said pension shall:

As

a

condition

of

the

LEGAL ETHICS AND PRACTICAL EXERCISES COMMITTEE

L EGAL E THICS AND P RACTICAL E XERCISES C OMMITTEE
the L EGAL E THICS AND P RACTICAL E XERCISES C OMMITTEE  C HAIRPERSON :

CHAIRPERSON: Jackie Lou Bautista ASSISTANT CHAIRPERSON: Catherine Jane Vanilla SUBJECT HEADS: Ma. Ricasion Tugadi (Legal Ethics), Mary Wendy Duran(Practical Exercises) EDP: Raphy Espiritu MEMBERS: John Dale Balinan, Malou Barrios, Catherine Bool-Nuňez, Melanie Caparas, Kristian Cristobal, Remegio Dayandayan, Jr., Gerald dela Cruz, Donna Dumpit, JB Roselle Gayona, Rhea Mangubat, Joyce Marie Marquez, Rowena Mutia, Maan Salada, Melamy Salvadora, Vin- Kristine Ventura

6

2005 CENTRALIZED BAR OPERATIONS

6 2005 C ENTRALIZED B AR O PERATIONS Appear as counsel before any court a. Any

Appear as counsel before any court

a. Any civil case wherein the government or any subdivision or instrumentality thereof is the adverse party;

b. Any criminal case wherein an

officer or an employee of the government is accused of an offense committed in relation to his office.

2. Collect any fees for his appearance in any administrative proceedings to maintain an interest adverse to the government, provincial or municipal, or to any of its legally constituted officers [Sec 1, RA 910].

in:

REMEDIES

PRACTICE (DICED)

AGAINST

UNAUTHORIZED

1. Petition for Injunction

2. Declaratory Relief

3. Contempt of Court

4. Disqualification and

complaints for disbarment

5. Criminal complaint for

estafa against a person who falsely represented to be an attorney to the damage of a party

PRIVILEGES AND DUTIES OF A
PRIVILEGES AND DUTIES OF A

PRIVILEGES AND DUTIES OF A

PRIVILEGES AND DUTIES OF A LAWYER

LAWYER

PRIVILEGES AND DUTIES OF A LAWYER

PRIVILEGES OF AN ATTORNEY:

1. To practice law during good behavior before any judicial, quasi- judicial, or administrative tribunal.

2. The first one to sit in judgment on every case, to set the judicial machinery in motion.

3. Enjoys the presumption of regularity in the discharge of his duty.

4. He is immune, in the performance of his obligation to his client, from

liability to a third person insofar as he does not materially depart from his character as a quasi-judicial

officer.

5. His statements, if relevant, pertinent or material to the subject of judicial inquiry are absolutely privileged regardless of their defamatory tenor and of the presence of malice.

OTHER PRIVILEGES:

First grade civil service eligibility for any position in the classified service in the government the duties of which require knowledge of law. Second grade civil service eligibility for any other government position which does not prescribe proficiency in law as a qualification.

FOUR-FOLD DUTIES OF A LAWYER

1. Court- respect or defend against criticisms, uphold authority and dignity, obey order and processes, assist in the administration of justice.

2. Bar- candor, fairness, courtesy and truthfulness, avoid encroachment in the business of other lawyers, uphold the honor of the profession.

3. Client- entire devotion to client’s

interest. 4. Public- should not violate his responsibility to society, exemplar for uprighteousness, ready to render legal aid, foster social reforms, guardian of due process, aware of special role in the solution of special problems and be always ready to lend assistance in the study and solution of social problems.

SPECIFIC DUTIES OF A LAWYER (SEC.

20, RULE 138) [C 2 A 2 R 2 E 2 D]

1. To maintain Allegiance

to the Republic of the Philippines and to support the

Constitution and obey the laws of the Philippines;

2. To observe and maintain

the Respect due to the courts of justice and judicial officers;

3. To Counsel and maintain

the respect due to the courts of justice and judicial officers;

4. To Employ, for the

purpose of maintaining the causes confided to him, such means only as are consistent with truth and honor, and never seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law;

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San Beda College of Law

MEMORY AID IN LEGAL ETHICS AND PRACTICAL EXERCISES

5. To maintain inviolate the

Confidence and at every peril to

himself, to preserve the secrets

in connection with his client and

to accept no compensation in connection with his client’s business except from him or with his knowledge and approval;

6. To Abstain from all

offensive personality and to

advance no fact prejudicial to

the honor and reputation of a

party or witness, unless required by the justice of the cause with which he is charged;

7. Not to Encourage either

the commencement or the continuance of an action or proceeding, or delay any man’s

cause, from any corrupt motive

or

interest;

8.

Never to Reject, for any

consideration personal to himself, the cause of the defenseless or oppressed;

9. In the Defense of a

person accused of crime, by all

fair and honorable means, regardless of his personal opinion

as to the guilt of the accused, to

present every defense that the

law permits to the end that no

person may be deprived of life or liberty, but by due process of law.

DUTY OF COUNSEL DE OFICIO

A counsel de oficio is expected

to render effective service and to exert his best efforts on behalf of an indigent accused. He has as high a duty to a poor litigant as to a paying client. He should have a bigger dose of social conscience and a little less of self-interest.

Regional State Prosecutor subject to the approval of the court (Sec. 5, Rule 110; Rules of Court dated May 1, 2002).

THE LAWYER’S OATH

solemnly

swear that I will maintain allegiance to the Republic of the Philippines; I will support its Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein; I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same; I will delay no man for money or malice and will conduct myself as a lawyer according to the best of my knowledge and discretion with all good fidelity as well to the courts as to my clients; and I impose upon myself this voluntary obligation without any mental reservation or purpose of evasion. So help me God.

I,

do

,

NOTARY PUBLIC

A person appointed by the court whose duty is to attest to the genuineness of any deed or writing inorder to render them available as evidence of facts stated therein and who is authorized by the statute to administer various oaths.

A.M. No. 02-8-13-SC: Rules on
A.M. No. 02-8-13-SC: Rules on

A.M. No. 02-8-13-SC: Rules on

A.M. No. 02-8-13-SC: Rules on Notarial Practice of 2004

Notarial Practice of 2004

A.M. No. 02-8-13-SC: Rules on Notarial Practice of 2004

(August 1, 2004)

ROLE OF PRIVATE PROSECUTOR

A private prosecutor may

intervene in the prosecution of a criminal action when the offended party is entitled to indemnity and has not waived expressly, reserved or instituted the civil action for damages. He may prosecute the accused up to the end of the trial even in the absence of the public prosecutor if authorized by the chief of the prosecution office or the

QUALIFICATIONS OF A NOTARY PUBLIC

1. Must be citizen of the Philippines

2. Must be over twenty-one (21) years of age

3. Must be a resident in the Philippines for at least one (1) year and maintains a regular place of work or business in the city or province where the commission is to be issued

LEGAL ETHICS AND PRACTICAL EXERCISES COMMITTEE

L EGAL E THICS AND P RACTICAL E XERCISES C OMMITTEE
L EGAL E THICS AND P RACTICAL E XERCISES C OMMITTEE  C HAIRPERSON : Jackie

CHAIRPERSON: Jackie Lou Bautista ASSISTANT CHAIRPERSON: Catherine Jane Vanilla SUBJECT HEADS: Ma. Ricasion Tugadi (Legal Ethics), Mary Wendy Duran(Practical Exercises) EDP: Raphy Espiritu MEMBERS: John Dale Balinan, Malou Barrios, Catherine Bool-Nuňez, Melanie Caparas, Kristian Cristobal, Remegio Dayandayan, Jr., Gerald dela Cruz, Donna Dumpit, JB Roselle Gayona, Rhea Mangubat, Joyce Marie Marquez, Rowena Mutia, Maan Salada, Melamy Salvadora, Vin- Kristine Ventura

8

2005 CENTRALIZED BAR OPERATIONS

8 2005 C ENTRALIZED B AR O PERATIONS 4. 5. Must Philippine Bar in good standing

4.

5.

Must

Philippine Bar in good standing

with clearances from the Office of the Bar Confidant of the

Supreme Court and the Integrated Bar of the Philippines Must not have been convicted in the first instance of any crime involving moral turpitude (Rule

III, Section 1)

the

be

a

member

of

JURISDICTION AND TERM

A notary public may perform

notarial acts in any place within the

territorial jurisdiction of the commissioning court for a period of two (2) years commencing on the 1 st day of January of the year in which the commissioning is made UNLESS earlier revoked or the notary public has resigned according to these Rules and the Rules of Court (Rule III, Section 11).

POWERS AND LIMITATIONS OF NOTARIES PUBLIC

POWERS

 

A

notary

public

is

empowered to do the following acts:

 

(JAOSAC)

1.

Acknowledgments;

 

2.

Oaths and affirmations;

3.

Jurats;

4.

Signature witnessings;

 

5.

Copy certifications; and

6.

Any other act authorized

by these Rules.

 

A notary public is authorized

to certify the affixing of a signature by thumb or other mark on an instrument or document presented for notarization if:

1. The thumb or other mark

is affixed in the presence of

the notary public and of two (2) disinterested and unaffected witnesses to the instrument or document;

2. Both witnesses sign their

own names in addition to the thumb or other mark;

3. The notary public writes

below the thumb or other mark: “Thumb or Other Mark affixed by (name of signatory by mark) in the presence of

(names and addresses of witnesses) and undersigned notary public”, and

4. The notary public

notarizes the signature by thumb or other mark through an acknowledgment, jurat or signature witnessing.

A notary public is authorized

to sign on behalf of a person who is

physically unable to sign or make a mark on an instrument or document if:

1. The notary public is

directed by the person unable to sign or make a

mark to sign on his behalf;

2. The signature of the

notary public is affixed in the presence of two (2)

disinterested and unaffected witnesses to the instrument or document;

3. Both witnesses sign their

own names;

4. The notary public writes

below his signature:

“Signature affixed by notary in the presence of (names and addresses of person and two (2) witnesses)”, and 5. The notary public notarizes his signature by acknowledgment or jurat (Rule IV, Section 1).

PROHIBITIONS

General Rule: A notary public shall not perform a notarial act outside his regular place of work or business. Exceptions: A notarial act may be performed at the request of the parties in the following sites located within his territorial jurisdiction:

a. Public offices, convention halls and similar places where oaths of office may be administered;

b. Public function areas in hotels and similar places for the signing of instruments or documents requiring notarization;

c. Hospitals and medical institutions where a party to the instrument or document is confined for treatment; and

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San Beda College of Law

MEMORY AID IN LEGAL ETHICS AND PRACTICAL EXERCISES

d.

Any place where a party to the instrument or document requiring notarization is under detention.

the notarial act or transaction is unlawful or immoral. 2) When the signatory shows a demeanor which engenders in the mind of the notary public

NOTE: A blank or incomplete instrument

 

A

person

shall

reasonable doubt as to the

not perform a notarial act if:

former’s knowledge of the

1. the person involved as

consequences of the transaction

signatory to the instrument or document-

requiring a notarial act. 3) If in the notary’s judgment,

 

a.

Is not in the

the signatory is not acting in

notary’s presence at the time of the notarization;

his/her own free will (Rule IV, Section 4).

and

4) If the document or

b.

Is not personally

instrument to be notarized is

known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules (Rule IV, Section 2).

considered as an improper document by these Rules.

or document OR an instrument or document without appropriate notarial certification is considered an Improper Instrument/Document (Rule IV, Section

2. the certificate containing an information known or believed to be false; and

3. he shall not affix an official signature or seal on a notarial certificate that is incomplete (Rule IV, Section

5).

DISQUALIFICATIONS

A notary public is disqualified from performing a notarial if he:

1)

Is a party to the instrument or document;

2)

Will

receive,

as

a

direct

or

indirect result any commission, fee, advantage, right, title,

interest, cash, property, or other consideration, except as provided that is to be notarized;

3)

Is

a

spouse,

common-law

partner, ancestor, descendant, or relative by affinity or consanguinity of the principal within the fourth civil degree (Rule IV, Section 3).

When notary public may refuse to notarize even if appropriate fee is tendered:

1) When the notary knows or has good reason to believe that

6).

NOTARIAL CERTIFICATES

Contents of the Concluding part of the Notarial Certificate:

1)

exactly indicated in the commission; 2) The serial number of the commission of the notary public; 3) The words “Notary Public” and the province or city where the notary public is commissioned, the expiration date of the commission and the office address of the notary public; and 4) The Roll of Attorneys’ number, the Professional Tax Receipt number and the place and date of issuance thereof and the IBP Membership number (Rule VIII, Section 2).

The name of the notary public as

REVOCATION OF COMMISSION The Executive Judge shall revoke a commission for any ground on which an application for a commission may be denied. In addition, the Executive Judge may revoke the commission of or impose sanctions upon any notary public who:

1) Fails to keep a notarial register;

LEGAL ETHICS AND PRACTICAL EXERCISES COMMITTEE

L EGAL E THICS AND P RACTICAL E XERCISES C OMMITTEE
L EGAL E THICS AND P RACTICAL E XERCISES C OMMITTEE  C HAIRPERSON : Jackie

CHAIRPERSON: Jackie Lou Bautista ASSISTANT CHAIRPERSON: Catherine Jane Vanilla SUBJECT HEADS: Ma. Ricasion Tugadi (Legal Ethics), Mary Wendy Duran(Practical Exercises) EDP: Raphy Espiritu MEMBERS: John Dale Balinan, Malou Barrios, Catherine Bool-Nuňez, Melanie Caparas, Kristian Cristobal, Remegio Dayandayan, Jr., Gerald dela Cruz, Donna Dumpit, JB Roselle Gayona, Rhea Mangubat, Joyce Marie Marquez, Rowena Mutia, Maan Salada, Melamy Salvadora, Vin- Kristine Ventura

10

2005 CENTRALIZED BAR OPERATIONS

10 2005 C ENTRALIZED B AR O PERATIONS the appropriate entry or entries in his notarial

the

appropriate entry or entries in

his notarial register concerning

his notarial acts;

3) Fails to send the copy of the entries to the Executive Judge within the first ten (10) days of

the month following;

to

acknowledgments the date of expiration of his commission; 5) Fails to submit his notarial register, when filled, to the Executive Judge;

6) Fails to make his report, within a reasonable time, to the Executive Judge concerning the performance of his duties, as may be required by the Judge;

the

presence of the principal at the time of the notarial act; 8) Fails to identify a principal on the basis of personal knowledge or competent evidence; 9) Executes a false or incomplete certificate under Section 5, Rule IV; 10) Knowingly performs or fails to perform any other act prohibited or mandated by these Rules; and 11) Commits any other dereliction or act which in the judgment of the Executive Judge constitutes good cause for the revocation of the commission or imposition of administrative sanction (Rule XI, Section 1).

7) Fails to require

4)

2)

Fails

to

make

Fails

to

affix

PUNISHABLE ACTS The Executive Judge shall cause the prosecution of any person who:

Knowingly acts or

otherwise impersonates a notary public;

1)

2)

Knowingly

obtains,

conceals,

defaces,

or

destroys

the

seal,

notarial

register, or

official

records

of

a

notary

public; and

 

3)

Knowingly

solicits,

coerces, or in any way influences

commit

a notary

public

to

official

Section 1).

misconduct

(Rule

XII,

TERMS TO REMEMBER

Amicus Curiae- is an experienced and impartial attorney invited by the court to appear and help in the disposition of the issues submitted to it. It implies friendly intervention of counsel to call the attention of the court to some matters of law or facts which might otherwise escape its notice and in regard to which it might go wrong. An amicus curiae appears in court not to represent any particular party but only to assist the court.

Amicus Curiae par excellence – bar associations who appear in court as amici curiae or friends of the court. Acts merely as a consultant to guide the court in a doubtful question or issue pending before it.

Attorney ad hoc- a person named appointed by the court to defend an absentee defendant in the suit in which the appointment is made.

Attorneys-At-Law – 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 by law as a consequence.

Attorney in fact- simply an agent whose authority is strictly limited by the instrument appointing him. His authority is provided in a special power of attorney or general power of attorney or letter of attorney. He is not necessarily a lawyer.

Attorney of record- the attorney whose name is entered in the records of an action or suit as the lawyer of a designated party thereto.

Bar

and Bench –

“Bar” refers to

the

whole

body

of

attorneys

and

counselors

collectively,

the

11
11

San Beda College of Law

MEMORY AID IN LEGAL ETHICS AND PRACTICAL EXERCISES

members of the legal profession:

“Bench” denotes the whole body of judges. Bar Association – an association of members of the legal profession like the IBP where membership is integrated or compulsory.

Client – one who engages the services of

a lawyer for legal advice

purposes of prosecuting or defending a suit in behalf and

usually for a fee.

for

or

party’s case, as distinguished from his juniors or subordinates.

Of Counsel – an experienced lawyer, usually a retired member of the judiciary, employed by law firms as consultants.

Practicing Lawyer – one engaged in the practice of law who by license are officers of the court and who are empowered to appear, prosecute and defend a client’s cause.

Counsel/Attorney de oficio – an attorney appointed by the court to defend an indigent defendant in a criminal action. In a criminal action, if the defendant appears without an attorney, he must be informed by

the court that it is his right to have an attorney before being arraigned and must be asked if he desires the aid of an attorney. If he desires and

is unable to employ an attorney, the

court must assign a counsel de oficio to defend him. He is also designated as counsel of indigent litigants. The appointment of a

counsel de oficio in that instance is

a matter of right on the part of the

defendant. On appeal in a criminal case, the appellate court must also appoint a counsel de oficio if, as shown by the certificate of the clerk of court of the trial court, a defendant (a) is confined in prison, (b) without means to employ an attorney, (c) desires to be defended de oficio.

House Counsel – one who acts as

attorney for business though carried

as an employee of that business and

not as an independent lawyer.

Lawyer – this is the general term for a person trained in the law and authorized to advice and represent others in legal matters

Lead Counsel – the counsel on either

side of

a litigated action who

is

charged

with

the

principal

management and

direction of

a

Pro Se - an appearance by a lawyer in his own behalf.

Trial Lawyer – one who personally handles cases in court, administrative agencies of boards which means engaging in actual trial work, either for the prosecution or for the defense of cases of clients.

II .THE CANONS OF

PROFESSIONAL

RESPONSIBILITY

Chapter I: The Lawyer and Society CANON -

1. Uphold the Constitution and obey the laws of the land

2. Make legal services available in an efficient and convenient manner

3. Use of true, honest, fair, dignified and objective information in making known legal services

4. Participate in the improvement of the legal system

5. Keep abreast of legal development and participate in continuing legal education program and assist in disseminating information regarding the law and jurisprudence

6. Applicability of the CPR to lawyers in the government service

LEGAL ETHICS AND PRACTICAL EXERCISES COMMITTEE

L EGAL E THICS AND P RACTICAL E XERCISES C OMMITTEE
L EGAL E THICS AND P RACTICAL E XERCISES C OMMITTEE  C HAIRPERSON : Jackie

CHAIRPERSON: Jackie Lou Bautista ASSISTANT CHAIRPERSON: Catherine Jane Vanilla SUBJECT HEADS: Ma. Ricasion Tugadi (Legal Ethics), Mary Wendy Duran(Practical Exercises) EDP: Raphy Espiritu MEMBERS: John Dale Balinan, Malou Barrios, Catherine Bool-Nuňez, Melanie Caparas, Kristian Cristobal, Remegio Dayandayan, Jr., Gerald dela Cruz, Donna Dumpit, JB Roselle Gayona, Rhea Mangubat, Joyce Marie Marquez, Rowena Mutia, Maan Salada, Melamy Salvadora, Vin- Kristine Ventura

12

2005 CENTRALIZED BAR OPERATIONS

12 2005 C ENTRALIZED B AR O PERATIONS Chapter II: The Lawyer and the Legal Profession

Chapter II: The Lawyer and the Legal Profession

CANON -

7. At all times uphold the integrity and dignity of the Profession and support the activities of the IBP

8. Conduct himself with courtesy, fairness and candor toward his colleagues and avoid harassing tactics

9. Not to directly or indirectly assist in the unauthorized practice of law

Chapter III: The Lawyer and the Courts CANON -

10. Owes candor, fairness and good faith to the court

11. Observe and maintain the respect due courts and judicial officers

12. Duty to assist in the speedy and efficient administration of justice

13. Rely upon the merits of his cause, refrain from any impropriety which tends to influence courts, or give the appearance of influencing the court

Chapter IV: The Lawyer and the Client CANON -

14. Not to refuse his services to the needy

15. Observe candor, fairness and loyalty in all his dealings and transactions with clients

16. Hold in trust all the moneys and property of his client that may come to his possession

17. Owes fidelity to clients cause and be mindful of the trust and confidence reposed in him

18. Serve client with competence and diligence

19. Represent client with zeal and within the bounds of law

20. Charge only fair and reasonable fees

21. Preserve the confidence and secrets of client even after the atty.-client relation is terminated

22. Withdraw services only for good cause and upon notice

LAWYER’S DUTIES TO SOCIETY

CANON 1: UPHOLD THE CONSTITUTION AND OBEY THE LAWS OF THE LAND

DISCOURAGING LAW SUITS Under Rule 1.03, a lawyer shall not for any corrupt motive or interest, encourage any suit or proceeding or delay any man’s cause.

CRIME OF MAINTENANCE – A lawyer owes to society and to the court the duty not to stir up litigation. The following are unprofessional acts within the prohibition:

1. Volunteering advice to bring lawsuit except where ties of blood, relationship, and trust make it a duty to do so.

2. Hunting up defects in titles or other causes of action and informing thereof to be employed to bring suit or collect judgment, or to breed litigation by seeking out claims for personal injuries or any other grounds to secure them as clients.

3. Employing agents or runners for like purposes.

4. Paying direct or indirect reward to those who bring or influence the bringing of such cases to his office.

5. Searching for unknown heirs and soliciting their employment.

6. Initiating a meeting of a club and inducing them to organize and contest legislation under his guidance.

7. Purchasing notes to collect them by litigation at a profit.

from

committing barratry and ambulance chasing of cases.

A

lawyer

shall

refrain

Barratry – offense of frequently inciting and stirring up quarrels and suits. The lawyer’s act of fomenting suits among individuals and offering his legal services to one of them

13
13

San Beda College of Law

MEMORY AID IN LEGAL ETHICS AND PRACTICAL EXERCISES

Ambulance Chasing – a lawyer’s act of chasing the victims of an accident for the purpose of talking to the same victim or the latter’s relatives and offering his legal services for the filing of the case against the person who caused the accident.

Ambulance Chaser – is a lawyer who haunts hospitals and visits the homes of the afflicted, officiously intruding their presence and persistently offering his service on the basis of a contingent.

Ambulance chasing has spawned recognized evils such as: (FSMD)

1. Fomenting of litigation with resulting burdens on the courts and the public.

2. Subornation of perjury.

3. Mulcting of innocent persons by judgments, upon manufactured causes of action.

4. Defrauding of injured persons having proper causes of action but ignorant of legal rights and court procedures by means of contracts which retain exorbitant percentages of recovery and illegal charges for court costs and expenses and by settlement made for quick returns of fees and against the just rights of the injured persons.

CANON 2: MAKING AVAILABLE EFFICIENT LEGAL SERVICE

A lawyer shall not reject, except

for valid

reasons,

the

cause

of the

defenseless

or the oppressed. (Rule

2.01)

Even

if

the

lawyer

does

not

accept a

case, he shall not refuse

to

render

legal

advice

to

the

person

concerned

if

only

to

the

extent

necessary

to

safeguard

the

latter’s

rights. (Rule 2.02)

CANON 3: USE OF TRUE, HONEST, FAIR AND OBJECTIVE INFORMATION IN MAKING KNOWN LEGAL SERVICES

ADVERTISING AND SOLICITATION

General Rule: A lawyer cannot advertise his talent, as he is a member of an honorable profession whose primary purpose is to render public service and help secure justice and in which the remuneration is a mere incident.

It is highly unethical for an

attorney to advertise his talents or skill as a merchant advertises his wares. [In re: Tagorda 53 Phil 42]

Exceptions:

1. Writing legal articles

2. Engaging in business or other

occupations except when such

could be deemed improper, be seen as indirect solicitation or would be the equivalent of law practice.

3. Law lists, but only brief

biographical and informative data

4. Ordinary, professional cards

5. Notice to other local lawyers

and publishing in a legal journal

of one’s availability to act as an associate for them

6. The proffer of free legal

services to the indigent, even when broadcasted over the radio or tendered through circulation

of printed matter to the general public.

7. Seeking a public office,

which can only be held by a

lawyer or, in a dignified manner,

a position as a full time corporate counsel.

8. Simple announcement of the

opening of a law firm or of changes in the partnership,

associates, firm name or office address, being for the convenience of the profession.

9.

Listing in a phone directory,

but

not under a designation of a

special branch of law.

10. Activity of an association for

the purpose of legal

representation.

Solicitation

of

Cases

Constitutes

Malpractice

LEGAL ETHICS AND PRACTICAL EXERCISES COMMITTEE

L EGAL E THICS AND P RACTICAL E XERCISES C OMMITTEE
L EGAL E THICS AND P RACTICAL E XERCISES C OMMITTEE  C HAIRPERSON : Jackie

CHAIRPERSON: Jackie Lou Bautista ASSISTANT CHAIRPERSON: Catherine Jane Vanilla SUBJECT HEADS: Ma. Ricasion Tugadi (Legal Ethics), Mary Wendy Duran(Practical Exercises) EDP: Raphy Espiritu MEMBERS: John Dale Balinan, Malou Barrios, Catherine Bool-Nuňez, Melanie Caparas, Kristian Cristobal, Remegio Dayandayan, Jr., Gerald dela Cruz, Donna Dumpit, JB Roselle Gayona, Rhea Mangubat, Joyce Marie Marquez, Rowena Mutia, Maan Salada, Melamy Salvadora, Vin- Kristine Ventura

14

2005 CENTRALIZED BAR OPERATIONS

14 2005 C ENTRALIZED B AR O PERATIONS The law prohibits lawyers from soliciting cases for

The law prohibits lawyers from soliciting cases for the purpose of gain, either personally or through paid agents or brokers and makes the act malpractice [Rule 138, sec. 27, Rules of Court]. The rule prohibits professional touting. Neither shall a lawyer “charge rates lower than those customarily prescribed unless the circumstances so warrant.”

USE OF LAW FIRM NAME

1. 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. [Rule 3.02, Code of Professional Responsibility]. Hence, the rule abandoned the doctrine laid down in the case of In re: Sycip, 92 SCRA 1

(1979).

Reason: All of the partners by their joined efforts over a period of years contributed to the goodwill attached to the firm name, and this goodwill is disturbed by a change in firm name every time a partner dies.

2. Where a partner accepts public office,

he shall withdraw from the firm and his name shall be dropped from the firm name unless the law allows him to practice concurrently. [Rule 3.02, Code of Professional Responsibility].

3. Filipino lawyers cannot practice law under the name of a foreign law firm, as the latter cannot practice law in the Philippines and the use of the foreign law firm in the country is unethical. (Dacanay vs. Baker & McKenzie, G.R. Adm. Case No. 2131)

CANON 4: PARTICIPATE IN THE IMPROVEMENT OF THE LEGAL SYSTEM Examples:

1. Presenting position papers or resolutions for the introduction of pertinent bills in Congress; 2. Petitions with the SC for the amendment of the Rules of Court.

CANON 5: KEEP ABREAST OF LEGAL DEVELOPMENTS AND PARTICIPATE IN CONTINUING LEGAL EDUCATION PROGRAM

THREE-FOLD OBLIGATIONS OF A LAWYER:

1. He owes it to himself to continue improving his knowledge of the

law.

2. He owes it to his profession to take an active interest in the maintenance of high standards of legal education.

to

their

3. He owes it to the lay public

make the

law

a

part of

social consciousness.

Bar Matter 850: MANDATORY

CONTINUING LEGAL EDUCATION (MCLE

)

(Adopting the Rules on the Continuing Legal Education for Members of the Integrated Bar of the Philippines) August 8, 2000

Purpose: To ensure that throughout their career, they keep abreast with law and jurisprudence, maintain the ethics of the profession and enhance the standards of the practice of law.

Requirements of Completion of MCLE

unless

exempted under Rule 7, shall complete

every three (3) years at least 36 hours of continuing legal education activities. The 36 hours shall be divided as follows:

Members

of

the

IBP,

a. 6 hours – legal Ethics

b. 4 hours – trial and

pretrial skills

c. 5 hours – alternative

dispute resolution

d. 9 hours – updates on

substantive and procedural laws and jurisprudence

e. 4 hours – writing and oral

advocacy

f. 2 hours – international

law and international conventions

other

g.

subjects as may be prescribed by

the Committee on MCLE

6

hours

such

Parties Exempted from the MCLE

15
15

San Beda College of Law

MEMORY AID IN LEGAL ETHICS AND PRACTICAL EXERCISES

1. The President, Vice-President, and the Secretaries and Undersecretaries of executive departments;

2. Senators and Members of the House of Representatives;

3. The Chief Justice and Associate Justices of the SC, incumbent and retired justices of the judiciary, incumbent members of the Judicial and Bar Council and incumbent court lawyers covered by the Philippine Judicial Academy Program of continuing legal education;

4. The Chief State Counsel, Chief State Prosecutor and Assistant Secretaries of the Department of Justice;

5. The Solicitor-General and the Assistant Solicitor-General;

6. The Government Corporate Counsel, Deputy and Assistant Government Corporate Counsel;

7. The Chairman and Members of the Constitutional Commissions;

8. The Ombudsman, the Overall Deputy Ombudsman, the Deputy Ombudsman and the Special Prosecutor of the Office of the Ombudsman;

9. Heads of government agencies exercising quasi-judicial functions;

10. Incumbent deans, bar reviewers and professors of law who have teaching experience for at least 10 years in accredited law schools;

11. The Chancellor, Vice-Chancellor and members of the Corps of Professional Lecturers of the Philippine Judicial Academy; and

12. Governors and Mayors

Other Exempted Parties

1. Those who are not in law practice, private or public

2. Those who have retired from law practice with the approval of the IBP Board of Governors

Good Cause for Exemption from or modification of requirement A member may file a verified request setting forth good cause for

exemption (such as physical disability, illness, post-graduate study abroad, proven expertise in law) from compliance with or modification of any of the requirements, including an extension of time for compliance, in accordance with procedure to be established by the committee on MCLE.

Proof of exemption: Applications for exemption from or modification of the MCLE requirement shall be under oath and supported by documents.

Consequences of Non-Compliance

1. A member who fails to comply with the requirements after the 60-day period shall be listed as delinquent member by the IBP Board of Governors upon recommendation of the Committee on MCLE.

2. The listing as a delinquent member is administrative in nature but shall be made with notice and hearing by the Committee on MCLE.

CANON 6: APPLICABILITY OF THE CPR TO LAWYERS IN THE GOVERNMENT SERVICE

Restriction Against Using Public Office to Promote Private Interest Public officials and employees during their incumbency shall NOT:

1. Own, control, manage or accept employment as officer, employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office unless expressly allowed by law

2. 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.

3. Recommend any person to any position in a private enterprise which has a regular or pending official transaction with their office

LEGAL ETHICS AND PRACTICAL EXERCISES COMMITTEE

L EGAL E THICS AND P RACTICAL E XERCISES C OMMITTEE
L EGAL E THICS AND P RACTICAL E XERCISES C OMMITTEE  C HAIRPERSON : Jackie

CHAIRPERSON: Jackie Lou Bautista ASSISTANT CHAIRPERSON: Catherine Jane Vanilla SUBJECT HEADS: Ma. Ricasion Tugadi (Legal Ethics), Mary Wendy Duran(Practical Exercises) EDP: Raphy Espiritu MEMBERS: John Dale Balinan, Malou Barrios, Catherine Bool-Nuňez, Melanie Caparas, Kristian Cristobal, Remegio Dayandayan, Jr., Gerald dela Cruz, Donna Dumpit, JB Roselle Gayona, Rhea Mangubat, Joyce Marie Marquez, Rowena Mutia, Maan Salada, Melamy Salvadora, Vin- Kristine Ventura

16

2005 CENTRALIZED BAR OPERATIONS

16 2005 C ENTRALIZED B AR O PERATIONS 4. Use or divulge confidential or classified information

4. Use or divulge confidential or classified information officially known to them by reason of their office and not available to the public.

Restrictions Against Former Official from Accepting Certain Employment A lawyer shall NOT, after leaving the government service, accept engagement or employment in connection with any matter in which he had intervened while in said service. [Rule 6.03, Code of Professional Responsibility] Section 7 (b), RA 6713 prohibits any former public official or employee for a period of one year after retirement or separation from office to practice his profession in connection with any other matter before the office he used to be with.

THE LAWYER AND THE LEGAL
THE LAWYER AND THE LEGAL

THE LAWYER AND THE LEGAL

THE LAWYER AND THE LEGAL PROFESSION

PROFESSION

THE LAWYER AND THE LEGAL PROFESSION

CANON 7: UPHOLD THE INTEGRITY AND DIGNITY OF THE PROFESSION AND SUPPORT THE ACTIVITIES OF THE IBP A lawyer shall be answerable for knowingly making a false statement or suppressing a material fact, in connection with his application for admission to the bar. (Rule 7.01) A lawyer shall not, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession. (Rule 7.03)

CASE: Counsel’s act of filing multiple complaints against herein complainant’s reflects on his fitness to be a member of the legal profession. His act evinces vindictiveness, a decidedly undesirable trait whether in a lawyer or another individual, as complainants were instrumental in respondent’s dismissal from the judiciary. (Saburnido vs. Madrono, 366 SCRA 1, September 26,

2001)

CANON 8: COURTESY, FAIRNESS AND CANDOR TOWARD HIS COLLEAGUES AND AVOID HARASSING TACTICS

his

professional dealings, use language which is abusive, offensive or otherwise improper. (Rule 8.01) CASE: Although aware that the plaintiff students were represented by counsel, respondent attorney, counsel for the defendants proceeded, nonetheless, to negotiate with them and their parents without at the very least communicating the matter to their lawyer. This failure of respondent is an inexcusable violation of the canons of professional ethics and in utter disregard of a duty owing to a colleague. (Camacho vs. Pangulayan, 328 SCRA 631, March 22, 2000)

A lawyer

shall

not,

in

CANON 9: PREVENTING UNAUTHORIZED PRACTICE OF LAW Public policy requires that the practice of law be limited to those individuals found duly qualified in education and character. Purpose: To protect the public, the court, the client and the bar from the incompetence or dishonesty of those unlicensed to practice law and not

subject to the disciplinary control of the court.

1.

A lawyer is prohibited from allowing an intermediary to

intervene in the performance of

his

professional obligation.

2.

A

lawyer cannot 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.

3.

A lawyer cannot divide or stipulate a fee for legal services with a person not licensed to practice law.

Exceptions:

1. 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 agreement;

in

the

17
17

San Beda College of Law

MEMORY AID IN LEGAL ETHICS AND PRACTICAL EXERCISES

2. Where a lawyer undertakes

to complete unfinished legal

business of a deceased lawyer;

3. Where a lawyer or law firm

includes non-lawyer employees in a retirement plan, even if the plan is based in whole or in part on a profit-sharing arrangement.

LAWYER’S DUTIES TO COURTS

CANON 10: CANDOR, FAIRNESS AND GOOD FAITH TO COURTS

any

falsehood, nor consent to the doing of any in court; nor shall be misled, or allow the court to be misled by any artifice. (Rule 10.01)

A

lawyer

shall

NOT

do

REQUIREMENTS OF CANDOR:

1. A lawyer shall not suppress material and vital facts which bear on the merit or lack of merit of complaint or petition;

2. A lawyer shall volunteer to the court any development of the case which has rendered the issue raised moot and academic;

3.

Disclose to court any decision adverse to his position of which opposing counsel is apparently ignorant and which court should consider in deciding a case;

4.

He

shall not represent himself as

lawyer for a client, appear for client in court and present pleadings, only to claim later that he was not authorized to do so. Note: A lawyer is not an umpire but an advocate. He is not obliged to refrain from making every proper argument in support of any legal point because he is not convinced of its inherent soundness. Neither is he obliged to suggest arguments against his position.

or amendment, or assert as a fact that which has not been proved. (Rule 10.02) A lawyer shall observe the rules of procedure and shall NOT misuse them to defeat the ends of justice. (Rule 10.03)

CANON 11: OBSERVANCE OF RESPECT DUE THE COURTS

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 should show respect

due the court and judicial officer by

appearing during the trial of a case punctually and in proper attire.

A lawyer’s language should be

forceful but dignified, emphatic but respectful as befitting an advocate and in keeping with the dignity of the legal profession.

RIGHT AND DUTY OF LAWYER TO CRITICIZE COURTS The fact that a person is a

lawyer does not deprive him of the right, enjoyed by every citizen, to comment on and criticize the actuations of a judge. However, what he can ordinarily say against a concluded litigation and the manner the judge handed down the decision therein may NOT generally be said to a pending action. The court, in a pending litigation, must be shielded from embarrassment or influence in its all important duty of deciding the case. On the other hand, once a litigation is concluded the judge who decided it is subject to the same criticism as any other public official because then his ruling becomes public property and is thrown open to public consumption.

But it is the cardinal condition of

all such criticism that it shall be bona fide, and shall not spill over the walls of decency and propriety.

A lawyer shall NOT knowingly

misquote or misrepresent the contents of a paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as a law a provision already rendered inoperative by repeal

CANON 12: ASSISTING IN SPEEDY AND

EFFICIENT ADMINISTRATION OF JUSTICE

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 presentation. He should also be ready with the original documents for comparison with the

LEGAL ETHICS AND PRACTICAL EXERCISES COMMITTEE

L EGAL E THICS AND P RACTICAL E XERCISES C OMMITTEE
the L EGAL E THICS AND P RACTICAL E XERCISES C OMMITTEE  C HAIRPERSON :

CHAIRPERSON: Jackie Lou Bautista ASSISTANT CHAIRPERSON: Catherine Jane Vanilla SUBJECT HEADS: Ma. Ricasion Tugadi (Legal Ethics), Mary Wendy Duran(Practical Exercises) EDP: Raphy Espiritu MEMBERS: John Dale Balinan, Malou Barrios, Catherine Bool-Nuňez, Melanie Caparas, Kristian Cristobal, Remegio Dayandayan, Jr., Gerald dela Cruz, Donna Dumpit, JB Roselle Gayona, Rhea Mangubat, Joyce Marie Marquez, Rowena Mutia, Maan Salada, Melamy Salvadora, Vin- Kristine Ventura

18

2005 CENTRALIZED BAR OPERATIONS

18 2005 C ENTRALIZED B AR O PERATIONS copies. [Rule 12.01 Code of Professional Responsibility] 2.

copies. [Rule 12.01 Code of Professional Responsibility]

2.

Any willful and deliberate forum shopping by any party and his

 

A

lawyer shall NOT unduly delay

lawyer with the filing of multiple petitions or complaints to ensure

a

case,

impede

the

execution of

favorable action shall constitute

judgment

or

misuse

court processes.

 

direct contempt of court;

[Rule

12.04,

Code

of

Professional

3.

The

submission of a fake

Responsibility]

certification under par. 2 of the Circular shall likewise constitute contempt of court, without

CASE: The Court further commented

that it is understandable for a party in the situation to make full use of every conceivable legal defense the law allows it. In the appraisal, however, of such

prejudice

to

the

filing

of

a

criminal action against the guilty party. The lawyer may also be

subjected

to

disciplinary

 

proceedings.

 

attempts to evade liability to which a party should respond, it must ever be kept in mind that procedural rules are intended as an aid to justice, not as means for its frustration. Technicalities should give way to the realities of the situation. (Economic Insurance Co., Inc. vs. Uy Realty Co.)

CANON 13: AVOIDING IMPROPRIETY THAT TENDS TO INFLUENCE THE COURT A lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appearance of influencing the court.

The duty of a lawyer to assist in the speedy and efficient administration

of justice includes the duty to refrain

from talking to his witness during a break or recess in the trial while the witness is still under examination.

FORUM SHOPPING - the act of filing

repetitious suits in different courts. It is committed through the following:

1. Going from one court to another in the hope of securing a favorable relief in one court, which another court has denied.

2. Filing repetitious suits or

proceedings in different courts concerning the same subject matter after one court has

decided the suit with finality.

3. Filing a similar case in a

judicial court after receiving an

unfavorable judgment from an administrative tribunal.

Forum shopping is prohibited by Supreme Court Circular No. 28-91, and

the corresponding penalties for violation thereof are as follows:

1. Any violation of this circular shall be a cause for the summary dismissal of the multiple petition

or complaint;

A lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for cultivating familiarity with judges [Rule 13.01, Code of Professional Responsibility] A lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party. [Rule 13.02, Code of Professional Responsibility] A lawyer shall not brook nor invite interference by another branch or agency of the government in the normal course of judicial proceedings. [Rule 13.03 Code of Professional Responsibility]

ATTORNEY-CLIENT
ATTORNEY-CLIENT

ATTORNEY-CLIENT

ATTORNEY-CLIENT RELATIONSHIP

RELATIONSHIP

ATTORNEY-CLIENT RELATIONSHIP

NATURE OF RELATION

1. strictly personal;

2. highly confidential and

fiduciary

GENERAL

ATTORNEY-CLIENT RELATIONSHIPS

RULES

PROTECTING

1.

Best efforts must be exerted by

the attorney to client’s interest;

protect his

exerted by the attorney to client’s interest; protect his 2005 C ENTRALIZED B AR O PERATIONS

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC- EDP), Anna Margarita Eres (VC-Logistics). Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

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San Beda College of Law

MEMORY AID IN LEGAL ETHICS AND PRACTICAL EXERCISES

2. The attorney must promptly account for any fund or property entrusted by or received for his client;

3. An attorney cannot purchase his client’s property or interest in litigation;

4. The privacy of communications shall at all times be upheld;

5. An attorney cannot represent a party whose interest is adverse to that of his client even after the termination of the relation.

CREATION OF RELATION: FORMS OF EMPLOYMENT AS COUNSEL TO A CLIENT

1. Oral – when the counsel is employed without a written agreement, but the conditions and amount of attorney’s fees are agreed upon.

2. Express

terms and conditions including the amount of fees, are

explicitly stipulated in a written document which may be a private or public document. Written contract of attorney’s fees is the law between the lawyer and the client.

3. Implied – when there is

no agreement, whether oral or written, but the client allowed the lawyer to render legal services not intended to be gratuitous without objection, and the client is benefited by reason thereof.

when the

2. In case of unjustified dismissal of an attorney, he shall be entitled to recover from the client full compensation stipulated in the contract [RA 636].

CANON 14: NOT TO REFUSE HIS SERVICES TO THE NEEDY

RIGHT TO DECLINE EMPLOYMENT; EXCEPTIONS

General Rule: A lawyer is not obliged to act as legal counsel for any person who may wish to become his client. He has the right to decline employment. Exceptions:

1. A lawyer shall not refuse his

services to the needy.

2. He shall not decline to represent a person solely on account of the latter’s race, sex, creed or status of life or because of his

own opinion regarding the guilt

of said person.

3. He shall not decline, except for serious and sufficient cause like (1) if he is not in a position to carry out effectively or competently; (2) if he labors under a conflict of interest between him and the prospective client or between a present and prospective client.

Reasons: IBP Guidelines, Art.1, Sec. 1. Public Service:

is

1. Legal

charity but a public responsibility.

aid

not

a matter

of

Note: While a written agreement for

2. It

is a means for correction of

professional services is the best evidence

social imbalance.

 

to show the relation, formality is not an

3. Legal

aid

offices

must

be

so

essential element of the employment of

organized

as

to

give

maximum

an attorney. The absence of a written

possible assistance to indigent and

contract will not preclude a finding that

deserving

members

of

the

there is a professional relationship.

community

and

to

forestall

Documentary formalism is not an

injustice.

 

essential element in the employment of an attorney; the contract may be

DUTY TO DECLINE EMPLOYMENT

 

express or implied.

A

lawyer should decline

ADVANTAGES OF A WRITTEN CONTRACT BETWEEN THE LAWYER AND THE CLIENT:

1. It is conclusive as to the

amount of compensation.

professional employment even though how attractive the fee offered may be if its acceptance will involve:

1. A violation of any of the rules of the legal profession.

LEGAL ETHICS AND PRACTICAL EXERCISES COMMITTEE

L EGAL E THICS AND P RACTICAL E XERCISES C OMMITTEE
L EGAL E THICS AND P RACTICAL E XERCISES C OMMITTEE  C HAIRPERSON : Jackie

CHAIRPERSON: Jackie Lou Bautista ASSISTANT CHAIRPERSON: Catherine Jane Vanilla SUBJECT HEADS: Ma. Ricasion Tugadi (Legal Ethics), Mary Wendy Duran(Practical Exercises) EDP: Raphy Espiritu MEMBERS: John Dale Balinan, Malou Barrios, Catherine Bool-Nuňez, Melanie Caparas, Kristian Cristobal, Remegio Dayandayan, Jr., Gerald dela Cruz, Donna Dumpit, JB Roselle Gayona, Rhea Mangubat, Joyce Marie Marquez, Rowena Mutia, Maan Salada, Melamy Salvadora, Vin- Kristine Ventura

20

2005 CENTRALIZED BAR OPERATIONS

20 2005 C ENTRALIZED B AR O PERATIONS 2. Nullification of a contract which he prepared.

2. Nullification of a contract which he prepared.

3. Advocacy in any matter in which he had intervened while in the government service.

4. Employment, the nature of which might easily be used as a means of advertising his professional services or his skill.

5. Employment with a collection agency which solicits business to collect claims.

6. Any matter in which he knows or has reason to believe that he or his partner will be an essential witness for the prospective client.

ETHICAL CONSIDERATIONS IN TAKING A BAD CASE In a Criminal Case: A lawyer may accept a losing criminal case because every accused is presumed innocent and is entitled to counsel.

In a Civil Case: The rules and ethics of the profession enjoin a lawyer from taking a bad case.

Reasons:

1. The attorney’s signature in every pleading constitutes a certificate by him that there is good cause to support it and that it is not interposed for delay, and willful violation of such rule shall subject him to disciplinary action.

2. It is the attorney’s duty to “counsel or maintain such actions or proceedings only as appear to him to be just and only such defenses as he believes to be honestly debatable under the law.”

3. A lawyer is not to encourage either the commencement or the continuance of an action or proceeding, or delay any man’s cause, for any corrupt motive or interest.

4. A lawyer must decline to conduct a civil cause or to make a defense when convinced that it is intended merely to harass or

injure the opposite party or to work oppression or wrong. However, a lawyer may accept a losing civil case provided that, in so doing, he must not engage in dilatory tactics and must advise his client about the prospects and advantage of settling the case through a compromise.

LAWYER’S DUTIES TO CLIENT

CANON 15: CANDOR, FAIRNESS AND LOYALTY IN HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENTS

CONFLICT OF INTEREST

Duty of a Lawyer to His Client in Case There is Conflict of Interest

A lawyer, in conferring with a

prospective client shall ascertain as soon as practicable whether the matter would involve a conflict with another client or his own interest, and if so, shall forthwith inform the prospective client. [Rule 15.01]

It is the duty of a lawyer at the

time of retainer to disclose to the client all circumstances of his relations to the parties and any interest in connection with the controversy, which might influence the client in the selection of counsel.

It is unprofessional to represent

conflicting interests, except by express consent of all concerned given after a full disclosure of facts. Within the meaning of this Canon, a lawyer represents conflicting interests when, in behalf of one client it is his duty to contend for that which duty to another client requires him to oppose.

Tests to Determine Conflicting Interests

1. Will the attorney be

required to contest for that which his duty to another

client requires him to oppose? (Conflicting duties)

2. Will the acceptance of a

new relation invite suspicion and/or actually lead to unfaithfulness or double- dealing towards another

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San Beda College of Law

MEMORY AID IN LEGAL ETHICS AND PRACTICAL EXERCISES

client?

(Invitation

of

professional relationship with

suspicion)

 

the opposite party.

3.

Will

the

attorney

be

called

upon

in

his

new

CASE: Jurisprudence instructs that

relation to use against his

there is a representation of conflicting

first

client

any

knowledge

interests if the acceptance of the new

acquired

in

the

previous

retainer will require the attorney to do

employment? (Use of prior knowledge obtained)

anything which will injuriously affect his first client in any matter in which he

INSTANCES WHEN A LAWYER IS CONSIDERED HAVING CONFLICTING

represents him and also whether he will be called upon in his new relation, to use against his first client any knowledge

DUTIES

 

acquired through their connection.

1. As an employee of a corporation whose duty is to attend legal affairs, he cannot join a labor union of employees in that corporation;

Another test to determine if there is a representation of conflicting interests is whether the acceptance of a new relation will prevent an attorney from the full discharge of his duty of

2. As a lawyer who investigated an accident as counsel for an insurance, he cannot represent the injured person;

undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness or double dealing in the performance thereof. (Pormento, Sr. vs.

3. As a receiver of a corporation, he cannot represent the creditor;

Atty. Pontevedra, A.C. No. 5128, March 31, 2005)

4. As a representative of the obligor, he cannot represent the obligee;

5. As a lawyer representing a party in a compromise agreement, he cannot be subsequent lawyer representing another client who seeks to nullify the agreement;

CANON 16: LAWYER’S DUTY TO HOLD IN TRUST ALL THE MONEY AND PROPERTY OF HIS CLIENT THAT MAY COME TO HIS POSSESSION PROHIBITION AGAINST PURCHASE OF PROPERTY IN LITIGATION

Elements of Prohibition

Effects of Representing Adverse Interests

1. Disqualification as

counsel of new client on petition of former client.

2. Where such is unknown

to, and becomes prejudicial to

the interests of the new client, a judgment against such may, on that ground, be set aside.

3. A lawyer can be held

administratively liable through disciplinary action and may be held criminally liable for betrayal of trust.

4. The attorney’s right to

fees may be defeated if found to be related to such conflict and such was objected to by the former client, or if there was a concealment and prejudice by reason of the attorney’s previous

1. There is an attorney-client relationship;

2. The property is in litigation;

3. The attorney is the counsel of

record in the case; 4. The attorney, by himself or through an agent, purchases such property during the pendency of said case [Art. 1491 of the Civil Code]

Other Instances Where Rule is Inapplicable

1. Where the property purchased by a lawyer was not involved in litigation.

2. Where the sale took place before it became involved in the suit.

3. Where the attorney at the time of the purchase was not counsel in the case.

4. Where the purchaser of the property in litigation was a

LEGAL ETHICS AND PRACTICAL EXERCISES COMMITTEE

L EGAL E THICS AND P RACTICAL E XERCISES C OMMITTEE
a L EGAL E THICS AND P RACTICAL E XERCISES C OMMITTEE  C HAIRPERSON :

CHAIRPERSON: Jackie Lou Bautista ASSISTANT CHAIRPERSON: Catherine Jane Vanilla SUBJECT HEADS: Ma. Ricasion Tugadi (Legal Ethics), Mary Wendy Duran(Practical Exercises) EDP: Raphy Espiritu MEMBERS: John Dale Balinan, Malou Barrios, Catherine Bool-Nuňez, Melanie Caparas, Kristian Cristobal, Remegio Dayandayan, Jr., Gerald dela Cruz, Donna Dumpit, JB Roselle Gayona, Rhea Mangubat, Joyce Marie Marquez, Rowena Mutia, Maan Salada, Melamy Salvadora, Vin- Kristine Ventura

22

2005 CENTRALIZED BAR OPERATIONS

22 2005 C ENTRALIZED B AR O PERATIONS corporation even though the attorney was an officer

corporation even though the attorney was an officer thereof. 5. Where the sale took place after the termination of the litigation. 6. A lawyer may accept an assignment from his client of a money judgment rendered in the latter’s favor in a case in which he was not counsel, in payment of his professional services performed in another case. 7. Prohibition is inapplicable to a contract for attorney’s fees contingent upon the outcome of the litigation.

CANON 17: FIDELITY TO THE CAUSE OF HIS CLIENT AND MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM CASE: Ordinarily, lawyers are not obliged to act either as advisers or as advocates of any person who may wish to become their client. They may decline employment and refuse to accept representation, if they are not in a position to carry it out effectively or competently. But once they agree to handle a case, attorneys are required by the Canons of Professional Responsibility to undertake the task with zeal, care and utmost devotion. Acceptance of money from a client establishes an attorney-client relationship and gives rise to the duty of fidelity to the client’s cause. Every case accepted by a lawyer deserves full attention, diligence, skill and competence, regardless of importance. (Rollon vs. Atty. Naraval, A.C. No. 6424, March 4, 2005)

CANON 18: SERVE CLIENT WITH COMPETENCE AND DILIGENCE

DUTY TO PROTECT CLIENT’S INTEREST The attorney’s duty to safeguard the client’s interests commences from his retainer until his effective release from the case or the final disposition of the whole subject matter of the litigation. During that period he is expected to take such reasonable steps and such ordinary care as his client’s interests may require.

PREPARATION OF PLEADINGS

A lawyer shall not handle any

legal matter without any adequate preparation. (Rule 18.02)

A lawyer should prepare his

pleading with great care and circumspection. He should refrain from using abrasive and offensive language, for it merely weakens rather than strengthens the force of legal reasoning and detracts from its persuasiveness. In preparing a complaint for damages, counsel for plaintiff should allege and state the specific amounts claimed not only in the body of the complaint but also in the prayer, so that the proper docket fees can be assessed and paid.

DUTY TO KEEP CLIENT FULLY INFORMED

A lawyer shall keep the client

informed of the status of his case. (Rule

18.04)

He should notify his client of an

adverse decision while within the period to appeal to enable his client to decide whether to seek an appellate review. He should communicate with him concerning the withdrawal of appeal with all its adverse consequences. The client is entitled to the fullest disclosure of the mode or manner by which his interest is defended or why certain steps are taken or omitted.

Doctrine of Imputed Knowledge the knowledge acquired by an attorney during the time that he is acting within

the scope of his authority is imputed to the client.

It is based on the assumption

that an attorney, who has notice of matter affecting his client, has communicated the same to his principal in the course of professional dealings. The doctrine applies regardless of whether or not the lawyer actually

communicated to the client what he learned in his professional capacity, the attorney and his client being one juridical person. Exceptions to the Rule that Notice to Counsel is Notice to Client

1. If strict application might foster dangerous collusion to the detriment of justice.