Monthly Archives: January 2012

Legal Ethics – Code of Judicial Conduct

Code of Judicial Conduct

Preamble

An honorable, competent and independent judiciary exists to administer justice and thus promote the unity of the country, the stability of government, and the well being of the people.

CANON 1- A judge should uphold the integrity and independence of the judiciary 

Rule 1.01 – A judge should be the embodiment of competence, integrity, and independence.

Rule 1.02 – A judge should administer justice impartially and without delay.

Rule 1.03 – A judge should be vigilant against any attempt to subvert the independence of the judiciary and resist any pressure from whatever source.

  • Judges should avoid even the slightest infraction of the law.
  • Must be models of uprightness, fairness and honesty
  • Should not relax in his study of the law and court decisions.
  • Should not be swayed by public clamor or considerations of personal popularity
  • Must decide motions without delay.
  • Should also appear impartial.

CANON 2 – A judge should avoid impropriety and the appearance of impropriety in all activities. 

Rule 2.01 – A judge should so behave at all times as to promote public confidence in the integrity and impartiality of the judiciary.

Rule 2.02 – A judge should not seek publicity for personal vainglory.

Rule 2.03 – A judge shall not allow family, social, or other relationships to influence judicial conduct or judgment.  The prestige of judicial office shall not be used or lent to advance the private interests of others, nor convey or permit others to convey the impression that they are in a special position to influence the judge.

Rule 2.04 – A judge shall refrain from influencing in any manner the outcome of litigation or dispute pending before another court of administrative agency.

  • A judge must be beyond suspicion. He has the duty not only to render a just and impartial decision but also to render it in such a manner as to be free from any suspicion as to its fairness and impartiality, and also as to his integrity.
  • Every litigant is entitled to nothing short of the cold neutrality of an independent, wholly free, disinterested and impartial tribunal.
  • A judge must be temperate in his language and must not lose his cool.
  • A judge is prohibited from making public statements in the media regarding a pending case so as not to arouse public opinion for or against a party (violates the Principle of Subjudice)
  • Judges must not use or permit the use of any undignified/self-laudatory statement regarding their qualifications or legal services.
  • A judge must not allow anyone to ride on his prestige. He should not create the impression that someone or some people are so close to him to enjoy his favor.

CANON 3 –  A judge should perform official duties honestly, and with impartiality and diligence.

 

ADJUDICATIVE RESPONSIBILITIES

Rule 3.01 – A judge shall be faithful to the law and maintain professional competence.

  • Judge should be conversant with the law and its amendments.

Rule 3.02 – In every case, a judge shall endeavor diligently to ascertain the facts and the applicable law unswayed by partisan interest, public opinion or fear of criticism.

  • Finding of facts must be based not on the personal knowledge of the judge but upon the evidence presented.
  • If the personal view of the judge contradicts the applicable doctrine promulgated by the Supreme Court, nonetheless, he should decide the case in accordance with that doctrine and not in accordance with his personal views.  He is however not prohibited from stating his own opinion on the matter if he wants to invite constructive attention thereto.

Rule 3.03 – A judge shall maintain order and proper decorum in the courts.

Rule 3.04 – A judge should be patient, attentive, and courteous to lawyers, especially the inexperienced, to litigants, witnesses, and others appearing before the court.  A judge should avoid unconsciously falling into the attitude of mind that the litigants are made for the courts, instead of the courts for the litigants.

  • Conduct of trial must not be attended with fanfare and publicity; not permit pictures or broadcasting.
  • Must use temperate language; should not make insulting remarks.

Rule 3.05 – A judge shall dispose of the court’s business promptly and decide cases within the required periods.

Rule 3.06 – While a judge may, to promote justice, prevent waste of time or clear up some obscurity, properly intervene in the presentation of evidence during the trial, it should always be borne in mind that undue interference may prevent the proper presentation of the cause of the ascertainment of the truth.

 Rule 3.07 – A judge should abstain from making public comments on any pending or impending case and should require similar restraint on the part of court personnel.

  • Judge should take notes and rely on transcripts.
  • Judge is not excused if stenographer is overloaded. He is excused for delay on grounds of multifarious motions; appellate court enjoins judge from further proceeding; heavy caseload.

 

ADMINISTRATIVE RESPONSIBILITIES

Rule 3.08 – A judge should diligently discharge administrative responsibilities, maintain professional competence in court managements, and facilitate the performance of the administrative functions of other judges and court personnel.

Rule 3.09 – A judge should organize and supervise the court personnel to ensure the prompt and efficient dispatch of business, and require at all times the observance of high standards of public service and fidelity.

Rule 3.10 – A judge should take or inititate appropriate disciplinary measures against lawyers or court personnel for unprofessional conduct of which the judge may have become aware.

Rule 3.11 – A judge should appoint commissioners, receivers, trustees, guardians, administrators and others strictly on the basis of merit and qualifications, avoiding nepotism, and favoritism. Unless otherwise allowed by law, the same criteria should be observed in recommending appointment of court personnel.  Where the payment of compensation is allowed, it should be reasonable and commensurate with the fair value of services rendered.

  • Ascertain that the records of all cases are properly kept and managed.
  • Maintain a checklist on the cases submitted for decision with a view to know exactly the specific deadlines for the resolution/decision of the said cases.
  • Loss of records: gross negligence
  • Should be a good manager.
  • May not summarily suspend a lawyer for indirect contempt.
  • Judge has the power to appoint, but the power to dismiss court employees is vested in the Supreme Court.
  • If knowingly nominate or appoint to any public office any person lacking the legal qualification therefor, shall be guilty of unlawful appointment punishable with imprisonment and fine (Art 244, RPC).

 

DISQUALIFICATIONS

Rule 3.12 – A judge should take no part in proceeding where the judge’s impartiality might reasonably be questioned.  These cases include, among others, proceedings where;

  1. a.      the judge has personal knowledge of disputed evidentiary facts concerning the proceeding;
  2. b.     the judge served as executor, administrator, guardian, trustee or lawyer in the case or matters in controversy, or a former associate of the judge served as counsel during their association, or the judge or lawyer was a material witness therein;
  3. c.      the judge’s ruling in a lower court is subject of review
  4. d.     the judge is related by consanguinity or affinity to a party litigant within the 6th degree or to counsel within the 4th degree;
  5. e.      the judge knows that the judge’s spouse  or child has a financial interest, as heir, legatee, creditor, fiduciary, or otherwise, in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.

In every instance the judge shall indicate the legal reason for inhibition.

  • Petition to disqualify judge must be filed before rendition of judgment by the judge; can’t be raised first time on appeal.
  • If a judge denies petition for disqualification, the ultimate test: is whether or not the complaint was deprived of a fair and impartial trial. Remedy: seek new trial.

REMITTAL OF DISQUALIFICATION

Rule 3.13 – A judge disqualified by the terms of Rule 3.12 may, instead of withdrawing from the proceeding, disclose on the record the basis of disqualification.  If, based on such disclosure, the parties and lawyers independently of the judge’s participation, all agree in writing that the reason for the inhibition is immaterial or insubstantial, the judge may then participate in the proceeding.  The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceeding.

 

CANON 4 – A judge may, with due regard to official duties, engage in activities to improve the law, the legal system and the administration of justice.

Rule 4.01 – A judge may, to the extent that the following activities do not impair the performance of judicial duties or case doubt on the judge’s impartiality:

  1. a.      speak, write, lecture, teach or participate in activities concerning the law, the legal system and the administration of justice;
  2. b.     appear at a public hearing before a legislative or executive body on matters concerning the law, the legal system or the administration of justice and otherwise consult with them on matters concerning the administration of justice;
  3. c.      serve on any organization devoted to the improvement of the law, the legal system or the administration of justice.
  • Decision to engage in these activities depends upon the sound judgement of the judge.
  • If has not enough time to spare (such as when caseload is too heavy) prudence dictates, he must concentrate on his judicial duties.
  • If a judge has time to spare, the best attitude to take is to participate in activities which are closely related to the performance of his duties and which do not consume much of his time and energy.

CANON 5 – A judge should regulate extra-judicial activities to minimize the risk of conflict with judicial activities.

VOCATIONAL, CIVIC AND CHARITABLE ACTIVITIES

Rule 5.01 – A judge  may engage in the following activities provided that they do not interfere with the performance of judicial duties or detract from the dignity of the courts:

  1. a.      write, lecture, teach and speak on non-legal subjects;
  2. b.     engage in the arts, sports, and other special recreational activities;
  3. c.      participate in civic and charitable activities;
  4. d.     serve as an officer, director, trustee, or non-legal advisor of a non-profit or non-political, educational, religious, charitable, fraternal, or civic organization.
  • If they opt to engage in such activities, they must learn how to manage their time in such manner that their judicial responsibilities do not falter and suffer.

FINANCIAL ACTIVITIES

Rule 5.02 – A judge shall refrain from financial and business dealings that tends to reflect adversely on the court’s impartiality, interfere with the proper performance of judicial activities, or increase involvements with lawyers or persons likely to come before the court. A judge should so manage investments and other financial interests as to minimize the number of cases giving grounds for disqualification.

Rule 5.03 – Subject to the provisions of the proceeding rule, a judge may hold and manage investments but should not serve as an officer, director, manager, advisor, or employee of any business except as director of a family business of the judge.

Rule 5.04 – A judge or any, immediate member of the family, shall not accept a gift, bequest, favor or loan from anyone except as may be allowed by law.

Rule 5.05 – No information acquired in a judicial capacity shall be used or disclosed by a judge in any financial dealing or for any other purpose not related to judicial activities.

  • Prohibitions under the Revised Penal Code:

Art 215. Prohibited Transaction. The penalty of prision correccional in its minimum period or a fine ranging from P200 to P1000 or both, shall be imposed upon any appointive public officer who, during his incumbency, shall directly or indirectly become interested in any transaction of exchange or speculation within the territory subject to his jurisdiction.

Art 216. Possession of prohibited interest by a public officer. The penalty of arresto mayor in its medium period to prision correccional in its minimum period, or a fine ranging from P200 to P1000, or both, shall be imposed upon a public officer who directly and indirectly, shall become interested in any contract or business which it is his official duty to intervene.

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

XXX

(h) Directly or indirectly having financial or pecuniary interest in any business, or contract or transaction in connection with which here intervenes or takes part in his official capacity or in which he is prohibited by the Constitution or by any law from having any interest, (Sec. 3(h), RA 3019)

  • General Rule: Avoid taking or receiving loans from litigants.
  • Exception (AGCPA): Unsolicited gifts or presents of small value offered or given as a mere ordinary token of gratitude or friendship according to local custom or usage.

FIDUCIARY ACTIVITIES

Rule 5.06 – A judge should not serve as the execution administrator, trustee, guardian, or other fiduciary, except for the estate, trust, or person of a member of the immediate family and then only if such service will not interfere with the proper performance of judicial duties. “member of immediate family” shall be limited to the spouse  and relatives within the second degree of consanguinity.  As a family fiduciary, a judge shall not:

  1. a.      serve in proceedings that might come before the court of said judge; or
  2. b.     act as such contrary to Rule 5.02 to 5.05

PRACTICE OF LAW AND OTHER PROFESSION

Rule 5.07 – A judge shall not engage in the private practice of law.  Unless prohibited by the Constitution or law, a judge may engage in the practice of any other profession provided that such practice will not conflict or tend to conflict with judicial functions.

  • Includes preparation of pleadings or papers in anticipation of litigation, and giving of legal advice to clients or persons needing the same.
  • Not engage in notarial work. Exception: “Notaries public ex-oficio” – may engage only in notarization of documents connected with the exercise of their official functions. Provided, all notarial fees on account of the government and certification attesting to lack of any lawyer or Notary Public.
  • Sworn statement of assets and liabilities including statement of amounts and services of income, the amount of personal and family expenses and the amount of income tax is paid for the next preceding calendar year.

FINANCIAL DISCLOSURE

Rule 5.08 – A judge shall make full financial disclosure as required by law.

EXTRA-JUDICIAL APPOINTMENTS

Rule 5.09 – A judge shall not accept appointment or designation to any agency performing quasi-judicial or administrative functions.

POLITICAL ACTIVITIES

Rule 5.10 – A judge is entitled to entertain personal views on political questions.  But to avoid suspicion of political partisanship, a judge shall not make political speeches, contribute to party funds, publicly endorse candidates for political office or participate in other partisan political activities.

COMPLIANCE WITH THE CODE OF JUDICIAL CONDUCT

All judges shall strictly comply with this code

 

DATE OF EFFECTIVITY

This code, promulgated on 5 September 1989, shall take effect on 20 October 1989.

  • An administrative case against a judge is not necessarily dismissed by the withdrawal by or desistance of the complainant.
  • Retirement, resignation or promotion of a judge does not necessarily render moot and academic all the cases against him.
  • Civil Liabilities Re Official Functions:
  1. obstructs, defeats, violates or in any manner impedes or impairs the civil rights.
  2. Willful or negligent rendition of a decision which causes damages to another
  3. For damages: rendering/neglecting to decide a case causing loss to a party.
  • Civil Code Disabilities:

Rule:  Can’t purchase properties subject of litigation is his court.

Exception: Does not apply where the subject property was not acquired from any of the parties to the case, nor will it apply when the litigation is already finished.

But… while in a technical sense, the judge may not have acquired the property in litigation in a case before him, nevertheless, it is improper for him to have done so under the canons of judicial ethics.

  • Donations made to a judge by reason of his office are void.
  • Taking advantage of his position to boost his candidacy amounts to gross misconduct.
  • Cannot serve as officers or advisers of political groups.

Criminal Liabilities of Judges

  • Malfeasance under the RPC:
  1. Knowingly Rendering Unjust Judgment (Art. 204, RPC)

            The elements are:

  1. that the officer is a judge;
  2. that he renders judgment in a case submitted to him for decision;
  3. that the judgment is unjust;
  4. the judge knows that his judgment is unjust.
  1. Judgment Rendered Through Negligence (Art. 205, RPC)

            The elements are:

  1. that the offender is a judge;
  2. that he renders judgment in a case submitted to him for decision
  3. that the judgment is manifestly unjust;
  4. that is due to his inexcusable negligence or ignorance.

Notaries Public 

  • Powers and Duties of a Notary Public

Section 241 of the Revised Administrative Act enumerates the General Powers of a Notary Public:

  1. To administer all oaths and affirmations provided for by law:
    1. in all matters incident to his notarial office;
    2. in the execution of:
      1. affidavits
      2. depositions
      3. other documents requiring an oath
  1. To receive proof or acknowledgment of all writings relating to commerce, such as
    1. ships, vessels or boats:
      1. Bills of Exchange
      2. Bottomries
      3. Mortgages
      4. Hypothecations
      5. charter parties or affreightments
      6. letters of attorney
      7. land/buildings or interest therein:
        1. deeds
        2. mortgages
        3. transfers and assignments
        4. other writings as are commonly provided or acknowledged before notaries.

3. To act as magistrate in the writing of affidavits or depositions

4. To make declarations and certify the truth thereof under his seal of office,   concerning all matters done by him in virtue of his office.

  • The law imposes on the notary public two kinds of duties:
  1. execution of formalities required by law; and
  2. verification of the capacity and identity of the parties as well as the legality of the act executed.
  • Extent of Jurisdiction of a Notary Public:

Under the Notarial Law, the jurisdiction of a notary public in general, used to be CO-EXTENSIVE with the province for which he was commissioned; and for the notary public in the City of Manila, the jurisdiction is CO-EXTENSIVE with said city. Circular 8 of 1985 however, clarified further that the notary public may be commissioned for the same term only by one court within the Metro Manila region.

  • Q: Must a Notary Public always be a LAWYER?

A: General Rule: Only those admitted to the practice of law are qualified to be notaries public.

Exception: When there are no persons with the necessary qualifications OR where there are qualified persons but refuse appointment. In which case, the following persons may be appointed as notaries:

  1. those who have passed the studies of law in a reputable university
  2. a clerk or deputy clerk of court for a period of not less than two years
  • Effects of NOTARIZATION
  1. The notary, in effect, proclaims to the world:
    1. that all the parties therein personally appeared before him
    2. that they are personally known to him
    3. that they are the same persons who executed the instrument
    4. that he inquired into the voluntariness of the execution of the instrument; and
    5. that they acknowledged personally before him that they voluntarily and freely executed the same
    6. 2.      Converts a private document into a public one and renders it admissible in court without further proof of its authenticity. (Joson vs. Baltazar)
    7. 3.      Documents enjoy a presumption of regularity. It constitutes prima facie evidence of the facts which give rise to their execution and of the date of said execution, but not of the truthfulness of the statements. The reason for the former presumption is that the law assumes that the act which the officer witnesses and certified to or the date written by him are not shown to be false since notaries are public officers.

 

Source:

Legal Ethics Reviewer

Ateneo

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Legal Ethics – Special Disabilities of Lawyers and Judicial Ethics

Special Disabilities of Lawyers

            The following persons are prohibited from acquiring property under litigation by reason of the relation of trust or their peculiar control either directly or indirectly and even at a public or judicial auction:

  1. 1.      guardians;
  2. 2.      agents
  3. 3.      administrators
  4. 4.      public officers and employees
  5. 5.      judicial officers and employees
  6. 6.      prosecuting attorneys and lawyers (Art 1491, NCC)
  7. 7.      those specially disqualified by law (Rubias vs. Batilles, 31 SCRA 120)
  • Elements of Article 1491 (Civil Code; Laig vs. CA, 82 SCRA 294)
  1. there must be an attorney-client relationship
  2. the property or interest of the client must be in litigation
  3. the attorney takes part as counsel in the case
  4. the attorney by himself or through another purchases such property or interest during the pendency of the litigation.
  • General Rule: A lawyer may not purchase, even at a public or judicial auction, in person or through the mediation of another, any property or interest involved in any litigation in which he may take part by virtue of his profession. This prohibition is entirely independent of fraud and such need not be alleged or proven.

  Effects:

  1. malpractice on the part of the lawyer and may be disciplined for misconduct
  2. transaction is null and void
  • Exceptions:
  1. property is acquired by lawyer through a contingent fee arrangement
  2. any of the 4 elements of Art. 1491 is missing

 

Judicial Ethics

  • Sources of Judicial Ethics:
  1. Code of Judicial Conduct
  2. Constitution (Art VIII, Art IX and Art III)
  3. New Civil Code (Articles 9, 20, 27, 32, 35, 739, 1491, 2005, 2035, 2046)
  4. Revised Rules of Court (Rules 71, 135, 137, 139B, 140)
  5. Revised Penal Code (Articles 204, 205, 206, 207)
  6. Anti-Graft and Corrupt Practices Act (RA 3019)
  7. Canons of Judicial Ethics (Adm. Order No. 162)
  8. Code of Professional Responsibility
  9. Judiciary Act of 1948 (RA 296)

10. Judiciary Reorganization Act of 1930 (BP129)

11. Supreme Court Decisions

12. Foreign Decisions

13. Opinions of authorities

14. Other Statutes

15. SC Circulars

  • Court –a board or other tribunal which decides a litigation or contest (Hidalgo v. Manglapus, 64 OG 3189)
  • Judge –a public officer who, by virtue of his office, is clothed with judicial authority, a public officer lawfully appointed to decide litigated questions in accordance with law.
  • De Jure Judge –one who is exercising the office of judge as a matter of right; and officer of a court who has been duly and legally appointed, qualified and whose term has not expired.
  • De Facto Judge –an officer who is not fully vested with all the powers and duties conceded to judges, but is exercising the office of a judge under some color of right.
  • Qualification of Supreme Court Members:
  1. Natural born citizen of the Philippines;
  2. At least 40 years of age;
  3. Must have been at least for 15 years, a judge of a lower court or engaged in the practice of law (Sec 7(2), Art. VIII, 1987 Constitution).

 

Source:

Legal Ethics Reviewer

Ateneo

Legal Ethics – Liabilities of Lawyers & Administrative Liabilities of Lawyers

Liabilities of Lawyers

  • Civil Liability
  1. Client is prejudiced by lawyer’s negligence or misconduct
  2. Breach of fiduciary obligation
  3. Civil liability to third persons
  4. Libelous words in pleadings; violation of communication privilege
  5. Liability for costs of suit (treble costs) – when lawyer is made liable for insisting on client’s patently unmeritorious case or interposing appeal merely to delay litigation
  • Criminal Liability
  1. Prejudicing client through malicious breach of professional duty
  2. Revealing client’s secrets
  3. Representing adverse interests
  4. Introducing false evidence
  5. Misappropriating client’s funds (estafa)
  • Contempt of Court

a.  Kinds of Contempt:

  • Direct – consists of misbehavior in the presence of or so near a court or judge as to interrupt or obstruct the proceedings before the court or the administration of justice; punished summarily.
  • Indirect – one committed away from the court involving disobedience of or resistance to a lawful writ, process, order, judgment or command of the court, or tending to belittle, degrade, obstruct, interrupt or embarrass the court.
  • Civil- failure to do something ordered by the court which is for the benefit of a party.
  • Criminal – any conduct directed against the authority or dignity of the court.

 b. Acts Constituting Contempt:

  1. Misbehavior
  2. Disobedience
  3. Publication concerning pending litigation
  4. Publication tending to degrade the court; disrespectful language in pleadings
  5. Misleading the court or obstructing justice
  6. Unauthorized practice of law
  7. Belligerent attitude
  8. Unlawful retention of client’s funds

 

Administrative Liabilities of lawyers

  • Main Objectives of Disbarment and Suspension:
  1. to compel the attorney to deal fairly and honestly with his clients;
  2. to remove from the profession a person whose misconduct has proved him unfit to be entrusted with the duties and responsibilities belonging to the office of an attorney;
  3. to punish the lawyer;
  4. to set an example or a warning for the other members of the bar;
  5. to safeguard the administration of justice from incompetent and dishonest lawyers;
  6. to protect the public

 

  • Characteristics of Disbarment Proceedings:
  1. Neither a civil nor criminal proceedings;
  2. Double jeopardy cannot be availed of in a disbarment proceeding;
  3. It can be initiated motu propio by the SC or IBP. It can be initiated without a complaint;
  4. It is imprescriptible;
  5. Conducted confidentially;
  6. It can proceed regardless of the interest of the lack thereof on the part of the complainant;
  7. It constitutes due process.

 

  • Grounds for Disbarment or Suspension:
  1. deceit;
  2. malpractice or other gross misconduct in office;
  3. grossly immoral conduct;
  4. conviction of a crime involving moral turpitude;
  5. violation of oath of office;
  6. willful disobedience of any lawful order of a superior court;
  7. corrupt or willful appearance as attorney for a party to case without authority to do so (Sec. 27, Rule 138, RRC)

 

  • Procedure for Disbarment
  1. Institution either by:
  2. the Supreme Court, motu proprio, or
  3. the IBP, motu proprio, or
  4. upon verified complaint by any person
  5. Six copies of the verified complaint shall be filed with the Secretary of the IBP or Secretary of any of its chapter and shall be forwarded to the IBP Board of Governors.
  6. Investigation by the National Grievance Investigators.
  7. Submission of investigative report to the IBP Board of Governors.
  8. Board of Governors decides within 30 days.
  9. Investigation by the Solicitor-General
  10. SC renders final decision for disbarment/suspension/dismissal.

 

Quantum of Proof Required: CLEAR, CONVINCING & SATISFACTORY evidence.

Burden of Proof:Rests on the COMPLAINANT, the one who instituted the suit

 

  • Officers authorized to investigate Disbarment cases:
  1. Supreme Court
  2. IBP through its Commission on Bar Discipline or authorized investigator
  3. Office of the Solicitor General

 

  • Mitigating Circumstances in Disbarment:
  1. Good faith in the acquisition of a property of the client subject of litigation (In re: Ruste, 70 Phil. 243)
  2. Inexperience of the lawyer (Munoz v. People, 53 SCRA 190)
  3. Age (Lantos v. Gan, 196 SCRA 16)
  4. Apology (Munoz v. People, 53 SCRA 190)

Lack of Intention to slight or offend the Court (Rhum of the Philippines, Inc. v. Ferrer, 20 SCRA 441).

 

Source:

Legal Ethics Reviewer

Ateneo

 

Legal Ethics Chapter IV – The Lawyer and the Client

Chapter IV

The Lawyer and the Client

CANON 14 – A Lawyer shall not refuse his services to the needy.

Rule 14.01 – A lawyer shall not decline to represent a person solely on account of the latter’s race, sex, creed or status of life, or because of his own opinion regarding the guilt of said person.

Rule 14.02 – A lawyer shall not decline, except for serious and sufficient cause, an appointment as counsel de oficio or as amicus curae or a request from the Integrated Bar of the Philippines or any of its chapters for rendition of free legal aid.

Rule 14.03 – A lawyer may refuse to accept representation of a client if:

  1. a.      He is not in position to carry out the work effectively and competently.
  2. b.     He labors under conflict of interest between him and the prospective client or between a present client and the prospective client.

Rule 14.04 – A lawyer who accepts the cause of a person unable to pay his professional fees shall observe the same standard of conduct governing his relations with paying clients.

  • Duties to Client:
  1. owe utmost learning and ability
  2. maintain inviolate the confidence of the client
  3. disclose all circumstances/interest regarding the controversy
  4. undivided loyalty
  5. not reject cause of defenseless and oppressed
  6. candor, fairness and loyalty
  7. hold in trust money or property
  8. respond with zeal to the cause of the client
  • Appointment of Amicus Curae
  1. by application to the judge
  2. the judge on his own initiative may invite the lawyer
  3. no right to interfere with or control the condition of the record, no control over the suit
  • Cannot refuse on the ground of insufficient of compensation or lack of it

 

CANON 15 – A lawyer shall observe candor, fairness and loyalty in all his dealings and transactions with his client.

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

Rule 15.02 – A lawyer shall be bound by the rule on privilege communication in respect of matters disclosed to him by a prospective client.

 

Rule on Revealing Client’s Identity

  • General Rule:  A lawyer may not invoke privilege communication to refuse revealing a client’s identity. (Regala vs. Sandiganbayan, 262 SCRA 122, September 20, 1996)

Exceptions:

  1. When by divulging such identity, it would implicate the client to that same controversy for which the lawyer’s services were required.
  2. It would open client to civil liability
  3. The disclosure of such identity will provide for the only link in order to convict the accused, otherwise, the government has no case.
  • Requisites of Privileged Communication:
  1. Atty.-client relationship (or a kind of consultancy relationship with a prospective client
  2. Communication made by client to lawyer in the course of lawyer’s professional employment
  3. Communication is intended to be confidential (see Rule 130, Sec. 21(b), Rules of Court)
  • When communication is not privileged:
  1. after pleading has been filed
  2. communication intended by the client to be sent to a third person through his counsel (it loses its confidential character as soon as it reaches the hands of third person)
  • Even if the communication is unprivileged, the rule of ethics prohibits him from voluntarily revealing or using to his benefit or to that of a third person, to the disadvantage of the client, the said communication unless the client consents thereto.
  • This is applicable to students under the Student Practice Law Program

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.

 

Rule on Conflicting Interest

            It is generally the rule based on sound public policy that an attorney cannot represent adverse interest. It is highly improper to represent both sides of an issue. The proscription against representation of conflicting interest finds application where the conflicting interest arises with respect to the same general matter and is applicable however slight such adverse interest may be. It applies although the attorney’s intention and motives were honest and he acted in good faith. However, representation of conflicting interest may be allowed where the parties consent to the representation after full disclosure of facts. (Nakpil vs. Valdez, 286 SCRA 758).

  • General Rule:An attorney cannot represent adverse interest.
  • Exception:Where the parties consent to the representation after full disclosure of facts.
  • The TEST in determining Conflicting Interest: The test is whether or not the acceptance of a new relation will prevent an attorney from the full discharge of his duty of individual fidelity and loyalty to his client or invite suspicion of unfaithfulness in double-dealing in the performance thereof.(Tiana vs. Ocampo)

Rule 15.04 – A lawyer may, with the written consent of all concerned, act as mediator, conciliator or arbitrator in settling disputes.

Rule 15.05 – A lawyer, when advising his client, shall give a candid and honest opinion on the merits and probable results of the client’s case, neither overstating nor understating the prospects of the case.

Rule 15.06 – A lawyer shall not state nor imply that he is able to influence any public official, tribunal or legislative body.

Rule 15.07 – A lawyer shall impress upon his client compliance with the laws and the principles of fairness.

Rule 15.08 – A lawyer who is engaged in another profession or occupation concurrently with the practice of law shall make clear to his client whether he is acting as a lawyer or in another capacity.

  • Lawyers should refrain from giving any advice unless they have obtained sufficient understanding of their client’s cause.  A careful investigation and examination of the facts must  first be had before any legal opinion be given by the lawyer to the client.
  • To avoid breach of legal ethics, a lawyer should keep any business, in which is engaged in concurrently with the practice of law, entirely separate and apart from the latter.

 

CANON 16 – A lawyer shall hold in trust all moneys and properties of his client that may come into his possession.

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

Rule 16.02 – A lawyer shall keep the funds of each client separate and apart from his own and those of others kept by him.

Rule 16.03 – A lawyer shall deliver the funds and property of his client when due or upon demand.  However, he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client.  He shall also have a lien to the same extent on all judgments and executions he has secured for his client as provided for the Rules of Court.

            Attorneys’ Liens – an attorney shall have a lien upon the funds, documents and papers of his client which have lawfully come into his possession and may retain the same until his lawful fees and disbursements have been paid, and may apply such finds to the satisfaction thereof.  He shall also have a lien to the same extent upon all judgements for the payment of money, and executions issued in pursuance of such judgements which he has secured in a litigation of his client, from and after the time when he shall have caused a statement of his claim of such lien to be entered upon the records of the court rendering such judgement, or issuing such execution, and shall have caused written notice thereof to be delivered to his client and to the adverse party; and he shall have the same right and power over such judgments and executions as his client would have to enforce his lien and secure the payment of his fees and disbursements.  (Sec, 37, Rule 138, RRC)

Rule 16.04 – A lawyer shall not borrow money from his client unless the client’s interests are fully protected by the nature of the case or by independent advice.  Neither shall a lawyer lend money to a client except, when in the interest of justice, he has to advance necessary expenses in the legal matter he is handling for the client.

  • Attorney’s lien is not an excuse for non-rendition of accounting
  • Cannot disburse client’s money to client’s creditors without authority.
  • Failure to deliver upon demand gives rise to the presumption that he has misappropriated the funds for his own use to the prejudice of the client and in violation of the trust reposed in him.
  • Notify client if retaining lien shall be implemented
  • When a lawyer enforces a charging lien against his client, the client-lawyer relationship is terminated.
  • The principle behind Rule 16.04 is to prevent the lawyer from taking advantage of his influence over the client or to avoid acquiring a financial interest in the outcome of the case.

 

CANON 17 – A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him.

  • No fear of judicial disfavor or public popularity should restrain him from full discharge of his duty.
  • It is the duty of the lawyer at the time of retainer to disclose to the client all the circumstances of his relations to the parties and any interest in, or connection with, the controversy which might influence the client in the selection of counsel.
  • The lawyer owes loyalty to his client even after the relation of attorney and client has terminated.  It is not good practice to permit him afterwards to defend in another case other persons against his former client under the pretext that the case is distinct from and independent of the former case.

 

CANON 18 – A lawyer shall serve his client with competence and diligence.

Rule 18.01 – A lawyer shall not undertake a legal service which he knows or should know that he is not qualified to render.  However, he may render such service if, with the consent of his client, he can obtain as collaborating counsel a lawyer who is competent on the matter.

Rule 18.02 – A lawyer shall not handle any legal matter without adequate preparation.

Rule 18.03 – A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable.

Rule 18.04 – A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the client’s request for information.

  • Competence: sufficiency of lawyer’s qualification to deal with the matter in question and includes knowledge and skill and the ability to use them effectively in the interest of the client.
  • A lawyer must keep himself constantly abreast with the trend of authoritative pronouncements and developments in all branches of law.
  • There must be extraordinary diligence in prosecution or defense of his client’s cause.
  • If a lawyer errs like any other human being, he is not answerable for every error or mistake, and will be protected as long as he acts honestly and in good faith to the best of his skill and knowledge.
  • Lawyer is not an insurer of the result in a case where he is engaged in the counsel.

 

CANON 19 – A lawyer shall represent his client with zeal within the bounds of the law.

Rule 19.01 – A lawyer shall employ only fair and honest means to attain the lawful objectives of his client and shall not present, participate in presenting or threaten to present unfounded criminal charges to obtain an improper advantage in any case or proceeding.

Rule 19.02 – A lawyer who has received information that his client has, in the course of the representation, perpetuated a fraud upon a person or tribunal, shall promptly call upon the client to rectify the same, and failing which he ha to terminate the relationship with such client in accordance with the Rules of Court.

Rule 19.03 – A lawyer shall not allow his client to dictate the procedure in handling the case.

  • General Rule:  Negligence binds client

Exception:  Reckless imprudence (deprives client of due process)

Results in outright deprivation of one’s property through technicality

  • Must not present in evidence any document known to be false; nor present a false witness.
  • Negative pregnant is improper since it is an ambiguous pleading (improper if in bad faith and the purpose is to confuse the other party)

In defense: present every defense the law permits.   

  • Lawyer should do his best efforts to restrain and to prevent his clients from perpetrating acts which he himself ought not to do. Or else, withdraw.  But lawyer shall not volunteer the information about the client’s commission of fraud to anyone – counter to duty to maintain client’s confidence and secrets.

 

CANON 20 – A lawyer shall charge only fair and reasonable fees.

Rule 20.01 – A lawyer shall be guided by the following factors in determining his fees:

  1. a.      The time spent and the extent of the services rendered or required.
  2. b.     The novelty and difficulty of the questions involved;
  3. c.      The importance of the subject matter;
  4. d.     The skill demanded;
  5. e.      The probability of losing other employment as a result of acceptance of the proffered case;
  6. f.       The customary charges for similar services and the schedule of fees of the IBP chapter to which he belongs;
  7. g.     The amount involved in the controversy and the benefits resulting to the client from the services;
  8. h.     The contingency or certainty of compensation;
  9. i.        The character of the employment, whether occasional or established; and
  10. j.        The professional standing of the lawyer.
  • 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
  • Attorney’s Fees
  1. Ordinary attorney’s fee -the reasonable compensation paid to a lawyer by his client for the legal services he has rendered to the latter. The basis for this compensation is the fact of his employment by and his agreement with the client.
  2. Extraordinary attorney’s fee – an indemnity for damages ordered by the court to be paid by the losing party in litigation. The basis for this is any of the cases provided for by law where such award can be made, such as those authorized in Article 2208 of the Civil Code, and is payable NOT to the lawyer but to the client, unless they have agreed that the award shall pertain to the lawyer as additional compensation or as part thereof.
  • How attorney’s fees may be claimed by the lawyer:
  1. It may be asserted either in the very action in which the services of a lawyer had been rendered or in a separate action.
  2. A petition for attorney’s fees may be filed before the judgment in favor of the client is satisfied or the proceeds thereof delivered to the client.
  3. The determination as to the propriety of the fees or as to the amount thereof will have to be held in abeyance until the main case from which the lawyer’s claim for attorney’s fees may arise has become final. Otherwise, the determination of the courts will be premature.
  • Kinds of Retainer Agreements on Attorney’s 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
  • Quantum Meruit –it means “as much as he deserves”, and is used as the basis for determining the lawyer’s 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 attorney’s fees agreed upon between the lawyer and the client;
  2. when although there is a formal contract for attorney’s fees, the stipulated fees are found unconscionable or unreasonable by the court.
  3. When the contract for attorney’s 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 attorney’s fees.
  • Skill: length of practice is not a safe criterion of professional ability.

Rule 20.02 – A lawyer shall, in cases of referral, with the consent of the client, be entitled to a division of fees in proportion to the work performed and responsibility assumed.

Rule 20.03 – A lawyer shall not, without the full knowledge and consent of the client, accept any fee, reward, costs, commission, interest, rebate or forwarding allowance or other compensation whatsoever related to his professional employment from anyone other than the client.

Rule 20.04 – A lawyer shall avoid controversies with clients concerning his compensation and shall resort to judicial action only to prevent imposition, injustice or fraud.

  • Unauthorized counsel: Not entitled to attorney’s fees.
  • Stipulation regarding payments of attorney’s fees is not illegal/immoral and is enforceable as the law between the parties provided such stipulation does not contravene law, good morals, etc.
  • When counsel cannot recover full amount despite written contract for attorneys’ fees:
  1. When he withdraws before the case is finished
  2. justified dismissal of attorney (payment: in quantum meruit only)
  • The reason for the award of attorney’s fees must be stated in the text of the decision; otherwise, if it is stated only in the dispositive portion of the decision, the same must be disallowed on appeal.
  • Even though the interest or property involved is of considerable value, if the legal services rendered do not call for much efforts there is no justification for the award of high fees.
  • Champertous Contracts (void) – 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.
  • Compensation to an attorney for merely recommending another lawyer is improper (agents)
  • Attorney’s fees for legal services shared or divided to non-lawyer is prohibited. Division of fees is only for division of service or responsibility.
  • A lawyer should try to settle amicably any differences on the subject. A lawyer has 2 options. Judicial action to recover attorney’s fees:
  1. In same case: Enforce attorney’s fees by filing an appropriate motion or petition as an incident to the main action where he rendered legal services.
  2. In a separate civil action.

 

CANON 21 – A lawyer shall preserve the confidences and secrets of his client even after the attorney-client relation is terminated.

  • Confidence – refers to information protected by the attorney-client privilege (RRC)
  • Secret – refers to other information gained in the professional relationship that the client has regulated to be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client.
  • An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment; nor can an attorney’s secretary, stenographer, or clerk be examined, without the consent of the client and his employees, concerning any fact the knowledge of which has been acquired in such capacity (Rule 130, Sec. 21 (b), RRC)
  • The mere establishment of a client-lawyer relationship does not raise a presumption of confidentiality.  There must be an intent or that the communication relayed by the client to the lawyer be treated as confidential.

Rule 21.01 – A lawyer shall not reveal the confidences or secrets of his client except:

  1. a.      When authorized by the client after acquainting him of the consequences of the disclosure:
  2. b.     When required by law;
  3. c.      When necessary to collect his fees or to defend himself, his employees or associates or by judicial action.
  • When properly authorized after having been fully informed of the consequences to reveal his confidences/secrets, then there is a valid waiver.
  • Art. 209. Betrayal of Trust by an Attorney or Solicitor. Revelation of secrets. In addition to the proper administrative action, the penalty of prision correccional in its minimum period, or a fine ranging from P200 to P1000, or both, shall be imposed upon any attorney at law or solicitor who, by any malicious break of professional duty as inexcusable negligence or ignorance, shall prejudice his client, or reveal any of the secrets of the latter learned by him in his professional capacity.

The same penalty shall be imposed upon an attorney at law or solicitor who, having undertaken the defense of a client, or having received confidential information from said client in a case, shall undertake the defense of the opposing party in the same case, without the consent of his first client (Rule 209, RPC)

  • General Rule: Obligation to keep secrets covers only lawful purposes
  • Exceptions:
  1. announcements of intention of  a client to commit a crime
  2. client jumped bail and lawyer knows his whereabouts; or client is living somewhere under an assumed name
  3. communication involves the commission of future fraud or crime but crimes/frauds “already committed” falls within the privilege.

Rule 21.02 – A lawyer shall not, to the disadvantage of his client, use information acquired in the course of employment, nor shall he use the same to his own advantage or that of a third person, unless the client with full knowledge of the circumstances consents thereto.

Rule 21.03 – A lawyer shall not, without the written consent of his client, give information from his files to an outside agency seeking such information for auditing, statistical, bookkeeping, accounting, data processing, or any other similar purposes.

Rule 21.04 – A lawyer may disclose the affairs of a client of the firm to partners or associates thereof unless prohibited by the client.

Rule 21.05 – A lawyer shall adopt such measures as may be required to prevent those whose services are utilized by him, from disclosing or using confidences or secrets of the client.

Rule 21.06 – A lawyer shall avoid indiscreet conversation about a client’s affairs even with members of his family.

Rule 21.07 – A lawyer shall not reveal that he has been consulted about a particular case except to avoid possible conflict of interest.

  • Avoid committing calculated indiscretion – accidental revelation of secrets obtained in his professional employment.
  • Prohibition applies, even if the prospective client did not thereafter actually engage the lawyer.

 

CANON 22 – A lawyer shall withdraw his services only for good cause and upon notice appropriate in the circumstances.

Rule 22.01 – A lawyer may withdraw his services in any of the following cases:

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

Rule 22.02 – A lawyer who withdraws or is discharged shall subject to a retaining lien, immediately turn over all papers and property to which the client is entitled, and shall cooperate with his successor in the orderly transfer of the matter, including all information necessary for the proper handling of the matter.

 

Retaining Lien

Charging Lien

1. Nature Passive Lien: It cannot be actively enforced.  It is a general lien Active Lien: It can be enforced by execution.  It is a special lien.
2. Basis Lawful possession of papers, documents, property belonging to client. Securing of a favorable money judgment for the client.
3.  Coverage Covers only papers, documents and property in the lawful possession of the attorney by reason of his professional employment Covers all judgments for the payment of money and executions issued in pursuance of such judgments.
4. When Lien takes effect As soon as the attorney gets possession of the papers documents or property As soon as the claim for attorney’s fees had been entered into the records of the case
5.  Notice Client need not be notified to make it effective Client and adverse party must be notified to make it effective
6.  Applicability May be exercised before judgment or execution or regardless thereof. Generally, it is exercisable only when the attorney had already secured a favorable judgment for his client
  • In withdrawal as counsel for a client, 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.
  • An attorney who could not get the written consent of his client must make an application to the court, for the relation does not terminate formally until there is a withdrawal of record. Counsel has no right to presume that the court would grand his withdrawal and therefore must still appear on the date of hearing.
  • Requirements for the Substitution of Counsel in a Case:
  1. written application
  2. written consent of client
  3. written consent of attorney to be substituted
  4. if the consent of the attorney to be substituted cannot be obtained, there must be at least a proof of notice that the motion for substitution has been served upon him, in the manner prescribed by the rules.
  • A lawyer cannot recover compensation from one who did not employ or authorize his employment, however valuable the results of his services may have been to such person. In similar cases, no compensation when:
  1. client conducts himself in a manner which tends to degrade his attorney;
  2. client refuses to extend cooperation;
  3. client stops having contact with him.
  • The right of a client to terminate a lawyer is absolute.  Such termination may be with or without cause.

 

Source:

Legal Ethics Reviewer

Ateneo

 

Legal Ethics Chapter III – The Lawyer and the Courts

Chapter III

The Lawyer and the Courts

CANON 10 – A Lawyer owes candor, fairness and good faith to the court.

Rule 10.01 – A lawyer shall not do any falsehood, nor consent to the doing of any in court; nor shall he mislead or allow the court to be mislead by any artifice.

Rule 10.02 – A lawyer shall not knowingly misquote or misrepresent the contents of the paper, the language or the argument of opposing counsel, or the text of a decision of authority, or knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been approved.

Rule 10.03 – A lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice.

  • Judge-lawyer relationship:  based on independence and self-respect.
  • Lawyer’s duty to the court:
  1. respect and loyalty
  2. fairness, truth and candor
  3. no attempt to influence courts
  • Cases of falsehood:
  1. stating in the Deed of Sale that property is free from all liens and encumbrances when not so
  2. encashing check payable to a deceased cousin by signing the latter’s name on the check
  3. falsifying a power of attorney and using it in collecting the money due to the principal
  4. alleging in one pleading that the clients were mere lessees and in another pleading that the same clients were owners
  5. presenting falsified documents in court which he knows to be false
  6. filing false charges on groundless suits
  7. using in pleadings the IBP number of another lawyer
  8. unsolicited appearances
  9. use of fictitious residence certificate
  10. misquotation/misrepresentation
  11. citing a repealed or amended provision
  12. asserting a fact not proved
  13. verbatim reproductions down to the last word and punctuation mark
  14. slight typo mistake: not sufficient to place him in contempt

 

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.                                                          

Rule 11.01 – A lawyer shall appear in court properly attired.

  • A lawyer may NOT wear outlandish or colorful clothing to court.
  • As an officer of the court and in order to maintain the dignity and respectability of the legal profession, a lawyer who appears in court must be properly attired. Consequently, the court can hold a lawyer IN CONTEMPT of court if he does not appear in proper attire. Any deviation from the commonly accepted norm of dressing in court (barong or tie, not both) is enough to warrant a citing for contempt.

Rule 11.02 – A lawyer shall punctually appear at court hearings.

Rule 11.03 – A lawyer shall abstain from scandalous, offensive, or menacing language or behavior before the courts.

Rule 11.04 – A lawyer shall not attribute to a judge motives not supported by the record or having no materiality to the case.

Rule 11.05 – A lawyer shall submit grievances against a judge to the proper authorities already.

  • A lawyer is an officer of the court. He occupies a quasi-judicial office with a tripartite obligation to the courts, to the public and to his clients.
  • The public duties of the attorney take precedence over his private duties.  His first duty is to the courts. Where duties to the courts conflict with his duties to his clients, the latter must yield to the former.
  • Lawyers must be respectful not only in actions but also in the use of language whether in oral arguments or in pleadings.
  • Must exert efforts that others (including clients, witnesses) shall deal with the courts and judicial officers with respect.
  • Obedience to court orders and processes.
  • Criticisms of courts must not spill the walls of decency. There is a wide difference between fair criticism and abuse and slander of courts and judges.  Intemperate and unfair criticism is a gross violation of the duty to respect the courts.  It amounts to misconduct which subjects the lawyer to disciplinary action.
  • A mere disclaimer of any intentional disrespect by appellant is not a ground for exoneration.  His intent must be determined by a fair interpretation of the languages employed by him.  He cannot escape responsibility by claiming that his words did not mean what any reader must have understood them to mean.
  • Lawyer can demand that the misbehavior of a judge be put on record.
  • Lawyers must be courageous enough to expose arbitrariness and injustice of courts and judges.
  • A lawyer may submit grievances against judges in the Supreme Court, Ombudsman, or Congress (for impeachment of SC judges only).

 

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

Rule 12.01 – A lawyer shall not appear for trial unless he has adequately prepared himself with the law and the facts of his case, the evidence he will adduce and the order of its preference.  He should also be ready with the original documents for comparison with the copies.

  • Newly hired counsel: must acquaint himself with all the antecedent proceedings and processes that have transpired in the record prior to his takeover.
  • If presenting documentary exhibits, he must be ready with the originals for the purpose of comparison with copies thereof.

Rule 12.02 – A lawyer shall not file multiple actions arising from the same cause.

  • Forum shopping omission to disclose pendency of appeal or prior dismissal of his case by a court of concurrent jurisdiction.
  • Forum shopping exists when as a result of an adverse opinion in one forum:
  1. a party seeks favorable opinion (other than by appeal or certiorari) in another; or
  2. when he institutes two or more actions or proceedings grounded on the same cause, on the gamble that one or the other would make a favorable disposition (Benguet Electric Corp. vs. Flores, 287 SCRA 449, March 12, 1998).
  • The most important factor in determining the existence of forum-shopping is the VEXATION caused the courts and party-litigants by a party who asks different courts to rule on the same related causes, asking the same relief.
  • Forum shopping constitutes DIRECT CONTEMPT of court and may subject the offending lawyer to disciplinary action.

Rule 12.03 – A lawyer shall not, after obtaining extensions of time to file pleadings, memoranda or briefs, let the period lapse without submitting the same or offering an explanation for his failure to do so.

  • Asking for extension of time must be in good faith.

Rule 12.04 – A lawyer shall not unduly delay a case, impede the execution of a judgment or misuse court processes.

Rule 12.05 – A lawyer shall refrain from talking to his witness during a break or recess in the trial, while the witness is still under examination.

Rule 12.06 – A lawyer shall not knowingly assist a witness to misrepresent himself or to impersonate another.

Rule 12.07 – A lawyer shall not abuse, browbeat or harass a witness nor needlessly inconvenience him.

Rights and obligations of a witness –  a witness must answer questions, although his answer may tend to establish a claim against him.  However, it is the right of a witness:

  1. to be protected from irrelevant, improper, or insulting questions and from harsh or insulting demeanor;
  2. not to be detained longer than the interest of justice requires;
  3. not to be examined except only as to matters pertinent to the issue;
  4. not to give any answer which will tend to subject him to a penalty for an offense unless otherwise provided by law, or
  5. nor to give answer which will tend to degrade his reputation, unless it be to the very fact at issue or to a fact from which the fact in issue would be presumed.  But a witness must answer to the fact of his previous final conviction for an offense. (Rule 132, Sec. 3, RRC)

Rule 12.08 – A lawyer shall avoid testifying in behalf of his client, except:

  1. a.      on formal matters, such as the mailing, authentication or custody of an instrument and the like:
  2. b.     on substantial matters, in cases where his testimony is essential to the ends of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel.

 

CANON 13 – A lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appearance of influencing the court.

Rule 13.01 – A lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for, cultivating familiarity with judges.

Rule 13.02 – A lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party.

Rule 13.03 – A lawyer shall not brook or invite interference by another branch or agency of the government in the normal course of judicial proceedings.

  • The judge has the corresponding duty not to convey or permit others to convey the impression that they are in a special position to influence the judge.
  • Discussing cases with the judge privately should be avoided.
  • Test when public statement is contemptuous: The character of the act done and its direct tendency to prevent and obstruct the discharge of official duty.
  • To warrant a finding of “prejudicial publicity”, there must be an allegation and proof that the judges have been unduly influenced, not simply that they might be, by the “barrage” of publicity.
  • Lawyer is equally guilty as the client if he induces the latter to cause the publicity.

 

Source:

Legal Ethics Reviewer

Ateneo

Legal Ethics Chapter II – Lawyer and Society

Chapter II

The Lawyer and the Legal Profession

CANON 7 – A lawyer shall at all times uphold the integrity and dignity of the legal profession, and support the activities of the integrated bar.

Rule 7.01 – A lawyer shall be answerable for knowingly making false statements or suppressing a material fact, in connection with his application for admission to the bar.

Rule 7.02 – A lawyer shall not support application for admission to the bar by any person known to him or be unqualified in respect to character, education, or other relevant attribute.

Rule 7.03 – A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor should he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.

  • Upright character; not mere absence of bad character.
  • A lawyer must at all times conduct himself properly as not to put into question his fitness to practice law.
  • Avoid scandalous conduct; not only required to refrain from adulterous relationships or the keeping of mistress but must also behave himself as to avoid scandalizing the public by creating the belief that he is flouting those moral standards.

 

CANON 8 – A lawyer shall conduct himself with courtesy, fairness and candor towards his professional colleagues, and shall avoid harassing tactics against opposing counsel.

Rule 8.01 – A lawyer shall not, in his professional dealings, use language which is abusive, offensive or otherwise improper.

Rule 8.02 – A lawyer shall not, directly or indirectly, encroach upon the professional employment of another lawyer; however, it is the right of any lawyer without fear or favor, to give proper advice and assistance to those seeking relief against unfaithful or neglectful counsel.

  • It is the duty of a lawyer to inform the SC or the IBP of such malpractice to the end that the malpractitioner be properly disciplined.
  • Not to use in pleadings and in practice the following: disrespectful, abusive and abrasive language, offensive personalities, unfounded accusations or intemperate words tending to obstruct, embarrass or influence the court in administering justice.
  • Want of intention: not an excuse for the disrespectful language used. It merely extenuates liability.

 

CANON 9 – A lawyer shall not directly or indirectly assist in the unauthorized practice of law.

Rule 9.01 – A lawyer shall not delegate to any unqualified person the performance of any task which by law may only be performed by a member of the bar in good standing.

Rule 9.02 – A lawyer shall not divide or stipulate to divide a fee for legal services with persons not licensed to practice law, except:

  1. a.      Where there is a pre-existing agreement, with a partner or associate that , upon the latter’s death, money shall be paid over a reasonable period of time to his estate or to the persons specified in the agreement; or
  2. b.     Where a lawyer undertakes to complete unfinished legal business of a deceased lawyer; or
  3. c.      Where a lawyer or law firm includes non-lawyer employees in a retirement plan, even if the plan is based in whole or in part of a profit sharing arrangements.
  • Lawyer shall not negotiate with the opposite party who is represented by a counsel.  Neither should lawyer attempt to interview the opposite party and question him as to the facts of the case even if the adverse party is willing to do so.
  • Lawyer should deal only with counsel, even if there’s a fair agreement.
  • Lawyer may however interview any witness or prospective witness for the opposing side. Limitation: avoid influencing witness in recital and conduct.
  • A lawyer must not take as partner or associate one who:
  1. is not a lawyer
  2. is disbarred
  3. has been suspended from the practice of law
  4. foreign lawyer, unless licensed by the SC.
  • A lawyer cannot delegate his authority without client’s consent even to a qualified person.

 

Source:

Legal Ethics Reviewer

Ateneo

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

Civil Law – Estoppel

Estoppel  (Article 1431)

  1. An admission;
  2. Is rendered conclusive
  3. Upon the person making it; and
  4. Cannot be denied or disproved against the person relying thereon

 

Concept of Estoppel

Estoppel is a bar which precludes a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth, either by the acts of judicial or legislative officers or by his own deed or representation, either expressed or implied.

It concludes the truth in order to prevent fraud and falsehood, and imposes silence on a party only when in conscience and honesty he should not be allowed to speak.

 

Distinguished from Waiver

A waiver is a voluntary and intentional abandonment or relinquishment of a known right. It carries no implication of fraud. It involves the act or conduct of only one of the parties.

An equitable estoppel may arise, however, even where there is no intention on the part of the person estopped to relinquish any existing right and frequently carries the implication of fraud. It involves the conduct of both parties.

In Lopez v. Ochoa (L- 7955, May 30, 1958), the Supreme Court held that waiver and estoppel are frequently used as convertible terms. The doctrine of waiver belongs to the family of, is of the nature of, is based on, estoppel. The essence of waiver is estoppel and where there is no estoppel, there is no waiver. This is especially true where the waiver relied upon is constructive or implied from the conduct of a party.

 

Distinguished from Ratification

In ratification, the party is bound because he intended to be bound; in estoppel, the party is bound notwithstanding the fact that there was no such intention because the other party will be prejudiced and defrauded by his conduct unless the law treats him as legally bound.

 

Distinguished from  Fraud

Estoppel exists with or without a contract; fraud presupposes an attempt to enter into a valid agreement or contract.

While estoppel may raised as a defense, fraud may properly be a cause of action on account of the vitiated consent that it produces.

 

Admissions

A party may be estopped to insist upon a claim, assert an objection, or take a position which is inconsistent with an admission which he had previously made and in reliance upon which the other party has changed his position.

 

Silence or Inaction

This is sometimes referred to as estoppel by “standing by” or “laches.” Mere innocent silence will not work an estoppel. There must also be some element of turpitude or negligence connected with the silence by which another is misled to his injury. But one who invokes this doctrine of estoppel must show not only unjustified inaction but also some unfair injury would result to him unless the action is held barred.

Estoppel by acquiescence is closely related to estoppel by silence. In the former, a person is prevented from maintaining a position inconsistent with one in which he has acquiesced.

 

Nature of Laches

Laches is failure or neglect, for an unreasonable and unexplained length of time, to do that which, by exercising due diligence, could or should have been done earlier; it is negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned or declined to assert it.

 

Elements of Laches

  1. Conduct on the part of the defendant or of one under whom he claims, giving rise to the situation complained of;
  2. Delay in asserting complainant’s rights after he had knowledge of the defendant’s conduct and after he has had an opportunity to sue;
  3. Lack of knowledge or notice on the part of the defendant that the complainant would assert the right on which he bases his suit;
  4. Injury or prejudice to the defendant in the event relief is accorded to the complainant.

Laches and Prescription Distinguished

PRESCRIPTION

LACHES

Concerned with the fact of delay Concerned with the fact of delay
A matter of time Principally a question of inequity founded on some change in the condition of the property or the relation of the parties
Statutory Not statutory
Applies to law Applies to equity
Based on a fixed time Not based on a fixed time

 

Kinds of Estoppel

1.    Technical Estoppels

  1. Estoppel by record – the preclusion to deny the truth of matters set forth in a record, whether judicial or legislative, and also to deny the facts adjudicated by a court of competent jurisdiction

Example:  the conclusiveness of a judgment on the parties to a case

  1. Estoppel by deed – a bar which precludes one party to a deed and his privies from asserting as against the other party and his privies any right or title in derogation of the deed, or from denying the truth of any material facts asserted in it; a written instrument is necessary for there to be estoppel by deed

Æ    Some doctrines:

  1. If the deed or instrument is null and void because of the contract, there is no estoppel
  2. Ordinarily, the person estopped must be capacitated; but a minor is clever enough to deceive others, estoppel may result
  3. If a person, who is not a party to the instrument, notarizes the same, he is not in estoppel

2.   Equitable Estoppel or Estoppel in Pais

It arises when one by his acts, representations or admissions, or by his silence when he ought to speak out, intentionally or through culpable negligence, induces another to believe certain facts to exist, and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts.  It takes place in a situation where because if a party’s action or omission, he is denied the right to plead or prove an otherwise important fact.

This may be estoppel:

  1. by conduct or by acceptance of benefits
  2. by representation or concealment
  3. by silence
  4. by omission
  5. by laches

Æ   Some doctrines:

  1. Conduct because of ignorance or mistake does not result in estoppel
  2. Estoppel by laches bars an action to create a vested right (executory interest) but does not bar an action to protect a vested right (executed interest)
  3. Just because a person is silent does not necessarily mean that he will be in estoppel; there should have been a duty or obligation to speak
  4. A mere promise to perform or to omit at some future time does not necessarily result in estoppel (promissory estoppel); for this to exist, the promise must have been relied upon and prejudice would result unless estoppel is applied

 

Elements of Estoppel in Pais

In relation to the party sought to be estopped:

  1. Conduct amounting to false representation or concealment of material facts or at least calculated to convey the impression that the facts are otherwise than and consistent with those which the party subsequently attempts to assert;
  2. Intent or at least expectation that this conduct shall be acted upon by at least influence the other party;
  3. Knowledge, actual or constructive, of the real facts

In relation to the party claiming the estoppel:

  1. Lack of knowledge or of the means of knowing the truth as to the facts in question;
  2. Reliance, in good faith, upon the conduct or statement as to the facts in question;
  3. Action or inaction based thereon of such character as to change the position or status of the party claiming the estoppel to his injury, detriment, or prejudice

 

Estoppel against Owner

When in a contract between third persons concerning immovable property, one of them is misled by a person with respect to the ownership of real right over the real estate, the latter is precluded from asserting his legal title or interest therein, provided all these requisites are present:

  1. There must be fraudulent representation or wrongful concealment of facts known to the party estopped;
  2. The party precluded must intend that the other should act upon the facts as misrepresented;
  3. The party misled must have been unaware of the true facts; and
  4. The party defrauded must have acted in accordance with the misrepresentation.

Æ   An estoppel operates on the parties to the transaction out of which it arises and their privies.

Æ   The government is not estopped by mistake or error on the part of its officials or agents; the erroneous application and enforcement of the law by public officers does not prevent a subsequent correct application of the statute.

 

Natural Law

  1. Immutable and independent of all human regulations
  2. Includes those rules which are neither written nor promulgated, but are derived from reason and nature

 

Types of Obligations:

  1. Moral obligations – duties of conscience completely outside the field of law
  2. Natural obligations – not sanctioned by any action but have a relative juridical effect
  3. Civil obligations – juridical obligations which apparently are in conformity with positive law but are contrary to juridical principles and susceptible of being annulled
  4. Mixed obligations – have full juridical effect

 

Conditions Necessary for Natural Obligation to Arise:

  1. Juridical tie which is not prohibited by law
  2. This tie is not given effect by law

Æ   When a debtor offers a guarantor for his natural obligation, he impliedly accepts the coercive remedies to enforce the guaranty, and therefore, the transformation of the natural obligation into a civil obligation.

 

Source:

Civil Law (Estoppel)  Memory Aid

Ateneo Central Bar Operations 2001

Election Law Reviewer and Memory Aid

POLITICAL LAW REVIEWER

ELECTION LAWS

Election

  • Embodiment of the popular will, the expression of the sovereign power of the people.

Components:

  • Choice or selection of candidates to public office by popular vote
  • Conduct of the polls
  • Listing of votes
  • Holding of Electoral campaign
  • Act of casting and receiving the ballots from the voters
  • Counting the ballots
  • Making the election returns
  • Proclaiming the winning candidates

Regular election – refers to an election participated in by those who possess the right of suffrage and not disqualified by law and who are registered voters.

Special election – is when there is failure of election on the scheduled date of regular election in a particular place or which is conducted to fill up certain vacancies, as provided by law.

Political Parties

Definition (Omnibus Election Code)

An organized group of persons pursuing the same ideology, political ideas or platforms of government including its branches and divisions.

Types of Political Parties

1) Registered Parties:

  1. Dominant Majority  Party – usually the administration party; entitled to a copy of election return
  2. Dominant Minority Party – entitled to a copy of election return
  3. Majority Political Party
  4. Top 3 Political Parties – entitled to appoint principal watcher and a copy of the certificate of canvass
  5. Bottom 3 political parties – entitled to appoint principal watcher

2) Non-registered parties

Criteria to Determine the Type of Political Party

  1. Established Record of the said parties, showing in past elections
  2. Number of Incumbent Elective Officials
  3. Identifiable political organizations and strengths
  4. Ability to fill a complete slate of candidates
  5. Other analogous circumstances

Grounds for Challenging the Voter

  1. Illegal voters ( Not Registered / Using the name of another / disqualified )
  2. Based on certain illegal acts (Vote buying)

Acquisition of Juridical Personality

It is acquired upon registration with the COMELEC.

Forfeiture of Status as a Registered Political Party

The status shall be deemed forfeited if the political party, singly or in coalition with others, fails to obtain at least 10% of the votes cast in the constituency in which it nominated and supported a candidate/s in the election next following its registration. There shall be notice and hearing.

Candidates

Rules on Filing of Certificates of Candidacy

  1. No person shall be elected into public office unless he files his certificate of candidacy within the prescribed period
  2. No person shall be eligible for more than one office. If he/she files for more than one position, he shall not be eligible for all unless he cancels all and retains one
  3. The certificate of candidacy shall be filed by the candidate personally or by his duly authorized representative.
  4. Upon filing, an individual becomes a candidate, he is already covered by rules, restrictions and processes involving candidates.

Grounds for Disqualification

  1. Election offenses under Sec 68 of the Omnibus Election Code (OEC)
  2. Not possessing qualifications and possessing disqualifications under the Local Government Code

2.1   Sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one year or more of imprisonment within two years after serving sentence

2.2   Removed from office as a result of an administrative case

2.3   Convicted by final judgment for violating the oath of allegiance to the Republic

2.4   Dual citizenship ( more specifically, dual allegiance)

2.5   Fugitives from justice in criminal or non-political cases here or abroad

2.6   Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right

2.7   Insane or feeble-minded

  1. Nuisance candidate
  2. Violation of sec 73 of OEC with regard to certificate of candidacy
  3. Violation of sec 78 which is material misrepresentation of reqts under sec. 74.

* Disqualifications (from continuing as a candidate or from holding the office if already elected):

Any candidate, who in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or is found by the Commission of having:

  1. Given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions.
  2. Committed acts of terrorism to enhance his  candidacy
  3. Spent in his election campaign an amount in excess of that allowed by the Omnibus Election Code )
  4. Solicited, received or made any contribution prohibited under this Code
  5. Violated any of the following sections: Section 80, 83, 85,86,261
  1. Permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office UNLESS he/she has waived his/her status as a permanent resident/immigrant of a foreign country in accordance with the residence requirement provided for under election laws.

Effect of a Disqualification case (under RA 6646)

  1. Any candidate who has been declared by final judgment to be disqualified shall NOT be voted for. The votes cast in his favor shall not be counted.
  2. If the candidate is not disqualified by final judgment before the election and receives the highest number of votes in the election, the court or COMELEC will continue with the trial and hearing of the action, inquiry or protest.  Upon motion of the complainant or intervenor, the court or COMELEC may order the suspension of the proclamation of the candidate whenever the evidence of his guilt is strong.

 

Nuisance Candidates

A.   The term refers to candidates who have no bona fide intention to run for the office for which the certificate of candidacy has been filed and would thus prevent a faithful determination of the true will of the people.

B. Power of COMELEC

  1. May refuse to give due course to or cancel a certificate of candidacy of a nuisance candidate.  This can be done motu proprio or upon verified petition of an interested party.

2.There should be a showing that:

  1. Certificate of candidacy has been filed to put the election process in mockery/disrepute or
  2. To cause confusion among the voters by the similarity of the names of the registered candidates
  3. Other circumstances which clearly demonstrate that the candidate has no bona fide intention to run for the office…

Petition to deny due course to or to cancel a Certificate of Candidacy

A. Exclusive ground:  A material representation in the certificate of candidacy is false.

B. The petition should be filed not later than 25 days from the filing of the certificate of candidacy.

C. It should be decided not later than 15 days before the election, after due notice and hearing.

Election Campaign/Partisan Political Activity
Ø  Definition

1) It refers to an act designed to promote the election or defeat of a particular candidate/s to a public office

2) It includes:

A. Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate.

B.  Holding political caucuses, conferences, meetings, rallies, parades or other similar assemblies for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate.

C. Making speeches, announcements or commentaries or holding interviews for or against the election of any candidate for public office.

D.  Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate.

E.  Directly or indirectly soliciting votes, pledges or support for or against a candidate.

3) When the acts enumerated above are NOT considered an election campaign/partisan political activity.

If the acts are performed for the purpose of enhancing the chances of aspirants for nomination for candidacy to a public office by a political party, aggroupment, or coalition of parties.

RA 9006 – FAIR ELECTION ACT

Important Features:

1) Repeal of Sec. 67 of the OEC – Now, any ELECTIVE official, whether national or local, running for any office other than the one which he is holding in a permanent capacity shall not be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

2)  Lifting of the Political Ad Ban –   Written and Printed Materials (8.5” W x 14L”)

Letters

Posters (2’ x 3’) in common-private poster areas ( not  more than 10 public places per political party or independent candidate, 12’ 16’), private places and public places

Rally streamers (3’ x 8’) NOT MORE THAN 2

Paid Advertisements at Discounted Rates

Print : 1/4th page in broadsheet and ½ page in tabloid 3x a week

Television: 120 minutes for candidate for nationally elective office and 60 for local

Radio: 180 minutes for candidate for nationally elective office and 90 for local

COMELEC free space (3 national newspaper for nationally elective officials and 1 national newspaper for local) and airtime

(3 national television networks for nationally elective officials and 1 station for local ) : equal allocation for all candidates for 3 calendar days

Authorized Expenses ( multiplied with the total number of registered voters )

  • P 10 for president / vice president
  • P  3  for other candidates for every voter currently registered in the constituency
  • P  5  for independent candidates and political parties

Voters

Qualifications
  • Age: 18 years old and over.
  • Residence
  1. He /she should have resided in the Philippines for one year and
  2. Resided in the city/municipality wherein he proposes to vote for at least 6 months immediately preceding the election.
Residence Requirement

If the transfer of residence is due to any of the following reasons, the person concerned will be deemed NOT to have lost his original residence:

A.  Transfer solely because of occupation, profession, employment in private or public service

B.  Educational activities

C.  Work in military or naval reservations

D.  Service in the army, navy or air force, national police force

E.  Confinement/detention in government institutions in accordance with law.

 

RA 8189 – VOTER’S REGISTRATION ACT OF 1996

Q: Can there still be general registration of voters?

A: No more, because 8189 (7) provides for such only for the May ’98 elections

Q: What kind of registration system do we have?

A: Continuing, Computerized and Permanent

Disqualifications

A.  If sentenced by final judgment to suffer imprisonment for not less than 1 year and such disability was not removed by plenary pardon or has not been granted amnesty. However, any person disqualified to vote shall automatically reacquire the right to vote upon expiration of 5 years after service of sentence.

B.  Any person who has been adjudged by final judgment by competent court or tribunal of having committed any crime involving disloyalty to the duly constituted government such as rebellion or any crime against national security:

1. UNLESS restored to his full civil and political rights in accordance with law.

2. However, he shall regain his right to vote automatically upon expiration of 5  years after service of sentence.

C.  Insane or incompetent persons as declared by competent authority.

Jurisdiction in Inclusion/Exclusion cases

A. The municipal and metropolitan trial courts shall have original and exclusive jurisdiction over all matters of inclusion and exclusion of voters from the list in their respective municipalities or cities. Petition filed at any time except 105 days before regular election or 75 days before special election

B. Decisions may be appealed to the RTC within 5 days from receipt of notice of decision.

C.  RTC will decide the appeal within 10 days. Decision is final and executory.

D.  Note: Relate this to Article IX of the Constitution which provides that the COMELEC has no jurisdiction over questions involving the right to vote.

E. Exclusion is through sworn petition and not later than 100 days before regular election; 65 days before special election

Grounds when the List of Voters will be altered:

  • Deactivation/ Reactivation
  • Exclusion/ Inclusion
  • Cancellation of Registration in case of Death
  • New voters
  • Annulment of Book of Voters
  • Transfer of Residence

How is challenge to right to register effected?

Who – any voter, candidate, political party representative

How – in writing, stating grnds, under oath, proof of notice of hearing

 

Deactivation means removing the registration records of persons from the precinct book of voters and place the same, properly marked and dated in indelible ink, in the inactive file after entering the cause of deactivation.

How is reactivation of registration effected ?

Sworn application for reactivation

Affidavit

Not later than 120 days before regular election and 90 days before special election

Annulment of Book of Voters is through verified petition; notice and hearing; not prepared in accordance with law or prepared through fraud, bribery, forgery, impersonation, intimidation, force, any similar irregularity or which contains data that are statistically improbable

Cannot be done within 90 days before election

Postponement of Election

Causes
  • Violence
  • Terrorism
  • Loss or destruction of election paraphernalia/records
  • Force majeure
  • Other analogous causes
Effect

It is impossible to hold a free, orderly and honest election in any political subdivision

COMELEC can postpone the election (when decided by a majority vote of the COMELEC sitting en banc, RA 7166):

A. Motu proprio

B. Upon a verified petition by any interested party, after due notice and hearing

Date of new election

The date of the postponed election should be reasonably close to the date of the election not held, suspended, or which resulted in a failure to elect.  It should not be later than 30 days after the cessation of the cause for such postponement or suspension of the election or failure to elect.

Failure of Election

Causes
  • Force majeure
  • Violence
  • Terrorism
  • Fraud
  • Other analogous causes

Under RA 7166, the causes for the declaration of the failure of election may occur before or after the casting of votes or on the day of the election.

Effects of above causes

A. Election in any polling place was not held on the date fixed;

B. Election was suspended before the hour fixed by law for the closing of the voting

C. Elections results in a failure to elect (after the voting and during the preparation and          transmission of the election returns or in the custody or canvass thereof)

AND the failure or suspension of the election would affect the result of the election

Remedy

COMELEC can call for the holding or continuation of the election not held, suspended, or which resulted in a failure to elect.  The election should be held not later than 30 days after the cessation of the cause  of the postponement or suspension of the election or failure to elect. This is decided by the COMELEC, by a majority vote of its members, sitting en banc.

 

RA 7941 – Party-List System Act

  • Seeks to promote proportional representation
  • Any party already registered need not register anew. File manifestation not later than 90 days before election.
Grounds for refusing or canceling registration of Party-Lists groups
  1. Religious sect or denomination, organization
  2. Advocates violence
  3. Foreign party or organization
  4. Receives foreign support
  5. Violates election law
  6. Untruthful statements in its petition
  7. Ceased to exist for at least one year
  8. Failed to participate in the last two preceding elections or fails to obtain at least 2% of the votes cast under the party-list system in the 2 preceding elections for the constituency in which it has registered

Nomination of party-list reps should not include any candidate for any elective office or a person who has lost his bid for an elective office in the immediately preceding election

Incumbent sectoral representatives in the House of Representatives who are nominated in the party-list system shall not be considered resigned

Party List Reps constitute 20% of the total number of the members of the House of Reps including those under the party-list

How do we determine the number of party list seats in the House of Reps?

(# of District Reps / 0.80) x 0.20 = # of party list reps

  • There are presently 208 legislative districts, according to the Veterans Federation Case
  • The 5 major political parties are now entitled to participate in the party list system
  • Parties receiving at least 2% of the total votes cast for the party-list system shall be entitled to one seat each
  • No party shall be entitled to more than 3 seats
  • Currently, there are 260 seats. So 20 % of 260 is 52 seats. But this is only a ceiling.
  • A list with 5 names should be submitted to COMELEC as to who will represent the party in the Congress. Ranking in the list submitted determines who shall represent party or organization.
Rules for Appreciation of Ballots
  • Liberal Construction in favor of the validity of the ballot
  • Look at the ticket slate, consider locality or literacy rate
  • Rule 211 of the OEC
  • Incumbency / Surname
  • Cannot ascertain – STRAY VOTE

Pre-Proclamation Controversies

Definition
  1. A pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the COMELEC.
  1. It would also refer to any matter raised under Sections 233, 234, 235, and 236 of the Omnibus Election Code in relation to the preparation, transmission, receipt, custody, and appreciation of the election returns.  (Board of canvassers have original jurisdiction while COMELEC have appellate jurisdiction)
    1. When election returns are delayed, lost or destroyed (Sec.233)
    2. Material defects in the election returns (Sec. 234)
    3. When election returns appear to be tampered with or falsified. (Sec. 235)
    4. Discrepancies in election returns  (Sec. 236)

C.  Those that can be filed with COMELEC directly are the ff:

  • Issue involves the illegal composition or proceedings of the board of canvassers, as when a majority or all of the members do not hold legal appointments or are in fact usurpers
  • Issue involves the correction of manifest errors in the tabulation or tallying

of the results during the canvassing

 

Recount

There can be a recount under the grounds of 234-236. The returns involved will affect the results and the integrity of the ballot box has been preserved

Issues that may be raised in a pre-proclamation controversy
  1. Illegal composition or proceedings of the board of canvassers
  2. The canvassed election returns are incomplete, contain material defects, appear to be       tampered with or falsified, or contain discrepancies in the same returns or in authentic           copies thereof.
  3. The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured, or not authentic.
  4. When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate/s.

Procedure

A.  Contested composition or proceedings of the board (under RA 7166)

It may be initiated in the board or directly with COMELEC.

B. Contested election returns (under RA 7166)

Matters relating to the preparation, transmission, receipt, custody and  appreciation of the election returns, and certificate of canvass, should be brought in the first instance before the board of canvassers only.

Summary nature of pre-proclamation controversy
  1. Pre-proclamation controversies shall be heard summarily by the COMELEC.
  2. Its decision shall be executory after the lapse of 5 days from receipt by the losing party of the decision, unless restrained by the SC.
Effect of filing petition to annul or suspend proclamation

It suspends the running of the period within which to file an election protest or quo warranto proceedings.

When not allowed

Pre-proclamation cases on matters relating to the preparation, transmission, receipt, custody and appreciation of the election returns or the certificates of canvass NOT allowed in elections for: (under RA 7166)

  • President
  • Vice-President
  • Senator
  • Member of the House of Representatives

BUT:  The appropriate canvassing body motu propio or upon written complaint of an interested person can correct manifest errors in the certificate of canvass or election returns before it.

BUT:  Questions affecting the composition or proceedings of the board of canvassers may be initiated in the board or directly with COMELEC.

 

When pre-proclamation cases are deemed TERMINATED (RA 7166)

  1. All pre-proclamation cases pending before the COMELEC shall be deemed terminated at the beginning of the term of the office involved and the rulings of the boards of canvassers concerned deemed affirmed.

B.  This is without prejudice to the filing of a regular election protest by the aggrieved party.

C.  HOWEVER: Proceedings MAY CONTINUE if:

  1. The COMELEC determines that the petition is meritorious and issues an order for the proceedings to continue or
  2. The Supreme Court issues an order for the proceedings to continue in a petition for certiorari.

Election Contest

Original Jurisdiction

COMELEC has ORIGINAL jurisdiction over contests relating to the elections, returns, qualifications of all elective:

  • Regional
  • Provincial
  • City officials
Appellate Jurisdiction

COMELEC has APPELLATE jurisdiction over all contests involving:

A.  Elective MUNICIPAL officials decided by trial courts of GENERAL jurisdiction

B.  Elective BARANGAY officials decided by trial courts of LIMITED jurisdiction

Who can file a petition contesting the election

Any candidate who has duly filed a certificate of candidacy and has been voted for the same office

Purpose of an election contest

The defeated candidate seeks to outs the proclaimed winner and claims the seat.

Final COMELEC Decisions

Provision that decisions, final orders, rulings of the Commission on election contests involving municipal and barangay offices are final, executory and not appealable:

A. This only applies to questions of FACT. ( Flores v. COMELEC, 184 SCRA 484)

B. It does NOT preclude a special civil action of certiorari.  (Galido v. COMELEC, Jan. 18,1991)

Distinctions between Pre-Proclamation Controversy and Election Contest

1) Dividing line:  Proclamation of a candidate

2) Jurisdiction

A. Pre-proclamation controversy

1.The jurisdiction of COMELEC is administrative/quasi-judicial

2.It is governed by the requirements of administrative due process

B. Election contest

1.The jurisdiction of COMELEC is judicial

2.It is governed by the requirements of judicial process

3)      In some cases, even if the case (involving municipal officials) began with the COMELEC before proclamation but a proclamation is made before the controversy is resolved, it ceases to be a pre-proclamation controversy and becomes an election contest cognizable by the RTC.

4)       However, in some cases, the SC has recognized the jurisdiction of COMELEC over municipal cases even after proclamation.  Relate to the provision in RA 7166 allowing pre-proclamation controversy proceedings to continue even after a proclamation has been made.

 

Election Offenses  ( Selected Offenses)

Vote buying and vote-selling

A. Covered acts

1.Give, offer or promise money or anything of value

2. Making or offer to make any expenditure, directly or indirectly, or cause an expenditure to be made to any person, association, corporation, entity or community

3.Soliciting or receiving, directly or indirectly, any expenditure or promise of any office or employment, public or private

B. Purpose of acts

1. To induce anyone or the public in general to vote for or against any candidate or withhold his vote in the election or

2. To vote for or against any aspirant for the nomination or choice of a candidate in a convention or similar selection

C.  Under RA 6646  (Prosecution of vote-buying/selling)

1. Presentation of a complaint supported by affidavits of complaining witnesses attesting to the offer or promise by or the voters acceptance of money or other consideration from the relatives, leaders or sympathizers of a candidate is sufficient basis for an investigation by the COMELEC,directly or through its duly authorized legal officers.

2. Disputable presumption of conspiracy:

Proof that at least one voter in different precincts representing at least 20% of the total precincts in any municipality, city or province has been offered, promised or given money, valuable consideration or other expenditure by a candidate relatives, leaders and/or sympathizsrs for the purpose of promoting the election of such candidate.

3. Disputable presumption of involvement

Proof affects at least 20% of the precincts of the municipality, city or province to which the public office aspired for by the favored candidate relates. This will constitute a disputable presumption of the involvement of such candidate and of his principal campaign managers in each of the municipalities concerned in the conspiracy

Coercion of a subordinate

A. Who can be held liable

1. public officer

2. officer of a public/private corporation/association

3. heads/superior/administrator of any religious org.

4. employer/landowner

B.  Prohibited acts

  1. Coercing, intimidating or compelling or influencing, in any manner, any subordinates, members, parishioners or employees or house helpers, tenants, overseers, farm helpers, tillers or lease holders to aid, campaign or vote for or against a candidate or aspirant for the nomination or selection of candidates.
  2. Dismissing or threatening to dismiss, punishing or threatening to punish by reducing salary, wage or compensation or by demotion, transfer, suspension etc.

 

Appointment of new employees, creation of new position, promotion or giving salary increases:

A. Who can be held liable: Any head/official/appointing officer of a government office, agency or instrumentality, whether national or local, including GOCCs.

B. Prohibited acts

1.Appointing or hiring a new employee (provisional, temporary or casual)

2.Creating or filling any new position

3.Promoting/giving an increase in salary, remuneration or  privilege to any government official or employee.

C. Period when acts are prohibited

1.  45 days before a regular election

2.  30 days before a special election

D. Exceptions

  1. Upon prior authority of COMELEC if it is satisfied that the position to be filled is essential to the proper functioning of the office/agency concerned AND that the position is not filled in a manner that may influence the election
  2. In case of urgent need, a new employee may be appointed. Notice of appointment should be given to COMELEC within 3 days from appointment.
Prohibition against release, disbursement or expenditure of public funds

A.  Who can be held liable: Any public official or employee including barangay officials and those of GOCCs/subsidiaries

B.  Prohibited acts:

The release, disbursement or expenditure of public funds for any and other kinds        of public works

C. Period when acts are prohibited:

1.  45 days before a regular election

2.  30 days before a special election

D. Exception

  1. maintenance of existing/completed public works project.
  2. work undertaken by contract through public bidding, or by negotiated contract awarded before the 45 day period before election
  3. payment for the usual cooperation for working drawings, specfications and other procedures preparatory to actual construction including the purchase of material and equipment and incidental expenses for wages.
  4. Emergency work necessitated by the occurrence of a public calamity but such work shall be limited to the restoration of the damaged facility.
  5. Ongoing public work projects commenced before the campaign period or similar projects under foreign agreements.
Suspension of elective, provincial, city, municipal or barangay officer

A.  General rule: public official CANNOT suspend any of the officers enumerated above during the election period.

B.  Exceptions

  1. With prior approval of COMELEC
  2. Suspension is for the purpose of applying the Anti-Graft and Corrupt Practices Act

In relation to registration of voters/voting

  • Unjustifiable refusal to register and vote
  • Voting more than once in the same election/voting when not a registered voter
  • Voting in substitution for another with or without the latters’ knowledge and/or consent etc.

 

Other election offenses under RA 6646

  1. Causing the printing of official ballots and election returns by printing establishments not on contract with COMELEC and printing establishments which undertakes unauthorized printing
  2. Tampering, increasing or decreasing the votes received by a candidate or refusing after proper verification and hearing to credit the correct votes or deduct the tampered votes (committed by a member of the board of election inspectors)
  3. Refusing to issue the certificate of voters to the duly accredited watchers (committed by a member of the BEI)
  4. Person who violated provisions against prohibited forms of election propaganda
  5. Failure to give notice of meetings to other members of the board, candidate or political party (committed by the Chairman of the board of canvassers)
  6. A person who has been declared a nuisance candidate or is otherwise disqualified who continues to misrepresent himself as a candidate (Ex. by continuing to campaign) and any public officer or private individual who knowingly induces or abets such misrepresentation by commission or omission.
  7. If the chairman of the BEI fails to affix his signature at the back of the official ballot, in the presence of the voter, before delivering the ballot to the voter. (under RA 7166)
Prescription of Election Offenses
  1. Election offenses shall prescribe after 5 years from the date of their commission
  2. If the discovery of the offense is made in an election contest proceeding, the period of prescription shall commence on the date on which the judgment in such proceedings becomes final and executory
Jurisdiction of courts
  1. RTC has exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of the Code.
  2. MTC/MCTC have jurisdiction over offenses relating to failure to register or vote.

 

Source:

Election Law Reviewer and Memory Aid

Ateneo

Criminal Law Book 2 – Title Thirteen

TITLE THIRTEEN

CRIMES AGAINST HONOR

A. ELEMENTS OF LIBEL DEFAMATION: (353)

  1. That there must be an imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstances.
  2. That the imputation must be made publicly.
  3. That it must be malicious.
  4. That the imputation must be directed at a natural or juridical person, or one who is dead.
  5. That the imputation must tend to cause the dishonor, discredit or contempt of the person defamed.

Notes:

  1. Libel is a public and malicious imputation of a crime, or a vice or defect, real or imaginary or any act, commission, condition, status or circumstances tending to cause the dishonor, discredit or contempt of a natural or juridical person, or to blacken the memory of one who is dead
  2. Kinds of malice: (a) malice in law; (b) malice in fact
  3. Malice is presumed to exist in injurious publications
  4. Publication is the communication of the defamatory matter to some third person/s
  5. Person libeled must be identified. But the publication need not refer by name to the libeled party. If not named it must be shown that the description of the person referred to in the defamatory publication was sufficiently clear so that at least a 3rd person would have identified the plaintiff.
  6. There are as many crimes as there are persons defamed.
  7. To presume publication there must be a reasonable probability that the alleged a libelous matter was thereby exposed to be read or seen by 3rd persons.

Criterion to determine whether statements are defamatory

1) words are calculated to induce the hearers to suppose and understand that the person against who they are uttered were guilty of certain offenses, or are sufficient to impeach their honesty, virtue or reputation, or to hole the person up to public ridicule(US v O’Connel)

2 )construed not only as to the expression used but also with respect to the whole scope and apparent object of the writer.(P v Encarnacion)

Libel

Perjury

-false accusation need not be made under oath

-false accusation is made under oath

 

Newsweek v IAC

Newsweek portrayed the island province of Negros Occidental as a place dominated by big landowners. Plaintiffs are associations of sugarcane planters. HELD: Dismissed. To maintain a libel suit, the specific victim must be identifiable. Defamatory remarks directed at a group of persons are not actionable unless the statements are all-embracing or sufficiently specific for victim to be identifiable. An action for libel allegedly directed against a group of sugar planters cannot be done by resort to filing a class suit as each victim has his specific reputation to protect. In this case, each of the plaintiffs has a separate and distinct reputation in the community.

A.   REQUIREMENT OF PUBLICITY: (354)

Kinds of privileged communication

  1. Absolutely privileged – not actionable even if the actor has acted in bad faith
  2. Qualifiedly privileged – those which although containing defamatory imputations could not be actionable unless made with malice or bad faith

General Rule:

Every defamatory imputation is presumed malicious even if it be true, if no good intention and justifiable motive for making it is shown

Exception:

  1. private communication in performance of legal, moral or social duty

Requisites:

  1. that the person who made the communication had a legal, moral or social duty to make the communication or at least he had an interest to be upheld
  2. that the communication is addressed to an officer or a board, or superior, having some interest or duty on the matter
  3. that the statements in the communication are made in good faith without malice in fact
  4. fair and true report, made in good faith, without any comments and remarks

Requisites:

  1. that the publication of a report of an official proceeding is a fair and true report of a judicial, legislative, or other official proceedings which are not of confidential nature, or of a statement, report, or speech delivered in said proceedings, or of any other act performed by a public officer
  2. that it is made in good faith
  3. that it is made without any comments or remarks

 

Santos v CA

HELD: No malice, he simply furnished the readers with the info that a complaint has been filed against the brokerage firm and reproduced the pleading verbatim with no embellishments.

 

B.   LIBEL BY MEANS OF WRITING OR SIMILAR MEANS: (355)

Note: Enumerates the means by which libel may be committed: writing, printing, lithography, engraving, radio phonograph, painting, theatrical or cinematographic exhibitions or any similar means

 

C.   THREATENING TO PUBLISH LIBEL AND OFFER TO PREVENT SUCH PUBLICATION FOR A COMPENSATION: (356)

Note: Clearly, just a case of blackmail-any unlawful extortion of money by threats of accusation and exposure

-possible in light threats Art 283 and in threat to publish Art 356.

 

D. ELEMENTS OF PROHIBITED PUBLICATION OF ACTS REFERRED TO IN THE COURSE OF OFFICIAL PROCEEDINGS: (357)

  1. That the offender is a reporter, editor or manager of a newspaper, daily or magazine.
  2. That he publishes facts connected with the private life of another.
  3. That such facts are offensive to the honor, virtue and reputation of said person.

Note:

Even though made in connection with or under the pretext that it is necessary in the narration of any judicial or administrative proceedings wherein such facts have been mentioned.

 

Lacsa v IAC

Lacsa found that Marquez was not a proprietary member of PCA thus not qualified to be president. He wrote to the BOD and to Marquez. He caused to publish the second letter. HELD: Letter is not privileged communication. To be classified as such it must be free from malice. Granting that the letter was privileged communication, written out of a duty of an officer towards the members, such character was lost when it was published.

 

E. ELEMENTS OF ORAL DEFAMATION/SLANDER: (358)

  1. action of a serious and insulting nature (Grave slander)
  2. light insult or defamation – not serious in nature (simple slander)

Factors that determine gravity of the offense:

a) expressions used

b) personal relations of the accused and the offended party

c) circumstances surrounding the case

Notes:

Words uttered in the heat of anger constitute light oral defamation (P v Doronilla)

If the utterances were made publicly and were heard by many people and the accused at the same time levelled his finger at the complainant, oral defamation is committed (P v Salleque)

 

F. ELEMENTS OF SLANDER BY DEED: (359)

  1. That the offender performs any act not included in any other crime against honor.
  2. That such act is performed in the presence of other person or persons.
  3. That such act casts dishonor, discredit or contempt upon the offended party.

Notes:

a. Seriousness depends on the social standing of offended party, the circumstances surrounding the act, the occasion, etc.

b. The acts of slapping and boxing the woman, a teacher, in the presence of many people has put her to dishonor, contempt and ridicule. (P v Costa)

 

P v Motita

Accused held a mirror between the legs of complainant to reflect her private parts. The crowd laughed. Guilty of slander by deed.

Distinctions:

a. Unjust Vexation-irritation or annoyance/anything that annoys or irritates without justification.

b. Slander by Deed-irritation or annoyance + attendant publicity and dishonor or contempt.

c. Acts of lasciviousness-irritation or annoyance + any of 3 circumstance provided in Art335 of RPC on rape

i. use of force or intimidation

ii.deprivation of reason or rendering the offended unconscious

offended party under 12 yrs of age+lewd designs

 

PERSONS RESPONSIBLE FOR LIBEL (360)

1) Who are liable

a.  person who publishes, exhibits or causes the publication or exhibition of any      defamation in writing or similar means(par.1)

b.   author or editor of a book or pamphlet

c. editor or business manager of a daily newspaper magazine or serial publication(par.2)

d. owner of the printing plant which publishes a libelous article with his consent and all other persons who in any way participate in or have connection with its publication (US v Ortiz)

2) Venue of criminal and civil action for damages in cases of written defamation:

a. where the libelous article is printed and 1st published OR

b. where any of the offended parties actually resides at the time of the commission of the offense

3) Where one of the offended parties is a public officer:

a. if his office is in the City of Manila

– RTC of Manila OR

– city/province where the article is printed and 1st published

b. Otherwise

– RTC of the city/province where he held office at the time of offense  OR

– where the article is 1st published

4) Where one of the offended parties is a private individual:

– RTC of province/city where he actually resides at the time of the crime

– where article was printed or 1st published

 

Note: Offended party must file complaint for defamation imputing a crime which cannot be prosecuted de oficio (e.g. adultery, concubinage, rape, seduction, abduction, and acts of lasciviousness)

 

Soriano v IAC

The Philippines follows the multiple publication rule which means that every time the same written matter is communicated, such communication is considered a distinct and separate publication of libel.

 

PROOF OF THE TRUTH (361)

Admissible when:

a. the act or omission imputed constitutes a crime regardless of whether the offended party is a private individual or a public officer

b. the offended party is a government employee, even if the act or omission imputed does not constitute a crime provided it is related to the discharge of his official duties

Requisites for Acquittal:

a. it appears that the matter charged as libelous is TRUE (for situations 1 and 2 above)

b. it was published with good motives and for a justifiable end (for situation 1 only)

Notes: The proof of the truth of the accusation cannot be made to rest upon mere hearsay, rumors, or suspicion. It must rest upon positive direct evidence, upon which a definite finding may be made by the court (US v Sotto)

 

LIBELOUS REMARKS (362)

Libelous remarks or comments on privileged matters (under Art. 354) if made with malice in fact will not exempt the author and editor.

*This article is a limitation to the defense of privileged communication.

 

ELEMENTS OF INCRIMINATING INNOCENT PERSON: (363)

  1. That the offender performs an act.
  2. That by such act he directly incriminates or imputes to an innocent person the commission of a crime.
  3. That such act does not constitute perjury.

Two  Kinds:

a. making a statement which is

i. defamatory or

ii. perjurious (if made under oath and is false)

b. planting evidence

Note: article is limited to planting evidence and the like

 

INTRIGUING AGAINST HONOR (364)

How committed:

-by any person who shall make any intrigue which has for its principal purpose to blemish the honor or reputation of another person

Notes:

a. Intriguing against honor refers to any scheme or plot designed to blemish the reputation of another or of such trickery or secret plot.

b. Committed by saying to others an unattributable thing, if said to the person himself it is slander.

 

RA4200 The Anti-WireTapping Act

Acts punished:

1) any person, not authorized by all the parties to any private communication or spoken word

a) taps any wire of cable OR

b) uses any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or walkie talkie or tape recorder

2) any person, whether or not a participant in the above-mentioned acts:

a) knowingly possesses any tape record, wire record, disc record, or any other such record or copies thereof of any communication or spoken word

b) replays the same for any other person

c)communicates the contents thereof, whether complete or partial, to any other person

Notes:

a. Peace officer is exempt if acts done under lawful order of the court. You can only use the recording for the case for which it was validly requested.

b. Information obtained in violation of the Act is inadmissible in evidence in any hearing or investigation.

c. Gaanan v IAC

An extension phone is not one of those prohibited under RA 4200. There must be either a physical interruption through the wiretap or the deliberate installation of a device or arrangement in order to overhear, intercept or record the spoken words. The extension phone was not installed for such purpose.

 

ELEMENTS OF RECKLESS IMPRUDENCE: (365)

  1. That the offender does or fails to do an act.
  2. That the doing of or the failure to do that act is voluntary.
  3. That it be without malice.
  4. That material damage results.
  5. That there is inexcusable lack of precaution on the part of the offender, taking into consideration
    1. his employment or occupation
    2. degree of intelligence, physical condition, and
    3. other circumstances regarding persons, time and place.

 

ELEMENTS OF SIMPLE IMPRUDENCE: (365)

  1. That there is lack of precaution on the part of the offender.
  2. That the damage impending to be caused in not immediate or the danger is not clearly manifest.

Notes:

1) Art.64 on mitigating and aggravating circumstances not applicable.

2) Failure to lend on the spot assistance to victim of his negligence:penalty next higher in degree.

3) Abandoning usually punishable under Art 275, if charged under Art365 is only qualifying and if not alleged cannot even be an aggravating circumstance.

4) Contributory negligence—not a defense, only mitigating

 

Last clear chance doctrine –

The contributory negligence of the injured party will no t defeat the action if it be shown that the accused might, by the exercise of reasonable care and prudence, have avoided the consequences of the negligence of the injured party

Emergency rule-

An automobile driver, who, by the negligence of another, is suddenly placed in an emergency and compelled to act instantly to avoid a collision or injury is not guilty of negligence if he makes a choice which a person of ordinary prudence placed in such a position might make even though he did not make the wisest choice.

 

P v Cano

Negligence is a quasi-offense. What is punished is not the effect of the negligence but the recklessness of the accused.

 

P v Carillo

13 yr old girl dies 3 days after surgery due to an overdose of Nubain which triggered a heart attack that caused brain damage. HELD: Guilty of simple negligence resulting to homicide. Carillo was the anesthesiologist, he and his co-accused failed to monitor and provide close patient care, to inform the parents of the child’s true condition, to prove that they exercised necessary and appropriate degree of care and diligence to prevent the condition.

 

Buearano v CA

Conviction of the accused in the charge of slight and less serious physical injuries through reckless imprudence constitutes double jeopardy to the charge of the crime of damage to property through reckless imprudence.

 

Source:

Criminal Law Book 2 Reviewer

Ateneo Central Bar Operations 2001