CHAPTER 1 CHAPTER 1
Requirements “before admission to the bar” or for continuous Requirements “before admission to the bar” or for continuous “practice of law”, etc.
“practice of law”, etc. What is practice of law? What is practice of law? •
• The Court ruled that The Court ruled that the term “practice of law” implies customarilythe term “practice of law” implies customarily
or habitually holding oneself out to the public as a lawyer for or habitually holding oneself out to the public as a lawyer for compensation as a source of livelihood or in consideration of his compensation as a source of livelihood or in consideration of his services. The Court further ruled that holding one’s self out as a services. The Court further ruled that holding one’s self out as a lawyer may be shown by acts indicative of that purpose,
lawyer may be shown by acts indicative of that purpose, such assuch as ide
identintifyifying ng oneoneselself f as as attattornorneyey,, apappepeararining g in in cocoururt t inin representation of a client
representation of a client, or, orassociating oneself as a partner of associating oneself as a partner of a law office
a law officefor the general practice of law. -for the general practice of law. - Atty. Noe-Lacsaman Atty. Noe-Lacsaman v. Atty. Busmente, A.C.
v. Atty. Busmente, A.C. No. 7269 [2011]No. 7269 [2011] •
• Any activity, in and out of court, that requires the application of Any activity, in and out of court, that requires the application of
law
law, , leglegal al procproceduedure, re, knowknowledledge, ge, tratrainiining ng and and expexperieriencence.e. Mor
Moreoveover, we er, we rulruled that to ed that to engengage in age in the practhe practictice e of law of law isis toto perform those acts which are characteristics of the profession perform those acts which are characteristics of the profession;; to practice law is to
to practice law is togive notice or render any kind of service,give notice or render any kind of service, which device or service requires the use in any degree of legal which device or service requires the use in any degree of legal knowledge
knowledge or skill. - or skill. -Query of Atty. Silverio-Buffe, A.M. Query of Atty. Silverio-Buffe, A.M. No. 08-6-No. 08-6-352-RTC [2009]
352-RTC [2009] •
• The praThe practictice of ce of lawlaw is not limited to the conduct of cases oris not limited to the conduct of cases or litigation in court
litigation in court; it embraces the; it embraces thepreparation of pleadingspreparation of pleadingsandand
other papers incident to actions and special proceedings other papers incident to actions and special proceedings, the, the management of such actions and proceedings on behalf of clients management of such actions and proceedings on behalf of clients before judges and courts, and in addition, conveyancing.
before judges and courts, and in addition, conveyancing.
•
• In general, all advice to clients, and all action taken for them inIn general, all advice to clients, and all action taken for them in
matters connected with the law xxx.
-matters connected with the law xxx. - Aguirre v. Rana, Aguirre v. Rana, B. M. B. M. No.No. 1036.
1036. June 10, June 10, 20032003 Who may practice law? Who may practice law?
•
• Section 1, Rule 138 of the Rules of Section 1, Rule 138 of the Rules of Court provides:Court provides:
Who may practice law. – Any person heretofore
Who may practice law. – Any person heretofore duly admitted as aduly admitted as a member of the bar
member of the bar, or thereafter admitted as such in accordance with, or thereafter admitted as such in accordance with
the provisions of this Rule, and
the provisions of this Rule, andwho is in good and regular standingwho is in good and regular standing,, is entitled to practice law.
is entitled to practice law.
Passing the bar exam is not enough Passing the bar exam is not enough •
• A bar candidate does not acquire the right to practice lawA bar candidate does not acquire the right to practice lawsimplysimply by
by paspassinsing g the the bar bar exaexaminminatiationsons. . ThThe e prpracactitice of ce of lalaw w is ais a privilege that can be withheld
privilege that can be withheldeven from one who has passed theeven from one who has passed the bar examinations
bar examinations, if the person seeking admission had practiced, if the person seeking admission had practiced law without a license.
law without a license.
•
• True, respondent here passed the 2000 Bar Examinations and took True, respondent here passed the 2000 Bar Examinations and took
the
the lawylawyer’s er’s oath. oath. HoweHowever,ver, it is the signing in the Roll of it is the signing in the Roll of Attorneys that finally makes one
Attorneys that finally makes one a full-fledged lawyer.a full-fledged lawyer. The factThe fact that respondent passed the bar examinations is immaterial. Passing that respondent passed the bar examinations is immaterial. Passing the bar is not the only qualification to become an attorn ey-at-law. the bar is not the only qualification to become an attorn ey-at-law. Respondent should know that
Respondent should know that two essential requisites for becomingtwo essential requisites for becoming a lawyer still had to be performed, namely: his lawyer’s oath to be a lawyer still had to be performed, namely: his lawyer’s oath to be ad
admimininiststerered ed by by ththis is CoCoururt t anand d hihis s sisignagnatuture re in in ththe e RoRoll ll of of Attorneys. –
Attorneys. – Aguirre v. Ran Aguirre v. Rana, B. M. No. 1036a, B. M. No. 1036. . June 10, 20June 10, 200303 Signing of the Lawyer’s Oath is not equivalent to “taking the Signing of the Lawyer’s Oath is not equivalent to “taking the oath”
oath” •
• Respondent Abad should know that the circumstances which heRespondent Abad should know that the circumstances which he
has narrated
has narrateddo not constitute his admissiondo not constitute his admissionto the Philippine Barto the Philippine Bar and the
and theright to practice lawright to practice law thereafter. He should know that two thereafter. He should know that two es
essesentntiaial l rereququisisitites es fofor r bebecocomiming ng a a lalawywyer er ststilill l hahad d to to bebe performed, namely: his lawyer's oath to be administered by this performed, namely: his lawyer's oath to be administered by this Court and his signature in the Roll of Attorneys. (Rule 138, Secs. Court and his signature in the Roll of Attorneys. (Rule 138, Secs. 17 and 19, Rule
17 and 19, Rules s of Couof Courtrt.) -.) - Re: Re: Elmo Elmo Abad, Abad, A. A. M. M. No. No. 139139 [1983]
[1983]
Whether or not a lawyer is entitled to exemption from payment of Whether or not a lawyer is entitled to exemption from payment of his IBP dues dur
his IBP dues during the time that he ing the time that he was was inactive in the pracinactive in the practicetice of law
of law •
• TThhuuss,, papaymymenent t of of dudues es is is a a nenececessssarary y coconsnseqequeuencnce e of of membership in the IBP
that the compulsory nature of payment of dues subsists
that the compulsory nature of payment of dues subsists for as longfor as long as one’s membership in the IBP remains regardless of the lack as one’s membership in the IBP remains regardless of the lack of practice of, or the type of practice, the member is engaged of practice of, or the type of practice, the member is engaged in.
in. •
• There is nothing in the law or rulesThere is nothing in the law or rules which allows exemption fromwhich allows exemption from payment of membership dues.
payment of membership dues. At most, aAt most, as correctly obses correctly observed byrved by the IBP, he could have informed the Secretary of the Integrated the IBP, he could have informed the Secretary of the Integrated Bar of his intention to stay abroad before he left.
Bar of his intention to stay abroad before he left. In such case, hisIn such case, his me
membembershrship ip in in the IBP the IBP coucould ld havhave e beebeen n terterminminateated d and hisand his obligation to pay dues could have been discontinued.
-obligation to pay dues could have been discontinued. - Letter Letter of of Atty. Cecilio Y. Are
Atty. Cecilio Y. Arevalo Jr. valo Jr. B.M. 1370 B.M. 1370 May 9, 200May 9, 20055
Is IBP membership fee a form of tax? Is IBP membership fee a form of tax? •
• For the court to prescribe dues to be paid by the members does notFor the court to prescribe dues to be paid by the members does not
mean that the Court is attempting to levy a tax. mean that the Court is attempting to levy a tax.
•
• A A memembembershrship ip fee in fee in the Bar assocthe Bar associatiationion is is an an exaexactiction on forfor regulation
regulation,, whiwhile tax le tax purpurpospose e of a of a tax is tax is a a rerevenvenueue. If the. If the judiciary has
judiciary has inherent power inherent power to regulate to regulate the Bar, the Bar, it follows it follows that asthat as an incident to regulation, it may impose a membership fee for that an incident to regulation, it may impose a membership fee for that purpose. It would not be possible to put on an integrated Bar purpose. It would not be possible to put on an integrated Bar program without means to defray the expenses. The doctrine of program without means to defray the expenses. The doctrine of implied powers necessarily carries with it the power to impose implied powers necessarily carries with it the power to impose such exaction.
-such exaction. - Letter of Letter of Atty. Atty. Cecilio Y. Cecilio Y. Arevalo Jr. Arevalo Jr. B.M. 1370B.M. 1370 May 9, 200
May 9, 20055 Th
Therere e is is no no prprovovisisioion n unundeder r ththe e CPCPR R whwhicich h prprohohibibitits s ththee unauthorized practice of law
unauthorized practice of law •
• CANON 9 - A lawyer shall not, directly or indirectly, assist in theCANON 9 - A lawyer shall not, directly or indirectly, assist in the
unauthorized practice of law. unauthorized practice of law.
•
• While a reading of Canon 9 appears to merelyWhile a reading of Canon 9 appears to merely prohibit lawyersprohibit lawyers fro
from m assassististinging in in ththe e ununauauththororizized ed prpracactitice ce of of lalaw, w, ththee
un
unauauththororizized ed prpracactitice ce of of lalaw w by by ththe e lalawywyer er hihimsmselelf f isis subsumed under this provision
subsumed under this provision, because at the heart of Canon 9, because at the heart of Canon 9 is the lawyer's duty to prevent the unauthorized practice of law. is the lawyer's duty to prevent the unauthorized practice of law.
-Petition to sign in the Roll of Attorneys, Medado, B.M. No. 2540 Petition to sign in the Roll of Attorneys, Medado, B.M. No. 2540 [2013]
[2013]
Examples of unauthorized practice of law Examples of unauthorized practice of law •
• In the cases where we found a party liable for the unauthorizedIn the cases where we found a party liable for the unauthorized
practice of law, the party was guilty of some overt act like: practice of law, the party was guilty of some overt act like: 1.
1. signisigning courng court pleat pleadings odings on behan behalf of his lf of his clieclient;nt; 2.
2. appeappearing baring before efore court court hearhearings as ings as an atan attornetorney;y; 3.
3. mamanifnifestesting beforing before the e the coucourt that he rt that he wilwill l prapractictice law despice law despitete being previously denied admission to the bar; or
being previously denied admission to the bar; or 4.
4. delibdeliberaterately ately attempttempting to praing to practicctice law ae law andnd 5.
5. holholdinding g out himsout himself as an elf as an attattornorney throuey through circgh circulaulars with fullrs with full knowledge that he is not licensed to do so.
knowledge that he is not licensed to do so.
-
- Normatan Normatan & & Pagayokan Pagayokan v. v. Balajadia, G.R. Balajadia, G.R. No. No. 169517 169517 20062006 Pre-law requirements
Pre-law requirements •
• Rule 138 Sec. 6. Pre-Law. - No applicant for admission to the barRule 138 Sec. 6. Pre-Law. - No applicant for admission to the bar
examination shall be admitted unless he presents a certificate that examination shall be admitted unless he presents a certificate that he has satisfied the Secretary of Education that,
he has satisfied the Secretary of Education that,before he beganbefore he began the study of law
the study of law, he , he had pursuehad pursued andd and satisfactorily completed insatisfactorily completed in an authorized and recognized university or college
an authorized and recognized university or college, requiring, requiring for admissi
for admission thereto theon thereto the completion of a four-year high schoolcompletion of a four-year high school course
course, the course of study prescribed therein for a bachelor's, the course of study prescribed therein for a bachelor's degree in arts or sciences with any of the following subjects as degree in arts or sciences with any of the following subjects as major or field of concentration: political science, logic, english, major or field of concentration: political science, logic, english, spanish, history and economics.
spanish, history and economics.
Violation of Rule 138 section 6 Violation of Rule 138 section 6 •
• “[b]y utilizing the school records of his cousin and name-sake,“[b]y utilizing the school records of his cousin and name-sake,
Juan M. Publico when, in actual fact, petitioner had not completed Juan M. Publico when, in actual fact, petitioner had not completed Grade VI of his elementary schooling, much less, First and Second Grade VI of his elementary schooling, much less, First and Second Year High School.”
Year High School.”
•
• For all the foregoing, we find and so hold that respondent falsifiedFor all the foregoing, we find and so hold that respondent falsified
his school records, by
his school records, by making it appear that he had finished ormaking it appear that he had finished or completed Grade VI elementary and First and Second Year completed Grade VI elementary and First and Second Year
that the compulsory nature of payment of dues subsists
that the compulsory nature of payment of dues subsists for as longfor as long as one’s membership in the IBP remains regardless of the lack as one’s membership in the IBP remains regardless of the lack of practice of, or the type of practice, the member is engaged of practice of, or the type of practice, the member is engaged in.
in. •
• There is nothing in the law or rulesThere is nothing in the law or rules which allows exemption fromwhich allows exemption from payment of membership dues.
payment of membership dues. At most, aAt most, as correctly obses correctly observed byrved by the IBP, he could have informed the Secretary of the Integrated the IBP, he could have informed the Secretary of the Integrated Bar of his intention to stay abroad before he left.
Bar of his intention to stay abroad before he left. In such case, hisIn such case, his me
membembershrship ip in in the IBP the IBP coucould ld havhave e beebeen n terterminminateated d and hisand his obligation to pay dues could have been discontinued.
-obligation to pay dues could have been discontinued. - Letter Letter of of Atty. Cecilio Y. Are
Atty. Cecilio Y. Arevalo Jr. valo Jr. B.M. 1370 B.M. 1370 May 9, 200May 9, 20055
Is IBP membership fee a form of tax? Is IBP membership fee a form of tax? •
• For the court to prescribe dues to be paid by the members does notFor the court to prescribe dues to be paid by the members does not
mean that the Court is attempting to levy a tax. mean that the Court is attempting to levy a tax.
•
• A A memembembershrship ip fee in fee in the Bar assocthe Bar associatiationion is is an an exaexactiction on forfor regulation
regulation,, whiwhile tax le tax purpurpospose e of a of a tax is tax is a a rerevenvenueue. If the. If the judiciary has
judiciary has inherent power inherent power to regulate to regulate the Bar, the Bar, it follows it follows that asthat as an incident to regulation, it may impose a membership fee for that an incident to regulation, it may impose a membership fee for that purpose. It would not be possible to put on an integrated Bar purpose. It would not be possible to put on an integrated Bar program without means to defray the expenses. The doctrine of program without means to defray the expenses. The doctrine of implied powers necessarily carries with it the power to impose implied powers necessarily carries with it the power to impose such exaction.
-such exaction. - Letter of Letter of Atty. Atty. Cecilio Y. Cecilio Y. Arevalo Jr. Arevalo Jr. B.M. 1370B.M. 1370 May 9, 200
May 9, 20055 Th
Therere e is is no no prprovovisisioion n unundeder r ththe e CPCPR R whwhicich h prprohohibibitits s ththee unauthorized practice of law
unauthorized practice of law •
• CANON 9 - A lawyer shall not, directly or indirectly, assist in theCANON 9 - A lawyer shall not, directly or indirectly, assist in the
unauthorized practice of law. unauthorized practice of law.
•
• While a reading of Canon 9 appears to merelyWhile a reading of Canon 9 appears to merely prohibit lawyersprohibit lawyers fro
from m assassististinging in in ththe e ununauauththororizized ed prpracactitice ce of of lalaw, w, ththee
un
unauauththororizized ed prpracactitice ce of of lalaw w by by ththe e lalawywyer er hihimsmselelf f isis subsumed under this provision
subsumed under this provision, because at the heart of Canon 9, because at the heart of Canon 9 is the lawyer's duty to prevent the unauthorized practice of law. is the lawyer's duty to prevent the unauthorized practice of law.
-Petition to sign in the Roll of Attorneys, Medado, B.M. No. 2540 Petition to sign in the Roll of Attorneys, Medado, B.M. No. 2540 [2013]
[2013]
Examples of unauthorized practice of law Examples of unauthorized practice of law •
• In the cases where we found a party liable for the unauthorizedIn the cases where we found a party liable for the unauthorized
practice of law, the party was guilty of some overt act like: practice of law, the party was guilty of some overt act like: 1.
1. signisigning courng court pleat pleadings odings on behan behalf of his lf of his clieclient;nt; 2.
2. appeappearing baring before efore court court hearhearings as ings as an atan attornetorney;y; 3.
3. mamanifnifestesting beforing before the e the coucourt that he rt that he wilwill l prapractictice law despice law despitete being previously denied admission to the bar; or
being previously denied admission to the bar; or 4.
4. delibdeliberaterately ately attempttempting to praing to practicctice law ae law andnd 5.
5. holholdinding g out himsout himself as an elf as an attattornorney throuey through circgh circulaulars with fullrs with full knowledge that he is not licensed to do so.
knowledge that he is not licensed to do so.
-
- Normatan Normatan & & Pagayokan Pagayokan v. v. Balajadia, G.R. Balajadia, G.R. No. No. 169517 169517 20062006 Pre-law requirements
Pre-law requirements •
• Rule 138 Sec. 6. Pre-Law. - No applicant for admission to the barRule 138 Sec. 6. Pre-Law. - No applicant for admission to the bar
examination shall be admitted unless he presents a certificate that examination shall be admitted unless he presents a certificate that he has satisfied the Secretary of Education that,
he has satisfied the Secretary of Education that,before he beganbefore he began the study of law
the study of law, he , he had pursuehad pursued andd and satisfactorily completed insatisfactorily completed in an authorized and recognized university or college
an authorized and recognized university or college, requiring, requiring for admissi
for admission thereto theon thereto the completion of a four-year high schoolcompletion of a four-year high school course
course, the course of study prescribed therein for a bachelor's, the course of study prescribed therein for a bachelor's degree in arts or sciences with any of the following subjects as degree in arts or sciences with any of the following subjects as major or field of concentration: political science, logic, english, major or field of concentration: political science, logic, english, spanish, history and economics.
spanish, history and economics.
Violation of Rule 138 section 6 Violation of Rule 138 section 6 •
• “[b]y utilizing the school records of his cousin and name-sake,“[b]y utilizing the school records of his cousin and name-sake,
Juan M. Publico when, in actual fact, petitioner had not completed Juan M. Publico when, in actual fact, petitioner had not completed Grade VI of his elementary schooling, much less, First and Second Grade VI of his elementary schooling, much less, First and Second Year High School.”
Year High School.”
•
• For all the foregoing, we find and so hold that respondent falsifiedFor all the foregoing, we find and so hold that respondent falsified
his school records, by
his school records, by making it appear that he had finished ormaking it appear that he had finished or completed Grade VI elementary and First and Second Year completed Grade VI elementary and First and Second Year
high school
high school, when in truth and in fact he had not, thereby violating, when in truth and in fact he had not, thereby violating th
thee proprovisvisionions s of Sectof Sectionions s 5 5 and 6, and 6, RulRule 127e 127 of the Rules of of the Rules of Court, which require completion by a
Court, which require completion by a bar examinee or candidate of bar examinee or candidate of the prescribed courses in elementary, high,
the prescribed courses in elementary, high, pre-law and law school,pre-law and law school, pr
prioior r to to hihis s adadmimissssioion n to the to the prpracactitice ce of lawof law. . -- In In re: re: JuanJuan Pu
Publiblicoco,Pe,Petittition ion for for ReiReinstnstateatemement nt in in the the RolRoll l of of AttAttornorneyeyss February 20, 1981
February 20, 1981 App
Appliclicant ant shoshould uld be be reready ady to to prepresensent t evievidendence ce of of googood d mormoralal character
character •
• When applicants seek admission to the bar, they have placed theirWhen applicants seek admission to the bar, they have placed their
char
characteacter at r at issueissue. . ThereTherefore, the applifore, the applicant bears the burdecant bears the burden of n of produc
producing informing information ation provinproving good moral charg good moral characteacter. -r. - Mitchell Mitchell Simon , Nick Smith and Nicole
Simon , Nick Smith and Nicole NegowettiNegowetti Grossly immoral act
Grossly immoral act •
• A grossly immoral act is one that is so corrupt and false as toA grossly immoral act is one that is so corrupt and false as to
constitute a criminal act or so unprincipled or disgraceful as to be constitute a criminal act or so unprincipled or disgraceful as to be reprehensible to a high degree. It is a willful, flagrant, or
reprehensible to a high degree. It is a willful, flagrant, or shamelessshameless act which shows a moral indifference to the opinion of respectable act which shows a moral indifference to the opinion of respectable members of the community.
-members of the community. - Figueroa v. Barranco, Jr. SBC CaseFigueroa v. Barranco, Jr. SBC Case No. 519 19
No. 519 1997 97 Is breach of promise to
Is breach of promise to marry gross immorality?marry gross immorality?
Respondent was prevented from taking the lawyer’s oath in 1971Respondent was prevented from taking the lawyer’s oath in 1971 b
beeccaauusse e oof f tthhee cchaharrgeges s of of grgrososs s imimmomorralalitityy mamade de byby complainant.
complainant. To recapitulate, respondent bore an illegitTo recapitulate, respondent bore an illegitimate childimate child with his sweetheart, Patricia Figueroa, who also claims that
with his sweetheart, Patricia Figueroa, who also claims thathe didhe did not fulf
not fulfill his promiill his promise to se to marmarryry her afteher after r he he paspasses the ses the barbar examinations.
examinations.
We We finfind d thathat t thethese se facfacts ts do do not not conconstistituttute e grogross ss immimmoraoralitlityy warranting the permanent exclusion of respondent from the legal warranting the permanent exclusion of respondent from the legal profession.
profession. His engaging in His engaging in prempremaritaarital l sexuasexual l relatrelations ions withwith complainant and promises to marry suggests a doubtful moral complainant and promises to marry suggests a doubtful moral character on his part but the same does not constitute grossly character on his part but the same does not constitute grossly immoral conduct.
immoral conduct. The Court has held The Court has held that to justify suspensthat to justify suspension orion or
disbarment the act complained of must not only be immoral, but disbarment the act complained of must not only be immoral, but grossl
grossly y immoimmoral. -ral. - Figueroa v. Barranco, Jr. SBC Case No. 519Figueroa v. Barranco, Jr. SBC Case No. 519 1997
1997
Good moral character v. Rehabilitation Good moral character v. Rehabilitation •
• When an applicant for admission to the bar has committed first-When an applicant for admission to the bar has committed
first-degre
degree murder,e murder, a crime that demonstrates an extreme lack of a crime that demonstrates an extreme lack of good moral character
good moral character, he must make an extraordinary showing of , he must make an extraordinary showing of present good moral character to establish that he or she is qualified present good moral character to establish that he or she is qualified to be admitted to the practice of law xxx.
to be admitted to the practice of law xxx.
•
• To show To show reharehabilitabilitation, [one] must tion, [one] must show that he show that he has accephas acceptedted
responsibility for his criminal conduct. responsibility for his criminal conduct.
•
• Rehabilitation is a necessary, but not sufficient, ingredient of goodRehabilitation is a necessary, but not sufficient, ingredient of good
mor
moral al chacharacracter of ter of bar applibar applicancant t who had who had beebeen n conconvicvicted of ted of aa serio
serious felony; applicanus felony; applicant t must establmust establish hisish his current good moralcurrent good moral character
character,, indindepeependendent nt of of and in and in addiadditiotion n to, to, evievidendence ce of of rehabilitation
rehabilitation. -. - In re: James In re: James Joseph HamJoseph Hamm 123 P.3d 6m 123 P.3d 652 [2005]52 [2005] Rehabilitation is not enough
Rehabilitation is not enough
Even assuming that [one] has established rehabilitation, showingEven assuming that [one] has established rehabilitation, showing rehabilitation from criminal conduct does not, in itself, establish rehabilitation from criminal conduct does not, in itself, establish good moral character.
good moral character.
Rehabilitation is a necessary, but not sufficient, ingredient of goodRehabilitation is a necessary, but not sufficient, ingredient of good
mora
moral charal charactercter. . An appAn applicalicant must ent must establstablish his cish his currenurrent goodt good moral character, independent of and in addition to, evidence of moral character, independent of and in addition to, evidence of rehabilitation.
rehabilitation.
Even assuming that he Even assuming that he has has estaestablisheblished d reharehabilitabilitation, tion, showishowingng
re
rehabihabilitlitatiation on frofrom m crcrimiiminal nal conconducduct t doedoes s notnot, , in in ititseselflf,, establish good moral character.
-establish good moral character. - In re: In re: James Joseph Hamm James Joseph Hamm 123123 P.3d 652 [2005]
P.3d 652 [2005]
What is an “upright character” ? What is an “upright character” ? •
• 'Up'Uprigright ht chacharacracterter' ' is is somsomethething ing mormore e thathan n an an absabsencence e of of badbad
character. It means that he [an applicant for admission] must have character. It means that he [an applicant for admission] must have conducted himself as a man of upright character ordinarily would, conducted himself as a man of upright character ordinarily would, should, or
nor in following the line of least resistance, but quite often in the nor in following the line of least resistance, but quite often in the will to do the unpleasant thing if it is right, and the resolve not to will to do the unpleasant thing if it is right, and the resolve not to do the pleasant thing if it is wrong.
-do the pleasant thing if it is wrong. - In re: In re: James Joseph HammJames Joseph Hamm 123 P.3d 652 [2005]
123 P.3d 652 [2005]
Past and Present moral character Past and Present moral character •
• We also We also agragree with ee with HamHamm m thathat, t, undunder er the Rule the Rule appappliclicablable e toto
Ham
Hamm's m's appliapplicatication,on, our concern must be with the applicant'sour concern must be with the applicant's pres
present ent moral charactemoral character.r. In Greenberg, we explained that "it isIn Greenberg, we explained that "it is [the applicant's] moral character as of now with which we are [the applicant's] moral character as of now with which we are con
concercernedned." ." xxxxxx Past misconduct, however, is not irrelevant.Past misconduct, however, is not irrelevant.
Rather, this Court must determine what past bad acts reveal about Rather, this Court must determine what past bad acts reveal about an applicant's current character.
-an applic-ant's current character. - In re: In re: James Joseph Hamm 123James Joseph Hamm 123 P.3d 652 [2005]
P.3d 652 [2005]
Effect of prior criminal conviction Effect of prior criminal conviction •
• “A“Altlthouhough gh aa priprior or conconvicvictiotion n is is not concnot concluslusive of ive of a a laclack k of of pres
present ent good good moral moral charcharacteracter, . ., . ... it adds to it adds to hihis s buburdrden of en of es
estabtablislishinhing g prepresensent t googood d chacharacracterter by by requirequiring ring conviconvincingncing proof of his full
proof of his full and complete rehabilitation.”-and complete rehabilitation.”- In re: James Jo In re: James Josephseph Hamm 123
Hamm 123 P.3d 652 [20P.3d 652 [2005]05] Can a lawyer-detainee practice law? Can a lawyer-detainee practice law? •
• As a matter of law, when a person indicted for an offense isAs a matter of law, when a person indicted for an offense is
arrested, he is deemed placed under the custody of the law. He is arrested, he is deemed placed under the custody of the law. He is placed in actual restraint of liberty in jail so that he may be bound placed in actual restraint of liberty in jail so that he may be bound to answer for the commission of the offense. He must be detained to answer for the commission of the offense. He must be detained in jail during the pendency of the case against him, unless he is in jail during the pendency of the case against him, unless he is authorized by the court to be released on bail or on recognizance. authorized by the court to be released on bail or on recognizance.
Let it be stressed that all prisoners whether under preventive Let it be stressed that all prisoners whether under preventive det
detentention ion or or serservinving g finfinal al sensententence ce can can not not prapractictice ce thetheirir profession nor engage in any business or occupation, or hold profession nor engage in any business or occupation, or hold off
officeice, , eleelectictive ve or or appappoinointivtive, e, whiwhile le in in detdetentention. ion. ThiThis s is is aa nece
necessary consessary consequencquence of e of arrearrest and st and detendetention. –tion. – PP v. Hon.PP v. Hon. Maceda a
Maceda and Javelland Javellana G.R. No. 8959na G.R. No. 89591-96 Janu1-96 January 24, 200ary 24, 20000
What is the effect of non-payment
What is the effect of non-payment of IBP dues?of IBP dues? •
• RulRule e 139139-A, Secti-A, Section on 10 10 whiwhich ch proprovidvides es thathat t "de"defaufault lt in in thethe
payme
payment of nt of annuaannual l duesduesfor six monthsfor six monthsshall warrantshall warrantsuspensionsuspension of membership
of membershipin the Integrated Bar, and default in such paymentin the Integrated Bar, and default in such payment
for one year
for one yearshall be a ground for theshall be a ground for theremoval of the name of theremoval of the name of the delinquent member from the Roll of Attorneys
delinquent member from the Roll of Attorneys.” -.” -Santos, Jr. V.Santos, Jr. V. Atty. Llamas A.C N
Atty. Llamas A.C No. 4749 [200o. 4749 [2000]0]
Misrepresenting to the public and the courts that he had paid his Misrepresenting to the public and the courts that he had paid his IBP dues
IBP dues
By indicating "IBP-Rizal 259060" in By indicating "IBP-Rizal 259060" in his pleadinghis pleadings s and therebyand thereby
misrepresenting to the public and the courts that he had paid misrepresenting to the public and the courts that he had paid his IBP dues
his IBP duesto the Rizal Chapter, respondent is guilty oto the Rizal Chapter, respondent is guilty o f violatingf violating the Code of Professional Responsibility which provides:
the Code of Professional Responsibility which provides:
Rule 1.01 - A lawyer shall not engage in unlawful, dishonest,Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.
immoral or deceitful conduct.
CANON 7 - A LAWYER SHALL AT ALL TIMES UPHOLDCANON 7 - A LAWYER SHALL AT ALL TIMES UPHOLD TH
THE E ININTETEGRGRITITY Y AANND D DDIIGNGNITITY Y OOF F THTHE E LLEGEGALAL PROFE
PROFESSIONSSION, , AND SUPPORT THE AND SUPPORT THE ACTIACTIVITIEVITIES S OF OF THETHE INTEGRATED BAR.
INTEGRATED BAR.
CANON 10 - A LAWYER OWES CANDOR, FAIRNESS ANDCANON 10 - A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO THE COURT.
GOOD FAITH TO THE COURT.
Rule 10.01 - A lawyer shall not do any falsehood, nor consent toRule 10.01 - A lawyer shall not do any falsehood, nor consent to
the doing of any court;
the doing of any court; nor shall he mislead or allow the court to benor shall he mislead or allow the court to be misled by any artifice.
-misled by any artifice. -Santos, Jr. V. Atty. Llamas A.C No. 4749Santos, Jr. V. Atty. Llamas A.C No. 4749 [2000]
[2000] Is a
Is a “sen“senior citizenior citizen” ” lawyelawyer exempted from payment of r exempted from payment of ITR alsoITR also exempted from payment of IBP dues?
exempted from payment of IBP dues? •
• While it is true that R.A. No. 7432, §4 grants senior citizensWhile it is true that R.A. No. 7432, §4 grants senior citizens
"e
"exexempmptition on frfrom om ththe e papaymymenent t of of inindidivividudual al inincocome me tataxexes:s: provided, that their annual taxable income does not exceed the provided, that their annual taxable income does not exceed the pove
poverty rty levlevel el as as detdetermermineined d by by the the NatNationional al EcoEconomnomic ic andand Deve
does not include payment of membership or association dues does not include payment of membership or association dues. -.
-Santos, Jr. V. Atty. Llamas A.C No. 4749 [2000] Santos, Jr. V. Atty. Llamas A.C No. 4749 [2000] Intent is necessary to be guilty
Intent is necessary to be guilty of unauthorized practice of lawof unauthorized practice of law •
• In several cases, we have ruled that the unauthorized practice of In several cases, we have ruled that the unauthorized practice of
law
lawby assuming to be an attorneyby assuming to be an attorneyandandacting as such withoutacting as such without authority
authority constconstituteitutes s indireindirect ct contecontempt which mpt which is punishable byis punishable by fine or impris
fine or imprisonmenonment or t or both. both. The liabiThe liability for the unauthorizlity for the unauthorizeded practice of law under Section 3(e), Rule 71 of the Rules of Court practice of law under Section 3(e), Rule 71 of the Rules of Court isis in the nature of criminal contempt
in the nature of criminal contempt and the acts are punished and the acts are punished because they are an affront to the dignity and authority of the because they are an affront to the dignity and authority of the cou
court, and rt, and obsobstrutruct the ct the ordeorderly admirly adminisnistratratiotion n of of jusjustictice. e. InIn determining liability for criminal contempt, well-settled is the rule determining liability for criminal contempt, well-settled is the rule that
thatintent is a necessary elementintent is a necessary element, and, andno one can be punishedno one can be punished unless the evidence makes it clear that he intended to commit unless the evidence makes it clear that he intended to commit it
it. -. - Normatan & Pagayoka Normatan & Pagayokan v. Balajadin v. Balajadia, G.R. No. 16951a, G.R. No. 169517 20067 2006
Does giving up Philippine citizenship automatically result into lost Does giving up Philippine citizenship automatically result into lost of membership in the Philippine bar?
of membership in the Philippine bar? •
• The Constitution provides that the practice of all professions in theThe Constitution provides that the practice of all professions in the
Phi
Philiplippinpines es shashall ll be be limlimiteited d to to FilFilipiipino no citcitizeizens ns savsave e in in cacasesses prescribed by law. Since Filipino citizenship is a requirement for prescribed by law. Since Filipino citizenship is a requirement for admission to the bar,
admission to the bar,loss thereof terminates membership in theloss thereof terminates membership in the Philippine bar
Philippine bar and, consequently, the privilege to engage in the and, consequently, the privilege to engage in the prac
practice of law. In other words, thetice of law. In other words, the loss of Filipino citizenshiploss of Filipino citizenship iipspso o jjururee tetermrmininatates es ththe e prprivivililegege e to to prpracactitice ce lalaww in in ththee Philippines. The practice of law is a privilege denied to foreigners. Philippines. The practice of law is a privilege denied to foreigners. -- Petition for leave to resume practice of law,Dacanay B.M. No.Petition for leave to resume practice of law,Dacanay B.M. No. 1678 December 17, 2007
1678 December 17, 2007 May a lawyer who has lost his
May a lawyer who has lost his Filipino citizenship still practice lawFilipino citizenship still practice law in the Philippines?
in the Philippines? •
• The Constitution provides that the practice of all professions in theThe Constitution provides that the practice of all professions in the
Phi
Philiplippinpines es shashall ll be be limlimiteited d to to FilFilipiipino no citcitizeizens ns savsave e in in cacasesses
prescribed by law. Since Filipino citizenship is a requirement for prescribed by law. Since Filipino citizenship is a requirement for admission to the bar, loss thereof terminates membership in the admission to the bar, loss thereof terminates membership in the Philippine bar and, consequently, the privilege to engage in the Philippine bar and, consequently, the privilege to engage in the practice of law. In other words, the loss o
practice of law. In other words, the loss o f Filipino citizenshipf Filipino citizenship ipsoipso jure
jure terminates the privilege to practice law in the Philippines. The terminates the privilege to practice law in the Philippines. The prac
practice of law is tice of law is a privilega privilege denied to foreignere denied to foreigners. -s. - Petition for Petition for leave to resume practice of law,Dacanay B.M. No. 1678 December leave to resume practice of law,Dacanay B.M. No. 1678 December 17, 2007
17, 2007
Effect of reacquisition of Filipino citizenship Effect of reacquisition of Filipino citizenship •
• A Filipino lawyer who becomes a citizen of another country andA Filipino lawyer who becomes a citizen of another country and
later re-acquires his Philippine citizenship under R.A. No. 9225, later re-acquires his Philippine citizenship under R.A. No. 9225, re
remamainins s to to be be a a memembmber er of of ththe e PhPhililipippipine ne BaBar. –r. – PetiPetition tion toto rea
reacqucquire ire ththe e priprivilvilegege e to to prapractictice ce law law in in the the PhPhiliilippippinesnes,, Muneses, B.M
Muneses, B.M. 2112 [201. 2112 [2012]2] Re
Requiquiremrementents s befbefore ore one one can can resresume ume prapractictice ce of of law law aftafterer reacquiring Filipino citizenship
reacquiring Filipino citizenship •
• Before a lawyer who reacquires Filipino citizenship pursuant toBefore a lawyer who reacquires Filipino citizenship pursuant to
RA 9225 can resume his law practice, he must first secure from RA 9225 can resume his law practice, he must first secure from this Court the authority to do so,
this Court the authority to do so, conditioned on:conditioned on:
a)
a) thetheupdating and payment in fullupdating and payment in fullof the annual membership duesof the annual membership dues in the IBP;
in the IBP;
b)
b) the payment of professional tax;the payment of professional tax;
c)
c) ththe e cocompmpleletition on of of at at leleasastt 36 36 crcrediedit t houhours rs of of manmandatdatoryory continuing legal education
continuing legal education; this is specially significant to refresh; this is specially significant to refresh the applicant/petitioner’s knowledge of Philippine laws and update the applicant/petitioner’s knowledge of Philippine laws and update him of legal developments and
him of legal developments and
d)
d) thetheretaking of the lawyer’s oathretaking of the lawyer’s oathwhich will not only remind himwhich will not only remind him of his duties and responsibilities as a lawyer and as an officer of of his duties and responsibilities as a lawyer and as an officer of the Court, but also renew his pledge to maintain allegiance to the the Court, but also renew his pledge to maintain allegiance to the Republic of the Philippines. –
Republic of the Philippines. –Petition for leave to Petition for leave to resume practiceresume practice of law, Dacanay B.M. No. 1678 December 17, 2007
of law, Dacanay B.M. No. 1678 December 17, 2007 What is the purpose for requiring the
• The retaking of the lawyer’s oath which will not only remind
him of his duties and responsibilities as a lawyer and as an officer of the Court, but also renew his pledge to maintain allegiance to the Republic of the Philippines.
Citizenship requirement in order to practice law in the Philippines • Constitution Art. 12 Section 14. xxx. The practice of all
professions in the Philippines shall be limited to Filipino citizens,
save in cases prescribed by law.
Requirements for all applicants for admission to the bar
• Section 2, Rule 138 (Attorneys and Admission to Bar) of the Rules
of Court:
Requirements for all applicants for admission to the bar. – Every applicant for admission as a member of the bar must be
a citizen of the Philippines,at least twenty-one yearsof age, of good moral character, anda resident of the Philippines; and must produce before the Supreme Court satisfactory
evidence of good moral character, and that no charges against him, involving moral turpitude,have been filed or are pendingin any court in the Philippines.
Continuing requirements to practice law
• The second requisite for the practice of law ― membership in
good standing ― is a continuing requirement. This means
continued membership and, concomitantly, payment of annual membership dues in the IBP; payment of the annual professional tax; compliance with the mandatory continuing legal education requirement; faithful observance of the rules and ethics of the legal profession and being continually subject to judicial disciplinary control. -Petition for leave to resume practice of law,Dacanay B.M. No. 1678 December 17, 2007
Phases of admission to the bar
• Moreover, admission to the bar involves various phases such as
furnishing satisfactory proof of educational, moral and other
qualifications; passing the bar examinations; taking the lawyer’s oath and signing the roll of attorneys and receiving from the clerk of court of this Court a certificate of the license to practice.
-Petition for leave to resume practice of law,Dacanay B.M. No. 1678 December 17, 2007
Can a successful examinee take his oath before any person allowed by law to administer an oath?
• Rule 138 Sec. 17. Admission and oath of successful applicants.
-An applicant who has passed the required examination, or has been otherwise found to be entitled to admission to the bar, shall take and subscribebefore the Supreme Court the corresponding oath of office.
• Inasmuch as the oath as lawyer is a prerequisite to the practice of
law andmay be taken only, before the Supreme Court, by those authorized by the latter to engage in such practice xxx. – PP v. De Luna, et. al. G.R. Nos. L-10236-48. January 31, 1958
Section 2. Section 41 of the Administrative Code of 1987 is hereby amended to read as follows
Sec. 41. Officers Authorized to Administer Oath. - The following officers have general authority to administer oaths:
• President; • Vice-President;
• Members and Secretaries of both Houses of the Congress; • Members of the Judiciary;
• Secretaries of Departments;
• provincial governors and lieutenant-governors; • city mayors; • municipal mayors; • bureau directors; • regional directors; • clerks of courts; • registrars of deeds;
• other civilian officers in the public service of the government
President and are subject to confirmation by the Commission on Appointments;
• all other constitutional officers; • and notaries public."
Duties of Attorneys
• Rule 138 section 20 - It is the duty of an attorney:
(a) To maintain allegiance to the Republic of the Philippines and to support the Constitution and obey the laws of the Philippines;
(b) To observe and maintain the respect due to the courts o f justice and judicial officers;
(c) To counsel or maintain such actions or proceedings only as appear to him to be just, and such defenses only as he believes to be honestly debatable under the law;
(d) 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;
(e) 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;
(f) 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;
(g) Not to encourage either the commencement or the continuance of an action or proceeding, or delay any man's cause, from any corrupt motive or interest;
(h) Never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed;
(i) In the defense of a person accused of 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.
What is a lawyer’s proof of authority to practice of law?
• Rule 138 Sec. 18. Certificate. - The Sup reme Court shall thereupon
admit the applicant as a member of the bar for all the courts of the Philippines, and shall direct an order to be entered to that effect upon its records, and that a certificate of such record be given to him by the clerk of court,which certificate shall be his authority to practice.
Failure to sign in the Roll of Attorneys
• Petitioner did not sign in the Roll of Attorneys for 32 years. What
he had signed at the entrance of the PICC was probably just an attendance record.
• As Medado is not yet a full-fledged lawyer, we cannot suspend
him from the practice of law. However, we see it fit to impose upon him apenalty akin to suspensionby allowing him to sign in the Roll of Attorneys one ( 1) year after receipt of this Resolution. For his transgression of the prohibition against the unauthorized practice of law, we likewise see it fit to fine him in the amount of P32,000. –Petition to sign in the Roll of Attorneys, Medado, B.M. No. 2540 [2013]
Certificate of Membership & Certificate of Membership in Good Standing in IBP
• Certificate of Membership in the Integrated Bar of the
Philippines as well as a Certificate of Membership in Good Standing with the Quezon City Chapter of the Integrated Bar of the Philippinesdo not constitute his admission to the Philippine Bar and the right to practice law thereafter. - Re: Elmo Abad, A. M. No. 139 [1983]
Requirements after flunking the bar 3 times
• Sec. 16. Failing candidates to take review course. - Candidates
who have failed the bar examinations for three times shall be disqualified from taking another examination unless they show to the satisfaction of the court that they haveenrolled in and passed regular fourth year review classes as well asattended a pre-bar review course in a recognized law school.
• Enrollment and completion of pre-bar review course is an
additional requirement under Rule 138 of the Rules of Court for those who failed the bar examinations for three (3) or more times.
- In re: Purisima, B.M. Nos. 979 and 986 [2002]
The professors of the individual review subjects attended by the candidates under this rule shallcertify under oaththat the candidates have regularly attended classes and passed the subjects under the same conditions as ordinary students and the ratings obtained by them in the particular subject.
Authority to appear in behalf of a client
• Sec. 21. Authority of attorney to appear. - An attorney is presumed to be properly authorized to representany cause in which he appears, and no written “power of attorney” is required to authorize him to appear in court for his client,but the presiding judge may, on motion of either party and on reasonable grounds therefor being shown, require any attorney who assumes the right to appear in a case to produce or prove the authority under which he appears, and to disclose, whenever pertinent to any issue, the name of the person who employed him, and may thereupon make such order as justice requires. An attorney wilfully appearing in court for a person
without being employed, unless by leave of the court, may be punished for contempt as an officer of the court who has misbehaved in his official transactions.
A “Counselor” is not an “Attorney”
• The title of "attorney" is reserved to those who, having obtained
the necessary degree in the study of law and successfully taken the Bar Examinations, have been admitted to the Integrated Bar of the Philippines and remain members thereof in good standing; and it is they only who are authorized to practice law in this jurisdiction.
• His disinclination to use the title of "counselor" does not warrant
his use of the title of attorney. - Alawi v. Alauya, A.M. SDC-97-2-P. February 24, 1997
Prohibited acts of an examinee
• Rule 138 Sec. 12. Committee of examiners. - Examinations shall
be conducted by a committee of bar examiners to be appointed by the Supreme Court. This committee shall be composed of a Justice of the Supreme Court, who shall act as chairman, and who shall be designated by the court to serve for one year, and eight members of the bar of the Philippines, who shall hold office for a period of one year. The names of the members of this committee shall be published in each volume of the official reports.
• Rule 138 Sec. 13. Disciplinary measures. - No candidate shall endeavor to influence any member of the committee, and
during examination the candidates shall not communicate with each other nor shall they give or receive any assistance. The candidate who violates this provision, or any other provision of this rule, shall be barred from the examination, and the same to count as a failure against him, and further disciplinary action, including permanent disqualification, may be taken in the discretion of the court.
Can an “indefinite suspension” from the practice of law prohibit a lawyer from filing a citizen or taxpayer suit?
• Petitioner Alan F. Paguia (petitioner), as citizen and taxpayer,
filed this original action for the writ of certiorari to invalidate President Gloria Macapagal-Arroyo’s nomination of respondent former Chief Justice Hilario G. Davide, Jr. (respondent Davide) as Permanent Representative to the United Nations (UN) for violation of Section 23 of Republic Act No. 7157 (RA 7157), the Philippine Foreign Service Act of 1991.
• In their separate Comments, respondent Davide, the Office of the
President, and the Secretary of Foreign Affairs (respondents) raise threshold issues against the petition. First, they question
petitioner’s standing to bring this suit because of his indefinite suspension from the practice of law.
• An incapacity to bring legal actions peculiar to petitioner also
obtains. Petitioner’s suspension from the practice of law bars him from performing“any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience.” Certainly, preparing a petition raising carefully crafted arguments on equal protection grounds and employing highly legalistic rules of statutory construction to parse Section 23 of RA 7157 falls within the proscribed conduct. - Paguia v. Office of the President, G.R. No. 176278 [2010]
CHAPTER 2 Law Student Rule RULE 138-A
LAW STUDENT PRACTICE RULE SC Circular No. 19, prom. Dec. 19, 1986
• SECTION 1. Conditions for Student Practice. — A law student who has successfully completed his 3rd year of the regular four-year prescribed law curriculum and is enrolled in a recognized law school's clinical legal education program approved by the Supreme Court, may appear without compensation in any civil, criminal or administrative case before any trial court, tribunal, board or officer, to present any indigent clients accepted by the legal clinic of the law school.
• Sec. 2. Appearance. — The appearance of the law student authorized by this rule, shall be under the direct supervision and control of a member of the Integrated Bar of the Philippines duly accredited by the law school. Any and all pleadings, motions, briefs, memoranda or other papers to be
filed, must be signed by the supervising attorney for and in behalf of the legal clinic.
• The phrase "direct supervision and control" requires no less than the physical presence of the supervising lawyer during the hearing.
• Sec. 3. Privileged communications. — The Rules safeguarding privileged communications between attorney and client shall apply to similar communications made to or received by the law student, acting for the legal clinic.
• Sec. 4. Standards of conduct and supervision. — The law student shall comply with the standards of professional conduct governing members of the Bar. Failure of an attorney to provide adequate supervision of student practice may be a ground for disciplinary action.
Rule 138 (RRC) Sec. 34
• Rule 138 (RRC) Sec. 34. By whom litigation conducted. - In the court of a justice of the peace a party may conduct his litigation in person, with the aid of an agent or friend appointed by him for that purpose, or with the aid of an attorney.
In any other court, a party may conduct his litigation personally or by aid of an attorney, and his appearance must be either personal or by a duly authorized member of the bar.
Rule 138 section 34 does not apply in cases before the RTC
• The Rules are clear. In municipal courts, the litigant may be
assisted by a friend, agent, or an attorney. However, in cases before the regional trial court, the litigant must be aided by a duly authorized member of the bar. The rule invoked by the
Torcinos applies only to cases filed with the regional trial court and not to cases before a municipal court. - Bulacan v. Torcino, G.R. No. L-44388 January 30, 1985
• But for the protection of the parties and in the interest of justice, the requirement for appearances in regional trial courts and higher courts is more stringent. – Bulacan v. Torcino, G.R. No. L-44388 January 30, 1985
Reconciling the 2 rules
• There is really no problem as to the application of Section 34 of
Rule 138 and Rule 138-A. In the former, the appearance of a non-lawyer, as an agent or friend of a party litigant, is expressly allowed, while the latter rule provides for conditions when a law student, not as an agent or a friend of a party litigant, may appear before the courts. -Cruz v. Mina GR no. 154207 April 27, 2007 The phrase“In the court of a justice of the peace”means:
• The phrase “In the court of a justice of the peace” in Bar Matter
No. 730 is subsequently changed to “In the court of a municipality” as it now appears in Section 34 of Rule 138, thus:
• SEC. 34. By whom litigation is conducted. —In the Court of a municipalitya party may conduct his litigation in person, with the aid of an agent or friend appointed by him for that purpose, or with the aid of an attorney. In any other court, a party may conduct his litigation personally or by aid of an attorney and his appearance must be either personal or by a duly authorized member of the bar. -Cruz v. Mina GR no. 154207 April 27, 2007
The term "Municipal Trial Courts" as used in these Rules shall include:
1. Metropolitan Trial Courts, 2. Municipal Trial Courts in Cities, 3. Municipal Trial Courts, and 4. Municipal Circuit Trial Courts.
-Cruz v. Mina GR no. 154207 April 27, 2007
BAR MATTER NO.730, June 13, 1997
• For the guidance of the bench and bar, we hold thata law student
appearing before the Regional Trial Court under Rule 138-A shouldat all times be accompanied by a supervising lawyer.
Law student can appear without supervision of a lawyer
• The rule, however, is different if the law student appears before an
inferior court, where the issues and procedure are relatively simple. In inferior courts, a law student may appear in his personal capacitywithout the supervision of a lawyer.
• Thus, a law student may appear before an inferior court as an agent or friend of a partywithout the supervision of a member of the bar.
Caution when one act as his own attorney
• This provision means that in a litigation, parties may personally do
everything during its progress -- from its commencement to its termination. When they, however, act as their own attorneys, they arerestricted to the same rules of evidence and procedure as those qualified to practice law; otherwise, ignorance would be unjustifiably rewarded. Individuals have long been permitted to manage, prosecute and defend their own actions; and when they do so, they are not considered to be in the practice of law. "One does not practice law by acting for himself any more than he practices medicine by rendering first aid to himself.“ – Maderada v. Judge Mediodea, A.M. No. MTJ-02-1459. October 14, 2003 Appearing as his own attorney is not “practice of law”
• Clearly, in appearing for herself, complainant was not customarily or habitually holding herself out to the public as a lawyer. Neither was she demanding payment for such services. Hence, she cannot be said to be in the practice of law. - Maderada v. Judge Mediodea, A.M. No. MTJ-02-1459. October 14, 2003
• The law allows persons who are not lawyers by profession to litigate their own case in court. The right of complainant to litigate her case personally cannot be taken away from her.
- Maderada v. Judge Mediodea, A.M. No. MTJ-02-1459. October 14, 2003
UNAUTHORIZED PRACTICE OF LAW
• 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.
Threefold rationale behind the Law Student Practice Rule • 1. toensure that there will be no miscarriage of justice as a
result ofincompetence or inexperienceof law students, who, not having as yet passed the test of professional competence, are presumably not fully equipped to act a counsels on their own;
• 2. to provide a mechanism by which the accredited law school
clinic may be ableto protect itself from any potential vicarious liability arising from some culpable action by their law students; and
• 3. to ensureconsistency with the fundamental principle that no person is allowed to practicea particular profession without possessing the qualifications, particularly a license, as required by law.
Presiding judge has no discretion
• The matter of allowing a law student to appear before the court
unaccompanied by a supervising lawyer cannot be left to the discretion of the presiding judge. The rule clearly states that the appearance of the law student shall be under the direct control and supervision of a member of the Integrated Bar of the Philippines duly accredited by law schools. The rule must be
strictly construed because public policy demands that legal work should be entrusted only to those who possess tested qualifications, are sworn to observe the rules and ethics of the legal profession and subject to judicial disciplinary control. - BAR MATTER NO. 730 June 13, 1997
Appearance of a law student in inferior courts does not require supervision of lawyer
• For relatively simple litigation before municipal courts, the Rules
still allow a more educated or capable person in behalf of a litigant who cannot get a lawyer. - Bulacan v. Torcino, G.R. No. L-44388 January 30, 1985
• The rule, however, is different if the law student appears before an inferior court, where the issues and procedure are relatively simple. In inferior courts, a law student may appear in his personal capacity without the supervision of a lawyer. - BAR MATTER NO. 730 June 13, 1997
• A law student may appear before an inferior court as an agent or
friend of a party without the supervision of a member of the bar. - BAR MATTER NO. 730 June 13, 1997
The respondent alleges that the complaint is irregular as it was signed not by the plaintiff but by one who was not a member of the bar and who designated himself merely as "Friend counsel for the Plaintiff." The appellants argue that the municipal court did not acquire jurisdiction over the case.
• They invoke Section 5, Rule 7 which states that [SEC. 5. Signature
and address] [e]very pleading of a party represented by an attorney
shall be signed by at least one attorney of record in his individual name, whose address shall be stated.A partywho is not represented by an attorney shall sign his pleading and state his address.
Held:
• Under the facts of this case, however, the applicable provision is
Section 34, Rule 138 of the Rules of Court which states:
• SEC. 34. By whom litigation is conducted. In the Court of a
municipality a party may conduct his litigation in person with the aid of anagent or friend appointed by him for that purpose, or with the aid of an attorney. In any other court, a party may conduct his litigation personally or by aid of an attorney and his appearance must be either personal or by a duly authorized member of the bar. - Bulacan v. Torcino, G.R. No. L-44388 January 30, 1985
Supervising lawyer should be the one to sign the pleadings
• Rule 7 (RRC) Section 3. Signature and address. — Every
pleading must be signed by the party or counsel representing him, stating in either case his address which should not be a post office box.
Signing amounts to certification of lawyer
• Rule 7 (RRC) Section 3. xxx The signature of counsel constitutes a certificate by him thathe has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; andthat it is not interposed for delay.
Effect of unsigned pleadings
• Rule 7 (RRC) Section 3. An unsigned pleading produces no legal
effect. However, the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay. Counsel who deliberately files an unsigned pleading,xxx,shall be subject to appropriate disciplinary action.
Can a third year law student appear as private prosecutor in a criminal case and within the jurisdiction of the inferior court?
• The petitioner, describing himself as a third year law student, justifies his appearance as private prosecutor on the bases of
Section 34 of Rule 138of the Rules of Court.
• The petitioner furthermore avers that his appearance was with the
prior conformity of the public prosecutorand a written authority of Mariano Cruz appointing him to be his agent in the prosecution of the said criminal case.
• The MeTC denied permission for petitioner to appear as private prosecutor on the ground that Circular No. 19 (1997) governing limited law student practice in conjunction with Rule 138-A of the Rules of Court (Law Student Practice Rule) should take precedence over the ruling of the Court laid down in Cantimbuhan (1983).
Held:
• Petitioner expressly anchored his appearance on Section 34 of Rule
138. The court a quo must have been confused by the fact that petitioner referred to himself as a law student in his entry of appearance. Rule 138-A should not have been used by the courts a quo in denying permission to act as private prosecutor against petitionerfor the simple reason that Rule 138-A is not the basis for the petitioner’s appearance.
• Section 34, Rule 138 is clear that appearance before the inferior
courts by a non-lawyer is allowed, irrespective of whether or not he is a law student. As succinctly clarified in Bar Matter No. 730, by virtue of Section 34, Rule 138, a law student may appear, as an agent or a friend of a party litigant,without the supervision of a lawyer before inferior courts. - Cruz v. Mina GR no. 154207 April 27, 2007
Fiscal’s role when there is a private p rosecutor
• The permission of the fiscal is not necessary for one to enter his appearance as private prosecutor.In the first place,the law does not impose this condition.What the fiscal can do, if he wants to handle the case personally is to disallow the private prosecutor's
participation, whether he be a lawyer or not, in the trial of the case. On the other hand, if the fiscal desires the active participation of the private prosecutor, he can just manifest to the court that the private prosecutor, with its approval, will conduct the prosecution of the case under his supervision and control. – Cantimbuhan v. Hon. Cruz, Jr., G.R. No. L-51813-14 November 29, 1983
Sections 4 and 15, Rule 110 of the Rules of Court
• SEC. 4. Who must prosecute criminal actions. — All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. • xxx xxx xxx
• SEC. 15. Intervention of the offended party in criminal action. — Unless the offended party has waived the civil action or expressly reserved the right to institute it separately from the criminal action, and subject to the provisions of section 4 hereof, he may intervene, personally or by attorney, in the prosecution of the offense.
CHAPTER 3
Solicitation of legal services Code of Professional Responsibility
• CANON 2 - A LAWYER SHALL MAKE HIS LEGAL
SERVICES AVAILABLE IN AN EFFICIENT AND
CONVENIENT MANNER COMPATIBLE WITH THE INDEPENDENCE, INTEGRITY AND EFFECTIVENESS OF THE PROFESSION.
• Rule 2.01 - A lawyer shall not reject, except for valid reasons, the cause of the defenseless or the oppressed.
• Rule 2.02 - In such cases, even if the lawyer does not accept a case, he shall not refuse to render legal advice to the person concerned if only to the extent necessary to safeguard the latter's rights.
• Rule 2.03 - A lawyer shall not do or permit to be done any act designed primarily to solicit legal bu siness.
• Rule 2.04 - A lawyer shall not charge rates lower than those customarily prescribed unless the circumstances so warrant.
CANON 3 - A LAWYER IN MAKING KNOWN HIS 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-laudatory or unfair statement or claim regarding his qualifications or legal services.
• 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 communications 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 currently. • 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.
Rule 138
• Sec. 27. Attorneys removed or suspended by Supreme Court on what grounds. - A member of the bar may be removed or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office,
