UST GN 2011 - Legal and Judicial Ethics Proper, Index, Biblio

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L E G A L E T H I C S

.

Q: What is legal ethics?

A: It is a branch of moral science which treats of

the duties which an attorney owes to the court, to his client, to his colleagues in the profession and to the public as embodied in the Constitution, Rules of Court, the Code of Professional Responsibilities, Canons of Professional Ethics, jurisprudence, moral laws and special laws.

(Justice George Malcolm) (1993, 1996 Bar Question)

Q: What are the sources of ethical standards in the Philippine judiciary?

A:

1. Primary a. Bar

i. Canons of Professional Ethics ii. Code of Professional Responsibility b. Bench

i. Canons of Judicial Ethics ii. Code of Judicial Ethics

iii. New Code of Judicial Conduct for the Philippine Judiciary

c. Other personnel – Code of Conduct for Court Personnel

2. Secondary

a. Decisions/resolution of the Supreme Court

b. Supreme Court Circulars c. Order/resolution of other courts d. IBP Issuances

Q: “What is legal is moral.” State your comment on the correctness or incorrectness of this proposition.

A: The statement is not necessarily correct. There

are several acts of a lawyer, which may be legal but not necessarily moral. This is precisely the purpose of the legal ethics, which governs the ethical and moral behavior of a lawyer. (1993 Bar

Question)

I. PRACTICE OF LAW

A. CONCEPTS

Q: What constitutes practice of law?

A: Practice of law means any activity, in or out of

court, which requires the application of law, legal procedure, knowledge, training, and experience. “To engage in the practice of law is to perform those acts which are characteristics of the profession. Generally, to practice law is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill.” (Cayetano v. Monsod, G.R.

No. 100113, Sept. 3, 1991) Q: Who is a practicing lawyer?

A: A practicing lawyer is one engaged in the

practice of law, who by license is an officer of the court and is empowered to appear, prosecute and defend a client’s cause.

A practicing lawyer is a member of the Philippine Bar who appears for and in behalf of parties in courts of law and quasi-judicial agencies.

Q: What does the term “practicing lawyer” include?

A: It includes:

1. Government employees and incumbent elective officials not allowed by law to practice.

2. Lawyers who by law are not allowed to appear in court;

3. Supervising lawyers of students enrolled in law student practice in duly accredited legal clinics of law schools and lawyers of Non-Government Organizations (NGOs) and People’s Organizations (POs) who by the nature of their work already render free legal aid to indigent and pauper litigants; and

4. Lawyers not covered under subparagraphs (i) to (iii) (of Sec. 4, B.M. 2012) including those who are employees in the private sector but do not appear for and in behalf of parties in courts of law and quasi-judicial agencies.

Q: Differentiate bar from bench. A:

Bar refers to the whole

body of attorneys and counselors,

collectively, the members of the legal profession

Bench refers to the

whole body of judges.

Q: What is a bar association?

A: It is an association of the members of the legal

profession like the IBP where membership is integrated or compulsory.

Q: Who is an amicus curiae?

A: An amicus curiae is an experienced and

impartial attorney invited by the court to appear and help in the disposition of the issues submitted to it. It implies friendly intervention of counsel to call the attention of the court to some matters of law or facts which might otherwise escape its notice and in regard to which it might be wrong. Amicus curiae appears in court not to represent any particular party but only to assist the court. (plural: Amici Curiae) (1993, 1996, 1998

Bar Question)

Q: What is amicus curiae par excellence? A: It is a bar association who appears in court as amicus curiae or a friend of the court. It acts

merely as a consultant to guide the court in a doubtful question or issue pending before it.

Q: What is assumpsit?

A: Literally means “he has undertaken”. It is an

action for the recovery of damages by reason of the breach or non performance of a simple contract, either express or implied, or whether made orally or in writing. Assumpsit was the word always used in pleadings by the plaintiff to set forth the defendant’s undertaking or promise.

(2006 Bar Question)

Note: Claims in action of assumpsit were ordinarily divided into (a) common or indebitatus assumpsit, brought usually on an implied promise, and (b) special assumpsit, founded on an express promise. Q: Who is an attorney ad hoc?

A: Attorney ad hoc is a person appointed by the

court to defend an absentee defendant in the suit in which the appointment was made.

Q: Distinguish attorney-at-law from attorney in Fact.

A: Attorney-at-law is that class of persons who

are licensed officers of the court empowered to appear, prosecute and defend, and upon whom peculiar duties, responsibilities and liabilities are developed by law as consequence, while an

attorney in fact is simply an agent whose

appointing him. His authority is provided in a special power of attorney or general power of attorney or letter of attorney. He is not necessarily a lawyer.

Q: Who is an attorney of record?

A: Attorney of record is an attorney whose name

is entered in the records of an action or suit as the lawyer of a designated party thereto.

Q: Who is a counsel/attorney de officio? A: A counsel/attorney de officio is an attorney

appointed by the court to defend an indigent defendant in a criminal action. (1998 Bar

Question)

Note: In a criminal action, if the defendant appears without an attorney, he must be informed by the court that it is his right to have an attorney before being arraigned and must be asked if he desires the aid of an attorney. If he desires and is unable to employ an attorney, the court must assign a counsel

de officio to defend him. He is also designated as

counsel of indigent litigants. The appointment of a counsel de officio in that instance is a matter of right on the part of the defendant.

On appeal in criminal cases, the appellate court must also appoint a counsel de officio if, as shown by the certificate of the clerk of court of the trial court, a defendant is confined in prison or without means to employ an attorney or desires to be defended de

officio. (Secs. 6-8, Rule 116 and Sec. 13, Rule 122)

Q: Who is a counsel de parte?

A: Private counsel of a party, secured by him,

without intervention from the government.

Q: Who is an in-house or house counsel? A: He is one who acts as attorney for business

though carried as an employee of that business and not as an independent lawyer.

Q: Who is a lead counsel?

A: A lead counsel is a lawyer on either side of a

litigated action who is charged with the principal management and direction of a party’s case, as distinguished from his juniors or subordinates.

Q: Who is an Of Counsel?

A: He is an experienced lawyer, usually a retired

member of the judiciary, employed by law firms as consultants.

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A: It is an appearance by a lawyer in his own

behalf. (1995 Bar Question)

Q: Who is a trial lawyer?

A: A trial lawyer is one who personally handles

cases in court, administrative agencies or boards and engages in actual trial work, either for the prosecution or for the defense of cases of clients.

(2006 Bar Question)

Q: Who is a public prosecutor?

A: He is a quasi-judicial officer and as such, he

should seek equal and impartial justice. He should be as much concerned with seeing that no innocent man suffers as in seeing that no guilty man escapes. His primary duty is not to convict but to see to it that justice is done. He should see to it that the accused is given fair and partial trial and not deprived of any of his statutory or constitutional rights. Consequently, the suppression of facts or the concealment of witnesses capable of establishing the innocence of the accused is highly reprehensible and is cause for disciplinary action. He should recommend the acquittal of the accused whose conviction is on appeal, if he finds no legal basis to sustain the conviction.

Q: Who is a private prosecutor?

A: A private prosecutor may intervene in the

prosecution of a criminal action when the offended party is entitled to indemnity and has not waived expressly, reserved or instituted the civil action for damages. All criminal actions commenced by complaint or information shall be prosecuted under the direction and control of the prosecutor. In case of heavy work schedule of the public prosecutor or in the event of lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the approval of the Court. Once so authorized to prosecute the criminal action, the private prosecutor shall continue to prosecute the case up to the end of the trial even in the absence of the public prosecutor, unless the authority is revoked or otherwise withdrawn (Sec. 5 Rule 110

RRC as amended, May 1, 2002). Q: Who is a client?

A: A client is one who engages the services of a

lawyer for legal advice for purposes of prosecuting or defending a suit in behalf and usually for a fee.

Q: What is the nature of the practice of law? A: The practice of law is not a natural property or

constitutional right but a mere privilege. It is not a right granted to anyone who demands it but a privilege to be extended or withheld in the exercise of sound judicial discretion. It is in the nature of a franchise conferred only for merit which must be earned by hard study, learning and good conduct. It is a privilege accorded only to those who measure up to certain rigid standards of mental and moral fitness. Those standards are neither dispensed with nor lowered after admission. The attorney’s continued enjoyment of the privilege conferred depends upon his complying with the ethics and rules of the profession.

Q: Can the practice of law be a business? A: No. The practice of law is a profession and not

a business as it is an essential part in the administration of justice, a profession in pursuit of which pecuniary reward is considered merely incidental; it is a pursuit of learned art in the interest of public service.

Q: Why is law a profession and not a trade? A: Law is a profession and not a trade because its

basic ideal is to render public service and secure justice for those who seek its aid. The gaining of a livelihood is only a secondary consideration.

(2006 Bar Question)

Note: But while the practice of law is a privilege, a lawyer cannot be prevented from practicing law except for valid reasons, the practice of law not being a matter or State’s grace of favor. He holds office during good behavior and can only be deprived of it for misconduct ascertained and declared by judgment of the Supreme Court after opportunity to be heard has been afforded him. Q: May a corporation practice law?

A: No. It is well-settled rule that a corporation

cannot engage in the practice of law. It may, however, hire an attorney to attend to and conduct its own legal business or affairs. But it cannot practice law directly or indirectly by employing a lawyer to practice for it or to appear for others for its benefit because of the following reasons:

1. Nature of the privilege and on the confidential and trust relation between attorney and client.

2. A corporation cannot perform the conditions required for membership in the Bar, such as the possession of good moral character and other special disqualifications, the taking of an oath and becoming an officer of the court, subject to its discipline, suspension or removal. 3. The relation of trust and confidence

cannot arise where the attorney is employed by a corporation to practice for it, his employer and him owing, at best, a secondary and divided loyalty to the clientele of his corporate employer. 4. The intervention of the corporation is

destructive of that confidential and trust relation and is obnoxious to the law.

Q: State the essential criteria in determining engagement in the practice of law.

A: C A H A

1. Compensation – implies that one must have presented himself to be in the active practice and that his professional services are available to the public for compensation, as a source of livelihood or in consideration of his said services. 2. Application of law, legal principle, practice

or procedure which calls for legal knowledge, training and experience; 3. Habituality – implies customary or

habitually holding oneself out to the public as a lawyer. Practice of law is more than an isolated appearance for it consists in frequent or customary action; and 4. Attorney-Client relationship - engaging in

the practice of law presupposes the existence of a lawyer-client relationship. Thus, activities like teaching of law or writing law books or articles which involve no attorney-client relationship do not qualify a lawyer as being engaged in the practice of his profession as a lawyer.

B. QUALIFICATIONS Q: Who may practice law?

A: Any person heretofore duly admitted as a

member of the bar, or hereafter admitted as such in accordance with the provisions of the rule, and who is in good and regular standing, is entitled to practice law. [Sec. 1, Rule 138, Revised Rules of

Court (RRC)]

Q: A criminal case was filed against Atty. Javellana which resulted to his arrest and temporary detention at the house of the clerk of court where his case was pending. Despite his detention, Atty. Javellana continues with his normal activities including his practice of law, in appearing as counsel for certain cases.

Can Atty. Javellana still engage in the practice of law despite his arrest and detention?

A: As a detention prisoner, Javellana is not

allowed to practice his profession as a necessary consequence of his status as a detention prisoner. The trial court's order was clear that Javellana "is not to be allowed liberty to roam around but is to be held as a detention prisoner." The prohibition to practice law referred to all other cases, except in cases where Javellana would appear in court to defend himself. (Pro Se)

All prisoners whether under preventive detention or serving final sentence can not practice their profession nor engage in any business or occupation, or hold office, elective or appointive, while in detention. This is a necessary consequence of arrest and detention. (People v.

Maceda, G.R. Nos. 89591-96, Jan. 24, 2000) Q: Is a clerk of court allowed to practice law? A: No, except if it is an isolated practice.

Q: What are the requisites if a clerk of court wishes to practice law?

A:

1. Written permission which must be approved by the Supreme Court; and 2. Approved leave of absence with justifiable

reasons.

Note: Notarial act is practice of law. Notarization of a single document is not an isolated transaction therefore a permit must be secured in order to prevent the violation of law.

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counsel for and in behalf of his cousin in a criminal case for falsification of public documents before the METC of Quezon City. The appearance of Atty. Ladaga in said case was without the previous permission of the Court. Did Atty. Ladaga violate the Code of Conduct and Ethical Standards for Public Officials and Employees by engaging in private practice? A: Yes. "Private practice" of a profession, which is

prohibited, does not pertain to an isolated court appearance; rather, it contemplates a succession of acts of the same nature habitually or customarily holding one's self to the public as a lawyer. It is true that he filed leave applications corresponding to the dates he appeared in court but he failed to obtain a prior permission from the head of the Department. (Oca v. Atty. Ladaga,

A.M. No. P-99-1287, Jan. 26, 2001)

Q: What branch of the government has the power to admit persons in the practice of law? A: The Constitution vests the power of control

and regulation in the Supreme Court. The constitutional power to admit candidates to the legal profession is a judicial function and involves the exercise of discretion. Petition to that end is filed with the Supreme Court as are other proceedings invoking judicial function. (In Re:

Almacen, G.R. No. L-27654, Feb. 18, 1970) (1995 Bar Question)

Note: Art VIII Sec. 5 (5) of the Constitution provides that the authority to decide who may be admitted to the bar naturally and logically belongs to the judiciary represented by the Supreme Court in view of the nature of its judicial function and in the role played by attorneys in the administration of justice. Note: The SC acts through a Bar Examination Committee in the exercise of its judicial function to admit candidates to the legal profession. The committee is composed of a member of the court who acts as a chairman and 8 members of the bar who act as examiners in the 8 bar subjects with one subject assigned to each examiner.

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

Aug. 29, 1975)

Q: What are the powers of the Supreme Court in relation to regulating the practice of law? A: DPD-DRO-PEE

1. Define them;

2. Prescribe the qualifications of a candidate and the subjects of the bar examinations; 3. Decide who will be admitted to practice; 4. Discipline, suspend or disbar any unfit and

unworthy member of the bar;

5. Reinstate any disbarred or indefinitely suspended attorney;

6. Ordain the integration of the Philippine Bar;

7. Punish for contempt any person for unauthorized practice of law;

8. Exercise overall supervision of the legal profession; and

9. Exercise any other power as may be necessary to elevate the standards of the bar and preserve its integrity.

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

A: No. It is noteworthy that unlike the 1935 and

1973 Constitution, the 1987 Constitution no longer provides for the power of the legislature to repeal, alter and supplement the Rules promulgated by the Supreme Court.

However, the legislature, in the exercise of police

power may enact laws regulating the practice of law to protect the public and promote public welfare.

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

Cunanan, Resolution, Mar. 18, 1954)

Q: Can Senate pass a law lowering the passing rate for candidates?

A: No, the admission, suspension, disbarment and

reinstatement of attorney at law in the practice of the profession and the supervision have been indisputably a judicial function and responsibility and remains vested with the Supreme Court. The Constitution has not conferred on Congress equal responsibility which the Constitution recognizes as to be continuously residing in the Supreme Court. (Ibid)

Q: Enumerate the initial requirements for admission to the bar.

A: Under Sections 2, 5 and 6 of Rule 138, the

applicant must be: (C21GRENAPOS) 1. Citizen of the Philippines; 2. At least 21 years of age; 3. Of Good moral character; 4. Resident of the Philippines;

5. Must produce before the SC satisfactory

Evidence of good moral character;

6. No charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines (Sec. 2, Rule

138, RRC);

7. Must have complied with the Academic requirements;

8. Must Pass the bar examinations 9. Take the lawyer’s Oath; and 10. Sign the Roll of Attorneys.

Note: Section 5 of Rule 138, RRC, now provides that before being admitted to the examination, all applicants for admission to the bar shall satisfactorily show that they have successfully completed all the prescribed courses for the degree of Bachelor of Laws or its equivalent degree in a law school or

university officially recognized by the Philippine Government or by the proper authority in the foreign jurisdiction where the degree has been granted.

Section 5 now also provides that a Filipino citizen “who graduated from a foreign law school shall be admitted to the bar examination only upon submission to the Supreme Court of certifications showing: (a) completion of all courses leading to the degree of Bachelor of Laws or its equivalent degree; (b) recognition or accreditation of the law school by the proper authority; and (c) completion of all fourth year subjects in the Bachelor of Laws academic program in a law school duly recognized by the Philippine Government.”

A Filipino citizen who completed and obtained his or her degree in Bachelor of Laws or its equivalent in a foreign law school must also present proof of completion of a separate bachelor’s degree. The Supreme Court has directed the Clerk of Court, through the Office of the Bar Confidant, to circularize its resolution approving the said amendments among all law schools in the country.

(Bar Matter No. 1153, Re: Letter of Atty. Estelito P. Mendoza Proposing Reforms in the Bar Examinations through Amendments to Rule 138 of the Rules of Court, Mar. 9, 2010)

Q: How many times can a law graduate take up the bar?

A: Bar Matter (B.M.) 1161 which regulates the

conduct of the bar examinations, limits the examination up to five times only.

Note: B.M. 1161 – also requires submission of the dean of a certification that the candidate has no derogatory record in school and if any in detail and status thereof.

Q: Ching was born on April 1964 of Filipino mother and Chinese father. He was conditionally admitted to take the bar examination because of questions arising to his citizenship. Upon passing the bar he was required to take further proof of citizenship and was not allowed to take the oath.

Can he elect Philippine citizenship, 14 years after reaching the age of majority (required under the 1935 Constitution)?

A: No, Ching is not qualified to be a lawyer for

having elected Philippine citizenship 14 years after reaching the age of majority. Ching offered no reason why he delayed the election of Philippine citizenship. The procedure is not a tedious process. All that is required is to execute an affidavit and file the same in the nearest registry. (In Re: Application for Admission to the

Philippine Bar of Vicente Ching, B.M. 914, Oct. 1, 1999)

Q: Atty. Melendrez filed a petition to disqualify Meling from taking the bar exams and to impose disciplinary penalty as a member of the Philippine Shari'a Bar. He alleges that Meling, in his application to take the bar, failed to disclose the fact that he has 3 pending criminal cases. Also, Meling has been using the title “Attorney" in his communications as secretary to the Mayor.

Should Meling be disqualified from admission to the bar?

A: Meling's deliberate silence and non-revelation

of his pending criminal cases constitute concealment. The disclosure requirement is imposed to determine whether there is satisfactory evidence of good moral character of the applicant. By concealing the existence of such cases, the applicant flunks the test of fitness even if the cases are ultimately proven unwarranted or insufficient to impugn or affect the good moral character of the applicant.

Note: The issue of Meiling’s disqualification from admission to the bar is rendered moot since he did not pass the bar.

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member of the Philippine Shari'a Bar?

A: It was highly improper for Meling, as member

of the Shari'a Bar, to use the title "Attorney". Only members of the Philippine bar, who have obtained the necessary degree in the study of law and successfully passed the bar exams, been admitted to the IBP and remain members in good standing are authorized to practice law and thus use the title. Meling was suspended from membership in the Philippine Shari'a Bar. (In the

Matter of the Disqualification of Bar Examinee Haron S. Meling, B.M. No. 1154, June 8, 2004) Q: Alauya, a member of Shari’a Bar and a clerk of court in Shari’a District Court, wrote a letter to a corporation claiming to be a lawyer, affixing “Attorney” before his name. Can a member of the Shari’a Bar affix the designation lawyer before their name?

A: The Court reprimanded him for claiming to be

a lawyer since persons who pass the Shari'a Bar are not full-fledged members of the Philippine Bar. The title of "attorney" is reserved to those who are admitted to the Integrated Bar of the Philippines and remain members thereof in good standing. (Alawi v. Alauya, A.M. No. SDC-97-2-P,

Feb. 24, 1997)

Q: Telesforo Diao was admitted to the Bar in 1953, after two years, Severino Martinez charged him with having falsely represented in his application for such Bar examination that he had the requisite academic qualifications. The SolGen recommended that Diao’s name be erased from the Roll of Attorneys because Diao had not completed the prescribed pre-legal education, to wit: Diao did not complete his high school training and Diao never attended Quisumbing College, and never obtained his A.A. Diploma therefrom.

Should Diao’s name be erased from the Roll of Attorneys?

A: Yes. Passing the bar examination is not the

only qualification to become an attorney-at-law. Taking the prescribed courses of legal study is equally essential. Where it is found that the requirement was not complied with, the one who has been admitted to the bar after successfully passing the bar may be stricken of record on the ground that his admission was obtained under false pretenses. (Diao v. Martinez, A.C. No. 244,

Mar. 29, 1963)

Q: While the examination was in progress, the headwatcher, Lilian Mendigorin, reported that examinee Amparo was found reading a piece of paper containing notes in Criminal Law. He at first refused to surrender the paper, but later gave it to Mendigorin when she threatened to report the matter to the authorities. A verbal report was relayed to the Bar Chairman who forthwith gave instructions that no investigation be then made in order to forestall any commotion that might disturb the other candidates. Amparo was permitted to continue answering the questions. Headwatcher Mendigorin thereafter submitted a special report on the incident. He was still allowed to take the exams for the last Sunday of the Bar. Amparo did not pass the 1974 Bar Exams. Should Amparo be allowed to take the 1975 Bar Exams?

A: No. It is clear that Amparo, in the course of the

examination in Criminal Law, had possession of the piece of paper containing notes on the durations of penalties and that he knew that it is contrary to the rules to bring notes and books inside the examination room. It thus results that he knowingly violated Section 10, Rule 138 of the Rules of Court, which pertinently provides that "Persons taking the examination shall not bring papers, books or notes into the examination rooms."

Amparo's impression that the notes had no "material use" to him is correct, in the sense that they bore no reference to any question asked in the examination in Criminal Law; even so he committed an overt act indicative of an attempt to cheat by reading the notes. His refusal to surrender the paper containing the notes when first demanded; his eventual surrender of it only after he was informed that he would be reported; and the facts that the notes pertained to Criminal Law and the examination then in Criminal Law, all these override and rebut his explanation that he merely read the notes to find out what they were as he had forgotten about them.

Amparo is guilty of (1) bringing notes into the examination room and (2) attempted cheating. (In

Re: Pedro Amparo, G.R. No. 000, July 18, 1975) (1974 Bar Question)

Q: Mike Adelantado, an aspiring lawyer, disclosed in his petition to take the 2003 bar examinations that there were two civil cases pending against him for nullification of contract and damages. He was thus allowed to

conditionally take the bar, and subsequently placed third in the said exams.

In 2004, after the two civil cases had been resolved, Mike Adelantado filed his petition to take the Lawyer’s Oath and sign the Roll of Attorneys before the Supreme Court. The Office of the Bar Confidant, however, had received two anonymous letters: the first alleged that at the time Mike Adelantado filed his petition to take the bar, he had two other civil cases pending against him, as well as a criminal case for violation of B.P. 22; the other letter alleged that Mike Adelantado, as Sangguniang Kabataan chairperson, had been signing the attendance sheets of SK meetings as “Atty. Mike Adelantado.” Having passed the bar, can Mike already use the appellation “attorney”? Explain your answer.

A: No. Only those who have been admitted to the

Philippine Bar can be called “Attorney” (Alawi v.

Alauya, A.M. No. SDC-97-2-P, Feb. 24, 1997).

Passing the Bar examination is not sufficient for admission of a person to the Philippine Bar. He still has to take the oath of office and sign the Attorney’s Roll as prerequisites to admission.

Q: Should Mike be allowed to take his oath as a lawyer and sign the Roll of Attorneys? Explain your answer.

A: No, he should not be allowed to take his oath

and sign the Attorney’s Roll. Rule 7.01 of the Code of Professional Responsibility provides that “a lawyer shall be answerable for knowingly making a false statement or suppressing a material fact in connection with his application for admission to the bar”. Mr. Adelantado made a false statement in his application to take the bar by revealing only that there were two civil cases pending against him. This is sufficient ground to deny him admission to the bar (In Re: Galang, 66

SCRA 245 [1975]). He also showed lack of good

moral character in using the title “attorney” before admission to the Bar (Aguirre v. Rana, 403

SCRA 342 [2003]). (2005 Bar Question)

Q: Enumerate the continuing requirements for the practice of law after admission to the Bar. A: He must: MIP-MEJ

1. Remain a Member of the Bar;

2. Regularly pay all IBP membership dues; 3. Regularly pay the Professional Tax Receipt

(PTR);

4. Comply with the Mandatory Continuing Legal Education (MCLE);

5. Faithfully observe the rules and Ethics of the legal profession; and

6. Be continually subject to Judicial

disciplinary control.

Q: What are the obligations of a newly constituted lawyer?

A:

1. Pay the full annual membership dues;

Note: Lawyers who are senior citizens are not exempt from payment of IBP dues, since the Senior Citizens Act which exempts senior citizens from payment of taxes does not include exemption from payment of membership and association fees.

2. Undergo Mandatory Continuing Legal Education or MCLE;

3. Undergo Mandatory Legal Aid Service; 4. Pay Professional Tax Receipt; and

5. Prove that he is a person of good moral character.

C. APPEARANCE OF NON-LAWYERS IN COURTS Q: May a non-lawyer appear in court?

A:

GR: No. Only those who are licensed to practice

law can appear and handle cases in court.

XPN:

1. Law Student Practice 2. Non-lawyers in Court

3. Non-lawyers in Administrative Tribunal

1. LAW STUDENT PRACTICE

Law student practice rule – A law student who has

successfully completed 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 represent indigent clients accepted by the legal clinic of the law school (Sec. 1, Rule 138-A).

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. (Sec. 2, Rule 138-A)

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Note: 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 (Circular

No.19, dated December 19, 1986).

2. NON-LAWYERS IN COURT

a. Cases before the MTC: A party to the litigation, may conduct his own case or litigation in person, with the aid of an agent or friend appointed by him for that purpose

(Sec. 34, Rule 138, RRC);

b. Before any other court, a party may conduct his litigation personally. But if he gets someone to aid him, that someone must be authorized member of the Bar (Sec. 34, Rule

138, RRC)

Note: A non-lawyer conducting his own litigation is bound by the same rules in conducting the trial case. He cannot after judgment, claim that he was not properly represented.

c. Criminal case before the MTC in a locality

where a duly licensed member of the Bar is not available, the judge may appoint a non-lawyer who is a:

i. Resident of the province; AND

ii.

Rule 116 RRC)

d. Any official or other person appointed or designated to appear for the Government of the Philippines in accordance with law. (Sec.

33, Rule 138 RRC)

Note: Such person shall have all the rights of a duly authorized member of the bar to appear in any case in which said government has an interest direct or indirect. (Sec. 33,Rule 138,

RRC)

Q: May a party represent himself?

A: In civil cases, an individual litigant has the right

to conduct his litigation personally. In criminal

cases, in grave and less grave offenses, an

accused who is a layman must always appear by counsel; he cannot conduct his own defense without violating his right to due process of law.

Note: Even the most intelligent of the educated men may have no skill in the science of law, particularly in the rules of procedure and without counsel; he may

be convicted not because he is guilty but because he does not know how to establish his innocence. Where an accused was not duly represented by a member of the bar during trial, the judgment should be set aside, and the case remanded to the trial court for a new trial. (People v. Santocildes, Jr., G.R.

No. 109149, Dec. 21, 1999)

With regard to a juridical person, it must always appear in court through a duly licensed member of the bar, except before MTC where it may be represented by its agent or officer who need not be a lawyer.

Note: Partnership with a non-lawyer is VOID. In the formation of partnership for the practice of law, no person should be admitted or held out as a practitioner or member who is not a member of the legal profession duly authorized to practice, and amenable to professional discipline.

Q: A, a mere high school graduate, with the aid of a friend who is a college undergraduate, filed a complaint for recovery of a sum of money in the amount of Four Thousand (P4,000.00) Pesos in the Metropolitan Trial Court of his town. The Clerk of Court told A that his complaint might be dismissed for insufficiency as to form because neither he nor his friend who is assisting him is a lawyer. Is the Clerk of Court correct?

A: The Clerk of Court is not correct. In the Justice

of the Peace courts (now known as Municipal Trial Court or Municipal Circuit Trial Courts or Metropolitan Trial Court), 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. (Sec. 34, Rule 138, Rules of

Court). (1999 Bar Question)

3. NON-LAWYERS IN ADMINISTRATIVE TRIBUNAL

a. Under the Labor Code, non-lawyers may appear before the NLRC or any Labor Arbiter,

if:

i. They represent themselves; OR ii. They represent their organization or

members thereof; (Art 222, PD 442,

as amended) (2002 Bar Question)

iii. If they are duly accredited members of any legal aid office duly recognized by the Department of Justice, or the Integrated Bar of the Philippines in cases referred to by the latter.

(Lapena, 2009)

Note: He is not, however, entitled to attorney’s fees under Article 222 of the Labor Code for not being a lawyer. (Five J. Taxi v. NLRC, G.R. No.

b. Under the Cadastral Act, a non-lawyer can represent a claimant before the Cadastral Court. (Sec. 9, Act no. 2259)

Q: Kanlaon Construction and Reluya’s, et al. case were assigned before two labor arbiters. The Engineers as co-defendant, without written authority to represent Kanlaon Construction, admitted the complaints against them. By virtue of such, the labor arbiters adjudicated the case in favor of Reluya and the others.

Can an engineer represent a co-defendant in a case before the labor arbiter?

A: No, the appearance of the engineer on behalf

of Kanlaon Construction required written proof of authorization. It was incumbent upon the arbiters to ascertain this authority especially since both engineers were named co-respondents in the cases before the arbiters. Absent this authority, whatever statements and declarations the engineers made before the arbiters could not bind Kanlaon.

Nevertheless, even assuming that the engineers were authorized to appear as representatives of Kanlaon, they could bind the latter only in procedural matters before the arbiters and the Commission. Kanlaon's liability arose from engineer’s alleged promise to pay. A promise to pay amounts to an offer to compromise and requires a special power of attorney or the express consent of Kanlaon. The authority to compromise cannot be lightly presumed and should be duly established by evidence. (Kanlaon

Construction v. NLRC, G.R. No. 126625, Sept. 18, 1997)

Q: What are the limitations on appearance of non-lawyers before the courts?

A:

1. He should confine his work to non-adversary contentions;

2. He should not undertake purely legal work, such as the examination or cross-examination of witnesses, or the presentation of evidence; and

3. His services should not be habitually rendered. He should not charge or collect attorney’s fees. (PAFLU v. Binalbagan

Isabela Sugar Co. L-23959, November 1971)

Pro Se (Section 34, Rule 138)

Q: Maderada filed charges against Judge Mediodea for "gross ignorance of the law amounting to grave misconduct" for failing "to observe and apply the Revised Rule on Summary Procedure" in the civil case. On the other hand, Judge Mediodea maintained that Maderada, in appearing as counsel on her own behalf, failed to secure authority from the Court and to file her leave of absence every time she appeared in court.

Can Maderada appear as counsel for herself and her co-plaintiff even if she is not a lawyer? A: Section 34 of Rule 138 of the Rules of Court

allows persons who are not lawyers by profession to litigate their own case in court. The right of complainant to litigate her case personally cannot be taken away from her. Her being an employee of the judiciary does not remove from her the right to proceedings in propria persona or to self-representation. 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.

However, it was also clearly established that complainant had appeared on behalf of her co-plaintiff in the aforementioned case, for which act the former cannot be completely exonerated. Obviously, because she was already defending the rights of another person when she appeared for her co-plaintiff, it cannot be argued that complainant was merely protecting her rights. That their rights may be interrelated will not give complainant authority to appear in court. The undeniable fact remains that she and her co-plaintiff are two distinct individuals. The former may be impairing the efficiency of public service once she appears for the latter without permission from the Court. (Maderada v. Judge

Mediodea, A.M. No. MTJ-02-1459, Oct. 14, 2003) Q: Ferdinand Cruz sought permission to enter his appearance for and on his behalf before the RTC as the plaintiff in a Civil Case for Abatement of Nuisance. Cruz, a fourth year law student, anchors his claim on Section 34 of Rule 138 of the Rules of Court that a non-lawyer may appear before any court and conduct his litigation personally.

Judge Mijares denied the motion with finality. In the same Order, the trial court held that for the

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and jurisprudence and for his failure to satisfy the requirements or conditions under Rule 138-A of the Rules of Court, his appearance was denied.

Did the court act with grave abuse of discretion amounting to lack or excess of jurisdiction when it denied the appearance of Cruz as party litigant?

A: Yes. The law recognizes the right of an

individual to represent himself in any case to which he is a party. The Rules state that a party may conduct his litigation personally or with the aid of an attorney, and that his appearance must either be personal or by a duly authorized member of the Bar. The individual litigant may personally do everything in the course of proceedings from commencement to the termination of the litigation. Considering that a party personally conducting his litigation is restricted to the same rules of evidence and procedure as those qualified to practice law, Cruz, not being a lawyer himself, runs the risk of falling into the snares and hazards of his own ignorance. Therefore, Cruz as plaintiff, at his own instance, can personally conduct the litigation of his Case. He would then be acting not as a counsel or lawyer, but as a party exercising his right to represent himself.

The trial court must have been misled by the fact that Cruz is a law student and must, therefore, be subject to the conditions of the Law Student Practice Rule. It erred in applying Rule 138-A, when the basis of Cruz's claim is Section 34 of Rule 138. The former rule provides for conditions when a law student may appear in courts, while the latter rule allows the appearance of a non-lawyer as a party representing himself. (Cruz v.

Mijares, et al., G.R. No. 154464, Sept. 11, 2008) 4. PROCEEDINGS WHERE LAWYERS ARE

PROHIBITED FROM APPEARING Q: What are the proceedings to which lawyers are prohibited from appearing?

A:

1. Proceedings before the Small Claims Court -No attorney shall appear in behalf of or represent a party at the hearing, unless the attorney is the plaintiff or defendant (Sec. 17, Rule of Procedure for Small

Claims Cases)

Note: If the court determines that a party cannot properly present his/her claim or defense and needs assistance, the court may, in its discretion, allow another individual who is not an attorney to assist that party upon the latter’s consent (Sec. 17,

Rule of Procedure for Small Claims Cases).

2. Proceedings before the Katarungang Pambarangay - during the pre-trial

conference under the Rules of Court, lawyers are prohibited from appearing for the parties. Parties must appear in person only except minors or incompetents who may be assisted by their next of kin who are not lawyers. (Formerly Sec. 9, P.D. No. 1508; Sec. 415,

Local Government Code of 1991, R.A. 7160)

D. SANCTIONS FOR PRACTICE OR APPEARANCE WITHOUT AUTHORITY

1. SANCTIONS AGAINST UNAUTHORIZED PRACTICE OF LAW OF LAWYERS Q: What are the remedies against unauthorized practice of law of lawyers?

A: DICEDA

1. Declaratory relief; 2. Petition for Injuction; 3. Contempt of court;

4. Criminal complaint for Estafa against a person who falsely represented himself to be an attorney to the damage of a party; 5. Disqualification and complaints for

disbarment; or

6. Administrative complaint against the erring lawyer or government official.

Q: KWD, a GOCC, hired respondent, Atty. I, as private legal counsel for one (1) year effective with the consent of the Office of the Government Corporate Counsel (OGCC) and the Commission on Audit (COA). The controversy erupted when two (2) different groups, herein referred to as the Dela Peña board and Yaphockun board, laid claim as the legitimate Board of Directors of KWD. Dela Peña board appointed respondents Atty. N, V and M as private collaborating counsels for all cases of KWD and its Board of Directors, under the direct supervision and control of Atty. I. Meanwhile, the OGCC had approved the retainership contract of atty. C as new legal counsel of KWD and stated that the retainership contract of Atty. I had expired. The termination of Atty. I’s

contract was said to be justified by the fact that the Local Water Utilities Administration had confirmed the Yaphockun board as the new Board of Directors of KWD and that said board had terminated Atty. I’s services and requested to hire another counsel. Complainants then filed a disbarment complaint against counsels V and M alleging that respondents acted as counsel for KWD without legal authority. Are respondents validly authorized to appear as counsels of KWD?

A: No. Attys. N, V and M had no valid authority to

appear as collaborating counsels of KWD. Nothing in the records shows that Atty. N was engaged by KWD as collaborating counsel. While the 4th Whereas Clause of Resolution appointing Atty. N partly states that he and Atty. I "presently stand as KWD legal counsels," there is no proof that the OGCC and COA approved Atty. N’s engagement as legal counsel or collaborating counsel. Insofar as Attys. V, Jr. and M are concerned, their appointment as collaborating counsels of KWD under Resolution No. 009 has no approval from the OGCC and COA. In the case of Atty. I, he also appeared as counsel of KWD without authority, after his authority as its counsel had expired. Under Section 27, Rule 138 of the Rules of Court, a member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for xxx corruptly or willfully appearing as an attorney for a party to a case without authority to do so. Disbarment, however, is the most severe form of disciplinary sanction, and, as such, the power to disbar must always be exercised with great caution, and should be imposed only for the most imperative reasons and in clear cases of misconduct affecting the standing and moral character of the lawyer as an officer of the court and member of the bar. Accordingly, disbarment should not be decreed where any punishment less severe such as a reprimand, suspension or fine, would accomplish the end desired. (Vargas v. Atty. Ignes, Atty.

Mann, Atty. Viajar and Atty. Nadua, A.C. No. 8096, July 5, 2010)

Note: In any case, an unauthorized appearance of an attorney may be ratified by the client either expressly or impliedly. Ratification retroacts to the date of the lawyer’s first appearance and validates the action taken by him. (Sps. Agbulos v. Gutierrez,

G.R. No. 176530, June 16, 2009)

2. SANCTIONS AGAINST UNAUTHORIZED PRACTICE OF LAW OF PERSONS WHO ARE NOT

LAWYERS

Q. What are the remedies against unauthorized practice of law of persons who are not lawyers? A:

1. Declaratory relief; 2. Petition for Injunction; 3. Contempt of court;

4. Criminal complaint for Estafa against a person who falsely represented himself to be an attorney to the damage of a party;

Q. what are the sanctions against unauthorized practice of law of persons who are not lawyers? A: He may be punished with contempt of court,

severe censure and three (3) months imprisonment because of the highly fraudulent and improper conduct tending directly to impede, obstruct, degrade, and make a mockery of the administration of justice. (Manangan v. CFI, G.R.

No. 82760, August 30,1990; Lapena, 2009)

Note: A disbarred lawyer has no more authority to appear in Court as a lawyer. A lawyer who was previously disbarred but continued to represent himself as a lawyer was found guilty of indirect contempt and fine with imprisonment in case of failure to pay within five (5) days. (Lemoine v. Atty.

Balon, Jr., A.C. No. 5829, October 28,2003)

Contempt of Court

Q: What is the nature of the power of contempt? A: It is exercised on the preservative and not on

the vindictive principle and on corrective rather than the retaliatory idea of punishment, for purposes that are impersonal. It is criminal in nature. The power to punish for contempt is inherent in all courts. It is essential in the observance of order in judicial proceedings and to enforcement of judgment orders and writs.

Q: What are the kinds of contempt? A:

1. 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.

2. 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; not summary in nature.

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3. Civil – Is the failure to do something ordered to be done by a court or a judge for the benefit of the opposing party therein. It is remedial in nature.

4. Criminal – Conduct directed against the authority and dignity of a court or of a judge, as in unlawfully assailing or discrediting the authority or dignity of a court or of a judge, or in doing a duly forbidden act. Intent is necessary.

Note: Where the punishment imposed, whether against a party to a suit or a stranger, is wholly or primarily to protect or vindicate the dignity and power, either by fine payable to the government or by imprisonment, or both, it is deemed a judgment in criminal case.

Where the punishment is by fine directed to be paid to a party in the nature of damages for the wrong inflicted, or by imprisonment as coercive measure to enforce the performance of some act for the benefit of the party or in aid of the final judgment or decree rendered in his behalf, the contempt judgment will, if made before final decree, be treated as in the nature of an

interlocutory order.

Q: What are the two-fold aspects of the exercise of the power of contempt?

A:

1. The proper punishment of the guilty party for his disrespect to the court or its order; and

2. To compel his performance of some act or duty required of him by the court which he refuses to perform.

Note: The question of whether the contempt

committed is civil or criminal, does not affect the jurisdiction or the power of a court to punish the same. (Halili v. CIR, G.R. No. L-24864, Nov. 19, 1985) Q: Enumerate the acts of a lawyer that constitutes contempt?

A:

1. Misbehavior as officer of court

2. Disobedience or resistance to court order 3. Abuse or interference with judicial

proceedings

4. Obstruction in administration of justice 5. Misleading the courts

6. Making false allegations, criticisms, insults, veiled threats against the court

7. Aiding in unauthorized practice of law (suspended or disbarred)

8. Unlawful retention of client’s funds; and 9. Advise client to commit contemptuous

acts.

Note: "A practicing lawyer and officer of the court facing contempt proceedings cannot just be allowed to voluntarily retire from the practice of law which would negate the inherent power of the court to punish him for contempt" (Montecillo v. Gica, 60

SCRA 234). (1998 Bar Question)

Q: A judge cited complainant, a driver at the Engineering Department of the Makati City Hall, in contempt for using the former’s parking space, and refused to accept the driver’s apology. He sentenced the driver to five (5) days imprisonment and a fine of (P1, 000.00). Is the judge administratively liable for grave abuse of authority in citing the driver for contempt of court?

A: Yes. The Court does not see how the improper

parking by the driver could even in the remotest manner, disrupt the speedy administration of justice, as claimed by the judge. At most, it would cause the Judge inconvenience or annoyance, but still, this does not fall under any of the acts for which a person could be cited for contempt. Neither does it appear from the records, nor from the evidence presented, that the complainant intended any disrespect toward respondent Judge. In fact, upon being summoned, the driver immediately apologized for his mistake. Worse, the Judge immediately detained the driver, thereby preventing him from resorting to the remedies provided under the Rules of Court. Such abusive behavior on the part of respondent judge fails to show his integrity, which is essential not only to the proper discharge of the judicial office, but also to his personal demeanor.(Nunez v. Ibay, A.M. No. RTJ-06-1984, June 30, 2009)

Q: Dela Cruz misrepresented himself as a lawyer in the application for habeas corpus of Gamido. What punishment should the court impose on Dela Cruz?

A: The Court declared him guilty of indirect contempt for maliciously and falsely portraying

himself as a member of the bar, appearing in court and filing pleadings. (In the Matter of the

Application for Habeas Corpus of Maximino Gamido; Gamido v. New Bilibid Prison, G.R. 146783, July 29, 2002)

Q: Are the power to hold a person in contempt and the power to disbar the same?

A: No. The power to punish for contempt and the

power to disbar are separate and distinct, and that the exercise of one does not exclude the exercise of the other. (People v. Godoy, G.R. Nos.

115908-09, Mar. 29, 1995)

Q: In the course of the testimony of an almost illiterate victim of swindling travel syndicate, the trial judge addressed these words to the witness: “You have no business coming to court without being sure of your facts; the way I look at it, you are here to blackmail these businessman into giving you free airplane travel”. The private prosecutor stood up to move that the remarks of the court regarding the alleged blackmail be made of record for purposes of an appeal or other future proceedings. The trial judge countered with an order directing the lawyer to show cause why he should not be held in direct contempt, for allegedly “threatening the court” with possible future action. May the contempt citation be upheld? Explain.

A: The contempt citation may not be sustained. A

judge should exercise proper judicial decorum. He should be considerate of witness and others in attendance upon his court. He should be courteous and civil, for it is unbecoming of a judge to utter intemperate language during the hearing of a case (Retuya v. Equipilog; Santos v.

Cruz)

It was the right of counsel to put on record said remarks for the protection of his witness and client. (In Re: Aguas). (1987 Bar Question)

Q: Balajadia filed a criminal case against petitioners. In paragraph 5 of the complaint-affidavit, Balajadia appeared to have asserted that he is a "practicing lawyer”. However, certifications issued by the Office of the Bar Confidant and the Integrated Bar of the Philippines showed that he has never been admitted to the Philippine Bar. Hence, petitioners filed a case against him claiming that he is liable for indirect contempt for misrepresenting himself as a lawyer.

Balajadia, on his defense, claimed that the allegation that he is a practicing lawyer was an honest mistake. He stated that the secretary of Atty. Aquino prepared the subject complaint-affidavit copying in verbatim paragraph 5 of Atty. Aquino’s complaint-affidavit. Hence, it was inadvertently alleged that respondent is a “practicing lawyer in Baguio City” which

statement referred to the person of Atty. Aquino and his law office address.

Is Balajadia liable for indirect contempt? A: No. Respondent Balajadia never intended to

project himself as a lawyer to the public. It was a clear inadvertence on the part of the secretary of Atty. Aquino. The allegation that he is a practicing lawyer cannot, by itself, establish intent as to make him liable for indirect contempt.

In several cases, the Court ruled that the unauthorized practice of law by assuming to be an attorney and acting as such without authority constitutes indirect contempt which is punishable by fine or imprisonment or both. The liability for the unauthorized practice of law under Section 3(e), Rule 71 of the Rules of Court is in the nature of criminal contempt and the acts are punished because they are an affront to the dignity and authority of the court, and obstruct the orderly administration of justice. (Tan v. Balajadia, G.R.

No. 169517, March 14, 2006)

Q: An administrative complaint was filed against Malinao, court interpreter of the CFI of Catbalogan Samar. He was charged with illegal practice of law for appearing in court as attorney when he is not and collecting fees from his client as a means of livelihood; grave misconduct in office for instigating persons in his barrio to grab land, rob or coerce and incite them telling them not to be afraid as he is a court employee and has influence over judges; falsification for unfaithfully filing his time record in the CFI as he made it appear that he is present on certain dates but in truth, he was appearing as counsel in front of certain judges. He was also charged with violation of executive order and civil service law as it is prohibited for a civil service employee like him to engage in private practice of any profession without permission from the Department Head.

Malinao defended that “his participation for defendant’s cause (in the cases where he appeared as counsel) was gratuitous as they could not engage the services of counsel by reason of poverty and absence of one in the locality”. Is Malinao guilty of the charges filed against him?

A: Yes. The SC held that Malinao, by appearing as

counsel without being a member of the bar constitutes illegal practice of law.