Legal Ethics Chapter I – Lawyer and Society

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.

Original Bases of Legal Ethics:

  1. Canons of Professional Ethics
  2. Supreme court Decisions
  3. Statistics
  4. Constitution
  5. Treatises and publications

Present Basis of the Philippine Legal System: Code of Professional Responsibility.

BAR  V.  BENCH

BAR – Refers to the whole body of attorneys and body of judges.

BENCH – denotes the whole body of 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 or devise 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 by 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, though he may do things not mentioned in his appointment 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 hoca 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 his agent upon whom service of papers may be made.

(Reynolds v. Reynolds, Cal.2d580).

Of Counsel – to distinguish them from attorneys of record, associate attorneys are referred to as “of counsel” (5 Am. Jur. 261).

Lead Counsel – The counsel on their side of a litigated action who is charged with the principal management and direction of a party’s case.

House Counsel – Lawyer who acts as attorney for business though carried as an employee of that business and not as an independent lawyer.

Bar Association – an association of members of the legal profession.

Advocate – The general and popular name for a lawyer who pleads on behalf of someone else.

Barrister  (England) – a person entitled to practice law as an advocate or counsel in superior court.

Proctor (England) – Formerly, an attorney in the admiralty and ecclesiastical courts whose duties and business correspond to those of an attorney at law or solicitor in Chancery.

Titulo de Abogado –  it means not mere possession of the academic degree of Bachelor of Laws but membership in the Bar after due admission thereto, qualifying one for the practice of law.

Admission to the Practice of Law

The Supreme Court has the power to control and regulate the practice of law. Thus, the Constitution, under  Article  VIII, Sec. 5 (5) provides:

                        Sec. 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.

The Supreme Court acts through a Bar Examination Committee in the Exercise of his judicial function to admit candidates to the legal profession.

The Bar Examination Committee:

  • Composed of (1) member of the Supreme Court who acts as Chairman and eight (8) members of the bar.
  • The 8 members act as examiners for the 8 bar subjects with one subject assigned to each.
  • The Bar Confidant acts as a sort of liason 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).

Requirements  for admission to the Bar:

  1. citizen of the Philippines
  2. at least 21 years old
  3. of good moral character
  4. Philippine resident
  5. Production before the supreme court satisfactory evidence of:
    1. good moral character
    2. no charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines.

Requirement of Good Moral Character: a continuing requirement; good moral character is not only a condition precedent for admission to the legal profession, but it must also remain intact in order to maintain one’s good standing in that exclusive and honored fraternity. (Tapucar vs. Tapucar, 1998)

Academic Requirements for Candidates:

  1. a bachelor’s degree in arts and sciences (pre-law course)
  2. a completed course in:
    1. civil law
    2. commercial law
    3. remedial law
    4. public international law
    5. private international law
    6. political law
    7. labor and social legislation
    8. medial jurisprudence
    9. taxation
    10. legal ethics

Non-lawyers who may be authorized to appear in court:

  1. Cases before the MTC:  Party to the litigation,  in person OR through an agent or friend or appointed by him for that purpose (Sec. 34, Rule 138, RRC)
  2. Before any other court: Party to the litigation, in person (Ibid.)
  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:
    1. resident of the province
    2. of good repute for probity and ability to aid the accused in his defense (Rule 116, Sec. 7, RRC).
  4. Legal Aid Program – A senior law student, who is enrolled in a recognized law school’s clinical education program approved by the supreme Court may appear before any court without compensation, to represent indigent clients, accepted by the Legal Clinic of the law school.  The student shall be under the direct supervision and control of an IBP member duly accredited by the law school.
  5. Under the Labor code, non-lawyers may appear before the NLRC or any Labor Arbiter, if
    1. they represent themselves, or if
    2. they  represent their organization or members thereof (Art 222, PO 442, as amended).
  6. Under the Cadastral Act, a non-lawyer can represent a claimant before the Cadastral Court (Act no. 2259, Sec. 9).

Public Officials who cannot engage in the private practice of Law in the Philippines:

  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

Public Officials with Restrictions in the Practice of Law:

  1. 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:
    1. appear as counsel before any court in any civil case wherein a local government unit or any office, agency, or instrumentality of the government is the adverse party;
    2. appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office;
    3. collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official;
    4. use property and personnel of the government except when the Sanggunian 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)

Nature of Lawyer’s Oath

  • The lawyer’s 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 lawyer’s oath. (In Re: Argosino, 1997, In Re: Arthur M. Cuevas, 1998).

Code of Professional Responsibility

Chapter 1:

Lawyer and Society

CANON 1 – A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and for legal processes

  • Duties of Attorneys:
  1. to maintain allegiance to the Republic of the Philippines and to support the Constitution and obey the laws of the Philippines;
  2. to observe and maintain the respect due to the courts of justice and judicial officers;
  3. to counsel or maintain such actions or proceedings only as appear to him as just, and such defenses only as he believes to be honestly debatable under the laws;
  4. to employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth and honor, and never seek to mislead the judge or  any judicial officer by an artifice or false statement of fact or law;
  5. to maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client, and to accept no compensation in connection with his client’s business except from him or with his knowledge and approval;
  6. to abstain from all offensive personality and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged;
  7. not to encourage either the commencement or the continuance of an action or proceeding, or delay any man’s cause for any corrupt motive or interest;
  8. never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed;
  9. in the defense of a person accused of a crime, by all fair and honorable means, regardless of his personal opinion as to the guilt of the accused, to present every defense that the law permits, to the end that no person may be deprived of life or liberty, but by due process of law.

Rule 1.01 – A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

  • Conviction for crimes involving moral turpitude – a number of lawyers have been suspended or disbarred for conviction of crimes involving moral turpitude such as:
  1. estafa
  2. bribery
  3. murder
  4. seduction
  5. abduction
  6. smuggling
  7. falsification of public documents
  • Morality as understood in law - This is a human standard based on natural moral law which is embodied in man’s conscience and which guides him to do good and avoid evil.
  • Moral Turpitude: any thing that  is done contrary to justice, honesty, modesty or good morals.
  • Immoral Conduct: that conduct which is willful, flagrant, or shameless and which shows a moral indifference to the opinion of the good and respectable members of the community (Arciga vs. Maniwag, 106 SCRA 591).
  • Grossly Immoral Conduct: One that is so corrupt and false as to constitute a criminal act or so unprincipled or disgraceful as to be reprehensible to a high degree; it is a WILLFUL, FLAGRANT or SHAMELESS ACT which shows a MORAL INDIFFERENCE to the opinion of respectable members of the community. (Narag vs. Narag, 1998)

Rule 1.02 – A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system.

Rule 1.03 – A lawyer shall not, for any corrupt motive or interest, encourage any suit or proceeding or delay any man’s cause.

Rule 1.04 – A lawyer shall encourage his clients to avoid, end or settle the controversy if it will admit of a fair settlement.

  • If a lawyer finds that his client’s cause is defenseless, it is his burden/duty to advise the latter to acquiesce and submit, rather than traverse the incontrovertible.
  • It is unprofessional for a lawyer to volunteer advice to bring a lawsuit, except in rare cases where the blood, relationship or trust makes it his duty to do so.
  • Temper client’s propensity to litigate.
  • Should not be an instigator of controversy but a mediator for concord and conciliator for compromise.
  • The law violated need not be a penal law. “Moral Turpitude” – everything which is done contrary to justice, honesty, modesty or good morals.
  • Give advice tending to impress upon the client and his undertaking exact compliance with the strictest principles of moral law.
  • Until a statute shall have been construed and interpreted by competent adjudication, he is free and is entitled to advise as to its validity and as to what he conscientiously believes to be its just meaning and extent.
  • 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; Lawyer’s act of fomenting suits among individuals and offering his legal services to one of them.
  • Ambulance Chasing – Act of chasing victims of accidents for the purpose of talking to the said victims (or relatives) and offering his legal services for the filing of a case against the person(s) who caused the accident(s).

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 oppressed.

Rule 2.02 – In such a case, even if a lawyer does not accept a case, he shall not refuse to render legal advise to the person concerned if only to the extent necessary to safeguard 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;
  1. duty of service, of which the emolument is a by product, and in which one may attain the highest eminence without making such money;
  2. a relation as an ‘officer of court’ to the administration of justice involving thorough sincerity, integrity and reliability;
  3. a relation to clients in the highest degree of fiduciary;
  4. a relation to colleagues at the bar characterized by candor, fairness and unwillingness to resort to current business methods of advertising and encroachment on their practice or dealing with their clients.
  • Defenseless – not in the position to defend themselves due to poverty, weakness, ignorance or other similar reasons.
  • Oppressed victims of acts of cruelty, unlawful exaction, domination or excessive use of authority.

Rule on Advertisements

  • General Rule: No advertisements allowed. The most worthy and effective advertisement possible is the establishment of a well-merited 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.

  • Exceptions/ 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, are allowed.
  2. Ordinary simple professional Card. It may contain only 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, is not objectionable.
  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.

Rule 2.04 – A lawyer shall not charge rates lower than those customarily or prescribed, unless 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 (e.g. Submission for decision on the evidence so far presented. But in case where 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

CANON 3 – A lawyer in making known is legal services shall use only true, honest, fair dignified and objective information or statement of facts.

Rule 3.01 – A lawyer shall not use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-auditory or unfair statement or claim regarding his qualifications or legal services.

  • Violation of Rule 3.01 is unethical, whether done by him personally or through another with his permission.

Rule 3.02 – In the choice of a firm name, no false, misleading, or assumed name shall be used.  The continued use of the name of a deceased partner is permissible provided that the firm indicates in all its communication that said partner is deceased.

Rule 3.03 – Where a partner accepts public office, he shall withdraw from the firm and his name shall be dropped from the firm name unless the law allows him to practice law concurrently.

Rule 3.04 – A lawyer shall not pay or give anything of value to representatives of the mass media in anticipation of, or in return for, publicity to attract legal business.

  • It is unethical to use the name of a foreign firm.
  • Death of a partner does not extinguish attorney-client relationship with the law firm.
  • Negligence of a member in the law firm is negligence of the firm.

CANON 4 – A lawyer shall participate in the improvement of the legal system by initiating or supporting efforts in law reform and in the 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 achieve high standards in law schools as well as in the practical training of 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.

  • Public Officials – include elective and appointive officials and employees, permanent or temporary, whether in the career or non-career service, including military and police personnel, whether or not they receive compensation, regardless of amount. (Sec. 3 (b), RA 6713).
  • The law requires the observance of the following norms of conduct by every public official in the discharge and execution of their official duties:
  1. commitment to public interest
  2. professionalism
  3. justness and sincerity
  4. political neutrality
  5. responsiveness to the public
  6. nationalism and patriotism
  7. commitment to democracy
  8. simple living (Sec. 4, RA 6713)

Rule 6.01 – The primary duty of a lawyer engaged in public prosecution 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 of disciplinary action.

Rule 6.02 – A lawyer in the government service shall not use his public position to promote or advance his private interest, nor allow the latter to interfere with his public duties.

Rule 6.03 – A lawyer shall not, after leaving government service, accept engagements or employment in connection with any matter in which he had intervened while in said service.

  • Various ways a government lawyer leaves government service:
  1. retirement
  2. resignation
  3. expiration of the term of office
  4. dismissal
  5. abandonment
  • Q:  What are the pertinent statutory provisions regarding this Rule?

A:   Sec. 3 (d) RA 3019 as amended and Sec. 7 (b), RA 6713

Sec 3.  Corrupt practice of Public Officers.  In addition to acts or omission of public officers already penalized by existing law, the following shall constitute corrupt practice of any public officer and are hereby declared to be unlawful:

(d) accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after termination.

Section 7 (b) of RA 6713 prohibits officials from doing any of the following acts:

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

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.

  • Lawyers in the government service are prohibited to engage in the private practice of their profession unless authorized by the constitution or law, provided that such practice will not conflict or tend to conflict with their official functions.
  • Misconduct in office as a public official may be a ground for disciplinary action (if of such character as to affect his qualification as lawyer or to show moral delinquency).
  • Should recommend the acquittal of the accused whose conviction is on appeal, IF he finds no legal basis to sustain the conviction.
  • Includes restriction is representing conflicting interest (e.g. Accepting engagements vs. former employer, PNB)
  • The OSG is not authorized to represent a public official at any state of a criminal case.

 

Reference: Legal Ethics Reviewer

Ateneo

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Posted on January 30, 2012, in Legal Ethics and tagged . Bookmark the permalink. Leave a comment.

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