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LEGAL ETHICS
REVIEWER
LEGAL ETHICS - is a branch of moral science, which treats of the duties
which an Attorney owes to the court, to the client, to his
colleagues in the profession and to the public as embodied
in the Constitution, Rules of Court, the Code of Professional
Responsibility, Canons of Professional Ethics, jurisprudence,
moral laws and special laws.
State the significance of legal ethics.
The practice of law which covers a wide range of activities
characteristic of the legal profession including the pursuit and defense
of client's rights and interests before the court, will be transgressive,
anarchic, riotous, lawbreaking, defiant and disobedient to courts, if
there are no sets of governing rules to limit the parameters and tame
the exercise of the profession.
Legal ethics will guard against the abuses and ills of the profession
such as dishonesty, deceit, immorality, negligence, slothness, lack of
diligence and the many forms of malpractice of the members of the
bar. On the positive side, it will raise the standard of the legal
profession, encourage and enhance the respect for the law, assure an
effective and efficient administration of justice, assist in the keeping
and maintenance of law and order in coordination with the other
departments of government. It also provides the basis for weeding out
the unfit and the misfits in the legal profession for the protection of the
public. (Pineda, Legal and Judicial Ethics, 1994 Ed., pp.1 and 2).
Original Bases of Legal Ethics:
1.
2.
3.
4.
5.
DEFINITION OF TERMS
Bar vs. Bench
Refers to the whole body of attorneys and denotes the
whole body of judges, counselors, collectively the members of
the legal profession
Practice of Law any activity, in or out of court which requires the
application of law, legal procedure, knowledge, training and
experience. To engage in the practice of law is to give
notice or render any kind of service, which device or
service requires the use in any degree of legal knowledge
or skill (Cayetano v. Monsod, 201 SCRA 210).
Attorney-at-law/Counsel-at-law/Attorney/Counsel Abogado/Boceros:
- that class of persons who are licensed officers of the
courts, empowered to appear, prosecute and defend; and
upon whom peculiar duties, responsibilities, and liabilities
are developed the law as a consequence (Cui v. Cui, 120
Phil. 729).
Attorney In fact an agent whose authority is strictly limited by the
instrument appointing him, however, he may do things not
mentioned in his appointment but are necessary to the
performance of the duties specifically required of him by
the power of attorney appointing him, such authority being
necessarily implied. He is not necessarily a lawyer.
Counsel de Oficio a counsel, appointed or assigned by the court, from
among members of the Bar in good standing who, by
reason of their experience and ability, may adequately
defend the accused.
Note: In localities where members of the Bar are not
available, the court may appoint any person, resident of
the province and good repute for probity and ability, to
defend the accused. Sec. 7, Rule 116, Rules of Court.
Attorney ad hoc' a person named and appointed by the court to
defend an absentee defendant in the suit in which the
appointment is made (Bienvenu v. Factor's of Traders
Insurance Cp., 33 La.Ann.209)
Attorney of Record - one who has filed a notice of appearance and who
hence is formally mentioned in" court records as the official
attorney of the party. Person whom the client has named as
The "Bar Confidant acts as a sort of liaison officer between the court
and the Bar Chairman on the other hand, 'and the individual
members of the committee on the other. He is at the same time a
deputy clerk of .court.
Admission of examinees is always subject to the final approval of
the court.
Practice of Law
The practice of law is a PRIVILEGE granted only to those who possess
the STRICT INTELLECTUAL AND MORAL QUALIFICATIONS required of
lawyers who are instruments In the effective and efficient
administration of justice. (In Re: Argosino, 1997).
Practice of law means any activity, in or out of court, which requires
the application of law, legal procedure, knowledge, training, and
experience. "To engage in the practice of law is to perform those acts
which are characteristics of the profession. Generally to practice law is
to give notice or render any kind of service which device or service
requires the use in any degree of legal knowledge or skill." (Cayetano
vs. Monsod, 20.1 SORA 210 citing 111 AI..R 23).
Requirements for admission to the
Bar:
1.
2.
3.
4.
5.
Constitution)
7. All governors, city and municipal mayors (R.A. No. 7160, Sec. 90).
8. Those prohibited by special law
Public officials with Restrictions in the Practice of Law
1. No Senator as member of the House of Representative may
personally appear as counsel before any court of justice as before
the Electoral Tribunals, as quasi-judicial and other administration
bodies (Art. VI, Sec. 14, 1987 Constitution).
2. Under the Local Government Code (RA 7160, Sec. 91) Sanggunian
members may practice their professions provided that if they are
members of the Bar, they shall not:
a. Appear as counsel before any court in any civil case wherein a
local government unit any office, agency, or instrumentality of
the government is the adverse party;
b. 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;
c. Collect any fee for their appearance in administrative
proceedings involving the local government unit of which he is an
official;
d. Use property and personnel of the government except when the
Saggunian member concerned is defending the interest of the
government.
3. Under RA 910, Sec. 1 as amended, a retired justice or judge
receiving pension from the government, cannot act as counsel in
any civil case in which the Government, or any of its subdivision or
agencies is the adverse party or in a criminal case wherein an officer
or employee of the Government is accused of an offense in relation
to his office.
Attorney's Oath
I,___________________, do 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 willingly nor
wittingly promote or sue any groundless, false or unlawful suit, or
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 court as to my clients; and I impose upon myself this
voluntary obligations without any mental reservation or purpose
of evasion. So help me God(Form 28, RRC)
The lawyers oath is not mere facile words, drift and hollow, but a
sacred trust that must be upheld and kept inviolable. (Sebastian vs.
Calis, 1999)
It is NOT a mere ceremony or formality for practicing law. Every lawyer
should at all times weigh his actions according to the sworn promises
he made when taking the lawyers oath. (In Re: Argosino, 1997, In Re:
Arthur M. Cuevas, 1998).
contingent
fee
contracts
and
1.
2.
ATTORNEY'S FEES
Q
10
Q-
-If a lawyer claims and enforces his claim for attorney's fees,
is he required to pay docket fees? Why?
-Yes. A motion for attorney's fees is in the nature of an action
commenced by a lawyer against his client for attorney's fees, hence,
docket fees should have been priory paid before the court could lawfully act on said motion, and decide it. It may be true that the claim
for attorney's fees was but an incident in the main case, still, It is
not an escape valve from the payment of docket fees because as in
all actions, whether separate or as an offshoot of a pending
proceedings, the payment of docket fees is mandatory. (Lacson vs.
Reyes, 182 SCRA 729, Feb. 26, 1990).
Q-
11
(Radiowealth Finance Co., Inc. vs. Int'I. Corporate Bank, 182 SCRA
862, Feb. 28, 1990).
Q- May an executor or administrator recover attorney's fees for
his services to
the estate? Why?
- No. An administrator or executor may be allowed fees for necessary expenses he has
incurred but he may not recover attorney's fees from the estate. Where the
administrator is himself the counsel for the heirs, it is the latter who must pay
attorney's fees. (Lacson vs. Reyes, supra)
Q.
Q.
12
13
he rendered?
-Yes. A lawyer has a right to recover from his client a reasonable
compensation for his services, except if he agreed to render
services for free or gratuitously or if he has been appointed as
counsel de oficio.
Q
Q
- State some acts that may not negate a lawyer's right to
attorney's fees.
- They are:
(1)if the client withdrew the case or compromised it; and
(2)if he was discharged without valid cause.
Q
14
15
16
17
18
CANON 2
- A LAWYER SHALL MAKE HIS LEGAL SERVICES
AVAILABLE IN AN EFFICIENT AND CONVENIENT MANNER
COMPATIBLE WITH THE INDEPENDENCE, INTEGRITY AND
EFFECTIVENESS OF THE PROFESSION.
RULE 2.01 - A lawyer shall not reject, except for valid reasons, the cause
of the defenseless or the oppressed.
RULE 2.02 - In such cases, 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 2.03 - A lawyer shall not do or permit to be done any act designed
primarily to solicit legal business.
Primary characteristics which distinguish the legal profession from business:
a. Duty of service, of which the emolument is a by product, and in
which one may attain the highest eminence without making such
money;
b. A relation as an 'officer of court' to the administration of justice
involving thorough sincerity, integrity and reliability;
c. A relation to clients in the highest degree of fiduciary;
d. A relation to colleagues at the bar characterized by candor, fairness
19
Rule on Advertisements
General Rule: No advertisements allowed. The most worthy and
effective advertisement possible is the establishment of a wellmerited reputation for professional capacity and fidelity to trust.
Lawyers may not advertise their services or expertise nor should
not resort to indirect advertisements for professional
employment, such as furnishing or inspiring newspaper
comments, or procuring his photograph to be published in
connection with causes in which the lawyer has been engaged or
concerning the manner of their conduct, the magnitude of the
interest involved, the importance of the lawyer's position, and all
other self-laudation.
2.
3.
4.
5.
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RULE 2.04 - A lawyer shall not charge rates lower than those
customarily prescribed unless the circumstances so warrant.
A lawyer cannot delay the approval of a compromise agreement
entered into between parties, just because his attorney's fees were
not provided for in the agreement.
Rule: A lawyer cannot compromise the case without client's
consent (special. authority).
Exception: Lawyer has exclusive management of the procedural
aspect of the litigation lawyer is confronted with an emergency
and prompt/urgent action is necessary to protect clients interest
and there's no opportunity for consultation, the lawyer may
compromise.
Rule: Refrain from charging rates lower than the customary rates.
Valid Justification: relatives, co-lawyers, too poor.
21
ADMINISTRATION OF JUSTICE.
Examples: Presenting position papers or resolutions for the
introduction of pertinent bills in Congress; Petitions with the
Supreme Court for the amendment of the Rules of Court.
CANON 5 - A LAWYER SHALL KEEP ABREAST OF LEGAL
DEVELOPMENTS, PARTICIPATE IN CONTINUING LEGAL EDUCATION
PROGRAMS, SUPPORT EFFORTS TO ACHIVE HIGH STANDARDS IN
LAW SCHOOLS AS WELL AS IN THE PRACTICAL TRAINING OF LAW
STUDENTS AND ASSIST IN DISSEMINATING INFORMATION
REGARDING THE LAW AND JURISPRUDENCE.
Objectives of integration of the Bar
To elevate the standards of the legal profession
To improve the administration of justice.
To enable the Bar to discharge its responsibility more
effectively.
The three-fold obligation of a lawyer
First, he owes it to himself to continue improving his knowledge
of the laws;
Second, he owes it to his profession to take an active interest in
the maintenance of high standards of legal education;
Third, he owes it to the lay public to make the law a part of their
social consciousness.
CANON 6 - THESE CANONS SHALL APPLY TO LAWYERS IN
GOVERNMENT SERVICE IN THE DISCHARGE OF THEIR OFFICIAL
TASKS.
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is not to convict but to see that justice is done. The suppression of facts
or the concealment of witnesses capable of establishing the innocence of
the accused is highly reprehensible and is cause for disciplinary action.
RULE 6.02 - A lawyer in the government service shall not use his public
position to promote or advance his private interests, nor allow the latter
to interfere with his public duties.
RULE 6.03 - A lawyer shall not, after leaving a government service,
accept engagement or employment in connection with any matter in
which he had intervened while in said service.
Various ways a government lawyer leaves government service:
a. Retirement
b. Resignation
c. Expiration of the term of office
d. Dismissal
e. Abandonment
Q:
law.
These prohibitions shall continue to apply for a period of one (1)
year after resignation, retirement, or separation from public
office, except in the case of subparagraph (b) (2) above, but the
professional concerned cannot practice his profession in
connection with any matter before the office he used to be with,
in which case the one year prohibition shall likewise apply.
Q
6.
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A lawyer in making known his legal services shall use only true,
honest, fair, dignified and objective information or statement of
facts;
A lawyer shall participate in the development of the legal system
by initiating or supporting efforts in law reform and in the
improvement of the administration of justice;
A lawyer shall keep abreast of legal development, participate in
continuing legal education programs, support efforts to achieve
high standards in law schools as well as in the practical training
of law students and assist in disseminating information regarding
the law and jurisprudence;
These canons shall apply to lawyers in government service in the
discharge of their official tasks.
24
25
4.
5.
6.
7.
26
6.
7.
27
- What is barratry?
- Barratry is the offense of frequently exciting and stirring up
quarrels and suits, either at law or otherwise. It is a lawyer's act
of fomenting suits among individuals and offering his legal
services to one of them.
- A filed a suit against B. They entered into a compromise agreement but X, the lawyer B objected to it
as his attorney's fees have not been paid. Is the act of
X proper? Why?
- No. It is the sworn duty of a lawyer not to delay any man's
cause for money or malice. A lawyer cannot delay the
approval of a compromise agreement entered into between
the parties, just because his attorney's fees were not provided
for in the agreement. (Jesalva vs. Bautista, 105 Phil. 348).
ANS.
- They are:
1.
(Economic
2.
28
6.
Indiscriminate filing of suits against a party clearly intended for
harassment. (
Dimagiba14 vs. Montalvo, Jr., 202 SCRA 641).
Q
29
30
Q
Explain.
31
32
it shall be bona fide, and shall not spill over the walls of decency and
propriety. (In Re: Alrrfacen, 31 SCRA 562)
CANON 9 - A LAWYER SHALL NOT, DIRECTLY OR INDIRECTLY, ASSIST
IN THE UNAUTHORIZED PRACTICE OF LAW.
RULE 9.01 - A lawyer shall not delegate to any unqualified person the
performance of any task which by law may only be performed by a member
of the Bar in good standing.
RULE 9.02 - A lawyer shall not divide or stipulate to divide a fee for legal
services with persons not licensed to practice law, except:
a) Where there is a pre-existing agreement with a partner or associate
that, upon the latter's death, money shall be paid over a reasonable
period of time to his estate or to persons specified in the agreement; or
b) Where a lawyer undertakes to complete unfinished legal business of a
deceased lawyer; or
Lawyer should deal only with counsel, even if there's a fair agreement.
Lawyer may however, interview any witness or prospective witness for the
opposing side..;
Limitation: avoid influencing witness in recital and conduct.
33
34
- May a lawyer divide a fee for legal services with one who is
not licensed to practice law? Is the rule absolute?
- A lawyer shall not divide or stipulate to divide a fee for legal services
with persons not licensed to practice law. The rule is not absolute as
there are exceptions like:
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 the person specified in
the agreement; or
2. Where a lawyer undertakes to complete unfinished business of a
deceased lawyer; or
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. (Rule 9.02 [a], [b], [c]).
35
RULE 10.03 - A lawyer shall observe the rules of procedure and shall not
misuse them to defeat the ends of justice.
Judge-lawyer relationship: based on independence and self-respect.
Lawyer's duty to the court:
a. Respect and loyalty
b. Fairness, truth and candor c. No attempt to influence courts
Cases of falsehood:
a. Stating in the Deed of Sale that property is free from all liens and
encumbrances
when not so
b. Encashing check payable to a deceased cousin by signing the latter's
name on
the check
c. Falsifying a power of attorney and using it in collecting the money due
36
to the
principal.
d. Alleging in one pleading that the clients were mere lessees and in
another
pleading that the same clients were owners
e. Presenting falsified documents in court which he knows to be false
f. Filing false charges on groundless suits
g. Using in pleadings the IBP number of another lawyer
h. Unsolicited appearances
i. Use of fictitious residence certificate
j. Misquotation/misrepresentation
k. Citing a repealed or amended provision
J. Asserting a fact not proved
m. Verbatim reproductions down to the last word and punctuation mark
n. Slight typo mistake: not sufficient to place him in contempt
CANON ll. -A LAWYER SHALL OBSERVE AND MAINTAIN THE
RESPECT DUE TO THE COURTS AND TO JUDICIAL OFFICERS AND
SHOULD INSIST IN SIMILAR CONDUCT BY OTHERS.
RULE 11.01- A lawyer shall appear in court properly attired.
The public duties of the attorney take precedence over his private duties.
His first duty is to the courts. Where duties to the courts conflict with his
duties to his clients, the latter must yield to the former.
Lawyers must be respectful not only in actions but also in the use of
37
Must exert efforts that others (including clients, witnesses) shall deal with
the courts and judicial officers with respect.
Criticisms of courts must not spill the walls of decency. There is a wide
difference between fair criticism and abuse and slander of courts and
judges. Intemperate and unfair criticism is a gross violation of the duty to
respect the courts. It amounts to misconduct which subjects the lawyer to
disciplinary action.
38
Newly hired counsel: must acquaint himself with all the antecedent
proceedings and
processes that have transpired in the record prior to his takeover.
RULE 12.02 - A lawyer shall not file multiple actions arising from the same
cause.
Forum shopping - omission to disclose pendency of appeal or prior
dismissal of his
case by a court of concurrent jurisdiction with intent of seeking a
favorable opinion.
RULE 12.03 - A lawyer shall not, after extensions of time to file pleadings,
memoranda or briefs, let. The period lapse without submitting the same or
offering an explanation for his failure to do so.
RULE 12.04 - A lawyer shall not unduly delay a case, impede the execution
of a judgment or misuse Court processes.
RULE 12.05 - A lawyer shall refrain from talking to his witness during a
39
break or recess in the trial, while the witness is still under examination.
RULE 12.06 - A lawyer shall not knowingly assist a witness to misrepresent
himself or to impersonate another.
RULE 12.07- A lawyer shall not abuse, browbeat or harass a witness nor
needlessly inconvenience him.
Rights and obligations of a witness - a witness must answer questions,
although his answer may tend to establish a claim against him. However,
it is the right of a witness:
1. To be protected from irrelevant, improper, or insulting questions and
from
harsh or insulting demeanor;
2. Not to be detained longer than the interest of justice requires;
3. Not to be examined except only as to matters pertinent to the issue;
4. Not to give any answer which will tend to subject him to a penalty
for an : offense unless otherwise provided by law, or
5. Nor to give answer which will tend to degrade his reputation, unless
it be to
the very fact at issue or to a fact from which the fact in issue would be
presumed. But a witness must answer to the fact of his previous final
conviction for an offense. (Rule 132, Sec. 3, RRC)
RULE 12.08- A lawyer shall avoid testifying in behalf of his client, except:
a) On formal matters, such as the mailing, authentication or custody of an
instrument, and the like; or
b) On substantial matters, in cases where his testimony is essential to the
ends of justice, in which event he must, during his testimony, entrust the trial
of the case to another counsel
The judge has the corresponding duty not to conveyor permit others to
convey the
40
Lawyer is equally, guilty as the client if he induces the latter to cause the
publicity.
Q-
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.
Who has the power to regulate the admission to the bar and
the practice of law?
The Supreme Court, as regulator and guardian of the legal profession,
has plenary disciplinary authority over attorneys. The authority to
discipline lawyers stems from the Court's Constitutional mandate to
regulate admission to the practice of law, which includes as well
authority to regulate the practice itself of law. (Zaldivar vs.
Sandiganbayan, 166 SCRA 316 [1988]).
41
their clients' rights, lawyers even those gifted with superior intellect are
enjoined to give due respect to the courts. (Zaldivar vs. Gonzales, supra).
Q - A lawyer wanted the Office of the President to review the
decision of the Supreme Court. Is the act of the lawyer subject to
discipline? Why?
Yes, because respect to the court is an important duty of a lawyer. No
other department of the government can review the decisions of the
Supreme Court. What the lawyer did was even violative of the principle
of separation of powers. (Maglasang vs. People, 190 SCRA 308).
Q
- Is the act of a lawyer of filing baseless cases against a judge
proper? Why?
No. In Aparicio vs. Andal, et al., July 25, 1989, it was said that filing of
baseless cases against a judge is improper. He was admonished
because a lawyer has a basic duty to conduct himself with good fidelity
to the courts, to be courteous, fair, not be combative and bellicose.
(Sangalang vs. Gaston, Aug. 30, 1989; In re: Laureta).
Q
Q-
42
and with the propriety which the dignity of the courts requires. For his
investiture into the legal profession places upon his shoulders no
burden more basic, more exacting and more intemperate than that of a
respectful behavior toward the courts.
A lawyer owes the court the duty to observe and maintain a
respectful attitude not for the sake of temporary incumbent of the
judicial office but for the maintenance of its supreme importance.
(Department of Health vs. Sy Chi Siong Co., Inc., et al., G.R. No. 85289,
Feb. 20, 1989).
A lawyer owes candor, fairness and good faith to the Court.
(Canon 10). A lawyer shall observe and maintain the respect due to the
Court and to judicial officers (Canon 11) and a lawyer shall exert every
effort and consider it his duty to assist in the speedy and efficient
administration of justice. (Canon 12). (Pentecostes vs. Judge Hidalgo,
Adm. Case No. RTC 89-331, Sept. 28, 1990).
A lawyer should be courteous, respectful to the courts of justice.
He should be fair, not repultant, combative and bellicose in dealing
with the Court. The use of disrespectful, intemperate and manifestly
baseless and malicious statements in his pleadings or motions is a
direct contempt of Court for which he may be disciplined. (Aparicio vs.
Andal, July 25, 1989; Zaldivar vs. Gonzales, supra).
Q-
Q-
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44
contempt. (Kalilid Wood Industries Corp. vs. CA, 197 SCRA 735, May
31,1991; Eternal Gardens Memorial Park Corp. vs. CA, et al., August 5,
1998, 97 SCAD 93).
Complainant's (lawyer) wanton disregard of the Supreme Court's stern
warning not to file baseless and frivolous complaints and his adamant
refusal to abide by Canon 11, Rule 11.03 and Rule 11.04 of the Code of
Professional Responsibility have shown his unfitness to hold the license
to practice law. (Balaoing vs. Calderon, 221 SCRA 533).
Q
A lawyer shall observe the rules of procedure and shall not misuse
them to defeat the ends of justice. (Canon 10.03, Canon 10, CPR); and
b.)
A lawyer shall not file multiple actions from the same cause. (Rule
12.02, Canon 12, CPR).
Q-
Q-
45
the MTC, or RTC or Court of Appeals, he has failed to observe the responsibility imposed on him as a member of the Bar to keep abreast
with the latest developments in the law. (Uy vs. CA, et al., G.R. No.
126337, February 12, 1998, 91 SCAD 715).
RULE 14.02 A lawyer shall not decline, except for serious and sufficient
cause, an appointment as counsel de oficio or as amicus curiae,
or a request from the Integrated Bar of the Philippines or any of
its chapters for rendition of free legal aid.
RULE 14.03 A lawyer may not refuse to accept representation of an
indigent client unless:
(a) he is not in a position to carry out the work effectively or
competently;
(b)he labors under a conflict of interest between him and the
prospective client or between a present client and the prospective client.
RULE 14.04 A lawyer who accepts the cause of a person unable to pay
his professional fees shall observe the same standard of conduct
46
Requisites
of
Communication:
Privileged
47
48
RULE 15.05 - A lawyer when advising his client, shall give a candid and
honest opinion on the merits and probable results of the client's
case, neither overstating nor understating the prospects of the
case.
RULE 15.06 A lawyer shall not state or imply that he is able to influence
any public official, tribunal or legislative body.
RULE 15.07 A lawyer shall impress upon his client compliance with the
laws and the principles of fairness.
RULE 15.08 - A lawyer who is engaged in another profession or occupation
concurrently with the practice of law shall make clear to his client
whether he is acting as a lawyer or in another capacity.
Lawyers should refrain from giving any advice unless they have obtained
sufficient understanding of their client's cause. A careful investigation and
examination of the facts must first be had before any legal opinion be
given by the lawyer to the client.
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50
Failure to deliver upon demand gives rise to the presumption that he has
misappropriated the funds for his own use to the prejudice of the client
and in violation of the trust reposed in him.
Notify client if retaining lien shall be implemented.
When a lawyer enforces a charging lien against his Client, the clientlawyer relationship is terminated.
The principle behind Rule 16.04 is to prevent the lawyer from taking
advantage of his influence over the client or to avoid acquiring a financial
interest in the outcome of the case.
It is the duty of the lawyer at the time of retainer to disclose to the client
all the Circumstances of his relations to the parties and any interest in, or
connection with, The controversy which might influence the client in the
selection of counsel.
The lawyer owes loyalty to his client even after the relation of attorney
and client has terminated. (Lorenzana Food Corp. vs. Daria, 197 SCRA428)
It is not good practice to permit him afterwards to defend in another case
other persons against his former client under the pretext that the case is
distinct from and independent of the former case.
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52
RULE 19.03 - A lawyer shall not allow his client to dictate the procedure in
handling the case.
Lawyer should do his best efforts to restrain and to prevent his clients
from perpetrating acts which he himself ought not to do. Or else,
withdraw. But lawyer shall not volunteer the information about the
client's commission of fraud anyone counter to duty to maintain clients
confidence and secrets.
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required;
(b)The novelty and difficulty of the questions involved;
(c) The importance of the subject matter;
(d)The skill demanded;
(e) The probability of losing other employment as a result of
acceptance of the proffered case;
(f) The customary charges for similar services and the schedule
of fees of the IBP chapter to which he belongs;
(g)The amount involved in the controversy and the benefits
resulting to the client from the services;
(h)The contingency or certainty of compensation;
(i) The character of the employment, whether occasional or
established; and
(j) The professional standing of the lawyer.
Kinds of Payment which may be stipulated upon:
A fixed or absolute fee which is payable regardless of the result of the
case b. A contingent fee that is conditioned to the securing of ,a
favorable judgment
and recovery of money or property and the amount of which may be
on a
percentage basis,
c. A fixed fee payable per appearance
d. A fixed fee computed by the number of hours spent
e. A fixed fee based on a piece of work
Attorney's Fees
a. Ordinary attorney's fee - the reasonable compensation paid to a
lawyer by his client for the legal services he has rendered to the
latter. The basis for this compensation is the fact of his employment
by and his agreement with the client.
b. Extraordinary attorney's fee.. an indemnity for damages ordered by
the court
to be paid by the losing party In litigation. The basis for this is any of
the cases provided for by law where such award can be made, such as
those authorized in Article 2208 of the Civil Code, and is payable NOT to
the lawyer but to the client, unless they have agreed that the award shall
pertain to the lawyer as additional compensation or as part thereof.
2. A petition for attorney's fees may be filed before the judgment in favor of
the client is satisfied or the proceeds thereof delivered to the client.
3. The determination as to the propriety of the fees or as to the amount
thereof will have to be held in abeyance until the main case from which the
lawyers claim for attorney's fees may arise has become final. Otherwise, the
54
RULE 20.02 A lawyer shall, in cases of referral, with the consent of the
client, be entitled to a division of fees in proportion to the work
performed and responsibility assumed.
RULE 20.03 - A lawyer shall not, without the full knowledge and consent of
the client, accept any fee, reward, costs, commission, interest,
rebate or forwarding allowance or other compensation
whatsoever related to his professional employment from anyone
other than the client.
55
RULE 20.04 - A lawyer shall avoid controversies with clients concerning his
compensation and shall resort to judicial action only to prevent
imposition, injustice and fraud.
Unauthorized counsel: Not entitled to attorney's
fees.
When counsel cannot recover full amount despite written contract for
attorneys fees:
a. When he withdraws before the case is finished
b. Justified dismissal ()f 'attorney (payment: in quantum meruit only)
The reason for the award of attorney's fees must be stated in the text of
the decision; otherwise, if It is stated only in the dispositive portion of the
decision, the same must be disallowed on appeal.
56
Rules of Court)
RULE 21.02 A lawyer shall not, to the disadvantage of his client, use
information acquired in the course of employment, nor shall he use the same
57
to his own advantage or that of third person, unless the client with full
knowledge of the circumstance consents thereto.
RULE 21.03 A lawyer shall not, without the written consent of his client,
give information from his files to an outside agency seeking such
information for auditing, statistical bookkeeping, accounting,
data processing, or any similar purpose.
RULE 21.04 - A lawyer may disclose the affairs of a client of the firm to
partners or associates thereof unless prohibited by the client.
RULE 21.05 - A lawyer shall adopt such measures as may be required to
prevent those whose services are utilized by him, from disclosing
or using confidences or secrets of the client.
RULE 21.06 - A lawyer shall avoid indiscreet conversation about a client's
affairs even with members of his family.
RULE 21.07 - A lawyer shall not reveal that he has been consulted about a
particular case except to avoid possible conflict of interest.
58
1.NATURE
2. BASIS
3. COVERAGE
4. WHEN LIEN
TAKES
EFFECT
5. NOTICE
6.
APPLICABILIT
Y
RETAINING LIEN
Passive Lien: It cannot be
actively enforced. It is a
general lien
Lawful possession of papers,
documents, property belonging
to client.
Covers only papers, documents
and property in the lawful
possession of the attorney by
reason of his professional
employment.
As soon as the attorney gets
possession of the papers
documents or property
Client need not be notified to
make it effective
May be exercised before
judgment or execution or
regardless thereof.
CHARGING LIEN
ACTIVE LIEN: It can be enforced
by execution. It is a special lien.
Securing of a favorable money
judgment for the client.
Covers all judgment for the
payment of money and
executions issued in pursuance of
such judgments.
As soon as the claim for
attorneys fees had been entered
into the records of the case.
Client and adverse party must be
notified to make it effective
Generally, it is exercisable only
when the attorney had already
secured a favorable judgment for
his client
Withdrawal as counsel for a' client, an attorney may only retire from a
59
An attorney who could not get the written consent of his, client must
make an application to the court, for the relation does not terminate
formally until there is a withdrawal of record. Counsel has no right to
presume that the court would grant his withdrawal and therefore must still
appear on the date of hearing.
A lawyer cannot recover compensation from one who did not employ or
authorize his
employment, however valuable the results of his services
may have been to such
person. In similar cases, no compensation when:
a. Client conducts himself in a manner which tends to degrade his
attorney; b. Client refuses to extend cooperation;
c. Client stops having contact with him.
60
employment;
(9) Declaration of the presumptive death of the lawyer (art. 390, New
Civil Code; art.
41, Family Code)
(10) Conviction for a crime and imprisonment of the lawyer
LIABILITIES OF LAWYERS
Civil Liability
a. Client is prejudiced by lawyers negligence or misconduct b. Breach
of fiduciary obligation
b. Breach of fiduciary obligation
c. Civil liability to third persons
d. Libelous words in pleadings; violation of communication privilege
e. Liability for costs of suit (treble costs) - when lawyer is made liable
for
insisting on client's patently unmeritorious case or interposing appeal
merely to delay litigation
Criminal Liability
a. Prejudicing client through malicious breach of professional duty
b. Revealing client's secrets
c. Representing adverse interests
d. Introducing false evidence
e. Misappropriating client's funds (estafa)
Contempt of Court
a. Kinds of Contempt:
1. Direct - consists of misbehavior in the presence of or so near a
court
or judge as to interrupt or obstruct the proceedings before
the court or
the administration of justice; punished summarily.
2. Indirect - one committed away from the court involving
disobedience of or resistance to a lawful writ, process, order,
judgment or command of the court, or tending to belittle,
degrade, obstruct, interrupt or embarrass the court.
3. Civil- failure to do something ordered by the court which is
for the
benefit of a party.
4. Criminal - any conduct directed against the authority or
dignity of the
court.
The exercise of the power to punish contempt has a twofold
aspect, namely
(1)the proper punishment of the guilty party for his disrespect
to the court or its order; and
61
The power to punish for contempt and the power to disbar are separate
and distinct, and that the exercise of one does not exclude the exercise of
the other. (People vs.
Godoy, 243 SCRA 64)
62
1. To compel the attorney to deal fairly and honestly with his clients;
2. To remove from the profession a person whose misconduct has
proved him unfit to be entrusted with the duties and responsibilities
belonging to the office of all attorney;
3. To punish the lawyer;
4. To set an example or a warning for the other members of the bar;
5. To safeguard the administration of justice from Incompetent and
dishonest Lawyers;
6. To protect the public .
I
Characteristics of Disbarment Proceedings:
1. Neither a civil nor criminal proceedings;
2. Double jeopardy cannot be availed of In a disbarment proceeding;
3. It can be initiated motu propio by the SC or IBP. It can be initiated
without a complaint;
4. It is imprescriptible;
5. Conducted confidentially;
6. It can proceed regardless of the interest of the lack thereof on the
part of the complainant;
7. It constitutes due process.
63
REINSTATEMENT
Reinstatement - the restoration in disbarment proceedings to a disbarred
lawyer the privilege to practice law.
Criterion. The applicant must, like a candidate for admission to the Bar,
satisfy the Court that he is a person of good moral character - a fit and
proper person to practice law. The Court will take into consideration the
applicant's character and standing prior to the disbarment, the nature and
character of the charge for which he was disbarred, his conduct
subsequent to the disbarment, and the time that has elapsed between the
disbarment and the application for reinstatement. Whether or not the
applicant shall be reinstated rests on the discretion of the court.
(Prudential Bank VS. Benjamin Grecia, 192 SCRA 381).
64
Exceptions:
a. Property is acquired by lawyer through
arrangement
b. Any of the 4.e.Ie.ments of Art. 1491 is missing
contingent
fee
65
66
Q
- What should a lawyer do when he receives an adverse
decision? Explain.
- He should inform his client about the adverse decision. If he fails to do
so, he is considered as having failed to exercise due diligence of
counsel. A lawyer handling a case must give his entire devotion to the
interest of his client. Neither shall he neglect a legal matter entrusted
to him for his negligence therewith shall render him liable. He can be
67
- The Law Firm should have re-assigned the case to another lawyer for
the purpose of preparing the brief or it could have withdrawn as
counsel in the manner provided by the rules so that the client can
contract the services of a new lawyer. The negligence of the law firm in
this matter binds the client. Besides, the client himself was negligent
when he failed to make inquiries with respect to the status of his case,
he being a close friend of the lawyer who handled it. The fact should
have made him more vigilant with respect to the case at bar, as he
failed to do so, its plea that it was not accorded the right to procedural
due process cannot elicit either approval or sympathy. (B.R. Sebastian
Enterprises vs. Court of Appeals, 206 SCRA 28)
Q - A lawyer was tardy in his appearance before a judge in a
case, hence, it was considered submitted for resolution. After
learning of the incident, he asked the Court to reconsider it and
the judge told him to file a motion for reconsideration. He did not
notify his client of the turn of events. Explain the effect of his
acts.
- His failure to file the motion for reconsideration despite the instruction of
the judge amounts to negligence. His explanation that the judge already
advised him of the improbability of reconsideration is devoid of merit. He
still should have taken the proper steps in order to prevent the judgment
from becoming final and executory. Worse, he did not even notify his client
of the status of the case, even after he received notice of the decision. He
should not have gone to Iloilo without leaving someone in his office to act
on urgent matters and to notify him of developments in the case he was
handling. This is sheer lack of professional sincerity. Counsel was
suspended from practice for one year. (Perla Compania de Seguros vs.
Santisteban, 207 SCRA 153).
68
the branch office. Is service upon him binding upon the main
office? Why?
-Yes. Where a lawyer represents himself to be part of one law firm,
service on that lawyer in his branch office will be a valid service, and
the law firm cannot be allowed to pretend that its main and branch
offices are separate law firms with separate and distinct personalities.
(Quano Arrastres vs. Alsonas, 20 SCRA 619).
Q - At the hearing of a case, the counsels agreed to consider the
case submitted for decision on the basis of the evidence,
excluding certain amounts of interests and nominal damages.
When the judgment adverse to one party was rendered, he moved
to annul the same contending that such act constituted a
compromise which his counsel was not authorized to do. Rule on
his contention and explain.
This was not a compromise or stipulation of facts or confession of
judgment. If at all, there was only a mutual waiver on the part of both
parties (right to present evidence for defendant, and interests and
stipulated attorney's fees for plaintiff). The counsels in this case had the
implied authority to do all the acts necessary or incidental to the
prosecution and management of the suit in behalf of their clients who
were all present but never objected to the disputed order of the court.
They have the exclusive management of the procedural aspect of the
litigation including the enforcement of the rights and remedies of the
client. Thus, when the case was submitted for decision on the evidence so
far presented, the counsel for private respondents acted within the scope
of his authority as agent and lawyer in negotiating for favorable terms for
his client. Parties are bound by the acts and mistakes of their counsel in
procedural matters. Mistakes of counsel as to the relevancy and
irrelevancy of certain evidence or mistakes in the proper defense, in the
introduction of certain evidence, or in argumentation are, among others
all mistakes of procedure, and they bind the client, as in the instant case.
(Mobil Oil vs. CFI Rizal, 208 SCRA 523).
Q
- The mistake of a lawyer generally binds the client. Is the rule
absolute? Explain.
- No. Though as a general rule, the client is bound by the mistakes or
negligence of his lawyer, the Supreme Court has made an exception.
Where the lawyer's lack of devotion to the client is so gross and
palpable that the court must come to the aid of the distraught client.
This was the situation in Legarda vs. CA, 195 SCRA 418, where the
lawyer merely filed a Motion for Extension of Time to file an answer,
and thereafter did nothing else.
Q
69
Where a lawyer did not file an answer for his client despite an
extension of time therefor having been granted, resulting in an
adverse judgment and then failed to appear and then allowed the
period to file a petition for relief to lapse, and thereafter did not file a
petition for annulment of the judgment in the appellate court despite
being asked by his client to do so, he is guilty of gross and inexcusable
negligence that effectively denied the client of her day in court,
depriving her of her property without due process of law. In this case,
the client is not bound by the actions of counsel. (Legarda vs. Court of
Appeals, 195 SCRA 418). But where the client knew all along that their
counsel was not attending to their case, did not take steps to change
counselor attend to their cases until it was too late, and continued to
retain the service of the negligent counsel despite full knowledge of
his lapses, they cannot raise that negligence to warrant reversal of the
adverse decision. (Boyer-Roxas vs. Court of Appeals, 211 SCRA
470).
Q - May the Court discipline a lawyer even if his act is not
covered by a client-lawyer relationship between the complainant
and himself? Explain.
Yes. In fact, in Lizaso vs. Amante, A.C. No. 2019, June 3, 1991, 198
SCRA 1, where Atty. Amante enticed complainant to invest in the casino
business with the proposition that her investment would yield her an
interest of 10% profit daily, and Atty. Amante not only failed to deliver
the promised return on the investment but also the principal thereof
(P5, 000.00) despite complainant's repeated demands, the Supreme
Court said:
As early as 1923, however, the Court laid down in In Re
Vicente Pelaez [44 Phil. 567 (1923) J the principle that it
can exercise its power to discipline lawyers for causes
which do not involve the relationship of attorney and client
In disciplining the respondent, Mr. Justice Malcolm said: As
a general rule, a court will not assume jurisdiction to
discipline one of its officers for misconduct alleged to have
been committed in his private capacity. But this is a
general rule with many exceptions x x x The nature of the
office, the trust relation which exists between attorney and
client, as well as between court and attorney, and the
statutory rules prescribing the qualifications of attorneys,
uniformly require that an attorney shall be a person of
good moral character. If that qualification is a condition
precedent to a license or privilege to enter upon the
practice of the law, it would seem to be equally essential
during the continuance of the practice and the exercise of
the privilege. So it is held that an attorney will be removed
not only for malpractice and dishonesty in his profession,
but also for gross misconduct not connected with his
70
71
2.
Was the respondent guilty of representing conflicting
interest when his accounting firm prepared the list of assets and
liabilities of the estate and, at the same time, computed the claims
of two creditors of the estate and yet, the estate was represented
by his law firm? Explain.
Yes, because the interest of the estate and that of the creditors are
adverse to each other. By representing the creditors when his
accounting firm prepared and computed the claims of the two creditors
while his law firm represented the estate, there was clearly a conflict
between them which stands as debtor and that of the two claimants
who are creditors in the estate. He thus, undoubtedly placed his law
firm in a position where his loyalty to his client could be doubted. In the
estate proceedings, the duty of respondent's law firm was to contest
the claims of these two creditors but which claims were prepared by
respondent's accounting firm. Even if the claims were valid and did not
prejudice the estate, the set-up is still undesirable. The test to
determine whether there is a conflict of interest in the representation is
probability, not certainty of conflict. It was respondent's duty to inhibit
either of his firms from said proceedings to avoid the probability of
conflict of interest. (Nakpil vs. Valdes, supra).
3.
72
73
Q
- May a client terminate his lawyer and cite the effects of the
same?
.
- Yes, a client has the right to terminate his lawyer at any time with or
without just cause. If it
is without just cause, he must fully pay the compensation agreed upon.
If it is with just cause, the payment of compensation is based on
quantum meruit.
Q
- What is the effect of death or incapacity of a client?
ANS.
- Death or incapacity of a client terminates the relationship of the
lawyer and client. Thus, the lawyer cannot represent the estate unless he is
retained by the administrator.
Q
74
Q
- What is the test of conflict of interest in disciplinary cases
against a lawyer?
- The test is whether or not the acceptance of a new relation will
prevent an attorney from the full discharge of his duty of undivided
fidelity and loyalty to his client or invite suspicion of unfaithfulness of
double-dealing in the performance thereof. (Tiana vs. Ocampo, supra).
Q
- When is a lawyer deemed to be representing conflicting
interests?
- A lawyer represents conflicting interests when, in behalf of one client,
75
it is his duty to contend for that which duty to another client requires
him to oppose. The obligation to represent the client with undivided
fidelity and not to divulge his secrets or confidence forbids also the
subsequent acceptance of retainers or employment from others in
matters adversely affecting any interest of the client with respect to
which confidence has been reposed.
In cases where a conflict of interest may exist, full disclosure of the
facts and express consent of all the parties concerned are necessary.
There is no necessity for proving the actual transmission of confidential
information to an attorney in the course of his employment by his first
client in order that he may be precluded from accepting employment
by the second Or subsequent client where there are conflicting
interests between the first and the subsequent clients. Absence of
monetary consideration does not exempt the lawyer from complying
with the prohibition against pursuing cases where a conflict of interest
exists. (Buted vs. Hernando, 203 SCRA 1, Oct. 17, 1991).
Q
Q
State and explain the test in determining a conflict of
interest.
- The test of conflict of interest in disciplinary cases against a lawyer is
whether or not the acceptance of a new relation will prevent an
attorney from the full discharge of his duty of undivided fidelity and
loyalty to his client or invite suspicion of unfaithfulness or doubledealing in the performance thereof. (In re: De la Rosa, 27 Phil. 265).
Q
76
77
- He must account for the same, otherwise, his conduct shows his
unfitness for the confidence and trust reposed in him, or showing such
lack of personal honesty or good moral character as to render him
unworthy of public confidence, a ground for disbarment. (Navarro vs.
Meneses, 91 SCAD 285, 285 SCRA 586; 19ual vs. Javier, 69 SCAD 117,
March 7,1996; Castillo vs. Taguines, 69 SCAD 291, March 11, 1996;
Jaime Curimatmat, et al. vs. Atty. Felipe Gojat, A.C. No. 4411, June 10,
1999).
78
- The death of one of the partners of a law firm does not extinguish the
lawyer-client relationship between said firm and petitioner. If the firm
does not file the brief for the client, that is an inexcusable negligence.
The mere fact that the lawyer who was designated to handle the case
left the law office is of no moment. (R.B. Sebastian Ent., Inc. vs. CA,
G.R. No. 41862, Feb. 7, 1992). Negligence of counsel binds the client.
Q
Q
- How do you describe the relationship between a lawyer and
his client? Explain.
.
- The relation between an attorney and his client is highly fiduciary and
very delicate, exacting and confidential, requiring a high degree of
fidelity and good faith. In view of that special relationship, lawyers are
bound to promptly account for money or property received by them on
behalf of their clients and failure to do so constitutes professional
misconduct. The fact that a lawyer has a lien for fees on money in his
hands collected for his client does not relieve him from the duty of
promptly accounting for the funds received. (Licuanan vs. Melo, A.C.
2361, 9 Feb. 89).
79
- A lawyer must protect the rights and interests of his client and not to
take advantage of him. He should be more circumspect in dealing with
the properties of his client instead of
concentrating only on his
attorney's fees. (Fornilda vs. Branch 164, RC, 169 SCRA 376).
A lawyer owes fidelity to the cause of his client and must be
mindful of the trust and confidence reposed in him. (Canon 17). He
shall serve his client with competence and diligence, and his duty of
entire devotion to his client's cause not only requires, but entitles him
to employ every honorable means to secure for the client what is justly
due him or to present every defense provided by law to enable the
latter's cause to succeed. (Canon 15). An 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. (Visitacion vs. Manit, March 27, 1969). During
that period, he is expected to take such reasonable steps and such
ordinary care as his client's interests may require. (Gamalinda vs.
Attys. Fernando Alcantara and Joselito Lim, A.C. No. 3695, Feb. 24,
1992).
The Supreme Court also admonished lawyers on their duty to advice
their clients not to make untenable claims. As officers of the court, they
are under obligation to advice their clients against making untenable
and inconsistent claims. For, they are not merely hired employees who
must unquestionably do the bidding of the clients. (Periquet vs. NLRC,
186 SCRA 724).
In one case, the Supreme Court however reminded litigants that
lawyers are not demi-gods or magicians who can always win their
cases for their clients no matter the utter lack of merit of the same or
how passionate the litigants may feel about their cause, while lawyers
are expected to serve their clients with competence and diligence,
they are not always expected to be victorious. (Curimatmat, et ai. vs.
Gojari, A.C. No. 4411, June 10, 1999).
Q
80
attend to and protect the integrity of his client. Hence, a lawyer was
warned for his inexcusable negligence to appear for pre-trial.
(Agravante vs. Patriarca, 183 SCRA 113 [1990]).
Hence, in Gutierrez vs. Zulueta, 187 SCRA 64, a lawyer was suspended
for one year for his failure to exercise due diligence in protecting and
attending to the interest of his client. He failed to file the brief to the
prejudice of his client. He attributed the negligence to his secretary
which was not accepted.
Q
Q
- What is the extent of the lawyer's obligation of fidelity to his
client? Explain.
- A lawyer owes fidelity to the cause of his client but not at the expense
of truth and the administration of justice. Practice of law must not
serve as an instrument for the harassment of the complainant and the
misuse of judicial processes. (Garcia vs. Francisco, 220 SCRA 512,
March 30, 1993).
As officers of the court, counsels are under obligation to advise
their client against making untenable and inconsistent claims. Lawyers
are not merely hired employees who must unquestionably do the
bidding of their client, however, unreasonable this may be when tested
by their own expert appreciation of the pertinent facts and the
applicable law and jurisprudence. Counsel must counsel. (Periquet vs.
NLRC, 196 SCRA 724, June 22,1990).
Q
- How do you characterize the right of a client to terminate the
services of his counsel?
- The right of client to terminate his relations with his counsel is
universally recognized. Such termination may be with or without cause.
The right of a client to terminate the authority of his counsel includes
the right to make a change or substitution at any stage of the
proceedings. To be valid, any such change or substitution must be
made: (a) upon written application; (b) with written consent of the
81
82
Q
- What if the purchase was made after the litigation has
already been terminated, is the disqualification still applicable?
Why?
- No more.
A contract of services does not violate Art. 1491, NCC prohibiting lawyers
from acquiring by purchase even at a public or judicial auction, properties
and rights which are the objects of litigation in which they may take part by
virtue of their profession, if the purchase takes place after the litigation.
(Fabillo vs. IAC, March 11, 1991). The rule has to be so because the public
policy that is sought to be preserved no longer exists, as there can be no
more undue influence that the lawyer may exert against his client.
Q
83
Q
- What is the effect if a lawyer makes an unsolicited
appearance for a person without a Client lawyer relationship?
The unsolicited appearance of a lawyer in the absence of client-lawyer
relationship with a client is an act unbecoming of a member of the Bar, and
should be a cause for investigation. (Porac Trucking, Inc. vs. CA, 183 SCRA
45, March 6, 1990).
Q
- State the effect of a lawyer's participation in the preparation
of prohibited contracts.
- Participation in the execution of the prohibited contracts such as
those referred to in Articles 1491 and 1646 of the New Civil Code has been
held to constitute breach of professional ethics on the part of the lawyer for
which disciplinary action may be brought against him. The claim of good faith
is no defense to a lawyer who has failed to adhere faithfully to the legal
84
DISBARMENT
Q
85
The lawyer's oath (Rule 138, Section 17, Rules of Court; People vs.
De Luna, 102 Phil. 968), imposes upon every lawyer the duty to
delay no man for money or malice. The lawyer's oath is a
source of his obligations and its violation is a ground for his
suspension, disbarment or other disciplinary action. (Legal Ethics, Ruben E. Agpalo, 1983 Edition, pp. 66-67).
As the late Chief Justice Fred Ruiz Castro said:
"A person takes an oath when he is admitted to the
86
87
- A was not allowed to take his oath as a lawyer and sign the
attorney's roll. Ten years later, he was allowed to do so, upon
testimonials signed by some people as to his moral character
and civic consciousness. But before he was able to do so, the
original complainants in the malpractice case moved for a
reconsideration contending that while being a Land
Investigator at the Bureau of Lands, he was able to procure a
falsified free patent over a public land which he used to secure
a loan by means of a real estate mortgage which he did not
pay. Is the resolution of the Supreme Court revoking the
resolution allowing him to sign the attorney's roll and take his
oath proper? Why?
Yes, because he does not possess the required good moral character to
be a member of the Bar. The law requires that a lawyer must be of
good moral character and this is required not only in his membership in
the Bar, but also in the performance of his duties as a public officer.
88
Q
- A lawyer was found guilty of immoral conduct having married
twice. Can he be suspended? Why?
89
90
91
- They are:
1) There is no need to refer the case to the OSG for the initiation of
the charges;
2) The Supreme Court has the authority to confront and prevent a
substantive evil which is the degradation of the justice system of
the country and the destruction of the standards of professional
conduct required of the members of the bar;
3) The imposition of indefinite suspension is not cruel or unusual
punishment.
This is to give him a chance to purge himself on his own good
time on his contempt and misconduct exhibiting appropriate
repentance and demonstrating his willingness and capacity to live up
to the existing standards of a member of the bar. (Zaldivar vs.
Gonzales, 170 SCRA 1).
92
For, as has been said in Tolosa vs. Cargo, March 3, 1989, a lawyer
must not only comply with the rigorous standards of conduct
appropriately required of a member of the bar. He must not only
be .seen of good moral character, and leading the good lines in
accordance with the highest standards of the community.
Q
- What is the effect if a lawyer violates BP BIg. 22 and is
convicted? Explain.
- Violation of BP BIg. 22 is a crime involving moral turpitude, hence,
conviction of a lawyer of such crime justifies her suspension from the
practice of law. Said crime imports deceit and a violation of her
attorney's oath and the Code of Professional Responsibility under both
of which she was bound to "obey the laws of the land." (People vs.
Tuanda, 181 SCRA 692, Jan. 30, 1990).
Q
- A lawyer used the IBP receipt number of another lawyer. Give
the effect of
such act.
- A lawyer deserves to be suspended for using, apparently through
negligence, the IBP official receipt number of another lawyer.
(Bongalonta vs. Castillo, 58 SCAD 233, 240 SCRA 310, Jan. 20, 1995).
He violated his duty not to engage in unlawful, dishonest and deceitful
conduct.
Q
93
client.
Q
94
Q
- How may the investigator be disqualified if he does not inhibit
himself?
- He may be disqualified by an order of the IBP Board of Governors
upon a vote of majority of the Board upon the instance of either party.
Or, he may be removed for cause by a vote of at least six (6) members
of the IBP Board of Governors.
Q
95
1. Upon the initiation of the complaint, the SC may refer the case for
investigation to the
Solicitor General, or any officer of the Supreme
Court, or judge of a lower court;
2. If referred, the investigator shall proceed with the investigation
and make a report to the Supreme Court.
Q
Q
- Describe the power of the Supreme Court to discipline
lawyers.
- The power to punish for contempt of court does not exhaust the
scope of disciplinary authority of the court over lawyers. The
disciplinary authority of the court over members of the Bar is but
corollary to the court's exclusive power of admission to the Bar. An
attorney will be removed not only for malpractice, and dishonesty in his
profession, but also for gross misconduct not connected with his
professional duties, which shows him to be unfit for the office and
unworthy of the privilege which his license and the law confer upon
him. (Santos vs. CFI of Cebu, Branch IV, 185 SCRA 472, May 18, 1990).
Q
96
- Proceedings for the disbarment of members of the bar are not in any
sense civil actions where there is a plaintiff and the respondent is the
defendant. Disciplinary proceedings involve no private interest and
afford no redress for private grievance. They are undertaken for the
purpose of preserving courts of justice from the official ministration of
persons unfit to practice. The attorney is called to answer to the court
for his conduct as an officer of the court. The complainant or the
person who called the attention of the court to the attorney's alleged
misconduct is in no sense a party, and has generally no interest in the
outcome except as all good citizens may have in the proper
administration of justice. (De Vera vs. Pineda, 213 SCRA 434, Sept. 2,
1992, citing Tajan vs. Hon. Vicente Cusi, Jr., 57 SCRA 154, May 30,
1974).
Q
- How do you describe the power of the Supreme Court to
disbar a lawyer? Explain.
- It is a matter of judicial discretion.
The determination of whether an attorney should be disbarred
or merely suspended for a period involves the exercise of a sound
judicial discretion, mindful always of the fact that disbarment is the
97
98
99
100
101
must possess (People vs. Tuanda, 181 SCRA 682 [1990]; Delos Reyes
vs. Aznar, 179 SCRA 653 [1989]), otherwise, a lawyer may either be
suspended or disbarred. (Barrientos vs. Daarol, January 29, 1993).
Q
Q
- Atty. Balaoing filed several cases against judges in Olongapo
City and Zambales.
The complaint against MTC Judge Dojillo was dismissed
for lack of merit and declared that Balaoing's explanation
was unsatisfactory and he was severely censured for having
instituted a patently unfounded and frivolous administrative
action and warned that the commission by him of the same
or similar misconduct will be dealt with severely.
Notwithstanding the above warning, Balaoing again filed
two (2) complaints against Judge Calderon and Judge
Maliwanag for grave abuse of authority and malicious delay in
the administration of justice.
In the case of Judge Calderon, it was shown that
Balaoing won in a foreclosure case againstGavilan. After the
foreclosed properties were sold in a public auction, where
Balaoing was the highest bidder, a certificate of sale was
issued and the same was registered. Respondent Judge
allegedly prevented the implementation of the writ of
possession, to the prejudice of Balaoing. Respondent Judge
explained that he quashed the writ of possession she earlier
issued in favor of Balaoing because Gavilan's widow and her
children were residing in the foreclosed properties and the
period to redeem the said properties had not yet expired.
In the case of Judge Maliwanag, Balaoing, who is the
plaintiff in two civil cases pending before the sala of
Maliwanag, alleged that the Judge abused his authority by
refusing to declare as in default the defendants in said cases
102
103
justice."
The importance of integrity and good moral character as part of a
lawyer's equipment in the practice of his profession has been stressed by
the Court repeatedly.
"x x x. The bar should maintain a high standard of legal
proficiency as wel,! as of honesty an,d fair dealing. Generally
speakiTJg, a lawyer can do honor to the legal profess~on by faithfully
perform,ing his d,uties to society, to the bar, to the courts and to his
clients. To this end, nothing should be done by any member of the
legal fraternity which might tend to lessen in any degree the
confidence of the public in the fidelity, honesty and integrity of the
profession. (Marcelo vs. Javier, Sr., A.c. No. 3248, September 18,
1992).
"x x x. The nature of the office of an attorney at law requires
that he shall be a person of good moral character. This qualification is
not only a condition precedent to admission to the practice of law; its
continued possession is also essential for remaining in the practice of
law, in the exercise of privileges of members of the Bar. Gross misconduct on the part of a lawyer, although not related to the discharge
of professional duties as member of the bar, which puts his moral
character in serious doubt, renders him unfit to continue in the
practice of law. (Melendrez vs. Decena, 176 SCRA 662, 676)
x x x public policy demands that legal work in representation of
parties litigant should be entrusted only to those possessing tested
qualification and who are sworn to observe the rules and the ethics of
the profession, as well as being subject to judicial disciplinary control
for the protection of courts, clients and the public." (Phil Association of
Free Labor Unions [PAFLU] vs. Binalbagan Isabela Sugar Company, 42
SCRA 302, 305).
By descending to the level of a common thief, respondent Grecia has
demeaned and disgraced the legal profession. He has demonstrated his
moral unfitness to continue as a member of the honorable fraternity of
lawyers. He has forfeited his membership in the Bar.
"Generally, a lawyer may be disbarred or
suspended for any misconduct, whether in his
professional or private capacity, which shows him to be
wanting in moral character, in honesty, probity and good
demeanoror unworthy to continue as an officer of'the
court, or an unfit or unsafe person to enjoythe privileges
and to manage the business of others in the capacity of
an attorney, or for conduct which tends to bring
reproach onthe legal profession or to injure it in the
favorable opinion of the public." (Marcelo vs. Javier, Sr.
A.C. No. 3248, September 16, 1992; Fernandez vs.
104
In Bolivar vs. Simbol, 16 SCRA 623, the Court found the respondent
guilty of "grossly immoral conduct" because he made "a dupe
of complainant living on her bounty and allowing her to spend
for his schooling and other personal necessities while dangling
before her the mirage of a marriage, marrying another girl as
soon as he had finished his studies, keeping his marriage a
secret while continuing to demand money from complainant. x
x x." The Court held such acts "indicative of a character not
worthy of a member of the Bar."
105
-A lawyer enticed his 85-year old aunt to entrust all her money
to him. He later on refused to return it. Can he be disbarred?
Why?
- Yes, because he violated the Code of Professional Responsibility
as well as his oath as an attorney. His deceitful conduct makes him
unworthy of membership in the legal profession. The nature of the
office of a lawyer requires that he shall be of good moral character.
This qualification is not only a condition precedent to admission to the
legal profession but its continued possession is essential to maintain
one's good standing in the profession. He was disbarred. (RayosOmbac
vs. Rayos, 90 SCAD 742, 285 SCRA 93).
106
107
Judge - a public officer who, by virtue of his office, is clothed with judicial
authority. A public officer lawfully appointed to decide litigated questions
in accordance with law (People VS. MananttJn, 5 SCRA 687). This refers to
persons only. There may be a judge without a court.
Qualifications to be Judges:
1. Citizen of the Philippines
2. Member of the Bar (Sec. 7(2), Art. VIII, 1987 Constitution)
108
109
CANON 1
A JUDGE UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE
JUDICIARY
RULE 1.01 -A judge should be the embodiment of competence, integrity and
independence.
RULE 1.02 - A judge should administer justice impartially and without delay.
RULE 1.03-A judge should be vigilant against any attempt to subvert the
independence of the judiciary and should forthwith resist any pressure from
whatever source intended to influence the performance of official functions.
Judges should avoid even the slightest infraction of the law.
110
CANON 2
A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF
IMPROPRIETY IN ALL ACTIVITIES.
A judge must be beyond suspicion. He has the duty not only to render a
just and impartial decision but also to render it in such a manner as to be
free from any suspicion as to its fairness and impartiality, and also as to
his integrity.
111
Judges must not use or permit the use of any undignified self-laudatory
statement regarding their qualifications or legal services.
A judge must not allow anyone to ride on his prestige. He should not
create the impression that someone or some people are so close to him to
enjoy his favor.
CANON 3
A JUDGE SHOULD PERFORM OFFICIAL DUTIES HONESTLY, AND WITH
IMPARTIALITY AND DILIGENCE ADJUDICATIVE RESPONSIBILITIES.
RULE 3.01- A judges shall be faithful to the law and maintain professional
competence.
RULE 3.02- In every case, a judge shall endeavor diligently to ascertain the
facts and the applicable law unswayed by partisan interests, public opinion or
fear of criticism.
RULE 3.03- A judge shall maintain order and proper decorum in the court.
RULE 3.04 - A judge should be patient, attentive, and courteous to lawyers,
especially the inexperienced, to litigants, witnesses, and others appearing
before the court. A judge should avoid unconsciously falling into the attitude
of mind that the litigants are made for the courts, instead of the courts for
the litigants.
Conduct of trial must not be attended with fanfare and publicity; not
permit pictures or broadcasting.
112
A judge must properly organize his court to ensure prompt and convenient
dispatch of its business (Canon 8, Canons of Judicial Ethics)
Ascertain that the records of all cases are properly kept and managed.
May summarily punish any person including lawyers and court personnel
for direct contempt for misbehavior committed in the presence of or so
near a court or a judge as to obstruct or interrupt the proceedings before
the same (Rule 71, Revised Rules of Court)
Every court has the inherent power among others, to preserve and enforce
orders in its immediate presence to compel obedience to its judgments,
orders and processes and to control, In furtherance of justice the conduct of
its ministerial officers (Sec. 5,
Rule 135 ~O, Revised Rules of Court)
.
Judge Was the power to appoint, but the power to dismiss court
employees is vested
113
ADMINISTRATIVE RESPONSIBILITIES
RULE 3.08 - A judge should diligently discharge administrative
responsibilities, maintain professional competence in court management, and
facilitate the performance of the administrative functions or other judges and
court personnel.
RULE 3.09 - A judge should organize and supervise the court personnel to
ensure the prompt and efficient dispatch of business, and require at all times
the observance of high standards of public service and fidelity.
RULE 3.10 - A judge should take or initiate appropriate disciplinary
measures against lawyers or court personnel for unprofessional conduct of
which the judge may have become aware.
RULE 3.11 - A judge should appoint commissioners, receivers, trustees,
guardians, administrators and others strictly on the basis of merit and
qualifications, avoiding nepotism and favoritism. Unless otherwise allowed by
law, the same criteria should be observed in recommending appointment of
court personnel. Where the payment of compensation is allowed, it should be
reasonable and commensurate with the fair value of services rendered.
DISQUALIFICATION
RULE 3.12 - A judge should take no part in a proceeding where the
judge's impartiality might reasonably be questioned. These cases include
among others, proceedings where:
a) the judge has personal knowledge of disputed evidentiary facts
concerning the proceeding;
b) the judge served as executor, administrator, guardian, trustee or
lawyer in the case or matter in controversy, or a former associate of the
judge served as counsel during their association, or the judge or lawyer was
a material witness therein;
c) the judge's ruling in a lower court is the subject of review;
d) the judge is related by consanguinity or affinity to a party litigant
within the sixth degree or to counsel within the fourth degree;
e) the judge knows that the judge's spouse or child has a financial
114
REMITTAL OF DISQUALIFICATION
RULE 3.13 -A judge disqualified by the terms of Rule 3.12 may, instead
of withdrawing from the proceeding, disclose on the record the basis of
disqualification. If, based on such disclosure, the parties and lawyers
independently of the judge's participation, all agree in writing that the reason
for the inhibition is immaterial or insubstantial, the judge may then
participate in the proceeding. The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceeding.
CANON 4 - A judge may, with due regard to official duties, engage in
activities to improve the law, the legal system and the
administration of justice.
Rule 4.01 - A judge may, to the extent that the following activities do
not impair the performance of judicial duties or case doubt on the
judge's impartiality:
a. speak, write, lecture, teach or participate in activities
concerning the law, the legal system and the
administration of justice;
b. appear at a public hearing before a legislative or
executive body on matters concerning the .law, the
legal system or the administration of Justice and
otherwise consult with them on matters concerning the
administration of justice;
c. serve on any organization devoted to the improvement
of the law, the legal system or the administration of
justice.
115
If has not enough time to spare (such as when caseload is too heavy
prudence dictates, he must concentrate on his judicial duties.
CANON 5
A JUDGE SHOULD REGULATE EXTRA-JUDICIAL ACTIVITIES TO
MINIMIZE THE RISK OF CONFLICT WITH JUDICIAL DUTIES
ADVOCATIONAL, CIVIC AND CHARITABLE ACTIVITIES.
RULE 5.01 - A judge may engage in the following activities provided that
they do not interfere with the performance of judicial duties or detract from
the dignity of the court:
a) write, teach and speak on non-legal subjects;
b) engage in the arts, sports, and other special recreational
activities;
c) participate in civic and charitable activities;
d)
serve as an officer, director, trustee, or non-legal advisor of a non-profit or non political educational, religious, charitable,
fraternal, or civic organization.
FINANCIAL ACTIVITIES
RULE 5.02 - A judge shall refrain from financial and business dealing
that tend to reflect adversely on the court's impartiality, interfere with the
proper performance of judicial activities or increase involvement with
lawyers or persons likely to come before the court. A judge should so
manage investments and other financial interests as to minimize the
number of cases giving grounds for disqualifications.
RULE 5.03 - Subject to the provisions of the proceeding rule, a judge may
hold and manage investments but should not
serve as officer, director, manager, advisor, or employee of any business
except as director of a family business of the judge.
RULE 5.04 -A judge or any immediate member of the family shall not accept
a gift, bequest, factor or loan from anyone except as may be allowed by law.
RULE 5.05 - No information acquired in a judicial capacity shall be used or
disclosed by a judge in any financial dealing or for any other purpose not
related to judicial activities.
Prohibitions under the Revised Penal Code:
116
General Rule: Avoid taking or receiving loans from litigants (Sec. 2 [b]
and [c] of R.A. 3019, and Sec. 16, art. VIII of the Constitution)
Exception (AGCPA): Unsolicited gifts or presents of small value offered
or given as a mere ordinary token of gratitude or friendship according to
local custom or usage (Sec. 14 of R.A. 3019)
FIDUCIARY ACTIVITIES
RULE 5.06 - A judge should not serve as the executor, administrator,
trustee, guardian, or other fiduciary, except for the estate, trust, or person of
117
a member of the immediate family, and then only if such service will not
interfere with the proper performance of judicial duties. "Member of
immediate family" shall be limited to the spouse and relatives within the
second degree of consanguinity. As a family, a judge shall not:
a) serve in proceedings that might come before the court of said judge;
or
b) act as such contrary to Rules 5.02 to 5.05.
PRACTICE OF LAW AND OTHER PROFESSION
RULE 5.07 - A judge shall not engage in the private practice of law. Unless
prohibited by the Constitution or law, a judge may engage in the practice of
any other profession provided that such practice will not conflict or tend to
conflict with judicial functions.
FINANCIAL DISCLOSURE
RULE 5.08 - A judge shall make full financial disclosures as required by law.
RULE 5.09 - A judge shall not accept appointment or designation to any
agency performing quasi-judicial or administrative functions.
POLITICAL ACTIVITIES
RULE 5.10 a judge is entitled to entertain personal views on political
questions. But to avoid suspicion of political partisanship, a judge shall
not make political speeches, contribute to party funds, publicly endorse
candidates for political office or participate in other partisan political
activities.
COMPLIANCE WITH THE CODE OF JUDICIAL CONDUCT
118
Liabilities of Judges
Administrative Liabilities:
119
interest
14.
Using intemperate language unbecoming of a judge
15.
Failure to reply to a show cause resolution of the Supreme Court
16.
Loss of records
17.
Inaction by judge which is the tantamount to partiality in favor of
one party ... among others.
1.
2.
3.
4.
Civil Liabilities:
120
Criminal Liabilities
Malfeasance under the RPC:
a. Knowingly Rendering Unjust Judgment (Art. 204, RPC)
The elements are.
1. That the officer is a judge;
2. That he renders judgment in a case submitted to him for
decision;
3. That the judgment is unjust;
4. The judge knows that his judgment is unjust.
b. Judgment Rendered Through Negligence (Art. 205, RPC)
The elements are:
1. That the offender is a judge;
2. That he renders judgment in a case submitted to him for
decision
3. That the judgment is manifestly unjust;
4. That it is due to his inexcusable negligence or ignorance.
Notaries Public
I. Qualifications (Sec 232 and 234, Revised Administrative Code (RAC))
A. Filipino citizen
B. Over 21 years of age
C. Should not have been convicted of any crime involving moral
turpitude
D. Training
1. Those admitted to the practice of law
2. Those who have passed the studies of law in a reputable
university
3. A clerk or deputy clerk of court or one who has at some time
held the position of clerk or' deputy clerk of court for a period
of not less than two (2) years
4. Those qualified for the office of Notary Public de officio under
Spanish sovereignty
5. Municipal judges as notaries public de officio in municipalities
or Municipal districts
i. where there are no persons with the necessary
qualifications
ii. where there are qualified persons but they refuse
Appointment
121
non-lawyers as notaries:
General Rule: SC Circular No. 16 of 1985 directed
appointing judges to refrain and desist from appointing
and/or renewing the appointment of non-lawyers as
notaries public because of the unethical practices of
notaries public who are non-lawyers;
Exception: In places where there are no lawyers, or
there are not enough lawyers, the appointment of nonlawyers as notaries public may be allowed, but a nonlawyer who wishes to be commissioned as a notary
public must apply.
122
- Are there any distinctions between the court and the judge?
ANS. - Yes. The court is an entity and the person who occupies the position is
the judge. A court may exist without a judge. There may be a judge
without a court. (Pamintuan vs. Llorente, 29 Phil. 346).
Q
ANS. - It means that it is the duty of both counsel and judge to maintain not
to destroy, the high esteem and regard for courts. Any act on the part
of one or the other that tends to undermine the people's respect for,
and confidence in, the administration of justice is to be avoided. And
this, even if both may have to restrain pride from taking the better part
of their system. (Lugue vs. Kayanan, 29 SCRA 173). The relations of
judge and lawyer should be founded on mutual respect and on a deep
appreciation by one of the duties of the other. (Romero vs. Valle, 147
SCRA 197)
Q
ANS. - The sole purpose of courts of justice is to enforce the laws uniformly
and impartially, without regard to persons or their circumstances or to
opinions of men. A judge should at all times be wholly free, disinterested, impartial and independent. Elementary due process requires a
hearing before an impartial and disinterested tribunal. A judge has both
the duty of rendering a just decision and the duty of doing it in a
manner completely free from suspicion as to its fairness and as to his
integrity. Judges therefore, should not only be impartial but they should
also appear impartial. (Tan, Jr. vs. Gallado, 73 SCRA 315).
Q
123
ANS. - A judge should be like Caesar's wife because a judge must not only be
pure but must also appear to be so. Appearance is as important as
reality in the performance of judicial functions. Like Caesar's wife, a
judge must not only be pure but must be beyond suspicion. (Palang vs.
Zosa, 58 SCRA 776). A judge has the duty not only to render a just and
impartial decision, but also render it in such a manner as to be free
from any suspicion as to its fairness and impartiality, and also as to the
judge's integrity. (Martinez vs. Gironella, 65 SCRA 245).
Q
- Explain the rule that a judge should not seek publicity for
personal vainglory.
ANS. - It means that judges should be prohibited from seeking publicity
for vanity or self-glorification. Judges are not actors or actresses or
politicians. They are also prohibited from making public comments
on any pending or impending case. Judges must not be moved by a
desire to cater to public opinion to the detriment of justice. (Go vs.
CA, 206 SCRA 165).
Q
ANS. - No. A judge should not allow unnecessary taking of Pictures of the
court .proceedings. He should not allow the broadcasting of
proceedings over the radio or allow the televising of the proceedings.
The reason is that, such fanfare and publicity detract from the dignity
of the court proceedings for the parties involved tend to become more
self-conscious on their appearances rather than the truth of the facts
and substance of the issues. The administration of justice would then
ultimately suffer as the judge might be influenced by the public clamor
engendered by the publicity. Finally, a judge should not seek publicity
124
- Give the reason behind the rule that a judge should not
interfere in the presentation of evidence.
ANS. - A judge should not only be impartial, but he should appear to be so. If
he profounds questions to help build the case of a party, he would
come out biased against or partial in favor of a party. A judge interference may likewise prevent the proper presentation of the case, and
the ascertainment of the truth in respect thereto.
Q
125
should even be commended for his close attention to duty. (Fule vs. CA,
et al., G.R. No. 112212, March 2,1998,92 SCAD 14).
Q
ANS. - A judge should decide a case within the reglementary period because
failure to do so constitutes gross dereliction of duty. A judge should
decide a case promptly and expeditiously, for it cannot be denied that
justice delayed is justice denied. Delay in the disposition of cases
undermines the people's faith and confidence on the judiciary. Hence,
judges are enjoined to decide cases with dispatch. Their failure to do so
constitutes gross inefficiency and warrants the imposition of administrative sanctions on them. (Fe T. Bernardo vs. Judge Amelia A
Fabros, A.M. No. MTJ-99-1l89, May 12, 1999, citing Sanchez vs. Vestil,
AM. No. MTJ-981419, October 13, 1998, 100 SCAD 147).
Q
ANS. - No. A judge is expected to keep his own record of cases so that he
may act on them promptly without undue delay. It is incumbent
upon him to devise an efficient recording and filing system in his
court so that no disorderliness can affect the flow of cases and their
speedy disposition. x x x Proper and efficient court management is
as much his responsibility. He is the one directly responsible for the
proper discharge of his official functions. (See Fe T. Bernardo vs.
Judge Amelia A Fabros, AM. No. MTJ-99-1l89, 106 SCAD 425, May 12,
1999).
Q
- When may a judge be subjected to disciplinary action for his
errors? Explain.
ANS. - For liability to attach for gross negligence of the law, the assailed
order, decision or actuation of a judge must not only be found
erroneous but, most importantly, it must be established that the judge
was moved by bad faith, dishonesty, hatred, or some other like motive.
(Dela Cruz vs. Concepcion, 54 SCAD 640, '235 SCRA 597).
Q
ANS. - A judge may be held liable for rendering an unjust judgment when he
acts in bad faith, malice, revenge, or some other motive. (Heirs of the
late Nasser Yasin vs. Felix, 66 SCAD 157, 250 SCRA 545).
126
ANS. - The import of the rule on voluntary inhibition of judges is that the
decision on whether or not to inhibit is left to the sound discretion and
conscience of the trial judge based on his rational and logical assessment of the circumstances prevailing in the case brought before
him. It makes clear to the occupants of the Bench that outside of
pecuniary interest, relationship or previous participation in the matter
that calls for adjudication, there might be other causes that could
conceivably erode the trait of objectivity, thus calling for inhibition. This
is to betray a sense of realism, for the factors that lead to preference or
predelictions are many and varied.
In the final reckoning, there is really no hard and fast rule when it
comes to the inhibition of judges. Each case should be treated
differently and decided based on its peculiar circumstances. The issue
of voluntary inhibition is primarily a matter of conscience and sound
discretion on the part of the judge. It is a subjective test the result of
which the reviewing tribunal will not disturb in the absence of any
manifest finding of arbitrariness and whimsicality. The discretion given
to trial judges is an acknowledgment of the fact that these judges are
in a better position to determine the issue of inhibition as they are the
ones who directly deal with parties-litigants in their courtrooms.
(People vs. Gallermo, G.R. No. 123546, July 7, 1998, 95 SCAD 579).
Q
ANS. - Yes. The Code of Judicial Conduct mandates that a judge should
avoid impropriety and the appearance of impropriety in all activities.
The personal behavior of a judge not only upon the Bench but also in
127
his everyday life should be above reproach and free from the
appearance of impropriety.
There is a difference between freedom of expression and
compromising the dignity of the Court through publications of
emotional outburst and destructive criticisms. Respondent's writing
of active and vicious editorials compromises his duties as judge in
the impartial administration of justice, for his views printed on
newspapers reflect on his office as well as on the public officers that
he challenges. From the standpoint of conduct and demeanor
expected of a judge, resort to intemperate language only detracts
from the respect due a member of the judiciary and becomes selfdestructive.
Moreover, in persistently attacking the moviemaking activities of
the provincial governor and repeatedly threatening to file an action
against a public officer, respondent encourages litigation and causes
dissension against the public officer concerned.
As a judge,
respondent's role is to maintain equanimity and not instigate litigation.
This is not to say that one cannot question the improper activities of
government officials if there are any. However, it is not proper for a
judge to write publications of carelessly-worded editorials in local
newspapers. (Benalfre J. Galang vs. Judge Abelardo H. Santos, A.M. No.
MTJ-99-1197, May 26, 1999).
Q
- After the hearing of the petition for bail, the court issued
an order denying the same on the ground that the evidence
of guilt is strong. The petitioner filed a motion for
reconsideration, but was denied, the court ruling that it has
already clearly spelled out the grounds relied upon in the
denial of the motion. The accused asked for the inhibition of
the judge contending that because of the actuations of the
judge, he has already become biased, hence, he stands no
chance at all in court presided by the judge. Is the motion
proper? Why?
ANS. - No. The orders denying the petition for bail and the motion for
reconsideration do not sufficiently prove bias and prejudice to
disqualify the judge under Sec. 1, Rule 37 of the Rules of Court. For
such bias and prejudice, to be a ground for disqualification, must be
shown to have stemmed from an extrajudicial source, and result in
an opinion on the merits on some basis other than what the judge
learned from his participation in the case. Opinions formed in the
course of judicial proceedings, as long as they are based on the
evidence presented and conduct observed by the judge, even if
found later on as erroneous, do not prove personal bias or prejudice
on the part of the judge. Extrinsic evidence is required to establish
bias, bad faith, malice or corrupt purpose, in addition to palpable
error which may be inferred from the decision or order itself.
(Victorio Aleria, Jr. vs. Hon. Alejandro Velez, Jr., G.R. No. 127400,
November 16, 1998, 100 SCAD 720, citing Webb vs. People, 85
128
ANS. - Yes, because the error was gross and patent violation of law and the
rules on bail. While it is true that a judge may not be held
administratively accountable for every erroneous order or decision
(Guillermo vs. Reyes, 58 SCAD 130, 240 SCRA 154), yet if the error is
gross or patent, malicious, deliberate or in evident bad faith, he may
still be liable. The reason for this is that he is expected to have a more
than cursory acquaintance with the rules on bail. Failure to follow basic
legal commands embodied in the law and the rules constitutes gross
ignorance of the law (Del Rosario, Jr. vs. Bartolome, 81 SCAD 281, 270
SCRA 645; Aurillo vs. Francisco, 54 SCAD 352, 235 SCRA 283) from
which no one may be excused, not even a judge. (Evelyn De Austria vs.
Judge Orlando D. Beltran, A.M. No. RTJ-98-1406, September 1, 1999).
Q
129
(Morada vs. Judge Tayao, 48 SCAD 131, 229 SCRA 723, citing Louis
Vuitton S.A. vs. Judge Villanueva, 216 SCRA 121; Mendoza vS. Villaluz,
106 SCRA 664). As has been stated in the recent case of Santos vs.
Judge Jose Orlino, A.M. No. RTJ-98-1418, September 25, 1998, 98 SCAD
752:
"The fundamental propositions governing responsibility for judicial error were
more recently summarized in 'In Re: Joaquin T. Borromeo,' 59 SCAD 1
[1995J, 241 SCRA (1995). There the Court stressed inter alia that given
the nature of the judicial function and the power vested in the SC and
the lower courts established by law, administrative or criminal
complaints are neither alternative nor cumulative to judicial remedies
where such are available, and must wait on the result thereof Existing
doctrine is that judges are not liable for what they do in the exercise of
their judicial functions when acting within their legal powers and
jurisdiction. (Alzua, et al. vs. Johnson, 21 Phil. 308, 326; Sec. 9, Act No.
190). Certain it is that a judge may not be held administratively
accountable for every erroneous order or decision he renders. (Rodrigo
vs. Quijano, 79 SCRA 10). To hold, otherwise, would be to render
judicial office untenable, for no one called upon to try the facts or
interpret the law in the process of administering justice can be
infallible in his judgment. (See Lopez vs. Corpuz, 78 SCRA 374; Pilipinas
Bank vs. Tirona-Liwag, 190 SCRA 834). The error must be gross or patent, deliberate and malicious or incurred with evident bad faith.
(Quizon vs. Baltazar, Jr., 65 SCRA 293)."
If an alleged error of a judge cannot amount to gross misconduct
and bereft of any persuasive showing of deliberate or malicious intent
to cause prejudice to any party, the administrative complaint against
him insofar as the charge for gross misconduct is concerned, must be
dismissed for want of factual basis. (Jewel F. Canson vs. Hon. Francis F.
Garchitorena, et al., SB-99-9-J, July 28, 1999).
Q
ANS. - Yes, because not only did he fail to live up to high moral standards
of the judiciary, he even transgressed to ordinary norms of
decency expected of every person. The conduct of a judge,
whether official or private, must be beyond reproach and above
suspicion. A member of the Bench must not only be a good
judge; he or she must also be a good person. (Dawa vs. De Asa,
96 SCAD 373, 292 SCRA 703). This is necessary so as not to
erode the faith and confidence of the public in the judiciary.
130
(Naval vs. Panday, 84 SCAD 691, 275 SCRA 654). In the final
analysis, such faith and confidence is anchored on the highest
standard of integrity and moral uprightness that judges are expected to possess. As ruled in Junio vs. Rivera, Jr., 44 SCAD 308,
225 SCRA 688:
"All judges on all levels of the judicial hierarchy, from this Court down
to the Municipal or Metropolitan Trial Courts, are bound to observe
the above exacting standards. There is however, a special reason for
requiring compliance with those standards from those who are front
liners of the judicial department. As such, a judge is the most visible
living representation of the country's legal and judicial system. He is
the judicial officer who on a day-to-day basis deals with the disputes
arising among simple, rural people who comprise the great bulk of
our population. He is the judicial officer who comes into closest and
most frequent contact with our people. The judiciary as a whole and
its ability to dispense justice are inevitably measured in terms of the
public and private acts of judges in the grass roots level. It is
essential, therefore, if the judiciary is to engage and retain the
respect and confidence of our nation, that this Court insist that
municipal judges and all other judges live up to the high standards
demanded by our case law and the Code of Judicial Conduct, and by
our policy."
The judge's lustful conduct was aggravated by the fact that he
was the superior of the complainant. Instead of acting in loco
parentis toward his subordinate employee, he took advantage of his
position and preyed on her. (Ana May M. Simbajon vs. Judge Rogelio
M. Esteban, A.M. No. MTJ-98-1162, August 11,1999, citing TalensDabon vs. Arceo, 72 SCAD 527, 259 SCRA 354).
Q
ANS. -
131
ANS. -
ANS.
ANS. -Trial courts must exercise meticulous care in accepting a plea of guilty
in a capital offense. Judges are duty-bound to be extra solicitous in
seeing to it that when an accused pleads guilty, he understands fully
the meaning of his plea and the import of his inevitable conviction.
(People vs. Gonzaga, 127 SCRA 158). Courts must proceed with more
care where the possible punishment is in its severest form, like death,
for the reason that the execution of such a sentence is irrevocable.
Experience has shown that innocent persons have at times pleaded
guilty. (People vs. Albert, 66 SCAD 456, 251 SCRA 136). Only a clear,
definite and unconditional plea of guilty by the accused must be
accepted by trial courts. (ibid.). There is no such rule which provides
that simply because the accused pleaded guilty to the charge that his
conviction should automatically follow. (People vs. Mendoza, 42 SCAD
118,231 SCRA 264). A judge should always be an embodiment of
competence. (Rule 1.01, Canon1, Code of Judicial Conduct). As an
administrator of justice, it is imperative that the trial judge carry out his
duties ably and competently so as not to erode public confidence in the
judiciary. (People vs. Sevillano, et al., G.R. No. 129058, 105 SCAD 296,
132
ANS.-No. Under Rule 137, Sec. 1 of the Rules of Court, ajudge who is related
within the sixth degree of consanguinity or affinity to a party in a case
is disqualified from sitting in the case without the consent of all parties,
expressed in writing, signed by them, and entered upon the record.
This prohibition is not limited to cases in which he acts by resolving
motions and issuing orders as respondent judge has done in the
subject criminal case. The purpose of the prohibition is to prevent not
only a conflict of interest but also the appearance of impropriety on the
part of the judge. A judge should take no part in a proceeding where his
impartiality might reasonably be questioned (Canon 3, Rule 3.12) and
he should administer justice impartially and without delay. (Canon 1,
Rule 1.02; Lazo vs. Judge Antonio Tiong, A.M. No. MTJ-98-1173,
December 15, 1998, 101 SCAD 692).
Q
acceptance of bribe;
133
(b)
(c)
(d)
receiving money from litigants and borrowing from them without
paying back;
(e)
Reasons:
Members of the judiciary should display not only the highest
integrity but at all times conduct themselves in such a manner as to be
beyond reproach and suspicion. The respect and confidence of the
public may justifiably be eroded if the conduct of an erring judge is
condemned. (Paredes vs. Buduha, Dec. 7, 1989).
Q
ANS. -No, in fact, the judge was fined for ignorance of the law. His opinion
that the checks were invalid because they were not dated also
revealed his unfamiliarity with Sec. 6 of the Negotiable Instrument Law.
(Torres vs. Pedrosa, Aug. 22, 1989). It is the duty of a judge to keep
abreast with the law and jurisprudence.
Q
ANS. -No. In Miranda vs. Manalastas, Dec. 21, 1989, the Supreme Court said
that mere error in the appreciation of evidence, unless so gross and
patent as to produce an inference of ignorance or bad faith or that the
judge unknowingly rendered an unjust judgment, are irrelevant in
administrative proceedings against the judge. A judge is not infallible in
his judgment. All that is expected of him is that he follows the rules
prescribed to ensure fair and impartial hearing.
A judge may not be administratively liable for erroneous ruling.
Q
134
- State the effect if a judge shows signs of partiality and prejudgment in a case. Why?
ANS. - The judge can be inhibited from further trying the case.
Partiality and pre-judgment can be just and valid reasons for the
judge to voluntarily inhibit himself. But mere suspicion that he is partial
is not enough. There must be evidence to prove the charge. (Fecundo
vs. Benjamin, Dec. 18, 1989). A litigant is entitled to the fairness and
cold neutrality of an impartial judge.
Q
ANS.
Q
- Maya judge be held to answer for an erroneous decision
which he rendered? Why?
ANS. -A judge cannot be held to account or answer, criminally, civilly, or
administratively for an erroneous decision rendered by him in good
faith. While the Supreme Court does not require perfection and infallibility, it reasonably expects a faithful and intelligent discharge of duty
by those who are selected to fill the positions of administrators of
justice.
Q
135
ANS. - Yes. Even if a judge has already retired before the administrative case
was filed against him, the Supre me Court held that the court has not
lost its jurisdiction over him even if his retirement has been approved,
for his retirement benefits have not yet been paid. The reason for this
is that the people would have no remedy left anymore. By reason of
public policy, the Court must assert and maintain jurisdiction for acts
performed in office which are inimical to the service and prejudicial to
the interest of the litigants and the general public.
Q
-Maya judge who exercises his judicial function be made liable
for damages? Why?
ANS. -A judge who exercises his judicial functions cannot be liable for
damages. The test of liability is not jurisdiction, but the nature of the
question which is being determined when the error complained of is
committed by the court. (Aparicio vs. Andal, G.R. No. 8658793, July 25,
1989). He is not liable even though there is in reality absolute failure of
jurisdiction over the subject matter. For, judges are excluded from
liability under Art. 32, New Civil Code, provided, their acts do not
constitute a violation of the Revised Penal Code.
Q
ANS. -No, because the judge has behaved in a manner not becoming of his
robes and as a model of rectitude, betrayed the people's high
expectations, and diminished the esteem in which they hold the
judiciary in general.
The circumstances show a lack of circumspection and delicadeza
on the part of the respondent judge by failing to avoid situations that
make him suspect to committing immorality and worse, having that
suspicion confirmed especially so that under Canon 1, Rule 1.01, a
judge should be the embodiment of competence, integrity, probity and
independence.
The Code of Judicial Ethics mandates that the conduct of a judge
must be free from impropriety not only with respect to the performance
of his judicial duties, but also to his behavior outside his sala and as a
private individual. There is no dichotomy of morality: a public official is
also judged by his private morals. The Code dictates that a judge, in
order to promote public confidence in the integrity and impartiality of the
judiciary, must behave with propriety at all times. A judge's official life
can not simply be detached or separated from his personal existence.
Thus:
"Being the subject of constant public scrutiny, a judge should freely
and willingly accept restrictions on conduct that might be viewed as
burdensome by the ordinary citizen."
136
Q
- Explain the res ipsa loquitor doctrine in the investigation of
errant judges.
ANS. -In these res ipsa loquitur resolutions, there was on the face of the
assailed decisions an inexplicable grave error bereft of any redeeming
feature, a patent railroading of a case to bring about an unjust decision, or a manifestly deliberate intent to wreak an injustice against a
hapless party.
The res ipsa loquitur doctrine does not accept or dispense with
the necessity of proving the facts on which the inference or evil intent
is had. It merely expresses the clearly sound and reasonable conclusion
that when such facts are admitted or are already shown by the record,
and no credible explanation that would negative the strong inference of
evil intent is forthcoming, no further hearing to establish them to
support a judgment as to the culpability of a respondent is necessary.
(In re: Judge Baltazar Dizon, Adm. Case No. 3086, May 31, 1989).
Q
ANS. -No. A member of the Bench cannot pay mere lip service to the 90-day
requirement, but should, in fact, persevere in its implementation. The
Certificate of Service is not merely a means to one's paycheck, but an
instrument by which the Courts can fulfill the constitutional mandate of
the people's right to a speedy disposition of cases. Thus, it has been
ruled:
"The people's faith in the administration of justice, especially those who
belong to the low income group, would be greatly impaired if decisions
are long in coming, more so from trial courts which unlike collegiate
tribunals where there is a need for extended deliberation, could be
expected to act with dispatch." (Magdamo vs. Pahimulin, Adm. Matter
No. 662-MJ, 30 September 1976, 73 SCRA 110).
Q
- Should a judge show undue interest in a pending case before
another court? Why?
ANS. -No. Cardinal is the rule that a judge should avoid impropriety in all
activities. The Canons mince no words in mandating that a judge shall
refrain from influencing in any manner the outcome of litigation or
dispute pending before another Court. (Canon 2, Rule 2.04).
Interference by members of the Bench in pending suits with the end in
view of influencing the course or the result of litigation does not only
subvert the independence of the judiciary but also undermines the
137
ANS.
ANS. -The office of a judge exists for one solemn end to promote justice by
administering it fairly and impartially. (Gonzales vs. Austria M. Abaya,
138
176 SCRA 634). The judge is the visible representation of the law and
of justice. From him, the people draw their will and awareness to obey
the law. As such, he should avoid even the slightest infraction of the
law. (Inciong vs. De Guia, 154 SCRA 93; Dela Paz vs. Inutan, 64 SCRA
56, 177 SCRA 435). In Santos vs. Lumang, it was said that a judge who,
through gross ignorance of the laws or serious misconduct, frustrates
the people's search for justice, commits a rank disservice to the cause
of justice which calls for rectification and the imposition of appropriate
disciplinary measures. In Summers vs. Ozaeta, 81 Phil. 754, it has been
said that a judge's position demands equanimity, prudence, fortitude
and courage.
Q
ANS. -Yes. Willful failure to pay a just debt is a serious offense under Rule
140 of the Rules of Court, as amended by the resolution of the
Supreme Court, dated July 25, 1974. The amount involved (P4,500.00)
is not big. He could easily have paid it, but it appears that he was bent
on frustrating the complainant's best efforts to obtain satisfaction of
her lawful claim, apparently for no other intention than to annoy and
oppress her for having haled him and his wife into court. While an
ejectment case is supposed to be summary in nature, respondent
judge, through dilatory tactics, stretched the trial over a period of ten
(10) years, and dragged the case all the way from the municipal court
to the Court of Appeals. After the decision had become final, he
delayed payment for two more years. He came across only after the
complainant in exasperation had filed this administrative charge
against him.
Respondent judge's conduct toward the complainant was
oppressive and unbecoming a member of the judiciary. He used his
position and his legal knowledge to welsh on a just debt and to harass
his creditor. His example erodes public faith in the capacity of courts to
administer justice. He violated Rule 2.0l. Canon 2 of the Code of Judicial
conduct which requires that "a judge should so behave at all times as
to promote public confidence in the integrity and impartiality of the
judiciary. (De Julio vs. Judge Benjamin Vega, A.M. No. RTJ-89-406, July
18, 1991).
Q
139
from the Presiding Justice of the Court of Appeals down to the lowest
municipal trial court clerk. By virtue of this power, it is only the
Supreme Court that can oversee the judges and court personnel's
compliance with all laws, and take the proper administrative action
against them if they commit any violation thereof. No other branch of
government may intrude into this power, without running afoul of the
doctrine of separation of powers. (Maceda vs. Vasquez, 221 SCRA 464,
April 22, 1993).
Q
ANS. -No. As a general rule, the acts done by a judge in his judicial capacity
are not subject to disciplinary action, even though erroneous. These
acts become subject to disciplinary power only when they are attended
by fraud, dishonesty, corruption or bad faith. (Abiera vs. Maceda, 52
SCAD 581, 233 SCRA 520, June 30, 1994).
A judge is not administratively accountable for every erroneous
ruling or decision rendered, provided, he acts in good faith and without
malice. (Martin vs. Vallarta, 200 SCRA 469, Aug. 12, 1991).
Good faith and absence of malice, corrupt motives and improper
consideration are sufficient defenses that may be availed of by a
judicial officer charged with ignorance of the law and promulgation of
an unjust decision from being held accountable for errors of judgment,
on the premise that no one called upon to try the fact or interpret the
law in the administration of justice can be infallible. (Pilipinas Bank vs.
Tirona-Liwag, 190 SCRA 834, Oct. 18, 1990).
Q
- State the concept and elements of knowingly rendering
unjust judgment.
ANS. - Knowingly rendering an unjust judgment is both a criminal and an
administrative charge. As a crime, it is punished under Art. 204 of
the RPC, the elements of which are: (a) the offender is a judge; (b)
he renders a judgment in a case submitted to him for decision; (c)
the judgment is unjust; and (d) the judge knows that his judgment is
unjust. The gist of the offense therefore is that an unjust judgment
be rendered maliciously or in bad faith, that is, knowing it to be unjust.
An unjust judgment is one which is contrary to law or is not
supported by the evidence, or both. The source of an unjust judgment
may be error or ill-will. There is no liability at all when required to
exercise his judgment or discretion. A judge is not liable criminally for
any error which he commits, provided he acts in good faith. Bad faith is
therefore the ground of liability. If in rendering judgment the judge fully
knew that the same was unjust in the sense aforesaid, then he acted
maliciously and must have been actuated and prevailed upon by
hatred, envy, revenge, greed, or some other similar motive. Mere error
140
ANS. -No. The fact the complainant has lost interest in prosecuting the
administrative case against a judge will not necessarily warrant a
dismissal thereof. Once charges have been filed, the Supreme Court
may not be divested of its jurisdiction to investigate and ascertain
the truth of the matter alleged in the complaint. The Supreme Court
has an interest in the conduct of members of the Judiciary and in
improving the delivery of justice to the people, and its efforts in that
direction may not be derailed by the complainant's desistance from
further prosecuting the case he or she initiated.
To condition administrative actions upon the will of every
complainant, who may, for one reason or another, condone a
detestable act, is to strip the Court of its supervisory power to
discipline erring members of the Judiciary. Definitely, personal
interests are not
material or controlling. What is involved here is a matter of public
interest considering that a judge is no ordinary citizen but an officer of
the court whose personal behavior not only upon the bench and in the
performance of judicial duties, but also in his everyday life, should be
beyond reproach. (Imbing vs. Tiongson, 48 SCAD 101,229 SCRA 690,
Feb. 7, 1994).
Q -. X applied for the position of an RTC judge without revealing
that he has two pending cases. Is the act of X proper? Why?
ANS. -No. A judge is held guilty of gross misrepresentation when he failed to
disclose that he was facing two serious criminal charges when he
141
ANS. -Judges are enjoined not only to regulate their extrajudicial activities in
order to minimize the risk of conflict with their judicial duties but also
prohibited from engaging in the private practice of law. (Balayan vs.
Ocampo, 218 SCRA 13, Jan. 29, 1993).
Q
- May a judge issue a subpoena to a person whohas no case in
his sala? Why?
ANS. -No. In the absence of a case in his sala in connection with which a
party could be subpoenaed, a judge has absolutely no power or
authority to issue a subpoena to such party.
ANS.
Q
- Maya judge solemnize marriage without marriage license?
Why?
142
ANS .- No. For solemnizing marriages even without the requisite marriage
license, a judge is deemed to have actually trifled with the law's
concern for the institution of marriage and the legal effects flowing
from civil status, which should merit administrative sanction, without
prejudice to the civil and criminalliabilities he may have incurred as
well. (Cosca vs. Palaypayon, Jr., 55 SCAD 759,237 SCRA 249, Sept. 30,
1994).
ANS.
Q
- Should a judge report to his office even if he has no hearings?
Why?
ANS. -Yes. A judge must report to his office even if he has no hearings on
regular days. The law regulating court sessions does not permit any
"day off' from regular office hours to enable the judge to engage
exclusively in research or decision-making, no matter how important.
(Mendoza vs. Mabutas, 42 SCAD 423, 225 SCRA 411, June 17, 1993).
Q
ANS. -No. A judge cannot use his chambers as his family's residence even
with the Governor's permission. Government property is for official use
only and not for the personal use of the official. (Presado vs. Geova, 42
SCAD 507, 223 SCRA 489, June 21, 1993). Court rooms cannot be used
as judge's living quarters. (Felongco vs. Dictado, 42 SCAD 700, 223
SCRA 696).
Q
ANS. -No. The judge whose order is under attack is merely a nominal
party. Wherefore, a judge, in his official capacity should not be made
to appear as a party seeking reversal of a decision that is
unfavorable to the action taken by him. A decent regard for the judicial hierarchy bars a judge from suing against the adverse opinion
143
of a higher court. (Santiago vs. CA, 184 SCRA 690, April 27, 1990).
Q
ANS. -
ANS. -The power to declare a person in contempt of court and in dealing with
him accordingly is an inherent power lodged in courts of justice to be
used as a means to protect and preserve the dignity of the court, the
solemnity of the proceedings therein and the administration of justice
from callous misbehavior, offensive personalities, and contumacious
refusal to comply with court orders.
And as in all other power of the court, the contempt power,
however, plenary it may seem, must be exercised judiciously and
sparingly.
Clearly then, judges are enjoined to exercise utmost restraint in
the use of their contempt powers. They are expected to avail of the
contempt power only as a last resort when all other alternative courses
of action are exhausted in the pursuit of maintaining respect to the
court and its processes. Thus, when a less harsh remedy presents itself
to the judge, he should at all times hesitate to use his contempt power,
and instead opt for the less harsh remedy. (De Guia vs. Guerrero, Jr., 54
SCAD 1,234 SCRA 625, August 1, 1994).
Q
ANS.
144
ANS. -
145
be so. Impartiality is a state of mind; hence, the need for some kind
of manifestation of its reality.
Verily, a judge may, in the exercise of his sound discretion, inhibit
himself voluntarily from sitting in a case, but it should be based on
good, sound or ethical grounds, or for just and valid reasons. It is not
enough that a party throws some tenuous allegations of partiality at
the judge. No less than imperative is that it is the judge's sacred duty
to administer justice without fear or favor. (Parayno vs. Meneses, 50
SCAD 170,231 SCRA 807, April 26, 1994).
Q
ANS. -
ANS.
-No, for the acts were done before he became a judge. Proof of
prior immoral conduct cannot be the basis for his administrative
discipline. The respondent may have undergone moral reformation
after his appointment, or his appointment could have completely
transformed him upon the solemn realization that apublic office is a
public trust and public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility,
integrity, loyalty and efficiency, act with patriotism and justice, and
lead modest lives. (Section 1, Article XI,1987 Constitution). It would
be unreasonable and unfair to presume that since he had wandered
from the path of moral righteousness, he could never retrace his
steps and walk proud and tall again in the path. No man is beyond
reformation and redemption. A lawyer who aspires for the exalted
position of a magistrate knows, or ought to know, that he must pay a
146
high price for the honor - his private and official conduct must at all
times be free from the appearance of impropriety. (Jagueta vs.
Boncaros, 60 SCRA 27 [1974]). And the lawyer who is thereafter
appointed thereto must perforce be presumed to have solemnly
bound himself to a way of conduct free from any hint or suspicion of
impropriety. The imputation of illicit sexual acts upon the incumbent
judge must be proven by substantial evidence, which is the quantum
of proof required in administrative cases. (Alfonso vs. Judge Modesto
Luanson, Dec. 7, 1993,46 SCAD 603).
Q - Judge Enrique A. Cube was, on May 31, 1993 appointed
Presiding Judge of Metropolitan Trial Court, Branch 22, Manila.
Subsequently, information was received by the Judicial and Bar
Council that he was previously dismissed in 1972 as Assistant
Fiscal of Pasay City for gross misconduct and dereliction of duty
for failure to prosecute a criminal case which led to its dismissal
with prejudice.
Cube applied for appointment to the Judiciary sometime in
1992. In the Personal Data Sheet he was required to
accomplish, one of the questions asked was: "Have you ever
been retired, dismissed, forced to resign from any employment
for reason other than lack of funds or dropped from the rolls?
His answer was "Optional under RA 1145."
RA 1145 is entitled "An Act Creating the Philippine Coconut
Administration..." and does not deal with retirement, optional or
otherwise. Cube's Services Record made no mention of his
having been employed in this agency.
Cube explained that his removal in 1972 was WITHOUT
PREJUDICE. He was in fact appointed to a municipal government
position. Can he be dismissed? Why?
ANS. Yes.
The circumstance that his dismissal was without prejudice is not
material, and neither is his subsequent appointment to a municipal
position. What is important is his non-disclosure or concealment of the
fact that in 1972, he was REMOVED as Asst. Fiscal. That fact was
deliberately suppressed. He did not retire, as he declared in his data
sheet. He was removed for gross misconduct and dereliction of duty in
the prosecution of a smuggling case.
"It behooves every prospective appointee to the judiciary to
apprise the appointing authority of every matter bearing on his fitness
for judicial office, including such circumstances as may reflect on his
integrity and probity. These are qualifications specifically required by
147
the Constitution."
The fact alone of his concealment of his previous dismissal from
the public service, which the Judicial and Bar Council would have taken
into consideration in acting on his application, is clear proof of his lack
of the said qualifications and renders him unworthy to sit as judge.
Judge Cube committed an act of dishonesty that rendered him
unfit to be appointed to, and to remain now in, the Judiciary, he has
tarnished with his falsehood. He was DISMISSED with prejudice to his
reappointment to any position in the government, including
government-owned or -controlled corporations, and with forfeiture of all
retirement benefits. (Re: Inquiry on the Appointment of Judge Enrique
A. Cube, AM No. 93-7-4280 METC, Oct. 13, 1993, 45 SCAD 301).
Q
ANS. - No. In dismissing the Judge, the Supreme Court said that exacting
standards of morality and decency from those who serve in the
judiciary have been set. A member of the judiciary is judged not
only by his official acts but also by his private morals, to the extent
that such private morals are externalized in his behavior. The judge
failed to measure up to those demanding standards. He was found
guilty of gross misconduct and conduct prejudicial to the interest of
the judiciary. (Junio vs. Judge Pedro Rivera, Aug. 30, 1993).
Q - Provincial Prosecutor G. Olarte filed an information for
murder against F. Banite withoutrecommendation for bail in
the sala of Judge Tarriela, presiding judge Branch 44 RTC of
Mamburao, Occidental Mindoro. On January 3, 1992, the
accused was arraigned where he pleaded not guilty. However,
on January 18, 1992, prosecutor Olarte amended the informa
tion against Banite without leave of court to homicide and
recommended a bail of P20,OOO.OO. Judge Tarriela ordered
Olarte to explain his action. Thereafter, on February 4, 1992,
Mrs. Zubiri, supervising steno-reporter of the provincial
prosecutor on orders of Olarte went to Judge Aguilar herein
respondent, who was then the executive and presiding judge of
Branch 45 RTC of San Jose, Occidental Mindoro, to request for
the release of the accused Banite on bail. On the same day,
Judge Aguilar signed and issued the order approving the
property bond and the release of the accused on bail.
Complainants herein charged respondent judge with grave
abuse of discretion, since the case was being tried in the sala of
148
149
ANS.
150
151
-Yes. In dismissing him, the Supreme Court said that Judge Dizon
is once more before the Supreme Court to answer charges, which
are practically a repetition of an earlier case against him. As before,
he stubbornly insists that malice or criminal intent should be proved
even in crimes punished by special laws or laws which are mala
prohibita. The Supreme Court found him guilty of having acted with
gross incompetence and gross ignorance of the law, as to be almost
deliberate and tantamount to knowingly rendering incorrect and
unjust judgment. (Article 204, RPC).
A judge should be the embodiment of competence, integrity and
independence. He should be faithful to the law and maintain
professional competence. In every case, he should endeavor diligently
to ascertain the facts and the applicable law answered by partisan
interests, public opinion or fear of criticism. When it has been clearly
demonstrated, as in this case, not only once but four times, that the
judge is either grossly incompetent or grossly ignorant of the penal
laws especially those involving crimes committed by transients, like
smuggling of foreign currency and firearms, through the international
airport in Pasay City, where his court sits, he becomes unfit to
discharge his judicial office. More than mere ignorance of applicable
laws and jurisprudence, his intransigence and persistence in error will
make people lose their faith in him as an administrator of justice. Having lost his right to be addressed by the respectful appellation of
"Honorable Judge" he has likewise lost his right to continue in the
152
judicial service. (Senior State Prosecutor Zuno vs. Judge Dizon, June 23,
1993, 42 SCAD 601).
Q
ANS.
153
ANS.
154
matter how important. In Siasico vs. Sales (71 SCRA 139, 146 [1976]),
the Supreme Court stated:
"Reasons of public policy, the preservation of the good image of
the judiciary, and avoidance of all appearances of impropriety, require
that a judge should hold office at the regular place of business of the
court and not at his residence. A judge holding office in his house
makes criticism that his official actuation cannot bear public scrutiny,
more particularly of his co-officials in the local government. All these
would have deterred respondent from the course of action he had
taken had he possessed some sense of decorum and good judgment."
(Mendoza vs. Judge Rodolfo Mabutas, June 17, 1993,42 SCAD 423).
Q
ANS.
ANS.
155
- A judge acquitted the accused in a case for violation of the Central Bank Act because intent to violate
the law was not proven. He repeated the same mistake in
another case for violation of another special law
specifically the attempt to
smuggle firearms into and out of the country. He was
removed twice. Explain the reason.
-The reason for such dismissal twice could be traced from
the fact that such mistake cannot be ascribed to a simple
mistake of judgment but to gross ignorance of the law, if not
deliberate disregard of the same. It is tantamount to knowingly
rendering unjust and incorrect judgment. A judge should be the
embodiment of competence, integrity and independence. He
should be faithful to the law and maintain professional competence. (Padilla vs. Dizon, 158 SCRA 127; Senior State
Prosecutor Jovencito ZUllO, Jr. vs. Dizon, June 23, 1993, 42 SCAD
601).
156
157
- Are there any distinctions between the court and the judge?
ANS. - Yes. The court is an entity and the person who occupies the position is
the judge. A court may exist without a judge. There may be a judge
without a court. (Pamintuan vs. Llorente, 29 Phil. 346).
Q
ANS. - It means that it is the duty of both counsel and judge to maintain not to
destroy, the high esteem and regard for courts. Any act on the part of one
or the other that tends to undermine the people's respect for, and
confidence in, the administration of justice is to be avoided. And this,
even if both may have to restrain pride from taking the better part of their
system. (Lugue vs. Kayanan, 29 SCRA 173). The relations of judge and
lawyer should be founded on mutual respect and on a deep appreciation
by one of the duties of the other. (Romero vs. Valle, 147 SCRA 197)
Q
ANS. - The sole purpose of courts of justice is to enforce the laws uniformly and
impartially, without regard to persons or their circumstances or to
opinions of men. A judge should at all times be wholly free, disinterested,
impartial and independent. Elementary due process requires a hearing
before an impartial and disinterested tribunal. A judge has both the duty
of rendering a just decision and the duty of doing it in a manner
completely free from suspicion as to its fairness and as to his integrity.
Judges therefore, should not only be impartial but they should also appear
impartial. (Tan, Jr. vs. Gallado, 73 SCRA 315).
Q
158
- How do you explain the fact that a judge should be like Caesar's
wife?
ANS. - A judge should be like Caesar's wife because a judge must not only be
pure but must also appear to be so. Appearance is as important as reality
in the performance of judicial functions. Like Caesar's wife, a judge must
not only be pure but must be beyond suspicion. (Palang vs. Zosa, 58 SCRA
776). A judge has the duty not only to render a just and impartial decision,
but also render it in such a manner as to be free from any suspicion as to
its fairness and impartiality, and also as to the judge's integrity. (Martinez
vs. Gironella, 65 SCRA 245).
Q
- Explain the rule that a judge should not seek publicity for
personal vainglory.
ANS. - It means that judges should be prohibited from seeking publicity for
vanity or self-glorification. Judges are not actors or actresses or
politicians. They are also prohibited from making public comments on
any pending or impending case. Judges must not be moved by a desire
to cater to public opinion to the detriment of justice. (Go vs. CA, 206
SCRA 165).
Q
ANS. - No. A judge should not allow unnecessary taking of Pictures of the
court .proceedings. He should not allow the broadcasting of proceedings
over the radio or allow the televising of the proceedings. The reason is
that, such fanfare and publicity detract from the dignity of the court
proceedings for the parties involved tend to become more self-conscious
on their appearances rather than the truth of the facts and substance of
the issues. The administration of justice would then ultimately suffer as
the judge might be influenced by the public clamor engendered by the
publicity. Finally, a judge should not seek publicity for his personal
vainglory.
Q
159
expedite and prevent unnecessary waste of time. (Domanico vs. CA, 122
SCRA 218). He may intervene to profound clarificatory questions. (People
vs. Muit, 117 SCRA 696). He should, however, limit himself only to
clarificatory questions and not to ask searching questions after the
witness had given direct testimony. (Valdez vs. Aquilizan, 133 SCRA 150).
His act should be done sparingly and not throughout the proceedings.
(People vs. Ibanson, 120 SCRA 679).
Q
- What constitutes undue interference by the judge in the
presentation of evidence?
ANS. - There is undue interference if the judge will extensively profound
questions to the witnesses which will have the effect of or will tend to
build or bolster the case of one of the parties.
Q
- Give the reason behind the rule that a judge should not
interfere in the presentation of evidence.
ANS. - A judge should not only be impartial, but he should appear to be so. If he
profounds questions to help build the case of a party, he would come out
biased against or partial in favor of a party. A judge interference may
likewise prevent the proper presentation of the case, and the
ascertainment of the truth in respect thereto.
Q
ANS. - No, because as a member of the Bench, he should have realized that
his presence, opinion and participation in any proceeding could slant
the evaluation and resolution of the case in favor of the party he
identifies himself with. A judge need not utter any word for his sheer
presence, as a member of the Judiciary, would be sufficient suggestion
of persuasion and influence. (Garcia, et al. vs. Valdez, A.M. No. MTJ-981156, July 13, 1998, 96 SCAD 170).
Q
160
ANS. - A judge should decide a case within the reglementary period because
failure to do so constitutes gross dereliction of duty. A judge should decide
a case promptly and expeditiously, for it cannot be denied that justice
delayed is justice denied. Delay in the disposition of cases undermines the
people's faith and confidence on the judiciary. Hence, judges are enjoined
to decide cases with dispatch. Their failure to do so constitutes gross
inefficiency and warrants the imposition of administrative sanctions on
them. (Fe T. Bernardo vs. Judge Amelia A Fabros, A.M. No. MTJ-99-1l89,
May 12, 1999, citing Sanchez vs. Vestil, AM. No. MTJ-981419, October 13,
1998, 100 SCAD 147).
Q
ANS. - No. A judge is expected to keep his own record of cases so that he
may act on them promptly without undue delay. It is incumbent upon
him to devise an efficient recording and filing system in his court so
that no disorderliness can affect the flow of cases and their speedy
disposition. x x x Proper and efficient court management is as much his
responsibility. He is the one directly responsible for the proper
discharge of his official functions. (See Fe T. Bernardo vs. Judge Amelia
A Fabros, AM. No. MTJ-99-1l89, 106 SCAD 425, May 12, 1999).
Q
- When may a judge be subjected to disciplinary action for his
errors? Explain.
ANS. - For liability to attach for gross negligence of the law, the assailed order,
decision or actuation of a judge must not only be found erroneous but,
most importantly, it must be established that the judge was moved by
bad faith, dishonesty, hatred, or some other like motive. (Dela Cruz vs.
Concepcion, 54 SCAD 640, '235 SCRA 597).
Q
ANS. - A judge may be held liable for rendering an unjust judgment when he
acts in bad faith, malice, revenge, or some other motive. (Heirs of the late
Nasser Yasin vs. Felix, 66 SCAD 157, 250 SCRA 545).
161
ANS. - The import of the rule on voluntary inhibition of judges is that the
decision on whether or not to inhibit is left to the sound discretion and
conscience of the trial judge based on his rational and logical assessment
of the circumstances prevailing in the case brought before him. It makes
clear to the occupants of the Bench that outside of pecuniary interest,
relationship or previous participation in the matter that calls for
adjudication, there might be other causes that could conceivably erode
the trait of objectivity, thus calling for inhibition. This is to betray a sense
of realism, for the factors that lead to preference or predelictions are
many and varied.
In the final reckoning, there is really no hard and fast rule when it
comes to the inhibition of judges. Each case should be treated differently
and decided based on its peculiar circumstances. The issue of voluntary
inhibition is primarily a matter of conscience and sound discretion on the
part of the judge. It is a subjective test the result of which the reviewing
tribunal will not disturb in the absence of any manifest finding of
arbitrariness and whimsicality. The discretion given to trial judges is an
acknowledgment of the fact that these judges are in a better position to
determine the issue of inhibition as they are the ones who directly deal
with parties-litigants in their courtrooms. (People vs. Gallermo, G.R. No.
123546, July 7, 1998, 95 SCAD 579).
Q
ANS. - Yes. The Code of Judicial Conduct mandates that a judge should avoid
162
- After the hearing of the petition for bail, the court issued an
order denying the same on the ground that the evidence of
guilt
is strong.
The
petitioner
filed a
motion
for
reconsideration, but was denied, the court ruling that it has already clearly spelled out the grounds relied upon in the denial
of the motion. The accused asked for the inhibition of the
judge contending that because of the actuations of the judge,
he has already become biased, hence, he stands no chance at
all in court presided by the judge. Is the motion proper? Why?
ANS. - No. The orders denying the petition for bail and the motion for
reconsideration do not sufficiently prove bias and prejudice to
disqualify the judge under Sec. 1, Rule 37 of the Rules of Court. For
such bias and prejudice, to be a ground for disqualification, must be
shown to have stemmed from an extrajudicial source, and result in an
opinion on the merits on some basis other than what the judge learned
from his participation in the case. Opinions formed in the course of
judicial proceedings, as long as they are based on the evidence
presented and conduct observed by the judge, even if found later on
as erroneous, do not prove personal bias or prejudice on the part of the
judge. Extrinsic evidence is required to establish bias, bad faith, malice
or corrupt purpose, in addition to palpable error which may be inferred
from the decision or order itself. (Victorio Aleria, Jr. vs. Hon. Alejandro
163
Velez, Jr., G.R. No. 127400, November 16, 1998, 100 SCAD 720, citing
Webb vs. People, 85 SCAD 66, 276 SCRA 243).
Q
ANS. - Yes, because the error was gross and patent violation of law and the
rules on bail. While it is true that a judge may not be held administratively
accountable for every erroneous order or decision (Guillermo vs. Reyes,
58 SCAD 130, 240 SCRA 154), yet if the error is gross or patent, malicious,
deliberate or in evident bad faith, he may still be liable. The reason for
this is that he is expected to have a more than cursory acquaintance with
the rules on bail. Failure to follow basic legal commands embodied in the
law and the rules constitutes gross ignorance of the law (Del Rosario, Jr.
vs. Bartolome, 81 SCAD 281, 270 SCRA 645; Aurillo vs. Francisco, 54
SCAD 352, 235 SCRA 283) from which no one may be excused, not even a
judge. (Evelyn De Austria vs. Judge Orlando D. Beltran, A.M. No. RTJ-981406, September 1, 1999).
Q
ANS. - No. As a rule, a judge may not be held administratively accountable for
every erroneous order or decision he renders. To unjustifiably hold
otherwise, assuming that he has erred, would be short of harassment and
would make his position doubly unbearable, for no one called upon to try
the facts or interpret the law in the process of administering justice can
be infallible in his judgment. The error must be gross or patent, malicious,
deliberate or in evident bad faith. It is only in this latter instance when the
judge acts fraudulently or with gross ignorance, that administrative
sanctions are called for as an imperative duty of this Court. (Evelyn de
Austria vs. Judge Orlando D. Beltran, A.M. No. RTJ-98-1406, September 1,
1999; Panganiban vs. Judge Pablo B. Francisco, et al., A.M. No. RTJ-981425, November 16, 1999).
Q
- Give examples of defenses of a judge charged with ignorance of
the law.
ANS. - Good faith and absence of malice, corrupt motives or improper
considerations are sufficient defenses in which a judge charged with
ignorance of the law can find refuge. (Evelyn de Austria vS. Judge Orlando
D. Beltran, A.M. No. RTJ-98-1406, September 1, 1999, citing Guillermo vs.
Reyes, 58 SCAD 130, 240 SCRA 154).
Q
164
ANS. - Yes, because not only did he fail to live up to high moral standards of
165
166
him guilty thereof. A contrary rule would be fraught with injustice and
pregnant with dreadful and dangerous implications. If innocent,
respondent official merits vindication of his name and integrity as he
leaves the government which he has served well and faithfully; if
guilty, he deserves to receive the corresponding censure and a penalty
proper and imposable under the situation. (Villa Macasasa, et at. vs.
Judge Fausto H. Imbing, A.M. No. RTJ-99-1470, August 16, 1999).
- A judge should act beyond reproach and suspicion. Does this
mandate include his personal behavior? Why?
Q
ANS. -
ANS.
ANS. -Trial courts must exercise meticulous care in accepting a plea of guilty in
a capital offense. Judges are duty-bound to be extra solicitous in seeing to
it that when an accused pleads guilty, he understands fully the meaning
of his plea and the import of his inevitable conviction. (People vs.
Gonzaga, 127 SCRA 158). Courts must proceed with more care where the
possible punishment is in its severest form, like death, for the reason that
the execution of such a sentence is irrevocable. Experience has shown
that innocent persons have at times pleaded guilty. (People vs. Albert, 66
SCAD 456, 251 SCRA 136). Only a clear, definite and unconditional plea of
167
ANS.-No. Under Rule 137, Sec. 1 of the Rules of Court, ajudge who is related
within the sixth degree of consanguinity or affinity to a party in a case is
disqualified from sitting in the case without the consent of all parties,
expressed in writing, signed by them, and entered upon the record. This
prohibition is not limited to cases in which he acts by resolving motions
and issuing orders as respondent judge has done in the subject criminal
case. The purpose of the prohibition is to prevent not only a conflict of
interest but also the appearance of impropriety on the part of the judge. A
judge should take no part in a proceeding where his impartiality might
reasonably be questioned (Canon 3, Rule 3.12) and he should administer
justice impartially and without delay. (Canon 1, Rule 1.02; Lazo vs. Judge
Antonio Tiong, A.M. No. MTJ-98-1173, December 15, 1998, 101 SCAD 692).
Q
168
acceptance of bribe;
(d)
(c)
(d)
receiving money from litigants and borrowing from them without
paying back;
(f)
Reasons:
Members of the judiciary should display not only the highest
integrity but at all times conduct themselves in such a manner as to be
beyond reproach and suspicion. The respect and confidence of the public
may justifiably be eroded if the conduct of an erring judge is condemned.
(Paredes vs. Buduha, Dec. 7, 1989).
Q
ANS. -No, in fact, the judge was fined for ignorance of the law. His opinion that
the checks were invalid because they were not dated also revealed his
unfamiliarity with Sec. 6 of the Negotiable Instrument Law. (Torres vs.
Pedrosa, Aug. 22, 1989). It is the duty of a judge to keep abreast with the
law and jurisprudence.
Q
ANS. -No. In Miranda vs. Manalastas, Dec. 21, 1989, the Supreme Court said
169
ANS. - No. In Aparicio vs. Andal, July 25, 1989, the Supreme Court said that the
mere filing of an administrative case does not constitute a ground to
disqualify a judge from hearing the case, otherwise, many cases would
have to be kept pending or there might not be enough judges to handle
all the cases pending in all courts. There must first be a showing of
arbitrariness or prejudice before the judge can be considered partial or
bias.
Hence, if a judge denies the motion to inhibit him, his continued
cognizance of the case pending before him is proper, if no TRO or
injunction is issued against him.
Q
- State the effect if a judge shows signs of partiality and prejudgment in a case. Why?
ANS. - The judge can be inhibited from further trying the case.
ANS.
Partiality and pre-judgment can be just and valid reasons for the
judge to voluntarily inhibit himself. But mere suspicion that he is partial is
not enough. There must be evidence to prove the charge. (Fecundo vs.
Benjamin, Dec. 18, 1989). A litigant is entitled to the fairness and cold
neutrality of an impartial judge.
- Madam C sought the assistance of a judge in expediting
the intestate estate proceedings of her deceased common-law
husband. He, however, took advantage of her helplessness and
state of material depredation and took her as his mistress. Was
the act of the judge proper? Why?
-No, because a judge should personify judicial integrity and
exemplify honesty in public service. The personal behavior of a judge,
both in the performance of official duties and in private life should be
above suspicion. The exploitation of women becomes reprehensible
when the offender commits injustice by the brute force of his position
of power and authority. (Calanog case).
170
Q
- Maya judge be held to answer for an erroneous decision which
he rendered? Why?
ANS. -A judge cannot be held to account or answer, criminally, civilly, or
administratively for an erroneous decision rendered by him in good faith.
While the Supreme Court does not require perfection and infallibility, it
reasonably expects a faithful and intelligent discharge of duty by those
who are selected to fill the positions of administrators of justice.
Q
ANS. - Yes. Even if a judge has already retired before the administrative case
was filed against him, the Supre me Court held that the court has not lost
its jurisdiction over him even if his retirement has been approved, for his
retirement benefits have not yet been paid. The reason for this is that the
people would have no remedy left anymore. By reason of public policy,
the Court must assert and maintain jurisdiction for acts performed in
office which are inimical to the service and prejudicial to the interest of
the litigants and the general public.
Q
-Maya judge who exercises his judicial function be made liable for
damages? Why?
ANS. -A judge who exercises his judicial functions cannot be liable for damages.
The test of liability is not jurisdiction, but the nature of the question which
is being determined when the error complained of is committed by the
court. (Aparicio vs. Andal, G.R. No. 8658793, July 25, 1989). He is not
liable even though there is in reality absolute failure of jurisdiction over
the subject matter. For, judges are excluded from liability under Art. 32,
New Civil Code, provided, their acts do not constitute a violation of the
Revised Penal Code.
Q
immorality and
alleged that he
of two children
act of the judge
ANS. -No, because the judge has behaved in a manner not becoming of his
robes and as a model of rectitude, betrayed the people's high
expectations, and diminished the esteem in which they hold the judiciary
in general.
The circumstances show a lack of circumspection and delicadeza on
the part of the respondent judge by failing to avoid situations that make
him suspect to committing immorality and worse, having that suspicion
confirmed especially so that under Canon 1, Rule 1.01, a judge should be
171
ANS. -No. A member of the Bench cannot pay mere lip service to the 90-day
requirement, but should, in fact, persevere in its implementation. The
Certificate of Service is not merely a means to one's paycheck, but an
instrument by which the Courts can fulfill the constitutional mandate of
the people's right to a speedy disposition of cases. Thus, it has been
ruled:
"The people's faith in the administration of justice, especially those who
172
belong to the low income group, would be greatly impaired if decisions are
long in coming, more so from trial courts which unlike collegiate tribunals
where there is a need for extended deliberation, could be expected to act
with dispatch." (Magdamo vs. Pahimulin, Adm. Matter No. 662-MJ, 30
September 1976, 73 SCRA 110).
Q
- Should a judge show undue interest in a pending case before
another court? Why?
ANS. -No. Cardinal is the rule that a judge should avoid impropriety in all
activities. The Canons mince no words in mandating that a judge shall
refrain from influencing in any manner the outcome of litigation or dispute
pending before another Court. (Canon 2, Rule 2.04). Interference by
members of the Bench in pending suits with the end in view of influencing
the course or the result of litigation does not only subvert the
independence of the judiciary but also undermines the people's faith in its
integrity and impartiality. (Commentaries on the Code of Judicial Conduct).
On this point, Impao vs. Makilala (A.M. No. MTJ-88-184, October 13, 1989,
178 SCRA 541) expounds:
"It is an important judicial norm that a judge's private as well as
official conduct must at all times be free from the appearance of impropriety." (Lugue vs. Kayanan, G.R. No. L
26828, August 29, 1969,29 SCRA 165; x x x). As held by this Court in the
case of Dela Paz vs. Inutan, Adm. Matter No. 201 MJ, June 30, 1975, 64
SCRA 540:
"The judge is the visible representation of the law and, more
importantly, of justice. From him, the people draw their will and
awareness to obey the law. They see in him an intermediary of justice
between two conflicting interests, especially in the station of municipal
judges, like respondent Judge, who have that close and direct contact
with the people before anybody else in the judiciary. Thus, for the judge
to return that regard, he must be the first to abide by the law and weave
an example for the others to follow."
Q
- If a judge reconsiders his decision/order, can he be charged
administratively? Why?
ANS. -No. It is the prerogative of a judge to correct his own decision before it
becomes final and executory, so as to make it conform to the evidence
presented and the applicable laws. (Baguyo vs. Leviste, 107 SCRA 35).
The rule is true for as long as the judge is in good faith which is always
possessed.
A judge is not administratively accountable for every erroneous
ruling or decision rendered, provided, he acts in good faith and without
Q
ANS.
173
malice. (Mendoza vs. Villaluz, 106 SCRA 664). The proper remedy of the
aggrieved party is not an administrative charge against the judge but an
appeal or petition for review of his decision. (Martin vs. Judge Placido
Vallarta, A.M. No. MTJ-90-495, Aug. 12, 1991).
- What is the effect if a judge allows the release of an accused
who was convicted of a non-bailable offense? Why?
- The judge is guilty of gross misconduct when he allowed accused
individuals duly convicted of non-bailable offenses and drug pushers at
that - to enjoy provisional liberty by way of bail. Under the facts obtaining in these cases, good faith cannot be presumed on the part of the
respondent judge. The suspicious circumstances attending the cases in
point are far too glaring to ignore. (Villa vs. Amonoy, A.C. RTJ-89-395,
Feb. 13, 1991).
- How do you describe the office of a judge? Explain.
ANS. -The office of a judge exists for one solemn end to promote justice by
administering it fairly and impartially. (Gonzales vs. Austria M. Abaya, 176
SCRA 634). The judge is the visible representation of the law and of
justice. From him, the people draw their will and awareness to obey the
law. As such, he should avoid even the slightest infraction of the law.
(Inciong vs. De Guia, 154 SCRA 93; Dela Paz vs. Inutan, 64 SCRA 56, 177
SCRA 435). In Santos vs. Lumang, it was said that a judge who, through
gross ignorance of the laws or serious misconduct, frustrates the people's
search for justice, commits a rank disservice to the cause of justice which
calls for rectification and the imposition of appropriate disciplinary
measures. In Summers vs. Ozaeta, 81 Phil. 754, it has been said that a
judge's position demands equanimity, prudence, fortitude and courage.
Q
ANS. -Yes. Willful failure to pay a just debt is a serious offense under Rule 140 of
the Rules of Court, as amended by the resolution of the Supreme Court,
dated July 25, 1974. The amount involved (P4,500.00) is not big. He could
easily have paid it, but it appears that he was bent on frustrating the
complainant's best efforts to obtain satisfaction of her lawful claim, apparently for no other intention than to annoy and oppress her for having
haled him and his wife into court. While an ejectment case is supposed to
be summary in nature, respondent judge, through dilatory tactics,
stretched the trial over a period of ten (10) years, and dragged the case
all the way from the municipal court to the Court of Appeals. After the
decision had become final, he delayed payment for two more years. He
came across only after the complainant in exasperation had filed this
administrative charge against him.
Respondent judge's conduct toward the complainant was oppressive
174
and unbecoming a member of the judiciary. He used his position and his
legal knowledge to welsh on a just debt and to harass his creditor. His
example erodes public faith in the capacity of courts to administer justice.
He violated Rule 2.0l. Canon 2 of the Code of Judicial conduct which requires that "a judge should so behave at all times as to promote public
confidence in the integrity and impartiality of the judiciary. (De Julio vs.
Judge Benjamin Vega, A.M. No. RTJ-89-406, July 18, 1991).
Q
ANS. -No. As a general rule, the acts done by a judge in his judicial capacity are
not subject to disciplinary action, even though erroneous. These acts
become subject to disciplinary power only when they are attended by
fraud, dishonesty, corruption or bad faith. (Abiera vs. Maceda, 52 SCAD
581, 233 SCRA 520, June 30, 1994).
A judge is not administratively accountable for every erroneous
ruling or decision rendered, provided, he acts in good faith and without
malice. (Martin vs. Vallarta, 200 SCRA 469, Aug. 12, 1991).
Good faith and absence of malice, corrupt motives and improper
consideration are sufficient defenses that may be availed of by a judicial
officer charged with ignorance of the law and promulgation of an unjust
decision from being held accountable for errors of judgment, on the
premise that no one called upon to try the fact or interpret the law in the
administration of justice can be infallible. (Pilipinas Bank vs. Tirona-Liwag,
190 SCRA 834, Oct. 18, 1990).
175
Q
- State the concept and elements of knowingly rendering unjust
judgment.
ANS. - Knowingly rendering an unjust judgment is both a criminal and an
administrative charge. As a crime, it is punished under Art. 204 of the
RPC, the elements of which are: (a) the offender is a judge; (b) he
renders a judgment in a case submitted to him for decision; (c) the
judgment is unjust; and (d) the judge knows that his judgment is
unjust. The gist of the offense therefore is that an unjust judgment be
rendered maliciously or in bad faith, that is, knowing it to be unjust.
An unjust judgment is one which is contrary to law or is not
supported by the evidence, or both. The source of an unjust judgment
may be error or ill-will. There is no liability at all when required to exercise
his judgment or discretion. A judge is not liable criminally for any error
which he commits, provided he acts in good faith. Bad faith is therefore
the ground of liability. If in rendering judgment the judge fully knew that
the same was unjust in the sense aforesaid, then he acted maliciously and
must have been actuated and prevailed upon by hatred, envy, revenge,
greed, or some other similar motive. Mere error therefore in the
interpretation or application of the law does not constitute the crime.
The nature of the administrative charge of knowingly rendering an
unjust judgment is the same as the criminal charge. Thus, it must be
established that the judge rendered a judgment or decision not supported
by law and/or evidence and that he must be actuated by hatred, envy,
revenge, greed, or some other similar motive.
If for every error of a judge he should be punished, then perhaps no
judge, however good, competent and dedicated he may be, can ever
hope to retire from the judicial service without a tarnished image.
Somehow along the way he may commit mistakes, however, honest. This
does not exclude members of appellate courts who are not always in
agreement in their views. Anyone belonging to the minority opinion may
generally be considered in error, and yet, he is not punished because
each one is entitled to express himself. This privilege should extend to
trial judges so long as the error is not motivated by fraud, dishonesty,
corruption, or any other evil motive. (Dela Cruz vs. Concepcion, 54 SCAD
640, 235 SCRA 597, Aug. 25, 1994).
Q
ANS. -No. The fact the complainant has lost interest in prosecuting the
administrative case against a judge will not necessarily warrant a
dismissal thereof. Once charges have been filed, the Supreme Court
may not be divested of its jurisdiction to investigate and ascertain the
truth of the matter alleged in the complaint. The Supreme Court has an
176
ANS. -Judges are enjoined not only to regulate their extrajudicial activities in
order to minimize the risk of conflict with their judicial duties but also
prohibited from engaging in the private practice of law. (Balayan vs.
Ocampo, 218 SCRA 13, Jan. 29, 1993).
Q
- May a judge issue a subpoena to a person whohas no case in his
sala? Why?
ANS. -No. In the absence of a case in his sala in connection with which a party
could be subpoenaed, a judge has absolutely no power or authority to
issue a subpoena to such party.
The judge, in using a subpoena form for criminal cases to
summon a party upon the request of another who had no case before
his court, invited legitimate criticism against his office as an instrument
ANS.
177
ANS .- No. For solemnizing marriages even without the requisite marriage
license, a judge is deemed to have actually trifled with the law's concern
for the institution of marriage and the legal effects flowing from civil
status, which should merit administrative sanction, without prejudice to
the civil and criminalliabilities he may have incurred as well. (Cosca vs.
Palaypayon, Jr., 55 SCAD 759,237 SCRA 249, Sept. 30, 1994).
Q
ANS.
Q
- Should a judge report to his office even if he has no hearings?
Why?
ANS. -Yes. A judge must report to his office even if he has no hearings on
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regular days. The law regulating court sessions does not permit any "day
off' from regular office hours to enable the judge to engage exclusively in
research or decision-making, no matter how important. (Mendoza vs.
Mabutas, 42 SCAD 423, 225 SCRA 411, June 17, 1993).
Q
ANS. -No. A judge cannot use his chambers as his family's residence even with
the Governor's permission. Government property is for official use only
and not for the personal use of the official. (Presado vs. Geova, 42 SCAD
507, 223 SCRA 489, June 21, 1993). Court rooms cannot be used as
judge's living quarters. (Felongco vs. Dictado, 42 SCAD 700, 223 SCRA
696).
Q
ANS. -No. The judge whose order is under attack is merely a nominal party.
Wherefore, a judge, in his official capacity should not be made to
appear as a party seeking reversal of a decision that is unfavorable to
the action taken by him. A decent regard for the judicial hierarchy bars
a judge from suing against the adverse opinion of a higher court.
(Santiago vs. CA, 184 SCRA 690, April 27, 1990).
Q
- The judge failed to render judgment in a case within the
reglementary period. His reason is the failure of the
stenographer to transcribe the notes. Was the contention
proper?
ANS. -
ANS. -The power to declare a person in contempt of court and in dealing with
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ANS.
180
judge who dispenses it is not equipped with the cardinal judicial virtue of
moral integrity, and if he obtusely continues to commit an affront to
public decency. In fact, moral integrity is more than a virtue; it is a
necessity in the Judiciary."
In another case where a municipal judge was charged with having
illicit relations with a concubine under scandalous circumstances, it was
stated that if good moral character is required of a lawyer, with more
reason should that requirement be exacted of a member of the Judiciary
who at all times is expected to observe irreproachable behavior and is
bound not to outrage public decency. Thus, even as an ordinary lawyer, a
judge has to conform to the strict standards of conduct demanded of
members of the profession. Definitely, fathering a child with a woman
other than his lawful wife fails to meet these standards. A judge suffers
from moral obtuseness or has a weird notion of morality in public office
when he labors under the delusion that he can be a judge and at the
same time have a mistress in defiance of the mores and sense of morality
of the community. (lmbing vs. Tiongson, 48 SCAD 101,229 SCRA 690, Feb.
7, 1994).
Q
ANS. -
ANS. -
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ANS.
-No, for the acts were done before he became a judge. Proof of
prior immoral conduct cannot be the basis for his administrative
discipline. The respondent may have undergone moral reformation
after his appointment, or his appointment could have completely
transformed him upon the solemn realization that apublic office is a
public trust and public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility,
integrity, loyalty and efficiency, act with patriotism and justice, and
lead modest lives. (Section 1, Article XI,1987 Constitution). It would be
unreasonable and unfair to presume that since he had wandered from
the path of moral righteousness, he could never retrace his steps and
walk proud and tall again in the path. No man is beyond reformation
and redemption. A lawyer who aspires for the exalted position of a
magistrate knows, or ought to know, that he must pay a high price for
the honor - his private and official conduct must at all times be free
from the appearance of impropriety. (Jagueta vs. Boncaros, 60 SCRA 27
[1974]). And the lawyer who is thereafter appointed thereto must
perforce be presumed to have solemnly bound himself to a way of
conduct free from any hint or suspicion of impropriety. The imputation
of illicit sexual acts upon the incumbent judge must be proven by
substantial evidence, which is the quantum of proof required in
administrative cases. (Alfonso vs. Judge Modesto Luanson, Dec. 7,
1993,46 SCAD 603).
Q - Judge Enrique A. Cube was, on May 31, 1993 appointed Presiding
Judge of Metropolitan Trial Court, Branch 22, Manila. Subsequently,
information was received by the Judicial and Bar Council that he was
previously dismissed in 1972 as Assistant Fiscal of Pasay City for
gross misconduct and dereliction of duty for failure to prosecute a
criminal case which led to its dismissal with prejudice.
Cube applied for appointment to the Judiciary sometime in
1992. In the Personal Data Sheet he was required to accomplish,
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one of the questions asked was: "Have you ever been retired,
dismissed, forced to resign from any employment for reason
other than lack of funds or dropped from the rolls? His answer
was "Optional under RA 1145."
RA 1145 is entitled "An Act Creating the Philippine Coconut
Administration..." and does not deal with retirement, optional or
otherwise. Cube's Services Record made no mention of his having
been employed in this agency.
Cube explained that his removal in 1972 was WITHOUT
PREJUDICE. He was in fact appointed to a municipal government
position.
ANS. - YES Can he be dismissed? Why?
The circumstance that his dismissal was without prejudice is not material,
and neither is his subsequent appointment to a municipal position. What is
important is his non-disclosure or concealment of the fact that in 1972, he
was REMOVED as Asst. Fiscal. That fact was deliberately suppressed. He did
not retire, as he declared in his data sheet. He was removed for gross
misconduct and dereliction of duty in the prosecution of a smuggling case.
"It behooves every prospective appointee to the judiciary to apprise
the appointing authority of every matter bearing on his fitness for judicial
office, including such circumstances as may reflect on his integrity and
probity. These are qualifications specifically required by the Constitution."
The fact alone of his concealment of his previous dismissal from the
public service, which the Judicial and Bar Council would have taken into
consideration in acting on his application, is clear proof of his lack of the
said qualifications and renders him unworthy to sit as judge.
ANS. - No. In dismissing the Judge, the Supreme Court said that exacting
standards of morality and decency from those who serve in the
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judiciary have been set. A member of the judiciary is judged not only
by his official acts but also by his private morals, to the extent that
such private morals are externalized in his behavior. The judge failed to
measure up to those demanding standards. He was found guilty of
gross misconduct and conduct prejudicial to the interest of the
judiciary. (Junio vs. Judge Pedro Rivera, Aug. 30, 1993).
Q - Provincial Prosecutor G. Olarte filed an information for murder
against F. Banite withoutrecommendation for bail in the sala of
Judge Tarriela, presiding judge Branch 44 RTC of Mamburao,
Occidental Mindoro. On January 3, 1992, the accused was
arraigned where he pleaded not guilty. However, on January 18,
1992, prosecutor Olarte amended the informa tion against Banite
without leave of court to homicide and recommended a bail of
P20,OOO.OO. Judge Tarriela ordered Olarte to explain his action.
Thereafter, on February 4, 1992, Mrs. Zubiri, supervising stenoreporter of the provincial prosecutor on orders of Olarte went to
Judge Aguilar herein respondent, who was then the executive and
presiding judge of Branch 45 RTC of San Jose, Occidental Mindoro,
to request for the release of the accused Banite on bail. On the
same day, Judge Aguilar signed and issued the order approving
the property bond and the release of the accused on bail.
Complainants herein charged respondent judge with grave abuse
of discretion, since the case was being tried in the sala of Judge
Tarriela. Is the judge guilty of abuse of authority? Why?
ANS. -Yes. Respondent Judge is guilty of grave abuse of authority. The case was
filed in Branch 44, hence, respondent judge who presides in Branch 45,
had no power to act on the request to release on bail accused Banite. It
was irregular for respondent judge to entertain the request considering
that it did not appear that a formal motion had been filed by the accused
to that effect.
Respondent judge should endeavor at all times to maintain the
confidence and high respect accorded to those who wield the gavel of
justice. Circular No. 13 enjoins judges to conduct themselves strictly in
accordance with the mandate of existing laws and the code of judicial
conduct that they be exemplars in their communities and the living
personification of justice and the rule of law.
Respondent judge's action shows such lack of familiarity with the
laws, rules and regulations as to undermine the public confidence in the
integrity of our courts.
Moreover, the record does not show that at that time respondent
judge ordered Banite's release, judge Tarriela was absent or unavailable
and could not have acted on the request. (Cuaresma vs. Judge Aguilar,
Sept. 3, 1993, 44 SCAD 451).
184
ANS.
185
ANS.
-Considering that the MTC only had preliminary jurisdiction over the
case, the respondent judge did not have any authority to set the case
for arraignment. All it could do was to calendar the same for preliminary investigation. There is no law or rule requiring an arraignment
during the preliminary investigation. The arraignment must be
conducted by the court having jurisdiction to try the case on its merits.
Thus, in this case, the RTC has exclusive original jurisdiction by reason
of the prescribed penalty. Hence, respondent Judge in this case did not
know the proper procedure on the matter or simply chose to ignore the
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same.
It was duly proven that the waiver of preliminary investigation
was filed by the complainant. Respondent judge exhibited ignorance of
procedural law or plainly abused his authority when he issued a
warrant for the arrest of the complainant and ordered the latter to
show cause why his bond should not be confiscated. Even if the waiver
was not seen by him because it was not attached to the expediente of
the case, the most that the court could have done from the
complainant's failure to appear was to consider him as having waived
his right to a preliminary investigation or declare such preliminary
investigation closed and terminated as to him. It is settled that even if
an accused had expressed his desire to be given an opportunity to be
present at the preliminary investigation, but later changed his mind
and renounced his right, he cannot be compelled to be present in the
said investigation, (Alisangco vs. Judge Tabiliran, June 30, 1993, 42
SCAD 797).
Q
ANS.
-Yes. In dismissing him, the Supreme Court said that Judge Dizon is
once more before the Supreme Court to answer charges, which are
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ANS.
188
189
ANS.
190
ANS.
ANS.
191
public; and
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RULE II
DEFINITIONS
SECTION 1. Acknowledgment. - "Acknowledgment" refers to an act in
which an individual on a single occasion:
(a)
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(b) the oath or affirmation of one credible witness not privy to the
instrument, document or transaction who is personally known to
the notary public and who personally knows the individual, or of
two credible witnesses neither of whom is privy to the
instrument, document or transaction who each personally knows
the individual and shows to the notary public documentary
identification.
SEC. 13. Official Seal or Seal. - "Official seal" or "Seal" refers to a device
for affixing a mark, image or impression on all papers officially signed by
the notary public conforming the requisites prescribed by these Rules.
SEC. 14. Signature Witnessing. - The term "signature witnessing" refers to
a notarial act in which an individual on a single occasion.
(a) appears in person before the notary public and presents an
instrument or document;
(b)is personally known to the notary public or identified by the
notary public through competent evidence of identity as defined
by these Rules; and
(c) signs the instrument or document in the presence of the notary
public.
SEC. 15. Court. - "Court" refers to the Supreme Court of the Philippines.
SEC. 16. Petitioner. - "Petitioner" refers to a person who applies for a
notarial commission.
SEC. 17. Office of the Court Administrator. - "Office of the Court
Administrator" refers to the Office of the Court Administrator of the
Supreme Court.
SEC. 18. Executive Judge. - "Executive Judge" refers to the Executive
Judge of the Regional Trial Court of a city or province who issues a notarial
commission.
SEC. 19. Vendor. - "Vendor" under these Rules refers to a seller of a
notarial seal and shall include a wholesaler or retailer.
SEC. 20. Manufacturer. - "Manufacturer" under these Rules refers to one
who produces a notarial seal and shall include an engraver and seal
maker.
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RULE III
COMMISSIONING OF NOTARY PUBLIC
SECTION 1. Qualifications. - A notarial commission may be issued by an
Executive Judge to any qualified person who submits a petition in
accordance with these Rules.
To be eligible for commissioning as notary public, the petitioner:
(1)must be a 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;
(4)must be a member of the 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; and
(5)must not have been convicted in the first instance of any crime
involving moral turpitude.
SEC. 2. Form of the Petition and Supporting Documents. - Every petition
for a notarial commission shall be in writing, verified, and shall include the
following:
(a) a statement containing the petitioner's personal qualifications,
including the petitioner's date of birth, residence, telephone
number, professional tax receipt, roll of attorney's number and
IBP membership number;
(b)certification of good moral character of the petitioner by at least
two (2) executive officers of the local chapter of the Integrated
Bar of the Philippines where he is applying for commission;
(c) proof of payment for the filing of the petition as required by
these Rules; and
(d)three (3) passport-size color photographs with light background
taken within thirty (30) days of the application. The photograph
should not be retouched. The petitioner shall sign his name at
the bottom part of the photographs.
SEC. 3. Application Fee. - Every petitioner for a notarial commission shall
pay the application fee as prescribed in the Rules of Court.
SEC. 4. Summary Hearing on the Petition. - The Executive Judge shall
conduct a summary hearing on the petition and shall grant the same if:
(a) the petition is sufficient in form and substance;
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Executive Judge
SEC. 6. Opposition to Petition. - Any person who has any cause or reason
to object to the grant of the petition may file a verified written opposition
thereto. The opposition must be received by the Executive Judge before
the date of the summary hearing.
SEC. 7. Form of Notarial Commission. - The commissioning of a notary
public shall be in a formal order signed by the Executive Judge
substantially in the following form:
REPUBLIC OF THE PHILIPPINES
REGIONAL TRIAL COURT OF ------------------This is to certify that (name of notary public) of (regular
place of work or business) in (city or province) was on this
(date) day of (month) two thousand and (year)
commissioned by the undersigned as a notary public, within
and for the said jurisdiction, for a term ending the thirtyfirst day of December (year).
________________________
Executive Judge
SEC. 8. Period Of Validity of Certificate of Authorization to Purchase a
Notarial Seal. - The Certificate of Authorization to Purchase a Notarial Seal
shall be valid for a period of three (3) months from date of issue, unless
extended by the Executive Judge.
A mark, image or impression of the seal that may be purchased by the
notary public pursuant to the Certificate shall be presented to the
Executive Judge for approval prior to use.
SEC. 9. Form of Certificate of Authorization to Purchase a Notarial Seal. The Certificate of Authorization to Purchase a Notarial Seal shall
substantially be in the following form:
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200
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Rules if:
(a) the notary knows or has good reason to believe that the notarial
act or transaction is unlawful or immoral;
(b)the signatory shows a demeanor which engenders in the mind of
the notary public reasonable doubt as to the former's knowledge
of the consequences of the transaction requiring a notarial act;
and
(c) in the notary's judgment, the signatory is not acting of his or her
own free will.
SEC. 5. False or Incomplete Certificate. - A notary public shall not:
(a) execute a certificate containing information known or believed
by the notary to be false.
(b) affix an official signature or seal on a notarial certificate that is
incomplete.
SEC. 6. Improper Instruments or Documents. - A notary public shall not
notarize:
(a) a blank or incomplete instrument or document;
(b) an instrument or document without appropriate
notarial
certification.
RULE V
FEES OF NOTARY PUBLIC
SECTION 1. Imposition and Waiver of Fees. - For performing a notarial
act, a notary public may charge the maximum fee as prescribed by the
supreme Court unless he waives the fee in whole or in part.
SEC. 2. Travel Fees and Expenses. - A notary public may charge travel
fees and expenses separate and apart from the notarial fees prescribed in
the preceding section when traveling to perform a notarial act if the
notary public and the person requesting the notarial act agree prior to the
travel.
SEC. 3. Prohibited Fees. - No fee or compensation of any kind, except
those expressly prescribed and allowed herein, shall be collected or
received for any notarial service.
SEC. 4. Payment or Refund of Fees. - A notary public shall not require
payment of any fees specified herein prior to the performance of a
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RULE VI
NOTARIAL REGISTER
SECTION 1. Form of Notarial Register. - (a) A notary public shall keep,
maintain, protect and provide for lawful inspection as provided in these
Rules, a chronological official notarial register of notarial acts consisting of
a permanently bound book with numbered pages.
The register shall be kept in books to be furnished by the Solicitor General
to any notary public upon request and upon payment of the cost thereof.
The register shall be duly paged, and on the first page, the Solicitor
General shall certify the number of pages of which the book consists.
For purposes of this provision, a Memorandum of Agreement or
Understanding may be entered into by the Office of the Solicitor General
and the Office of the Court Administrator.
(b) A notary public shall keep only one active notarial register at any
given time.
SEC. 2. Entries in the Notarial Register. - (a) For every notarial act, the
notary shall record in the notarial register at the time of notarization the
following:
(1) the entry number and page number;
(2) the date and time of day of the notarial act;
(3) the type of notarial act;
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proceeding;
(5) the name and address of each principal;
(6) the competent evidence of identity as defined by these Rules if
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(h) A certified copy of each month's entries and a duplicate original copy
of any instrument acknowledged before the notary public shall, within the
first ten (10) days of the month following, be forwarded to the Clerk of
Court and shall be under the responsibility of such officer. If there is no
entry to certify for the month, the notary shall forward a statement to this
effect in lieu of certified copies herein required.
SEC. 3. Signatures and Thumbmarks. - At the time of notarization, the
notary's notarial register shall be signed or a thumb or other mark affixed
by each:
(a) principal;
(b)credible witness swearing or affirming to the identity of a
principal; and
(c) witness to a signature by thumb or other mark, or to a signing by
the notary public on behalf of a person physically unable to sign.
SEC. 4. Inspection, Copying and Disposal. - (a) In the notary's presence,
any person may inspect an entry in the notarial register, during regular
business hours, provided;
(1) the person's identity is personally known to the notary public or
proven through competent evidence of identity as defined in
these Rules;
(2) the person affixes a signature and thumb or other mark or other
recognized identifier, in the notarial register in a separate, dated
entry;
(3) the person specifies the month, year, type of instrument or
document, and name of the principal in the notarial act or acts
sought; and
(4) the person is shown only the entry or entries specified by him.
(b) The notarial register may be examined by a law enforcement officer in
the course of an official investigation or by virtue of a court order.
(c) If the notary public has a reasonable ground to believe that a person
has a criminal intent or wrongful motive in requesting information from
the notarial register, the notary shall deny access to any entry or entries
therein.
SEC. 5. Loss, Destruction or Damage of Notarial Register. - (a) In case the
notarial register is stolen, lost, destroyed, damaged, or otherwise
rendered unusable or illegible as a record of notarial acts, the notary
public shall, within ten (10) days after informing the appropriate law
enforcement agency in the case of theft or vandalism, notify the
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RULE VII
SIGNA TURE AND SEAL OF NOTARY PUBLIC
SECTION 1. Official Signature. - In notarizing a paper instrument or
document, a notary public shall:
(a) sign by hand on the notarial certificate only the name indicated
and as appearing on the notary's commission shall:
(b)not sign using a facsimile stamp or printing device; and
(c) affix his official signature only at the time the notarial act is
performed.
SEC. 2. Official Seal. - (a) Every person commissioned as notary public
shall have a seal of office, to be procured at his own expense, which shall
not be possessed or owned by any other person. It shall be of metal,
circular in shape, two inches in diameter, and shall have the name of the
city or province and the word "Philippines" and his own name on the
margin and the roll of attorney's number on the face thereof, with the
words "notary public" across the center. A mark, image or impression of
such seal shall be made directly on the paper or parchment on which the
writing appears.
(b) The official seal shall be affixed only at the time the notarial act is
performed and shall be clearly impressed by the notary public on every
page of the instrument or document notarized.
(c) When not in use, the official seal shall be kept safe and secure and
shall be accessible only to the notary public or the person duly authorized
by him.
(d) Within five (5) days after the official seal of a notary public is stolen,
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(d) A vendor or manufacturer shall not sell a seal to a buyer except upon
submission of a certified copy of the commission and the Certificate of
Authorization to Purchase a Notarial Seal issued by the Executive Judge. A
notary public obtaining a new seal as a result of change of name shall
present to the vendor or manufacturer a certified copy of the Confirmation
of the Change of Name issued by the Executive Judge.
(e) Only one seal may be sold by a vendor or manufacturer for each
Certificate of Authorization to Purchase a Notarial Seal.
(f) After the sale, the vendor or manufacturer shall affix a mark, image or
impression of the seal to the Certificate of Authorization to Purchase a
Notarial Seal and submit the completed Certificate to the Executive Judge.
Copies of the Certificate of Authorization to Purchase a Notarial Seal and
the buyer's commission shall be kept in the files of the vendor or
manufacturer for four (4) years after the sale.
(g) A notary public obtaining a new seal as a result of change of name
shall present to the vendor a certified copy of the order confirming the
change of name issued by the Executive Judge.
RULE VIII
NOTARIAL CERTIFICA TES
SECTION 1. Form of Notarial Certificate. - The notarial form used for any
notarial instrument or document shall conform to all the requisites
prescribed herein, the Rules of Court and all other provisions of issuances
by the Supreme Court and in applicable laws.
SEC. 2. Contents of the Concluding Part of the Notarial Certificate. The
notarial certificate shall include the following:
(a) the name of the notary public as exactly indicated in the
commission;
(b) the serial number of the commission of the notary public; (c) the
words "Notary Public" and the province or city where the notary
public is commissioned, the expiration date of the commission,
the office address of the notary public; and (d) the roll of
attorney's number, the professional tax receipt number and the
place and date of issuance thereof, and the IBP membership
number.
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RULE IX
CERTIFICA TE OF AUTHORITY OF NOTARIES PUBLIC
SECTION 1. Certificate of Authority for a Notarial Act. - A certificate of
authority evidencing the authenticity of the official seal and signature of a
notary public shall be issued by the Executive Judge upon request in
substantially the following form:
CERTIFICATE OF AUTHORITY FOR A NOTARIAL ACT
I, (name, title, jurisdiction of the Executive Judge), certify that
(name of notary public), the person named in the seal and
signature on the attached document, is a Notary Public in and for
the (City/Municipality/Province) of the Republic of the Philippines
and authorized to act as such at the time of the document's
notarization.
IN WITNESS WHEREOF, I have affixed below my signature
and seal of this office this (date) day of (month) (year).
_________________
(official signature)
(seal of Executive Judge)
RULE X
CHANGES OF STATUS OF NOTARY PUBLIC
SECTION 1. Change of Name and Address.
Within ten (10) days after the change of name of the notary public
by court order or by marriage, or after ceasing to maintain the
regular place of work or business, the notary public shall submit a
signed and dated notice of such fact to the Executive Judge.
The notary public shall not notarize until:
(a) he receives from the Executive Judge a confirmation of the
new name of the notary public and/or change of regular
place of work or business; and
(b)a new seal bearing the new name has been obtained.
The foregoing notwithstanding, until the aforementioned steps have been
completed, the notary public may continue to use the former name or
209
regular place of work or business in performing notarial acts for three (3)
months from the date of the change, which may be extended once for
valid and just cause by the Executive Judge for another period not
exceeding three (3) months.
SEC. 2. Resignation. - A notary public may resign his commission by
personally submitting a written, dated and signed formal notice to the
Executive Judge together with his notarial seal, notarial register and
records. Effective from the date indicated in the notice, he shall
immediately cease to perform notarial acts. In the event of his incapacity
to personally appear, the submission of the notice may be performed by
his duly authorized representative.
SEC. 3. Publication of Resignation. - The Executive Judge shall
immediately order the Clerk of Court to post in a conspicuous place in the
offices of the Executive Judge and of the Clerk of Court the names of
notaries public who have resigned their notarial commissions and the
effective dates of their resignation.
RULE XI
REVOCA T/ON OF COMMISSION AND DISCIPLINARY SANCTIONS
SECTION 1. Revocation and Administrative Sanctions. - (a) The Executive
Judge shall revoke a notarial commission for any ground on which an
application for a commission may be denied.
(b) In addition, the Executive Judge may revoke the commission of, or
impose appropriate administrative sanctions upon, any notary public who:
(1)fails to keep a notarial register;
(2)fails to make the proper 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;
(4)fails to affix 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;
(7)fails to require the presence of a principal at the time of the
notarial act;
(8)fails to identify a principal on the basis of personal knowledge or
competent evidence;
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(a)
(b)