golden notes legal ethics

LEGAL

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JUDICIAL ETHICS

2014

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The UST GOLDEN NOTES is the annual student-edited bar review material of the University of Santo Tomas, Faculty of Civil Law, thoroughly reviewed by notable and distinct professors in the field. Communications regarding the NOTES should be addressed to the Academics Committee of the Team: Bar-Ops.

ADDRESS:

TEL. NO.:

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All Rights Reserved by the Academics Committee of the Faculty of Civil Law of the Pontifical and Royal University of Santo Tomas, the Catholic University of the Philippines.

2014 Edition

No portion of this material may be copied or reproduced in books, pamphlets, outlines or notes, whether printed, mimeographed, typewritten, copied in different electronic devises or in any other form, for distribution or sale, without a written permission. A copy of this material without the corresponding code either proceeds from an illegal source or is in possession of one who has no authority to dispose the same.

No. __________

Printed in the Philippines, June 2014.

Academics Committee Team Bar-Ops

Faculty of Civil Law University of Santo Tomas España, Manila 1008 (02) 731-4027

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LEGAL AND JUDICIAL ETHICS

2014 BAR EXAMINATIONS

I. LEGAL ETHICS

A. Practice of Law (Rule 138)... 1

1. Concept... 1

a) Privilege... 3

b) Profession, not Business... 3

2. Qualifications... 3

3. Appearance of Non-Lawyers... 6

a) Law Student Practice (Rule 138-A)... 6

b) Non-Lawyers in Court... 6

c) Non-Lawyers in Administrative Tribunals... 7

4. Sanctions from practice or appearance without authority... 8

a) Lawyers without authority... 8

b) Persons not lawyers... 8

5. Public Officials and the practice of law …... 10

a) Prohibition or disqualification of former government attorneys... 10

b) Public officials who cannot practice law/ restrictions... 10

6. Lawyers authorized to represent the Government... 12

7. Lawyer's Oath... 12

B. Duties and Responsibilities of a Lawyer... 13

1. To Society... 14

a) Respect for Law and Legal Processes... 14

b) Efficient and Convenient legal services... 19

c) True, Honest, Fair, Dignified information on legal services... 22

2. To the legal profession... 28

a) Integrated Bar of the Philippines... 28

b) Upholding the Dignity and Integrity of the profession... 32

c) No assistance in unauthorized practice of law... 35

3. To the Courts... 36

a) Candor, Fairness and Good Faith to the courts... 36

b) Respect for the courts and judicial officers……... 38

c) Avoidance of impropriety which tends to influence the courts... 46

4. To the Clients... 47

a) Availability of services without discrimination... 47

(1) Services regardless of persons status... 48

(2) Services as counsel de oficio... 48

(3) Valid grounds for refusal... 49

b) Candor, Fairness and Loyalty to Clients... 51

(1) Confidentiality Rule... 51

(2) Privileged Communications... 51

(3) Conflict of Interest... 53

c) Client's Money and Properties... 57

(1) Fiduciary Relationship... 58

(2) Co-Mingling of Funds... 59

(3) Delivery of Funds... 59

(4) Borrowing/Lending... 60

d) Fidelity to client's cause... 61

e) Competence and Diligence... 61

(1) Adequate Protection... 61

(2) Negligence... 62

(4) Duty to apprise client... 63

f) Representation with zeal within legal bounds... 63

(1) Use of Fair and Honest Means... 64

(2) Client Fraud... 64

(3) Procedure in handling the case... 65

g) Attorney's Fees... 65 (1) Kinds of payment... 66 (2) Contingency Fee... 69 (3) Attorney's Lien... 71 (4) Charging Lien... 71 h) Client Confidences... 75 (1) Prohibited disclosures... 75

(2) Disclosure, when allowed... 76

C. Suspension, Disbarment and Discipline of Lawyers (Rule 139-B)... 80

1. Nature and Characteristic of Action... 80

a) Sui Generis... 81

b) Prescription... 81

2. Grounds... 81

3. Proceedings... 83

D. Readmission to the Bar... 90

1. Suspended Lawyers... 90

2. Disbarred Lawyers... 91

3. Repatriated Lawyers... 92

E. Mandatory Continuing Legal Education... 93

1. Purpose... 93

2. Requirements... 93

3. Compliance... 93

4. Exemptions... 93

5. Sanctions... 94

6. Legal Aid Service... 94

F. Notarial Practice... 97

1. Qualifications... 97

2. Term of Office... 99

3. Powers and Limits... 99

4. Administer Oaths... 103

5. Jurisdiction... 105

6. Revocation of Commission... 105

7. Competent Evidence of Identity... 106

8. Sanctions... 106

G. Canons of Professional Ethics... 107

II. Judicial Ethics A. Sources... 109

1. New Code of Judicial Conduct for the Philippine Judiciary (Bangalore Draft)……… 109

2. Code of Judicial Conduct... 110

B. Qualities... 115 1. Independence... 115 2. Integrity... 117 3. Impartiality... 119 4. Propriety... 125 5. Equality... 132

6. Competence and Diligence... 134

C. Discipline of the Members of the Judiciary... 139

1. Members of the Supreme Court... 139

a) Impeachment... 139

4. Sanctions on erring members of the Judiciary... 148

D. Disqualifications of Justices and Judges (Rule 137)... 150

1. Compulsory... 150

2. Voluntary... 150

E. Legal Fees... 153

DISCLAIMER

THE RISK OF USE, MISUSE OR

NON-USE OF THIS BAR REVIEW MATERIAL

SHALL BE BORNE BY THE USER/

NON-USER.

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FA C U L T Y O F CI V I L LA W

Legal Ethics

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 Responsibility, Canons of Professional Ethics, jurisprudence, moral, law and special laws

(Justice George Malcolm).

Sources of ethical standards for the Judiciary 1. Primary

a. Bar

i. Code of Professional Responsibility ii. Constitution

iii. Rules of Court b. Bench

i. New Code of Judicial Conduct for the Philippine Judiciary

ii. Rules of Court

c. Other personnel – Code of Conduct for Court Personnel

2. Secondary

a. Decisions/Resolutions of the Supreme Court b. Supreme Court Circulars

c. Order/Resolution of other courts d. IBP Issuances

e. Treatises and Publications

PRACTICE OF LAW

Concept

Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training, and experience (Cayetano v.

Monsod, G.R. No. 100113, Sept. 3, 1991).

The following acts constitute practice of law:

a. Giving of advice or rendering any kind of service that involves legal knowledge.

b. Appearance in court and conduct of cases in court. c. Preparation of pleadings and other papers incident to actions as well as drawing of deeds and instruments of conveyance.

Essential criteria in determining whether a person is engage in the practice of law (CAHA)

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. Ten (10) years of practice of law includes work as a litigator, in-house counsel, giving of legal advice, teaching of law and even foreign assignment which requires the knowledge and application of the laws.

Q: Ronnie, a paralegal in a law firm, helped Beth in a property dispute in which she was involved by giving her legal advice and preparing a complaint that she eventually filed in court under her own signature. When the lawyer for the defendant learned of it, he told Ronnie to desist from practicing law. But he disputed this, claiming that he had not practiced law since he did not receive compensation from Beth for his help. Is Ronnie correct? (2011 Bar Question)

A: No, because receipt of compensation is not the sole determinant of legal practice. Giving of advice or rendering any kind of service that involves legal knowledge is also considered as practice of law. As such, Ronnie should desist from giving legal advices since the same is considered a practice of law to which he is not qualified.

Q: Judge Anna has many law-related activities. She teaches law and delivers lectures on law. Some people in the government consult her on their legal problems. She also serves as director of a stock corporation devoted to penal reform, where she participates in both fund raising and fund management. Which of the aforesaid activities is she allowed to do? (2011 Bar Question)

A: She can teach law and deliver lectures on law (Sec. 10(a) Canon 4 New Code of Judicial Conduct) but cannot give legal advice since it is a practice of law to which judges are prohibited to do (Sec. 11 Canon 4, New Code of Judicial Conduct). Also, she cannot serve as director of a stock corporation since the same is incompatible with the diligent discharge of judicial duties (Sec. 7 Canon 6, New Code of Judicial Conduct). She can be a director of her Family Corporation but not part of the management.

Persons excluded in the term “Practicing Lawyer” “Practicing Lawyer” excludes:

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.

Definitions 1. Bar v. Bench

BAR BENCH

Refers to the whole body of attorneys and counselors. Collectively, the members of the legal profession.

Refers to the whole body of judges and justices.

2. Attorney-at-law v. Attorney-in-fact

ATTORNEY-AT-LAW ATTORNEY-IN-FACT

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.

Simply an agent whose authority is strictly limited by the

instrument 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. 3. Attorney of record v. Attorney ad hoc

ATTORNEY OF RECORD ATTORNEY AD HOC

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.

An attorney ad hoc is a person appointed by the court to defend an absentee defendant in the suit in which the appointment was made.

4. Counsel de oficio

An attorney appointed by the court to defend an indigent defendant in a criminal action.

5. Counsel de parte

A private counsel of a party, secured by him, without intervention from the government.

6. Amicus Curiae

An experienced and impartial attorney invited by the court to appear and help in the disposition of the issues submitted to it. An amicus curiae appears in court not to represent any particular party but only to assist the court (plural: Amici Curiae).

7. Amicus Curiae par excellence

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.

8. Trial lawyer

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.

9. Lead counsel v. In house counsel v. Of counsel

LEAD COUNSEL IN HOUSE / HOUSE COUNSEL OF COUNSEL 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. He is one who acts as attorney for a business though carried as an employee of that business and not as an independent lawyer. He is an experienced lawyer, usually a retired member of the judiciary, employed by law firms as consultants.

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FA C U L T Y O F CI V I L LA W

10. Public prosecutor v. Private prosecutor

PUBLIC PROSECUTOR PRIVATE PROSECUTOR

He is a quasi-judicial officer who represents the state in criminal proceedings.

A private prosecutor is a lawyer engaged by a litigant to 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. He is under the direction and control of the public prosecutor

(Sec. 5 Rule 110 RRC as amended, May 1, 2002).

11. Assumpsit (2006 Bar Question)

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 is the word always used in pleadings by the plaintiff to set forth the defendant’s undertaking or promise.

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.

12. Pro Se

A party to a lawsuit who represents himself, is appearing in the case "pro se."

PRIVILEGE

Nature of the practice of law

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 a privilege accorded only to those who measure up to certain rigid standards of mental and moral fitness.

NOTE: It becomes a property right if there is a contract for

Attorney’s Fees.

PROFESSION, NOT BUSINESS

Law is a profession and not a trade

A legal profession is not a business. It is not a money-making trade just like a businessman employing strategy for the purpose of monetary gain. It is a sacred profession imbued with public interest whose primary objective is public service, as it is an essential part in the administration of justiceand a profession in pursuit of which pecuniary reward is considered merely incidental.

QUALIFICATIONS

Who may practice law

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 (RRC, Rule

138, Sec. 1).

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 cannot 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).

Legislature is not allowed to regulate the practice of law

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

Practice of law by the clerk of court

GR: The practice of law by a clerk of court is not allowed, except isolated practice.

XPNs:

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.

Q: Atty. Ladaga, a clerk of court, appeared as 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).

Requirements for admission to the Bar

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.

Requirements for a Filipino who graduated from a foreign law school to be admitted to the Bar

He may be admitted to the bar 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 (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).

The 5 Strike Rule in taking the Bar

The Former 5-Strike Rule was lifted by the Supreme Court en banc in a resolution on September 3, 2013. Thus, to this day, the taking of the bar has no limit. 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. Further, 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 (In Re:

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FA C U L T Y O F CI V I L LA W

Disqualification of Bar Examinee Haron S. Meling, B.M. No. 1154, June 8, 2004).

Q: Mike Adelantado 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. 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. Only those who have been admitted to the Philippine Bar can be called “Attorney." Further, 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” (Alawi v.

Alauya, A.M. No. SDC-97-2-P, Feb. 4, 1997).

Q: Grande was the private offended party in a criminal case while Atty. De Silva was the counsel for the accused. During the course of the proceedings, Atty. De Silva tendered a check in favor of Grande in order for the latter to desist from participating as a witness against her client. Eventually, Grande accepted the check and refused to participate as a complaining witness thereby leading to the dismissal of the case. However, to Grande’s consternation, the check bounced because Atty. De Silva’s account was already closed. When the court ordered Atty. De Silva to comment on the charges against her, she deliberately refused to accept all the notices coming from the court. Is Atty. De Silva guilty of breach of trust? Did she violate her oath as a lawyer by issuing a bouncing check and by refusing to accept the notices sent to her coming from the court?

A: Yes, Atty. De Silva had committed a breach of trust in issuing a bouncing check, which amounted to deceit and violation of the lawyer’s oath. The nature of the office of

an attorney requires that a lawyer shall be a person of good moral character. Since this qualification is a condition precedent to a license to enter upon the practice of law, the maintenance thereof is equally essential during the continuance of the practice and the exercise of the privilege. Gross misconduct which puts the lawyer's moral character in serious doubt may render her unfit to continue in the practice of law. The loss of moral character of a lawyer for any reasons whatsoever shall warrant her suspension or disbarment, because it is important that members of the legal brotherhood must conform to the highest standards of morality. Any wrongdoing, which indicates moral unfitness for the profession, whether it is professional or non-professional, justifies disciplinary action.

Moreover, her deliberate refusal to accept the notices served on her betrays a deplorably willful character or disposition (Grande v. Atty. De Silva, A.C. No. 4838, July

29, 2003).

Q: Argosino passed the bar examinations held in 1993. The Court however deferred his oath-taking due to his previous conviction for Reckless Imprudence Resulting in Homicide. The criminal case, which resulted in Argosino’s conviction, arose from the death of a neophyte during fraternity initiation rites. Various certifications show that he is a devout Catholic with a genuine concern for civic duties and public service. Also, it has been proved that Mr. Argosino has exerted all efforts to atone for the death of Raul. Should Argosino be allowed to take his lawyer's oath?

A: Yes. The practice of law is a privilege granted only to those who possess the strict intellectual and moral qualifications required of lawyers who are instruments in the effective and efficient administration of justice. The SC recognizes that Mr. Argosino is not inherently of bad moral fiber given the various certifications that he is a devout Catholic with a genuine concern for civic duties and public service and that it has been proved that he has exerted all efforts to atone for the death of Raul and the court gave him the benefit of the doubt, taking judicial notice of the general tendency of youth to be rash, temerarious and uncalculating (Re: Petition of Al

Argosino to Take the Lawyer’s Oath, B.M. No. 712, Mar. 19, 1997).

Good moral character is a continuing requirement Well-settled is the rule that good moral character is not only a condition precedent for admission to the legal profession, but it must also remain intact in order to maintain one’s good standing in that exclusive and honored fraternity (Tapucar v. Tapucar, A.C. No. 4148,

The requirement of good moral character has four general purposes, namely:

1. To protect the public

2. To protect the public image of lawyers 3. To protect prospective clients

4. To protect errant lawyers from themselves. Each purpose is as important as the other (Garrido v.

Attys. Garrido and Valencia, A.C. No. 6593, Feb. 4, 2010).

APPEARANCE OF NON-LAWYERS

Appearance of non-lawyers

GR: Only those who are licensed to practice law can appear and handle cases in court.

XPNs:

1. Law student practice

2. Non-lawyers in court can appear for a party in MTC

NOTE: Section 34, Rule 138 of the Revised Rules of Court

expressly allows pro se practice or the right of a non-member of the bar to engage in limited practice of law

(Antiquiera, 1992).

3. Non-lawyers in administrative tribunal can represent parties in tribunals such as NLRC, DARAB, Cadastral Courts.

LAW STUDENT PRACTICE

Law student practice rule

A law student who has successfully completed his third 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 (Rule 138-A, Sec. 2).

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 Dec. 19, 1986).

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 failure of Cruz to submit the promised document 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. 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).

NON-LAWYERS IN COURT

Non-lawyers in court

The following are the instances whereby non-lawyers may appear in court:

1. 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 (RRC, Rule 138, Sec. 34);

2. 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 (RRC, Rule 138, Sec. 34);

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bound by the same rules in conducting the trial case. He cannot after judgment, claim that he was not properly represented.

3. Criminal case before the MTC in a locality where a duly licensed member of the Bar is not available, the judge may appoint a non- lawyer who is a:

a. Resident of the province; AND

b. Of good repute for probity and ability to aid the accused in his defense (RRC, Rule 116, Sec.

7);

4. Any official or other person appointed or designated

to appear for the Government of the Philippines in accordance with law (RRC, Sec. 33, Rule 138).

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

(RRC, Sec. 33, Rule 138).

Party-Litigant representing himself

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: 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.

Limits on the appearance of non-lawyers

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., G.R. No. L-23959, Nov. 29,1971).

NON-LAWYERS IN ADMINISTRATIVE TRIBUNAL

1. Under the Labor Code, non-lawyers may appear

before the NLRC or any Labor Arbiter, if: a. They represent themselves; or

b. They represent their organization or members

thereof (Art 222, PD 442, as amended) (2002 Bar Question);

c. 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.

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. 111474, Aug. 22, 1994).

2. Under the Cadastral Act, a non-lawyer can

represent a claimant before the Cadastral Court.

(Act No. 2259, Sec. 9)

Q: Eric, a labor federation president, represented Luisa, a dismissed WXT employee, before the NLRC. Atty. John represented Luisa's two co-complainants. In due course, the NLRC reinstated the three complainants with backwages and awarded 25% of the backwages as attorney’s fees, 15% for Atty. John and 10% for Eric, a non-lawyer. When WXT appealed to the Court of Appeals, Atty. John questioned Eric’s continued appearance before that court on Luisa’s behalf, he not being a lawyer. Is Eric's appearance before the Court of Appeals valid? (2011 Bar Question)

A: No, because the practice of law is only reserved for those qualified for the same. Eric’s appearance in court on behalf of another is not sanctioned by the rules. A non-lawyer may only be allowed to appear in court if he is representing himself not that of another (RRC, Sec. 34,

Rule 138).

Q: Kanlaon Construction and Reluya, et al. cases 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).

PROCEEDINGS WHERE LAWYERS ARE PROHIBITED FROM APPEARING

Proceedings where lawyers are prohibited from appearing

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 (Rule of Procedure for Small

Claims Cases, Sec. 17).

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 (Rule of Procedure for Small Claims

Cases, Sec. 17).

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 (P.D. No. 1508, Formerly Sec. 9; Local Government

Code of 1991, R.A. 7160, Sec. 415).

SANCTIONS FOR PRACTICE OR APPEARANCE WITHOUT AUTHORITY

Remedies against unauthorized practice of law

(ICE-DA)

1. Petition for Injunction; 2. Contempt of court;

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

4. Disqualification and complaints for disbarment; or 5. 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 their contentions tenable?

A: Yes. 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. There is no proof that the OGCC and COA approved their engagement as legal counsel or collaborating counsel. 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 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).

PERSONS NOT LAWYERS

Remedies against unauthorized practice of law by persons not lawyers (ICE)

1. Petition for Injunction; 2. Contempt of court;

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falsely represented himself to be an attorney to the damage of a party;

Sanctions for persons who are not lawyers

They shall 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, Aug. 30,1990; Lapena, 2009).

NOTE: A Disbarred lawyer still appearing in court is guilty of

indirect contempt (Lemoine v. Atty. Balon, Jr., A.C. No. 5829,

Oct. 28, 2003).

Power of contempt v. Power to disbar

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: 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).

Kinds of contempt

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.

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.

Two-fold aspect of contempt power (1998 Bar Question)

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).

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).

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. 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. 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,

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. Balajadia never intended to represent 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 (Tan v.

Balajadia, G.R. No. 169517, Mar. 14, 2006).

PUBLIC OFFICIALS AND THE PRACTICE OF LAW

Prohibited acts or omissions of public officers

1. Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after termination (RA 3019, Sec. 3[d]).

2. Own, control, manage or accept employment as officer, employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office unless expressly allowed by law (RA 6713, Sec. 7[b]). 3. A lawyer shall not, after leaving a government service, accept engagement or employment in connection with any matter in which he had intervened while in said service. (CPR, Rule 6.03). 4. A lawyer should not accept employment as an

advocate in any matter upon the merits which he has previously acted in a judicial capacity (CPE,

Canon 36).

NOTE: These prohibitions shall continue to apply for a period

of 1 year after resignation, or separation from public office. The 1-year prohibition shall also apply in connection with any matter before the office he used to be with.

PROHIBITION OR DISQUALIFICATION OF FORMER GOVERNMENT ATTORNEYS

Prohibition or disqualification of former government attorneys

A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he had intervened while in said service (CPR, Rule 6. 03, Canon 6).

The evil sought to be avoided by this provision is the possibility of a lawyer who just retired, resigned or separated from the government of using his influence for his own private benefit (Antiquiera, 1992).

Theories relating to the disqualification of former government lawyers in representing a client on a matter in which they intervened when they were in office

1. Adverse-Interest Conflict – A former government lawyer is enjoined from representing a client in private practice in a matter which is substantially related to another matter which the former dealt with while employed by the government, and if the interests of the current and former clients are adverse.

2. Congruent-Interest Representation Conflict – The lawyer is prohibited from representing a private practice client even if the interests of the government (the former employer) and the new client are entirely parallel (PCGG v. SB, et.al, G.R.

No. 151809-12, April 12, 2005).

NOTE: The restriction against a public official from using his

public position as a vehicle to promote or advance his private interests extends beyond his tenure on certain matters in which intervened as a public official (Agpalo, 2004).

PUBLIC OFFICIALS WHO CANNOT PRACTICE LAW OR WITH RESTRICTIONS

Public officials not allowed to engage in law practice

(JOPPCOMS)

1. Judges and other officials as employees of the Supreme Court (RRC, Rule 148, Sec. 35).

2. Officials and employees of the OSG. (Ibid.)

3. Government Prosecutors (People v. Villanueva, G.R.

No. L-19450, May 27, 1965).

4. President, Vice-President, members of the cabinet, their deputies and assistants (1987 Constitution,

Sec. 13, Art VII).

5. Members of the Constitutional Commission (1987

Constitution, Sec. 2, Art IX-A).

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Sec. 8 [second par.], Art. IX).

7. All governors, city and municipal Mayors (R.A. No.

7160, Sec. 90).

8. Those prohibited by Special law.

Restrictions on the practice of law to certain individuals (1992, 2000 Bar Questions)

1. No Senator or member of the House of

Representatives may personally “appear” as

counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administration bodies (1987 Constitution, Art. VI,

Sec. 14).

2. Under the Local Government Code (RA 7160, Sec.

91), Sanggunian members may practice their

professions provided that if they are members of the Bar, they shall NOT:

a. Appear as counsel before any court in any civil case wherein a local government unit or any office, agency, or instrumentality of the government is the adverse party

b. Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office

c. Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official d. Use property and personnel of the government

except when the Sanggunian member concerned is defending the interest of the government.

3. Under Sec. 1, R.A. 910, as amended, a retired justice

or judge receiving pension from the government,

cannot act as counsel:

a. In any civil case in which the Government, or any of its subdivision or agencies is the adverse party; or

b. In a criminal case wherein an officer or employee of the Government is accused of an offense in relation to his office; nor

c. Collect any fees for his appearance in any administrative proceedings to maintain an interest adverse to the government, provincial or municipal, or to any of its legally constituted officers (R.A. 910, Sec. 1)

4. Civil service officers and employees without permit from their respective department heads (Noriega v.

Sison, G.R. No. L- 24548, Oct. 27, 1983).

Q: Atty. Sagucio was the former Personnel Manager and Retained Counsel of Taggat Industries Inc. until his appointment as Assistant Provincial Prosecutor of

Tuguegarao. Taggat Industries was sequestered by the PCGG and thus ceased its operations. As Assistant Provincial Prosecutor, he assigned to conduct the preliminary investigation over a criminal case filed against Taggat Industries. He recommended the filing of 651 informations for violation of the Labor Code. He was charged for violating Rule 15.03 of the Code of Professional Responsibility and for defying the prohibition against private practice of law while working as government prosecutor. Is Atty. Sagucio guilty of engaging in private practice of law while working as an Assistant Provincial Prosecutor?

A: Yes. “Private practice of law” contemplates a succession of acts of the same nature habitually or customarily holding one’s self to the public as a lawyer. Atty. Sagucio admitted that he rendered his legal services to complainant while working as a government prosecutor. Even the receipts he signed stated that the payments by Taggat were for "Retainer’s fee.” Thus, as correctly pointed out by complainant, Atty. Sagucio clearly violated the prohibition in RA 6713.

Atty. Sagucio’s violation of RA 6713 also constitutes a violation of Rule 1.01 of Canon 1, which mandates that “[a] lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.” His admission that he received from Taggat fees for legal services while serving as a government prosecutor is an unlawful conduct, which constitutes a violation of Rule 1.01 (Lim- Santiago

v. Saguico, A.C. No. 6705, Mar. 31,2006).

NOTE: Violations of RA 6713 are not subject to disciplinary

action under the Code of Professional Responsibility unless the violations also constitute infractions of specific provisions of the Code of Professional Responsibility. Certainly, the IBP has no jurisdiction to investigate violations of RA 6713 – the Code of Conduct and Ethical Standards for Public Officials and Employees – unless the acts involved also transgress provisions of the Code of Professional Responsibility.

Q: Atty. Eliseo represented Allan in a collection suit against the Philippine Charity Sweepstakes Office (PCSO). After his election as sangguniang bayan member, the court rendered a decision in PCSO’s favor. Still, Atty. Eliseo appeared for Allan in the latter’s appeal, prompting the PCSO to question his right to do so. In response, Atty. Eliseo claimed that the local government code authorizes him to practice law as long it does not conflict with his duties. Is Atty. Eliseo correct? (2011 Bar Question)

A: No, because he cannot appear against a government instrumentality in a civil case.

NOTE: While certain local elective officials (like governors,

mayors, provincial board members and councilors) are expressly subjected to a total or partial proscription to practice their profession or engage in any occupation, no such