A LAWYER SHALL NOT REFUSE HIS SERVICES TO THE NEEDY

Lawyer as an advocate, generally

Primary task of a lawyer->be an advocate:

• Def: represent a party litigant in court

• How: as counsel, public prosecutor, defense counsel

• Gen Rule: Private practitioner is not obligated ti acr as counsel for any person whu may wish to become his client

• Exception: Public prosecutor cannot choose. (This is the essence of Canon 14.)

 Emphasizes: lawyer’s public responsibility of rendering legal services to the needy.

 Thus the Gen Rule in this canon becomes: Accepting employment to the poor. Refusal is the exception.

 Rationale: The poor hesitate to obtain the services of counsel because of lack of money. Helping the needy is also an objective of the IBP.

Nature of attorney-client relationship (ACR for brevity).

History in Roman law concepts:

• Location conduction operarum (contract of lease of services): a person lets his services for compensation and another hires them without reference to the object which the services are to be performed

• Mandato (contract of agency): a friend on whom reliance could be placed makes a contract in his name but gives up all that he gained by the contract to the person who requested him.

Modern day understanding:

• Lawyer is more than a mere agent/ servant because he possess special powers of trust and confidence reposed on him by his client

• Lawyer: independent as a judge (powers are entirely different from and superior to those of an ordinary agent)

• Lawyer: officer of the court

• ACR:

• strictly personal, highly confidential, fiduciary

• Why is it this way? -> Only by characterizing it like this that a person would be encouraged to repose his confidence in an attorney

• Based on: hypothesis that abstinence from seeking legal advice in a good cause is an evil which is fatal to the administration of justice

• Most of the rules in the legal profession originate from ACR

• ACR demands from the lawyer: sense of commitment to the ideals of the legal profession and a strength of character to resist temptations that deviate from existing norms Pitfalls from both sides:

• Engaging in the practice of law is to tread a narrow path

• Lawyer’s only safe guide: high moral principle

• His best shield; clear conscience and an unblemished personal record

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• Reward: esteemed reputation Relation is strictly personal

• Court or administrative tribunal cannot but recognize its creation on the faith of the client’s word

• It should not be established as the result of fear or deception

• Underlies prohibition against: advertising or solicitation of employment

• Delegation in favour of another attorney without the client’s consent is prohibited

• Terminates upon: the death of lawyer or client, when client wants to ( with or without cause)

• Note: cannot terminate upon attorney’s sole discretion (client or the court’s consent needed)

• Lawyer should not adopt the client’s problems-> he must have a sense of “vicarious detachment”-> better for lawyer not to appear as counsel for relatives or people he is close to-> else, he should look for another lawyer for them who can detach himself

Relation is fiduciary and confidential

• Demands from a atty.: undivided allegiance, conspicuous and high degree of good faith, disinterestedness, candor, fairness, loyalty, fidelity and absolute integrity in all his dealings and transactions; and an utter renunciation of every personal advantage in any way woth the interest of his client

• Responsibilities to client should be reconciled with his duties to the court. (Each requires fidelity and loyalty in

varying degrees within limits.)-> deviation from such:

disciplinary measures by the court Rules of protective relation

• Protection of personal, confidential and fiduciary relation in ACR is for public interest.

• How: client will trust atty more-> important in the administration of justice

• Injunctive rules to be followed, the lawyer should:

1. Exert his best effort and learning in the protection and interest of his client

2. Promptly account for any fund or property entrusted by or received for his client

3. Not to purchase or acquire any property or interest of his client in litigation

4. Forever to keep inviolate his client’s secrets or confidence and not to abuse them

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

• Penalty for not adhering to the aforementioned: disciplinary and administrative liability

Concept of term “retainer”

• ACR begins from the times an attorney is retained.

• 2 Concepts which it may refer to:

1. Act of a client which he engages in the services of an attorney to render legal advice

2. Or to defend or prosecute his cause in court

• Either:

41 1. General retainer: purpose is to secure beforehand

the services of an attorney for any legal problem that may afterward arise

2. Special retainer: has reference to a particular case or service

• May also refer to a “retaining fee”

 preliminary fee paid to insure and secure his future services, to remunerate him from being deprived, by being retained by one party, is neither made nor received in consideration for the services

contemplated

 Purpose: prevent undue hardship on the part of the atty. Resulting from the rigid observance of the rule forbidding him from acting as counsel for the other party after he has been retained by or has given professional advice to the opposite party Necessity of retainer

• Purpose: to have power to act as counsel

• “contract of employment” that may be express or implied

• A form or ratification Sufficiency of professional employment

• Employment: essential feature of ACR

• Written agreement: best proof to show relation but no real form is necessary

• Sufficient: establish the professional relation through proving the advice and assistance of the atty was sought and rendered-> may be express or implied

• Ex of implied: atty. Appears on behalf of a party without the latter interposing any objection thereto

Employment of law firm

• Equivalent to a retainer of the member thereof even if only one of them is consulted; employ one= employ the whole firm. Why? Member acts in the interest of the firm, all info obtained can be communicated to the other members of the firm

• One professional advice is sought, relation is established

• Death of a partner handling the case= does not extinguish the relationship with the firm

• Firm’s negligence is binding on the client Who can employ attorney

• Gen Rule: any person who has the legal capacity to contract can employ an atty.

• Minor can gain capacity through his guardian ad litem

• An agent clothes by his principal with the power to deal with the latter’s property has the authority to engage the services of an attorney as counsel for the principal

• Who else: executor or administrator or trustee, wife (except those involving conjugal property), board of directors of a corp (but they can delegate to this power to their corporate atty. Or a single stockholder)

42 Rule 14.01 - A lawyer shall not decline to represent unpopular clients

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.

• He should not decline. Just look at history, there were any lawyers who were recognized for their distinguished and sacrificial services.

• This rule makes it ethically easy for a lawyer to take the defense of an accused whom he knows, or the public knows is guilty of the crime.

 How can a lawyer take a case which he does not believe in? A) Well, it’s not good or bad until the judge determines it to be so. B) It’s the free choice of the lawyer.

• Easier to apply this in criminal cases than in civil cases 1. Criminal cases: BRD requirement and it’s “improper

for a lawyer ti assert in argument his personal belied in his client’s innocence or in the justice of his cause.”

2. Civil cases: (rules of legal ethics enjoin a lawyer from taking a bad case.

a) Atty’s signature in every pleading

constitutes a certification that there’s good cause to support it and that it’s not

interposed for delay and a willful violation of such rule may subject him to disciplinary action.

b) Atty’s duty to “counsel or maintain such actions or proceedings only as to appear to him to be just and such defences only as he believes to be honestly debatable under the law.

c) He’s not to encourage either the

commencement or the continuance of an action of proceeding, or delay any man’s cause, for any corrupt motive or interest d) He “must decline to conduct a civil cause or

to make a defense when convinced that it’s intended to merely harass or injure the opposite party or to work oppression or wrong.

3. So if he were to take a bad civil suit, it will either be to exert his best efforts toward a compromise or, if unsuccessful, to advice his client to confess

judgment.

4. He will also invite disciplinary action by the court if he will cause delay in the disposition of

unmeritorious cases-> clog court dockets

Rule 14.02 - A lawyer shall not decline appointment by the court or by IBP

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

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• ACR may also be created by being a counsel de oficio for a poor or indigent litigant-> lawyer has the same duties to the indigent client as to the paying client

• Gen Rule: Court may assign a counsel de oficio for an indigent client.

• Exception: In criminal cases where having a counsel is not a right of the accused

• In criminal cases:

 The indigent defendant MUST ASK for counsel to be assigned with a counsel de oficio.

 Court may not assign a counsel de oficio to defend an accused and require such counsel to proceed with trial when the accused has previously

manifested his desire to secure services of a counsel de parte.

 Accused’s conviction cannot be set aside on the sole ground that said counsel was not of his own choice.

 On appeal: same thing court must assign. If the guy/

girl isn’t in prison: court doesn’t have to assign unless it was requested within 10 days from the receipt of the notice to file the appellant’s brief and the right thereto is established by affidavit of poverty.

Frequent appointment of same counsel is discouraged

• Burden of an atty’s regular practice

• Possibility of the compensation fir counsel de oficio being considered as a source of income which is not envisioned by the rule

• Counsel may be overburdened

• Accused in turn may suffer from ineffective assistance Rule 14.03 - A lawyer may refuse to represent indigent on valid grounds A lawyer may not refuse to accept representation of an indigent client unless:

a) he is in no position to carry out the work effectively or competently;

b) he labors under a conflict of interest between him and the prospective client or between a present client and the prospective client;

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

• Exceptions:

1. A lawyer shall not refuse his services to the needy.

2. Can’t refuse because of: race, sex, creed or status of life, or because of his opinion of guilty of the person

3. Can’t (except for serious and sufficient cause), an

appointment as counsel de o. ficio or as amicus curiae or a request from the IBP or any of its chapters for rendition of free legal aid

4. Gov. lawyers has to represent any branch of gov unless he is disqualified to act as counsel-> else, he will be held

administratively liable

5. Sol gen. must cannot just exercise his discretion in throwing out gov cases. He must present the court with what he considers could legally uphold the best interest of the gov.

He should work in towards the best interest of justice in deciding cases where diff gov. agencies are on opposing sides.-> Gov. office adversely affected by the position of the

44 Sol. Gen., if it still believes in the merit of its case, appear on its own behalf through its legal officer or representative.

Rule 14.04 - A lawyer shall observe the same standard for all clients.

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.

• Purpose of the legal profession: render public service and secure justice for those who seek its aid.

• Gaining of livelihood: only a secondary consideration

B. CANDOR AND FAIRNESS IN DEALINGS WITH CLIENTS

CANON 15 - A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND

In document 295842635-code-of-professional-responsibility-AGPALO-pdf.pdf (Page 39-44)