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1. Who are entitled to practice law?

Any person heretofore duly admitted as a member of the bar, or hereafter admitted as such in
accordance with the provisions of this rule, and who is in good and regular standing, is entitled to practice
law. (Rules of Court, Rule 138, Section 1)

QUALIFICATIONS

Admission to the Bar


Generally, every applicant, for admission to the practice of law, must be a (CRAG-MEBO):
1. Citizen of the Philippines
2. Resident of the Philippines
3. At least 21 years of Age
4. Of Good moral character
(Rule of Court, Rule 138, Section 2)
He must also show that:
5. No charges of Moral turpitude are filed or pending against him (Id.)
6. Possesses the required Educational qualifications, including a 4-year pre-law degree in an
authorized or recognized university or college (Id., at Sections 5 & 6)
7. Pass the Bar examinations (Id., at Sections 14 & 17)
8. Other qualifications as may be prescribed by the Supreme Court (In Re: Cunanan, 94 Phil. 534, 18
March 1954)

A lawyer is one who has:


1. Passed the Bar Examinations
2. Taken an oath before the Supreme Court
3. Signed and registered in the Roll of Attorneys
4. Received a certificate of license to practice law from the Clerk of Court of the Supreme Court
(Rules of Court, Rule 138, Sections 17 and 18)

(Source: 2016 Ateneo Central Bar Review Notes Legal Ethics)

RULES OF COURT

RULE 138
Attorneys and Admission to Bar

Section 1. Who may practice law. Any person heretofore duly admitted as a member of the bar, or
hereafter admitted as such in accordance with the provisions of this rule, and who is in good and regular
standing, is entitled to practice law.

Section 2. Requirements for all applicants for admission to the bar. Every applicant for admission as a
member of the bar must be a citizen of the Philippines, at least twenty-one years of age, of good moral
character, and resident of the Philippines; and must produce before the Supreme Court satisfactory
evidence of good moral character, and that no charges against him, involving moral turpitude, have been
filed or are pending in any court in the Philippines.

Section 5. Additional requirements for other applicants. All applicants for admission other than those
referred to in the two preceding section shall, before being admitted to the examination, satisfactorily show
that they have regularly studied law for four years, and successfully completed all prescribed courses, in a
law school or university, officially approved and recognized by the Secretary of Education. The affidavit of
the candidate, accompanied by a certificate from the university or school of law, shall be filed as evidence
of such facts, and further evidence may be required by the court.

No applicant shall be admitted to the bar examinations unless he has satisfactorily completed the following
courses in a law school or university duly recognized by the government: civil law, commercial law, remedial
law, criminal law, public and private international law, political law, labor and social legislation, medical
jurisprudence, taxation and legal ethics.

Section 6. Pre-Law. No applicant for admission to the bar examination shall be admitted unless he
presents a certificate that he has satisfied the Secretary of Education that, before he began the study of
law, he had pursued and satisfactorily completed in an authorized and recognized university or college,
requiring for admission thereto the completion of a four-year high school course, the course of study
prescribed therein for a bachelor's degree in arts or sciences with any of the following subjects as major or
field of concentration: political science, logic, English, Spanish, history and economics.

Section 14. Passing average. In order that a candidate may be deemed to have passed his examinations
successfully, he must have obtained a general average of 75 per cent in all subjects, without falling below
50 per cent in any subjects. In determining the average, the subjects in the examination shall be given the
following relative weights: Civil Law, 15 per cent; Labor and Social Legislation, 10 per cent; Mercantile Law,
15 per cent; Criminal Law; 10 per cent: Political and International Law, 15 per cent; Taxation, 10 per cent;
Remedial Law, 20 per cent; Legal Ethics and Practical Exercises, 5 per cent.

Section 17. Admission and oath of successful applicants. An applicant who has passed the required
examination, or has been otherwise found to be entitled to admission to the bar, shall take and subscribe
before the Supreme Court the corresponding oath of office.

Section 18. Certificate. The supreme Court shall thereupon admit the applicant as a member of the bar
for all the courts of the Philippines, and shall direct an order to be entered to that effect upon its records,
and that a certificate of such record be given to him by the clerk of court, which certificate shall be his
authority to practice.

2. Recite the lawyers 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 obligation without any mental reservation or purpose of evasion. So help me
God. (Rules of Court, Form 28)

3. What is the significance of the lawyers oath?

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)

The Attorneys Oath is the source of the obligations and duties of every lawyer and any violation
thereof is a ground for disbarment, suspension, or other disciplinary action. (Vitriolo v. Dasig, 2003)

The lawyer's oath embodies the fundamental principles that guide every member of the legal
fraternity. From it springs the lawyer's duties and responsibilities that any infringement thereof can cause
his disbarment, suspension or other disciplinary actions. (Endaya vs. Oca)

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).

By swearing the lawyer's oath, an attorney becomes a guardian of truth and the rule of law, and an
indispensable instrument in the fair and impartial administration of justice a vital function of democracy a
failure of which is disastrous to society. Any departure from the path which a lawyer must follow as
demanded by the virtues of his profession shall not be tolerated by this Court as the disciplining authority
for there is perhaps no profession after that of the sacred ministry in which a high-toned morality is more
imperative than that of law. (Radjaie v. Alovera, 2000)

The lawyer's primary duty as enunciated in the attorney's oath is to uphold the constitution, obey
the laws of the land and promote respect for the law and legal processes. That duty in its irreducible
minimum entails obedience to the legal orders of the court. (Brion Jr. vs. Brillantes, Jr.)

RULES OF COURT

RULE 138
Attorneys and Admission to Bar

Section 27. Disbarment or suspension of attorneys by Supreme Court; grounds therefor. - A member of
the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit,
malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his
conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to
take before admission to practice, or for a willful disobedience of any lawful order of a superior court, or
for corruptly or willfully appearing as an attorney for a party to a case without authority so to do. The practice
of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers,
constitutes malpractice. (Emphasis and underscoring supplied)

4. May the Legislature enact a law to regulate admission to the bar?

No. Congress has no power to regular the bar. Art. VIII Sec. 5 (5) of the Constitution provides that
the authority to decide who may be admitted to the bar naturally and logically belongs to the judiciary
represented by the Supreme Court in view of the nature of its judicial function and in the role played by
attorneys in the administration of justice. However, the legislature, in the exercise of police power may enact
laws regulating the practice of law to protect the public and promote public welfare.

Q: Can the legislature enact laws to regulate the practice of the law?

No. It is noteworthy that unlike the 1935 and 1973 Constitution, the 1987 Constitution no longer
provides for the power of the legislature to repeal, alter and supplement the Rules promulgated by the
Supreme Court. However, the legislature, in the exercise of police power may enact laws regulating the
practice of law to protect the public and promote public welfare.

Note: The legislature may not pass a law that will control the SC in the performance of its functions
to decide who may enjoy the privilege of practicing law and any law of that kind is unconstitutional being an
invalid exercise of legislative power. (In Re: Cunanan, Resolution, Mar. 18, 1954)

(Source: UST Legal and Judicial Ethics Reviewer)

Q: What branch of the government has the power to admit persons in the practice of law?

The Constitution vests the power of control and regulation in the Supreme Court. The constitutional
power to admit candidates to the legal profession is a judicial function and involves the exercise of
discretion. Petition to that end is filed with the Supreme Court as are other proceedings invoking judicial
function. (In Re: Almacen, G.R. No. L-27654, Feb. 18, 1970) (1995 Bar Question)

Note: Art. VIII Sec. 5 (5) of the Constitution provides that the authority to decide who may be
admitted to the bar naturally and logically belongs to the judiciary represented by the Supreme Court in
view of the nature of its judicial function and in the role played by attorneys in the administration of justice.

Note: The SC acts through a Bar Examination Committee in the exercise of its judicial function to
admit candidates to the legal profession. The committee is composed of a member of the court who acts
as a chairman and 8 members of the bar who act as examiners in the 8 bar subjects with one subject
assigned to each examiner.

Acting as a sort of liaison officer between the Court and the Bar Chairman, on one hand, and the
individual members of the committee, on the other, is the Bar Confidant who is at the same time a deputy
clerk of the Court. He does not possess any discretion with respect to the matter of admission of examinees
to the Bar. (In Re: Lanuevo, A.C. No. 1162, Aug. 29, 1975)

(Source: UST Legal and Judicial Ethics Reviewer)

Const. Art. VIII, Sec. 5(5): The Supreme Court shall have the following powers:
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading,
practice and procedure in all courts, the admission to the practice of law, the integrated bar, and
legal assistance to the under-privileged. xxx

The provision recognizes the disciplinary authority of the Court over the members of the bar to be merely
incidental to the Court's exclusive power to admit applicants to the practice of law [Garrido v. Garrido
(2010)].

In the judicial system from which ours has been evolved, the admission, suspension, disbarment and
reinstatement of attorneys at law in the practice of the profession and their supervision have been disputably
a judicial function and responsibility.

Congress has no power to regulate the bar (admission to practice). But in the exercise of police power, it
may enact laws regulating the practice of law to protect the public. [In Re: Cunanan (1954)].

(Source: UP Legal Ethics Reviewer)

5. What do you understand by Practice of Law?

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." (RENATO
CAYETANO vs. CHRISTIAN MONSOD G.R. No. 100113 September 3, 1991)

Black defines "practice of law" as: The rendition of services requiring the knowledge and the
application of legal principles and technique to serve the interest of another with his consent. It is not limited
to appearing in court, or advising and assisting in the conduct of litigation, but embraces the preparation of
pleadings, and other papers incident to actions and special proceedings, conveyancing, the preparation of
legal instruments of all kinds, and the giving of all legal advice to clients. It embraces all advice to clients
and all actions taken for them in matters connected with the law. An attorney engages in the practice of law
by maintaining an office where he is held out to be-an attorney, using a letterhead describing himself as an
attorney, counseling clients in legal matters, negotiating with opposing counsel about pending litigation, and
fixing and collecting fees for services rendered by his associate. (Black's Law Dictionary, 3rd ed.)

The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust
Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650) A person is also considered to be in the practice of law
when he: for valuable consideration, engages in the business of advising person, firms, associations or
corporations as to their rights under the law, or appears in a representative capacity as an advocate in
proceedings pending or prospective, before any court, commissioner, referee, board, body, committee, or
commission constituted by law or authorized to settle controversies and there, in such representative
capacity performs any act or acts for the purpose of obtaining or defending the rights of their clients under
the law. Otherwise stated, one who, in a representative capacity, engages in the business of advising clients
as to their rights under the law, or while so engaged performs any act or acts either in court or outside of
court for that purpose, is engaged in the practice of law. (State ex. rel. Mckittrick v..C.S. Dudley and Co.,
102 S.W. 2d 895, 340 Mo. 852)

FOUR FACTORS IN DETERMINING PRACTICE OF LAW [HACA]:


1. Habituality customarily or habitually holding one's self out to the public as a lawyer; more than an
isolated appearance
2. Application of law, legal principles, practice or procedure calls for legal knowledge, training and
experience.
a. Teaching law is considered practice of law because the fact of their being law professors
is inextricably intertwined with the fact that they are lawyers (Re: Letter of UP Law Faculty
(2011)).
3. Compensation one must have presented himself to be in the active and continued practice of the
legal profession and that his professional services are available to the public for compensation or
as a source of livelihood.
a. Giving advice for compensation regarding the legal status and rights of another and for
ones conduct with respect thereto constitutes practice of law (Ulep v. The Legal Clinic, Inc.
(1993)).
4. Attorney-client relationship where no such relationship exists, such as in cases of teaching law
or writing law books or articles, there is no practice of law.
(Padillas dissent in Cayetano v. Monsod)

6. May a Lawyer who has been disbarred appear as Counsel for himself in a Civil Case where he is
the Defendant?

Yes. In civil cases, an individual litigant has the right to conduct his litigation personally. Section 34
of Rule 138 of the Rules of Court allows persons who are not lawyers by profession to litigate their own
case in court. An attorney who is otherwise disqualified to practice law, or has been disbarred or suspended
from practice, can validly prosecute or defend his own litigation, he having as much right as that of a layman
in that regard. His status is the same as that of one who has never been admitted to practice. A like rule
applies, during the period of suspension, to one who has been suspended. What is prohibited of a disbarred
lawyer is to continue to represent himself as a lawyer and acting as such without authority which constitutes
indirect contempt.

Civil case a party in a civil suit may conduct his litigation either personally or with the aid of an attorney
unless the party is a juridical person.

ALLOWED IN: MTC, RTC, appellate court (where the party must appear personally or by counsel)

SELF-REPRESENTATION

Rules of Court, Rule 138, Sec. 34. By whom litigation conducted. In the court of a municipality a
party may conduct his litigation in person, with the aid of an agent or friend appointed by him for that
purpose, or with the aid of an attorney. In any other court, a party may conduct his litigation personally or
by aid of an attorney, and his appearance must be either personal or by a duly authorized member of the
bar.

An attorney who is otherwise disqualified to practice law, or has been disbarred or suspended from
practice, can validly prosecute or defend his own litigation, he having as much right as that of a layman in
that regard [Danforth v. Egan (1920)].

When a person conducts his litigation in person, he is not engaged in the practice of law. One does
not practice law by acting for himself any more than he practices medicine by rendering first aid to himself
[[Agpalo]].

The general rule is found in 7 Am.Jur. 2d, Attorneys at Law, 19, which reads: "A disbarred attorney
can appear in court only under circumstances entitling a layman to appear. His status is the same as that
of one who has never been admitted to practice. A like rule applies, during the period of suspension, to one
who has been suspended."

(Source: UP Legal Ethics Reviewer)

NON-LAWYERS IN COURT

1. Cases before the MTC: A party to the litigation, may conduct his own case or litigation in person,
with the aid of an agent or friend appointed by him for that purpose (Sec. 34, Rule 138, RRC);
2. Before any other court, a party may conduct his litigation personally. But if he gets someone to aid
him, that someone must be authorized member of the Bar (Sec. 34, Rule 138, RRC)
Note: A non-lawyer conducting his own litigation is bound by the same rules in
conducting the trial case. He cannot after judgment, claim that he was not properly
represented.
3. Criminal case before the MTC in a locality where a duly licensed member of the Bar is not available,
the judge may appoint a non-lawyer who is a:
i. Resident of the province; AND
ii. Of good repute for probity and ability to aid the accused in his defense; (Sec. 7, Rule
116 RRC)
4. Any official or other person appointed or designated to appear for the Government of the Philippines
in accordance with law. (Sec. 33, Rule 138 RRC)
Note: Such person shall have all the rights of a duly authorized member of the bar to
appear in any case in which said government has an interest direct or indirect. (Sec.
33, Rule 138, RRC)

Q: May a party represent himself?

In civil cases, an individual litigant has the right to conduct his litigation personally. In criminal cases,
in grave and less grave offenses, an accused who is a layman must always appear by counsel; he cannot
conduct his own defense without violating his right to due process of law. Section 34 of Rule 138 of the
Rules of Court allows persons who are not lawyers by profession to litigate their own case in court. The
right of complainant to litigate her case personally cannot be taken away from her.

(Source: UST Legal and Judicial Ethics Reviewer)

7. Who has the burden of proving that an applicant is qualified to practice law?

The applicant assumes the burden of proof to establish his qualifications to the satisfaction of the
court. After having presented prima facie evidence of his qualifications, any one objecting to his admission
may offer contrary evidence to overcome such prima facie showing. The burden of proof shifts to the
complainant.

8. What is the significance of the IBP dues and occupation tax?

SIGNIFICANCE OF IBP DUES

As a member of the IBP, a lawyer has the obligation to support it financially.

IBP dues are conditions sine qua non to the privilege to practice law and to the retention of his
name in the Roll of Attorneys of the Supreme Court.

In line with the objectives of safeguarding the interests of its members, the Integrated Bar maintains
a Welfare Fund for its members. A fixed sum equivalent to ten percent (10%) of the collection from each
Chapter shall be set aside as a Welfare Fund for disabled members of the Chapter and the compulsory
heirs of deceased members thereof.
JURISPRUDENCE: Letter of Atty Cecilio Y. Arevalo, Jr. Requesting Exemption from Payment of IBP
Dues (B.M. No. 1370, 9 May 2005)

The rationale for prescribing dues has been explained in the Integration of the Philippine Bar, thus:

For the court to prescribe dues to be paid by the members does not mean that the Court is
attempting to levy a tax.

A membership fee in the Bar association is an exaction for regulation, while tax purpose of a tax is
a revenue. If the judiciary has inherent power to regulate the Bar, it follows that as an incident to
regulation, it may impose a membership fee for that purpose. It would not be possible to put on an
integrated Bar program without means to defray the expenses. The doctrine of implied powers
necessarily carries with it the power to impose such exaction.

The only limitation upon the States power to regulate the privilege of law is that the regulation does
not impose an unconstitutional burden. The public interest promoted by the integration of the Bar
far outweighs the slight inconvenience to a member resulting from his required payment of the
annual dues.

Thus, payment of dues is a necessary consequence of membership in the IBP, of which no one is exempt.
This means that the compulsory nature of payment of dues subsists for as long as ones membership in
the IBP remains regardless of the lack of practice of, or the type of practice, the member is engaged in.

There is nothing in the law or rules which allows exemption from payment of membership dues. At most,
as correctly observed by the IBP, he could have informed the Secretary of the Integrated Bar of his intention
to stay abroad before he left. In such case, his membership in the IBP could have been terminated and his
obligation to pay dues could have been discontinued.

It must be borne in mind that membership in the bar is a privilege burdened with conditions, one of which
is the payment of membership dues. Failure to abide by any of them entails the loss of such privilege if the
gravity thereof warrants such drastic move.

SIGNIFICANCE OF OCCUPATION TAX

A professional tax, or occupation tax, is a tax charged on any one who is practicing a profession
such as accountant, lawyer, doctor or engineer. It is a tax which a professional must pay in order to be
given the privilege to practice a professional service.

In the Philippines, the Local Government Code requires the payment of professional taxes on
professions requiring government examination.

LOCAL GOVERNMENT CODE


Section 139. Professional Tax. -
(a) The province may levy an annual professional tax on each person engaged in the exercise or
practice of his profession requiring government examination at such amount and reasonable
classification as the sangguniang panlalawigan may determine but shall in no case exceed Three
hundred pesos (P300.00).
(b) Every person legally authorized to practice his profession shall pay the professional tax
to the province where he practices his profession or where he maintains his principal office
in case he practices his profession in several places: Provided, however, That such person
who has paid the corresponding professional tax shall be entitled to practice his profession
in any part of the Philippines without being subjected to any other national or local tax,
license, or fee for the practice of such profession.
(c) Any individual or corporation employing a person subject to professional tax shall require
payment by that person of the tax on his profession before employment and annually thereafter.
(d) The professional tax shall be payable annually, on or before the thirty-first (31st) day of January.
Any person first beginning to practice a profession after the month of January must, however, pay
the full tax before engaging therein. A line of profession does not become exempt even if conducted
with some other profession for which the tax has been paid. Professionals exclusively employed in
the government shall be exempt from the payment of this tax.
(e) Any person subject to the professional tax shall write in deeds, receipts, prescriptions, reports,
books of account, plans and designs, surveys and maps, as the case may be, the number of the
official receipt issued to him.
By express provision, a professional may practice his profession anywhere in the Philippines
provided he pays an annual tax not exceeding P300. Payment of professional tax must be done annually
on or before the 31st day of January.
Any professional who intends to pay his professional tax must present his latest Official Receipt
and/or Government License ID before the local government accepts payment.

9. May a lawyer employ people to act as tipsters who will provide information about potentially
lucrative cases?

JURSIPRUDENCE: Linsangan vs. Tolentino, 598 SCRA 133 , September 04, 2009

No. Rule 2.03 of the Code of Professional Responsibility provides:

RULE 2.03. A LAWYER SHALL NOT DO OR PERMIT TO BE DONE ANY ACT


DESIGNED PRIMARILY TO SOLICIT LEGAL BUSINESS.

Hence, lawyers are prohibited from soliciting cases for the purpose of gain, either personally or
through paid agents or brokers. Such actuation constitutes malpractice, a ground for disbarment.

Rule 2.03 should be read in connection with Rule 1.03 of the CPR which provides:

RULE 1.03. A LAWYER SHALL NOT, FOR ANY CORRUPT MOTIVE OR INTEREST,
ENCOURAGE ANY SUIT OR PROCEEDING OR DELAY ANY MANS CAUSE.

This rule proscribes ambulance chasing (the solicitation of almost any kind of legal business by
an attorney, personally or through an agent in order to gain employment) as a measure to protect the
community from barratry and champerty.

Any act of solicitation constitutes malpractice which calls for the exercise of the Courts disciplinary
powers. Violation of anti-solicitation statutes warrants serious sanctions for initiating contact with a
prospective client for the purpose of obtaining employment. Thus, in this jurisdiction, we adhere to the rule
to protect the public from the Machiavellian machinations of unscrupulous lawyers and to uphold the nobility
of the legal profession.

(Source: http://aninolex.blogspot.com/2017/01/case-doctrines-in-legal-ethics-part-i.html)

Lawyering is not a business; it is a profession in which duty to public service, not money, is the
primary consideration. In this day and age, members of the bar often forget that the practice of law is a
profession and not a business. Lawyering is not primarily meant to be a money-making venture, and law
advocacy is not a capital that necessarily yields profits. The gaining of a livelihood is not a professional but
a secondary consideration. Duty to public service and to the administration of justice should be the primary
consideration of lawyers, who must subordinate their personal interests or what they owe to themselves.
The practice of law is a noble calling in which emolument is a byproduct, and the highest eminence may be
attained without making much money. (Burbe v. Magulta)

10. Is the practice of law a right or a privilege?


The practice of law is not a right but a privilege bestowed by the State upon those who show that
they possess, and continue to possess, the qualifications required by law for the conferment of such
privilege. Membership in the bar is a privilege burdened with conditions. A lawyer has the privilege and right
to practice law only during good behavior and can only be deprived of it for misconduct ascertained and
declared by judgment of the court after opportunity to be heard has been afforded him. Without invading
any constitutional privilege or right, an attorneys right to practice law may be resolved by a proceeding to
suspend or disbar him, based on conduct rendering him unfit to hold a license or to exercise the duties and
responsibilities of an attorney. It must be understood that the purpose of suspending or disbarring an
attorney is to remove from the profession a person whose misconduct has proved him unfit to be entrusted
with the duties and responsibilities belonging to an office of an attorney, and thus to protect the public and
those charged with the administration of justice, rather than to punish the attorney. (Alcantara v. De Vera,
AC No. 5859, November 23, 2010)

The right to practice law is not a natural or constitutional right but is a privilege. It is limited to
persons of good moral character with special qualifications duly ascertained and certified. The exercise of
this privilege presupposes possession of integrity, legal knowledge, educational attainment, and even
public trust since a lawyer is an officer of the court. A bar candidate does not acquire the right to practice
law simply by passing the bar examinations. The practice of law is a privilege that can be withheld even
from one who has passed the bar examinations, if the person seeking admission had practiced law without
a license (Aguirre v. Rana, BM No. 1036, June 10, 2003)

The practice of law is a privilege. A bar candidate does not have the right to enjoy the practice of
the legal profession simply by passing the bar examinations. It is a privilege that can be revoked, subject
to the mandate of due process, once a lawyer violates his oath and the dictates of legal ethics. (Ui v.
Bonifacio AC No. 3319, June 8, 2000)

11. May a corporation practice law? What about a partnership?

CORPORATIONS - NO

The practice of law is not a business open to all, but is a personal right limited to a few persons of
good moral character, with special qualifications ascertained and certified after a long course of study, both
general and professional and a thorough examination by a State board appointed for that purpose. The
right to practice law is in the nature of a franchise from the State conferred only for merit. It cannot be
assigned or inherited, but must be earned by hard study and good conduct. It is attested by a certificate of
the Supreme Court and is protected by registration. No one can practice law unless he has taken an oath
of office and has become and officer of the court, subject to its discipline, liable to punishment for contempt
in violating his duties as such, and to suspension and removal. It is not a lawful business except to members
of the bar who have complied with all the conditions required by the statute and the rules of the courts.

As these conditions cannot be fulfilled by a corporation, it follows that the practice of law is not a
lawful business for a corporation to engage in. As it cannot practice law directly, it cannot indirectly by
employing competent lawyers to practice for it, as that would be an evasion which the law will not tolerate.

Purity of the bar is at the basis of our great Institution of Justice, and anything that lowers the ideals
of its individual members, strikes at the very foundation of that institution and therefore is against public
policy. If a corporation were admitted to the bar, how could it be suspended or remover for the violation of
its duty as such member? (Yale Law Journal, Vol 20, Feb 4, 1911, James A. Stevenson, Jr.)

Under the present state of our law and jurisprudence, a corporation cannot be organized for or
engage in the practice of law in this country (Ulep v. The Legal Clinic, Inc., Bar Matter 553, June 17, 1993)

Senator Webb: Mr. President, a corporation is not the same as an individual human being for one
thing. A corporation cannot be a doctor or a lawyer. Only a human being may be permitted to practice
medicine or law. Record of Senate, Volume IV, p. 56 (January 31, 1995), pp. 273-274)
The rule is that the corporate practice of any profession, including optometry, must never be
sanctioned. The public policy behind such rulings is universal, and is based on the notion that the ethics of
any profession is based upon individual responsibility, personal accountability and independence, which
are all lost where one verily acts as a mere agent, or alter ego, of unlicensed persons or corporations.
(Acebedo Optical Co Inc v CA, G.R. No. 100152. March 31, 2000)

Both in the case of the physician and the lawyer, the person seeking his services must break down
the barriers of reserve which otherwise serve to protect him and deliberately reveal to his professional
adviser secrets of physical or mental disability or secrets of business of the most intimate nature. These
necessary disclosures create the personal relationship which cannot exist between patient or client and a
profit-seeking corporation. The universal recognition of this immediate, unbroken, and confidential
association between doctor and lawyer and those who engage their services early created and still justifies
the rule that their allegiance must be wholeheartedly to the patient or the client, and not to another. (Silver
v. Lansburgh & Bro., 111 F.2d 518 (D.C. Cir. 1940)

PARTNERSHIPS - YES

Article 1767. By the contract of partnership two or more persons bind themselves to contribute
money, property, or industry to a common fund, with the intention of dividing the profits among
themselves.
Two or more persons may also form a partnership for the exercise of a profession.

Strictly speaking, the practice of a profession is not a business or an enterprise for profit. However,
the law allows the joint pursuit thereof by two or more persons as partners. In such case, it is the individual
partners, and not the partnership, who engage in the practice of the profession and are responsible for their
own acts as such. (De Leon, Comments on Partnership, Agency and Trusts)

The law does not allow individuals to practice a profession as a corporate entity. Personal
qualifications for such practice cannot be possessed by a corporation. (De Leon, Comments on Partnership,
Agency and Trusts)

Article 1783. A particular partnership has for its object determinate things, their use or fruits, or
specific undertaking, or the exercise of a profession or vocation.

A partnership for the practice of law cannot be likened to partnerships formed by other professionals
or for business. It is not a partnership formed for the purpose of carrying on trade or business or of holding
property. (De Leon, Comments on Partnership, Agency and Trusts)

The practice of law is intimately and peculiarly related to the administration of justice and should
not be considered like an ordinary money-making trade.
The primary characteristics which distinguish the legal profession from business are the following:
(a) A duty of public service, of which the emolument is a by-product, and in which one may attain
the highest eminence without making much 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 fiduciary degree; and
(d) A relation to colleagues at the bar characterized by Bcandor, fairness, and unwillingness to
resort to current business methods of advertising and encroachment on their practice, or
dealing directly with their clients. (In the Matter of the Petition for Authority to Continue Use of
Firm Name SyCip, Salazar, etc./Ozaeta, Romulo, etc., 92 SCRA 1 [1979], citing H.S.
Drinker, Legal Ethics [1953], pp. 4-5.)

12. who are the public officials who are absolutely prohibited from the private practice of law?
1. Judges and other officials as employees of the Supreme Court (Rule 148, Sec. 35, RRC).
2. Officials and employees of the OSG (Ibid.)
3. Government prosecutors (People v. Villanueva, 14 SCRA 109).
4. President, Vice-President, members of the cabinet, their deputies and assistants (Art. VIII Sec. 15,
1987 Constitution).
5. Members of the Constitutional Commission (Art IX-A, Sec. 2, 1987 Constitution)
6. Ombudsman and his deputies (Art. IX, Sec. 8 (2nd par), 1987 Constitution)
7. All governors, city and municipal mayors (R.A. No. 7160, Sec. 90).
8. Those prohibited by special law

13. What are the duties and obligations of the lawyer to the court, his clients, fellow lawyers, the
public? Which comes first, the duty of the lawyer to his client or to the Court?

1st Question: *Please take note of the subparagraphs of the canons.*

THE FOUR-FOLD DUTIES OF A LAWYER (PER THE CODE OF PROFESSIONAL RESPONSIBILITY)

LAWYERS DUTIES TO SOCIETY

Canon 1: Promote and Respect the Law and Legal Process


Canon 2: Provide Efficient And Convenient Legal Services
Canon 3: Information On Legal Services That Is True, Honest, Fair And Dignified
Canon 4: Support For Legal Reforms And Administration Of Justice
Canon 5: Participate In Legal Education
Canon 6: Canons Apply to Lawyers in Government Service

LAWYERS DUTIES TO THE LEGAL PROFESSION

Canon 7: Uphold Dignity And Integrity In The Profession


Canon 8: Courtesy, Fairness, Candor Towards Professional Colleagues
Canon 9: Unauthorized Practice Of Law

LAWYERS DUTIES TO THE COURTS

Canon 10: Observe Candor, Fairness And Good Faith


Canon 11: Respect Courts And Judicial Officers
Canon 12: Assist In Speedy And Efficient Administration of Justice
Canon 13: Refrain From Act Giving Appearance of Influence

LAWYERS DUTIES TO THE CLIENT

Canon 14: Service To The Needy


Canon 15: Observe Candor, Fairness, Loyalty
Canon 16: Hold In Trust Clients Moneys And Properties
Canon 17: Trust And Confidence
Canon 18: Competence And Diligence
Canon 19: Representation With Zeal
Canon 20: Attorneys Fees
Canon 21: Preserve Clients Confidence
Canon 22: Withdrawal Of Services For Good Cause

2nd Question:

CANON 10 - A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO THE COURT.

A lawyer is, first and foremost, an officer of the court. Accordingly, should there be a conflict between his
duty to his client and that to the court, he should resolve the conflict against the former and in favor of the
latter, his primary responsibility being to uphold the cause of justice. Candor in all his dealings is of the very
essence of honorable membership in the legal profession.
A lawyer should not conceal the truth from the court, nor mislead the court in any manner no matter how
demanding his duties to clients may be. His duties to his client should yield to his duty to deal candidly with
the court. For no client is entitled to receive from the lawyer any service involving dishonesty to the courts.

Candor in all his dealings is of the very essence of honorable membership in the legal profession.
[Cuaresma v. Daquis, (1975)]

A lawyers conduct before the court should be characterized by candor and fairness. The administration of
justice would gravely suffer if lawyers do not act with complete candor and honesty before the courts.
[Serena v. Sandiganbayan (2008)]

A lawyer must be a disciple of truth. While a lawyer has the solemn duty to defend his clients cause, his
conduct must never be at the expense of truth [Young v Batuegas, (2003)

A lawyer should not conceal the truth from the court, nor mislead the court in any manner no matter how
demanding his duties to clients may be. His duties to his client should yield to his duty to deal candidly with
the court. For no client is entitled to receive from the lawyer any service involving dishonesty to the courts
(Comments of IBP Committee that drafted the Code, p. 53)

The duty of the lawyer to the court. A lawyer's duty to the court relates to his or her status as a professional
who serves, not only clients, but also the public interest. Serving the public good is a foundation upon which
lawyers earn the confidence of the community and, as a result, are able to play their essential role in the
administration of justice.

The Bar is independent of the State and all its influences. It is an institutional safeguard lying between the
ordinary citizen and the power of the government. The right to counsel, which as mentioned, is inter-related
with the law of privilege, depends for its efficacy on independence. In order to fulfill the heavy
responsibilities imposed on lawyers as officers of the court, a meaningful and practical environment of
independence is essential. It is always within the framework of this relationship that the commercial interest
of the client and the lawyer's interests must give way to the overriding duty to the court. In other words, a
lawyer may not be able to act in a way that serves the client's best interests if doing so would put the
administration of justice and the community's confidence in the profession at risk.

A lawyer has a duty to use tactics that are legal, honest and respectful. This duty is often referred to as the
duty of candour. Under this umbrella of a lawyer's duty to the court, lawyers are primarily responsible for
ensuring that they do not employ strategies that will mislead the court. Lawyers are officers of the court and
as such, must act with integrity and professionalism while maintaining their overarching responsibility to
ensure civil conduct.

A lawyer's duty to the court requires that a lawyer educate clients about the court processes in the interests
of promoting the public's confidence in the administration of justice. This requires us to educate clients
about the limits of the law, as well as about our professional obligations. We share responsibility for ensuring
that broader society has a knowledge and understanding of the law and an appreciation of the values
advanced by the rule of law. Every lawyer must make an effort to educate the public about our judicial
system and the value of lawyers, judges, juries, and the many other participants in the system.

Put another way, a lawyer must not compromise his or her professional standards in order to please the
client.

14. What is a champertous contract?

CHAMPERTOUS CONTRACTS (void) it is when lawyer stipulates with his client that in the
prosecution of the case, he will bear all the expenses for the recovery of things or property being claimed
by the client and the latter agrees to pay the former a portion of the thing/property recovered as
compensation.
15. What is a contingent fee contract?

A contingent fee is defined in the case of Taganas vs NLRC as an agreement laid down in an
express contract between a lawyer and a client in which the lawyer's professional fee, usually a fixed
percentage of what may be recovered in the action is made to depend upon the success of the litigation.
Thus, in contingent fees, the lawyer gets paid the agreed amount if the case is successful, otherwise, he
does not get paid, or gets paid a lower agreed amount. This does not mean though that the lawyer
necessarily pays the costs and fees of the suit. The clients may still be paying for the costs of the suit, but
the lawyer gets paid his agreed fee if they win.

[Source: PALE handout]

16. What fee arrangements may a lawyer agree with a client? Explain.

Kinds of Payment which may be stipulated upon:


1. a fixed or absolute fee which is payable regardless of the result of the case
2. 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
3. a fixed fee payable per appearance
4. a fixed fee computed by the number of hours spent
5. a fixed fee based on a piece of work

Attorneys Fees
1. Ordinary attorneys 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.
2. Extraordinary attorneys 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.

How attorneys fees may be claimed by the lawyer:


It may be asserted either in the very action in which the services of a lawyer had been rendered or
in a separate action. A petition for attorneys fees may be filed before the judgment in favor of the client is
satisfied or the proceeds thereof delivered to the client. 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 attorneys fees may arise has become final. Otherwise, the determination of the courts will be premature.

Kinds of Retainer Agreements on Attorneys Fees:


1. General Retainer or Retaining Fee it is the fee paid to a lawyer to secure his future services as
general counsel for any ordinary legal problem that may arise in the ordinary business of the client
and referred to him for legal action;
2. Special Retainer that is a fee for a specific case or service rendered by the lawyer for a client

Skill: length of practice is not a safe criterion of professional ability.

[Source: https://lawphilreviewer.wordpress.com/tag/legal-ethics-chapter-iv-the-lawyer-and-the-client/]

17. In the absence of an arrangement, what fee arrangement would govern?

Quantum Meruit it means as much as he deserves, and is used as the basis for determining the lawyers
professional fees in the absence of a contract, but recoverable by him from his client.

Quantum Meruit is resorted to where:


1. there is no express contract for payment of attorneys fees agreed upon between the lawyer and
the client;
2. when although there is a formal contract for attorneys fees, the stipulated fees are found
unconscionable or unreasonable by the court.
3. When the contract for attorneys fees is void due to purely formal matters or defects of execution
4. When the counsel, for justifiable cause, was not able to finish the case to its conclusion
5. When lawyer and client disregard the contract for attorneys fees.

[Source: https://lawphilreviewer.wordpress.com/tag/legal-ethics-chapter-iv-the-lawyer-and-the-client/]

18. May a lawyer share his fees with a non-lawyer? Are there exceptions? Explain.

CANON 34: No division of fees for legal services is proper, except with another lawyer, based upon
a division of service or responsibility.

For this reason, an agreement between a union lawyer and a layman president of the union to
divide equally the attorneys fees that may be awarded in a labor case is illegal and immoral insofar as it
grants to the union president a share in the counsel fees. And an agreement for the payment to the widow
and heirs of a deceased lawyer of a percentage of the fees to be received from future business of the
deceased lawyers clients is prohibited because such payment will not represent service performed by the
deceased lawyer.

19. Explain the concept of retaining lien and charging lien.

A retaining lien is the right of an attorney to retain the funds, documents and papers of his client
which have lawfully come into his possession until his lawful fees and disbursements have been paid and
to apply such funds to the satisfaction thereof.6 It is dependent upon and takes effect from the time of lawful
possession; it does not require notice thereof upon the client and the adverse party to be effective. On the
other hand, a charging lien is the right which the attorney has upon all judgments for the payment of money
and executions issued in pursuance thereof, secured in favor of the client. It covers only services rendered
by an attorney in the action in which the judgment was obtained and takes effect only after he shall have
caused a statement of his claim to be entered upon the record of the particular action with written notice
thereof to his client and to the adverse party.

20. What is barratry? is it allowed?

A lawyer has the obligation not to encourage suits. This is so as to prevent barratry and ambulance
chasing.

Barratry offense of frequently exciting and stirring up quarrels and suits, either at law or otherwise;
Lawyers act of fomenting suits among individuals and offering his legal services to one of them.

Ambulance Chasing
21. What is sub judice?

The sub judice rule restricts comments and disclosures pertaining to judicial proceedings to avoid
prejudging the issue, influencing the court, or obstructing the administration of justice, the CA reminded the
parties. Anyone violating the sub judice rule can be cited for indirect contempt of court under Section 3(d),
Rule 71 of the Rules of Court.

22. Direct/indirect contempt. How instituted and what are the grounds

Rule 71 of the Rules of Court provides:

SECTION. 1. Direct contempt punished summarily. A person guilty of misbehavior in the


presence of or so near a court as to obstruct or interrupt the proceedings before the same, including
disrespect toward the court, offensive personalities toward others, or refusal to be sworn or to
answer as a witness, or to subscribe an affidavit or deposition when lawfully required to do so, may
be summarily adjudged in contempt by such court and punished by a fine not exceeding two
thousand pesos or imprisonment not exceeding ten (10) days, or both, if it be a Regional Trial Court
or a court of equivalent or higher rank; or by a fine not exceeding two hundred pesos or
imprisonment not exceeding (1) day, or both, if it be a lower court.

SEC. 2. Remedy therefrom. The person adjudged in direct contempt by any court may not appeal
therefrom, but may avail himself of the remedies of certiorari or prohibition. The execution of the
judgment shall be suspended pending resolution of such petition, provided such person file a bond
fixed by the court which rendered the judgment and conditioned that he will abide by and perform
the judgment should the petition be decided against him. (emphasis and underscoring supplied)

Oclarit v. Paderanga[18] instructs:

[A]n order of direct contempt is not immediately executory or enforceable. The contemner must
be afforded a reasonable remedy to extricate or purge himself of the contempt. Thus, in the 1997 Rules of
Civil Procedure, as amended, the Court introduced a new provision granting a remedy to a person adjudged
in direct contempt by any court. Such person may not appeal therefrom, but may avail himself of certiorari
or prohibition. In such case, the execution of the judgment shall be suspended pending resolution of such
petition provided the contemner files a bond fixed by the court which rendered the judgment and conditioned
that he will abide by and perform the judgment should the petition be decided against him.[19] (underscoring
supplied)

ADMINISTRATIVE CIRCULAR NO. 22-95.

TO: COURT OF APPEALS, SANDIGANBAYAN, COURT OF TAX APPEALS, REGIONAL TRIAL


COURTS, METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS, MUNICIPAL TRIAL
COURTS IN CITIES, MUNICIPAL CIRCUIT TRIAL COURTS, SHARIA DISTRICT COURTS, SHARIA
CIRCUIT COURTS AND ALL MEMBERS OF THE INTEGRATED BAR OF THE PHILIPPINES

SUBJECT: AMENDMENT OF SECTIONS 1 AND 6, RULE 71 OF THE RULES OF COURT.

Rule 71 of the present Rules of Court provides the penalties for direct and indirect contempt against
superior and inferior courts, to wit:

1. In direct contempt, a fine not exceeding P200.00 or imprisonment not exceeding 10 days, or both,
if it be a superior court, and a fine not exceeding P10.00 or imprisonment not exceeding 1 day, or
both, if it be an inferior court [Section 1]; and

2. In indirect contempt, a fine not exceeding P1,000.00 or imprisonment of not more than 6 months,
or both, if against a superior court, and a fine not exceeding P1,000.00 or imprisonment of not more
than 1 month, or both, if against an inferior court [Section 6].
The Court takes judicial notice that these were the same penalties for direct and indirect contempt
which were imposed by Sections 1 and 6, Rule 64 of the old Rules of Court which took effect on July 1,
1940, or more than 55 years ago.

The Court also takes cognizance of the fact that the amount of the fine, whether imposed as a
complementary or an alternative penalty, was intended to be financial equivalent of the term of
imprisonment for the offense, from the standpoint of severity, taking into account the nature of the offensive
acts and the courts against which they were committed.

In view of the present value of our currency under either the prevailing international rates of
exchange or the consumer price index which, however, are subject to variant factors, and considering that
the minimum daily wage has often been adopted as the basis for determining the amount of the fine in our
penal laws, the aforestated provisions of Rule 71 have to be amended to keep the same abreast with
monetary changes by increasing the amount of the imposable fine, with the average national minimum
wage as the approximate basis therefor.

Accordingly, the Court Resolved to amend the provisions of Sections 1 and 6, Rule 71 of the Rules
of Court to read as follows:

"SECTION 1. Direct Contempt Punished Summarily. A person guilty of misbehavior in the


presence of or so near a court or judge as to obstruct or interrupt the proceedings before the same,
including disrespect toward the court or judge, offensive personalities toward others, or refusal to
be sworn or to answer as witness, or to subscribe an affidavit or disposition when lawfully required
to do so, may be summarily adjudged in contempt by such court or judge and punished by a fine
not exceeding two thousand pesos or imprisonment not exceeding ten (10) days, or both, if it be a
superior court, or a judge thereof, or by a fine not exceeding two hundred pesos or imprisonment
not exceeding one (1) day, or both, if it be an inferior court."

"SECTION 6. Punishment if Found Guilty. If the accused is thereupon adjudged guilty of


contempt committed against a superior court or judge, he may be fined not exceeding thirty
thousand pesos or imprisoned not more than six (6) months, or both; if adjudged guilty of contempt
committed against an inferior court or judge, he may be fined not exceeding five thousand pesos
or imprisoned not more than one (1) month, or both, and if the contempt consists in the violation of
an injunction, he may also be ordered to make complete restitution to the party injured by such
violation."

23. What is forum shopping?

Forum shopping is the improper practice of going from one court to another in the hope of securing
a favorable relief in one court which another court has denied of the filing of repetitious suits or proceedings
in different courts concerning substantially the same subject matter.

There is forum shopping where there exists: (a) identity of parties, or at least such parties represent
the same interests in both actions, (b) identity of rights asserted and relief prayed for, the relief being
founded on the same facts, and (c) the identity of the two preceding particulars is such that any judgement
rendered in the pending case, regardless of which party is successful, would amount to res judicata in the
other.

Exception: The filing of a civil case in court does not preclude the filing of a criminal action arising
from the same set of facts on which the civil action is based, as the law allows it. There is no forum shopping
in such instances.

24. When may a lawyer criticize a court decision?

General Rule: Canon 11- A lawyer shall observe and maintain the respect due to the courts and to
judicial officers and should insist on similar conduct by others.

Exception: The fact that a person is a lawyer does not deprive him of the right, as enjoyed by every
citizen, to comment on and criticize the actuations of a judge.

The rule allows such criticism so long as it is supported by the record or is material to the case. A
lawyers right to criticize the acts of courts and judges in a proper and respectful way and through legitimate
channels is well recognized.

The right of a lawyer to comment is not unlimited. It is the cardinal condition of all such criticism
that it shall be bona fide and shall not spell over the walls of decency and propriety. Unfair criticism is a
gross violation of the lawyers duty to respect the courts. [Zaldivar v. Gonzales (1989)]

Any serious accusation against a judicial officer that is utterly baseless, unsubstantiated and
unjustified shall not be countenanced. [Go v. Abrogar, 486 SCRA 457]

25. When is an offended party prohibited from intervening in a criminal case?

General Rule: The offended party has the right to intervene by counsel in the prosecution of the
criminal action where the civil action for recovery of civil liability is instituted in the criminal action pursuant
to Rule 111 of the Rules of Court.

Exceptions:
(a) Where from the nature of the crime and the law defining and punishing it, no civil liability
arises in favor of the offended party;
(b) Where the offended party has waived the right to civil indemnity or reserved the right to
institute the civil action;
(c) Where the offended party has already instituted the civil action.

Once the offended party has filed a separate civil action arising from the crime, he may not withdraw
such civil case in order to intervene in the criminal prosecution. He losses the right to intervene. He no
longer has any standing in the criminal case, except to be a prosecution witness.

26. What is the duty of a prosecutor? May a prosecutor suppress evidence because the evidence
would establish the innocence of the accused?

Republic Act No. 10071 provides for the functions of the Prosecutor among which:

1. Be the law officer of the province or city;


2. Investigate and/or cause to be investigated all charges of crimes, misdemeanors and violations
of penal laws and ordinances within their respective jurisdictions, and have the necessary
information or complaint prepared or made and filed against the persons accused. He shall
receive the statements under oath or take oral evidence of witnesses, may by subpoena
summon witnesses to appear and testify under oath before him;
3. Have charge of the prosecution of all crimes, misdemeanors and violations of city or municipal
ordinances.

The duty of the prosecution is not merely to secure a conviction, but to secure a just conviction.
The rights of the accused to have compulsory process to secure the production of evidence on their behalf
is a right enshrined our Constitution. In addition, Section 10 of Rule 116 of the Rules of Criminal Procedure
mandates in part that the court, in order to prevent surprise, suppression, or alteration, may order the
prosecution to produce and permit the inspection and copying or photographing of any written statement
given by the complainant and other witnesses as well as any documents, objects, or tangible things not
otherwise privileged, which contain evidence material to any matter involved in the case and which are
under the control of the prosecution. Thus, the accuseds right of access to evidence requires the correlative
duty of the prosecution to produce and permit the inspection of the evidence, and not to suppress it just
because it would establish the innocence of the accused. (SEPARATE CONCURRING OPINION of
SERENO, J. in LEJANO v PEOPLE and PEOPLE v WEBB)

27. In what instance/s may a notary public notarize a document where the party affixes his
signature by thumb mark? What is the procedure?

A notary public is authorized to certify the affixing of a signature by thumb or mark on an instrument
or document presented for notarization if:

1. The thumb or other mark is affixed in the presence of the notary public and two disinterested
and unaffected witnesses to the instrument or document;
2. Both witnesses sign their own names in addition of the thumb or other mark;
3. The notary public writes below the thumb or other mark: Thumb or Other Mark affixed by
(name and addresses of witnesses) and undersigned notary public; and
4. The notary public notarizes the signature by thumb or other mark through an
acknowledgement, jurat, or signature witnessing.

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.

28. Read the rule on notarial practice.

A.M. No. 02-8-13-SC (2004 Rules on Notarial Practice)

Qualification:
A notary public:
1. must be a citizen of the Philippines;
2. must be over 21 years of age;
3. must be a resident in the Philippines for at least 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.

Jurisdiction and term of a notary public:


A person commissioned as notary public may perform notarial acts in any place within the territorial
jurisdiction of the commissioning court for a period of 2 years commencing the first day of January of the
year in which the commissioning is made, unless earlier revoked or the notary public has resigned. A notary
public may file a written application with the Executive Judge for the renewal of his commission within forty-
five (45) days before the expiration thereof.

Powers:
A notary public is empowered to perform:
(1) acknowledgments;
(2) oaths and affirmations;
(3) jurats;
(4) signature witnessings;
(5) copy certifications; and
(6) any other act authorized by the Rules.

A notary public is authorized to sign on behalf of a person who is physically unable to sign or make a mark
on an instrument or document if: (1) the notary public is directed by the person unable to sign or make a
mark to sign on his behalf; (2) the signature of the notary public is affixed in the presence of two
disinterested and unaffected witnesses to the instrument or document; (3) both witnesses sign their own
names; (4) the notary public writes below his signature: "Signature affixed by notary in presence of (names
and addresses of person and two witnesses)"; and (5) the notary public notarizes his signature by
acknowledgment or jurat.

Prohibitions:
A notary public shall not: 1) perform a notarial act outside his regular place of work or business except on
certain exceptional occasions; 2) A person shall not perform a notarial act if the person involved as signatory
to the instrument or document: (1) is not in the notary's presence personally at the time of the notarization;
and (2) is not personally known to the notary public or otherwise identified by the notary public through
competent evidence of identity. 2) 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; 3) shall not notarize: (a) a blank or incomplete instrument or document; or (b) an instrument or
document without appropriate notarial certification.

Disqualifications:
A notary public is disqualified from performing a notarial act if he: (a) is a party to the instrument that is to
be notarized; (b) will receive any commission, fee, advantage, right, title, interest, cash, property, or other
consideration, except as provided by these Rules and by law; or (c) is a spouse, common-law partner,
ancestor, descendant, or relative by affinity or consanguinity of the principal within the fourth civil degree.
Refusal to Notarize:
A notary public shall not perform any notarial act for any person requesting such an act even if he tenders
the appropriate fee if: (a) the notary knows or has good reason to believe that the notarial act is unlawful or
immoral; (b) the signatory shows a demeanor which engenders in the mind of the notary public reasonable
doubt as to the formers knowledge of the consequences of the transaction requiring a notarial act; and (c)
in the notarys judgment, the signatory is not acting of his or her own free will.

Fees of Notary Public:


A notary public may charge the maximum fee as prescribed by the Supreme Court unless he waives the
fee in whole or in part. No fee or compensation of any kind, except those expressly prescribed and allowed
herein, shall be collected or received for any notarial service.

Notarial register
A notary public shall keep, maintain, protect and provide for lawful inspection a chronological official notarial
register of notarial acts consisting of a permanently bound book with numbered pages. For every notarial
act, the notary shall record in the notarial register at the time of notarization: (1) the entry number and page
number; (2) the date and time of day of the notarial act; (3) the type of notarial act; (4) the title or description
of the instrument, document or proceeding; (5) the name and address of each principal; (6) the competent
evidence of identity if the signatory is not personally known to the notary; (7) the name and address of each
credible witness swearing to or affirming the person's identity; (8) the fee charged for the notarial act; (9)
the address where the notarization was performed if not in the notary's regular place of work or business;
and (10) any other circumstance the notary public may deem of significance or relevance.

Notarial certificates
The notarial certificate shall include the: (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.

Revocation of commission and disciplinary sanctions


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 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; (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; (9) executes a false or incomplete certificate; (10)
knowingly performs or fails to perform any other act prohibited or mandated by these Rules; and (11)
commits any other dereliction or act which in the judgment of the Executive Judge constitutes good cause
for revocation of commission or imposition of administrative sanction.

29. When an Accused appeals his conviction to the Court of Appeals, who will represent the State?
Who will represent the State when an Accused is being tried before the Regional Trial Court?

Jurisprudence holds that the authority to represent the State in appeals of criminal cases before
the CA is vested solely in the Office of the Solicitor General which is the law office of the Government whose
specific powers and functions include that of representing the Republic and/or the people before any court
in any action which affects the welfare of the people as the ends of justice may require. However, when an
Accused is tried before the Regional Trial Court, the prosecutor shall represent the State. Under Section 5,
Rule 110 of the Rules of Court, all criminal actions commenced by complaint or information shall be
prosecuted under the direction and control of the fiscal. The fiscal represents the People of the Philippines
in the prosecution of offenses before the trial courts at the metropolitan trial courts, municipal trial courts,
municipal circuit trial courts and the regional trial courts. However, when such criminal actions are brought
to the Court of Appeals or to the Supreme Court, it is the Solicitor General who must represent the People
of the Philippines, not the fiscal. Explicitly, Section 35(1), Chapter 12, Title III, Book IV of the 1987
Administrative Code provides that: SECTION 35. Powers and Functions. The Office of the Solicitor
General shall represent the Government of the Philippines, its agencies and instrumentalities and its
officials and agents in any litigation, proceeding, investigation or matter requiring the services of lawyers. x
x x. It shall have the following specific powers and functions: (1) Represent the Government in the Supreme
Court and the Court of Appeals in all criminal proceedings; represent the Government and its officers in the
Supreme Court, the Court of Appeals, and all other courts or tribunals in all civil actions and special
proceedings in which the Government or any officer thereof in his official capacity is a party.

30. What is the significance of compliance with the Mandatory Continuing Legal Education?

According to Section 1, Rule 1 of the Revised Rules on the Continuing Legal Education for
members of the Integrated Bar of the Philippines, continuing legal education is required of members of the
Integrated Bar of the Philippines (IBP) to ensure that throughout their career, they keep abreast with law
and jurisprudence, maintain the ethics of the profession and enhance the standards of the practice of law.
Also, the obligation of lawyers to undergo a program of continuing legal education program is sanctioned
by Canon 5 of the Code of Professional Responsibility when it states that A lawyer should keep abreast of
legal developments, participate in continuing legal education programs It is also deemed an integral part
of the Integrated Bar of the Philippines (IBP) mandate because Rule 139-A, Section 2 of the Revised Rules
of Court provides: The fundamental purposes of the Integrated Bar shall be to elevate the standards of the
legal profession, improve the administration of justice, and enable the bar to discharge its public
responsibility more effectively.

31. When is advertising by a lawyer permitted? Prohibited?

Canon 2 of the Code of Professional Responsibility provides that a lawyer shall make his legal
services available in an efficient and convenient manner compatible with the independence, integrity, and
effectiveness of the profession. Anent thereto, Rule 2.03 of the same law states that a lawyer shall not do
or permit to be done any act designed primary to solicit legal business. Thus, lawyers may not advertise
their services or expertise nor should they resort to indirect advertisements for professional employment.

However, the following are the exceptions and are considered as permissible advertisements:

1. Reputable law lists, in a manner consistent with the standards of conduct imposed by the canons,
of brief biographical and informative data.
2. Ordinary simple professional card. It may only contain a statement of his name, the name of the
law firm which he is connected with, address, telephone number, and the special branch of law
practiced.
3. A simple announcement of the opening of a law firm or of changes in the partnership, associates,
firm name or office address, being for the convenience of the profession.
4. Advertisements or simple announcement of the existence of a lawyer or his law firm posted
anywhere it is proper, such as his place of business or residence, except courtrooms and
government buildings.
5. Advertisements or announcement in any legal publication, including books, journals, and legal
magazines.

32. What is the best advertisement for a lawyer?

In the case of Ulep v. Legal Clinic, Inc., the Supreme Court ruled that the lawyers best
advertisement is a well-merited reputation for professional capacity and fidelity to trust based on his
character and conduct.

33. What is meant by a counsel de officio? When may a lawyer refuse his appointment as counsel
de officio? Explain.
A counsel de officio is an attorney appointed by the court to defend an indigent defendant in a criminal
action or to represent a destitute party in a case. In Rule 14.03, Canon 14 of the Code of Professional
Responsibility, a lawyer may refuse to accept representation of a client if:

1. He is not in position to carry out the work effectively and competently.


2. He labors under conflict of interest between him and the prospective client or between a present
client and the prospective client.

Thus, only in these cases that the lawyer may refuse his appointment because a lawyer shall not refuse
his services to the needy as stipulated in Canon 14 of the Code of Professional Responsibility.

34. When can a client dismiss a lawyer? Hire a collaborating counsel? Explain.

A client has the right to dismiss his lawyer anytime with or without just cause. Just cause is material
only in determining compensation. A client may hire additional counsel as collaborating counsel because it
is his (client) prerogative.

35. When can a lawyer withdraw from a case? Does it need the consent of the client? Explain.

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

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

An attorney may only retire from a case either by written consent of his client or by permission of the
court after due notice and hearing, in which event the attorney should see to it that the name of the new
attorney is recorded in the case.

(Based on Canon 22: A lawyer shall withdraw his services only for good cause and upon notice appropriate
in the circumstances.)

36. Supposing you are a lawyer and ABC Corporation and XYZ Corporation are your retainer clients.
ABC Corporation wants to sue XYZ to collect an indebtedness which was long overdue. ABC wants
you to represent it. What should you do?

Jurisprudence provides that the test of conflict of interest is (1) whether there are conflicting duties,
(2) whether there is an invitation of suspicion or double-dealing, and (3) whether there is use of prior
knowledge obtained.

Being a retainer for both corporations, there is clearly a conflict of interest if I represent one in a
suit. Thus, to be able to represent ABC, I must acquire the consent of both ABC and XYZ to the
representation after full disclosure of facts.

(Based on Rule 15.03 A lawyer shall not represent conflicting interests except by written consent of all
concerned given after a full disclosure of the facts.)

37. When is an attorney-client relationship established? Describe the character of such relationship.
The attorney-client relationship is created/established through any of the following:

1. Oral contract- when the counsel is employed without a written agreement, but the conditions and
amount of attorneys fees are agreed upon;
2. Express contract- when the terms and conditions including the amount of fees are explicitly
stipulated in a written document which may be a private or public document. Written contract of
attorneys fees is the law between the lawyer and the client; and
3. Implied contract- where there is no agreement, whether oral or written, but the client allowed the
lawyer to render legal services not intended to be gratuitous without objection and the client is
benefited by reason thereof (Pineda)

The nature/character of such relationship are as follows:

1. Strictly personal as it involves mutual trust and confidence of the highest degree irrespective of
whether the client is a private person or a government fiduciary; and
2. Highly confidential and fiduciary because it demands of an attorney an undivided allegiance, a
conspicuous and high degree of good faith disinterestedness, candor, fairness, loyalty, and
absolute integrity in all his dealings and transactions with this clients and an utter renunciation of
every personal advantage conflicting in any way directly or indirectly, with the interest of his client
(Daroy v. Legaspi, A.M. 936 July 25, 1975)

38. What is meant by the term fiduciary relationship?

Where one person places complete confidence in another in regard to a particular transaction or
one's general affairs or business. The relationship is not necessarily formally or legally established as in a
declaration of trust, but can be one of moral or personal responsibility, due to the superior knowledge and
training of the fiduciary as compared to the one whose affairs the fiduciary is handling

The attorney-client relationship has long been recognized as a fiduciary relationship. The term
fiduciary means trust, so in a fiduciary relationship one person (the client) places his or her confidence,
good faith, reliance and trust in another (the lawyer), whose advice is sought in some matter.

Rule 16.01.
A lawyer shall account for all money or property collected or received for or from the client.

39. When is the inhibition of a judge in case mandatory? Discretionary?

The requirement of inhibition is mandatory when:

1. He or his wife or his child is pecuniarily interested as heir, legatee, creditor or otherwise;
2. Relation to either party within the sixth degree of consanguinity or affinity or to counsel within the
4th civil degree
3. When he has been an executor, guardian, administrator, trustee or counsel;
4. When he has presided in an inferior court where his ruling or decision is subject to review.

A judge may, in the exercise of his sound discretion disqualify himself, for just and valid reasons
other than those mentioned above. [Rule 137, Section 1]

This leaves the discretion to the judge to decide for himself questions as to whether he will desist
from sitting in case for other just and valid reasons with only his conscience to guide him, unless he cannot
discern for himself his inability to meet the test of the cold neutrality required of him, in which event the
appellate court will see to it that he disqualifies himself.

A decision to disqualify himself is not conclusive and his competency may be determined on
application for mandamus to compel him to act. Judges decision to continue hearing a case in which he is
not legally prohibited from trying notwithstanding challenge to his objectivity may not constitute reversible
error.

40. Explain the term remittal of disqualification

According to Rule 3.13 of the Code of Judicial Conduct, a judge disqualified by the terms of Rule
3.12 of the same code 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 judges
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.

This procedure is known as remittal of disqualification. It allows parties, upon agreement, to waive
the disqualification so that they may proceed without delay.

41. Is it ethical for a lawyer to interview his witness before presenting him in court?

A lawyer may properly interview any witness or prospective witness for the opposing side in any civil or
criminal action without the consent of opposing counsel or party. In doing so, however, he should
scrupulously avoid any suggestion calculated to induce the witness to suppress or deviate from the truth,
or in any degree to affect his free and untrammeled conduct when appearing at the trial or on the witness
stand.

(Basis: CANON 12 A lawyer shall exert every effort and consider it his duty to assist in the speedy and
efficient administration of justice.)

42. Is the mere relation of attorney and client raise the presumption of confidentiality? When is
communication by client and attorney considered confidential?

Jurisprudence provides that the mere relation of attorney and client does not raise a presumption
of confidentiality. The client must intend that the communication relayed by the client to the lawyer be
treated as confidential. (Mercado v Vitriolo, A.C No. 5108, May 26 2005) Thus, it is the intention of the client
that determines whether the communication is of a confidential character.

A confidential communication refers to information transmitted by voluntary act of disclosure


between attorney and client in confidence and by means which, so far as the client is aware, discloses the
information to no third person other than one reasonably necessary for the transmission of the information
or the accomplishment of the purpose for which it was given.

43. When can the lawyer reveal the clients confidential communication?

The following are the grounds:

1. An announced intention to commit a crime. It covers past crimes and the announced intention
of a client to commit a crime is not included within the confidences which a lawyer is bound to
respect (Canon 37. Canons of Professional Ethics);
2. When authorized by client;
3. When the law requires such divulging of the information;
4. To defend the lawyer or law firm from civil or criminal actions;
5. When ordered by a court to divulge such information;
6. The duty of confidentiality or privileged communication applies only to verbal revelations and
does not protect incriminating documents or physical evidence turned over to the lawyer by the
client. REASON: As an officer of the court, a lawyer shall exert every effort and consider it his
duty to assist in the speedy and efficient administration of justice. (Canon 12. Code of
Professional Responsibility)
44. What are the exceptions to the rule that negligence of the counsel binds the client?

Settled is the rule that the negligence of the counsel binds the client. However, jurisprudence provides
that negligence of the counsel does not bind the client when the negligence of the counsel is so gross,
palpable, reckless and inexcusable,

1. That the client is deprived of due process of law; or


2. Where its application results in the outright deprivation of the clients liberty or property through
a technicality (Juaban et al v. Bancale et al); or
3. When the application of the general rule will result in serious injustice in which case, the remedy
then is to reopen the case and allow the party who was denied his day in court to adduce his
evidence (GCP Manny Transport Services v. Principle et al); or
4. Where the interests of justice so requires. (Friend et al v. Union Bank of the Phils)