glenn tuazon ethics

7/27/2019 Glenn Tuazon Ethics

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Legal Ethics

Bar 2011 Notes

Roland Glenn T. Tuazon

Ateneo de Manila University

PRACTICE OF LAW

What is the concept of legal practice?o A. The practice of law is to give notice or render any kind of

service, which requires the use of any degree of legalknowledge or skill (Monsod)

It is any activity, in or out of court, which requiresapplication of the law, legal procedure, knowledge,

training, and experience

o B. It is a privilege granted only to those who possess strict 1)intellectual and 2) moral qualifications

o C. It is a profession, not a businessRequirements:

Admission to the Bar To become a lawyer Continued admission

to the BarPhilippine citizen Passed Bar exams Remain IBP member in

good standingPhilippine resident Took oath Pay IBP dues and

other assessmentsAt least 21 years old Registered in roll of

attorneysPay annual privilegetax

Complete requiredcourses

Received certificate oflicense to practice lawfrom the clerk of courtof the SC

Observe rules onproper ethics

Evidence of GMC

No charges involvingmoral turpitude filed orpending in any Phil.Court

How do you prove GMC and lack of pending charges?o Produce before the SC satisfactory evidenceo What is moral turpitude?

Everything done contrary to justice, modesty, goodmorals; act of baseness, vileness or depravity,

contrary to justice, honesty, modesty, good morals

Who has the power to control and regulate the practice of law?o The SCo The legislature cannot contravene this constitutional grant. So

it cannot, for instance, require that a lawyer take another exam

as a prerequisite to practice law in a particular government

agency.

In what instances can non-lawyers appear in court?

Before the MTC Before any othercourt

Special cases

As party to the litigation As party to thelitigation, in person, in acivil case

Before NLRA/LA,representingthemselves

Agent or friend of aparty in litigation

Legal aid program Before NLRC/LA,representing theirorganization

In a criminal case in alocality where a lawyer

is not available

Before cadastral court

Legal aid program

Requisites for who can be appointed in a criminal case before theMTC, in localities where a lawyer is not available?

o 1. A resident of the provinceo 2. Of good reputation for probity and ability to aid the accused

in his defense

May juridical persons appear in person?o No.Juridical persons may only appear by attorney


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Requisites for who can appear under the legal aid program?o 1. Senior law studento 2. Enrolled in the schools clinical education program approved

by the SC

Who can the senior law student represent?o Indigent clients accepted by the CLED program

What is the caveat?o Must be under direct supervision and control of an IBP

member duly accredited by the school

What are the limits for appearance of such non-lawyers?o 1. Appearance must not be habitualo 2. It must be without compensation

Which lawyers and in what situations are lawyers prohibi tedtoappear?

o 1.Lawyer-member of Congresso 2. Lawyers with conflicting interestso 3. Small claims

Except when the lawyer himself is the partyo 4. Government lawyers, in private suits, without written

authority

o 5. Former government lawyers who left public service cannotintervene in matters he handled as a public official

What is the prohibition for practice of law of public officials?o Public officials and employees cannot practice law during their

term unless authorized by the Constitution or by law and

provided that it doesnt interfere with his duties

What are sanctions for practice or appearance without authority?o 1. Contempt for misbehaviour in official transactions for

lawyer who appears without proper authority from cliento 2. Indirect contempt for one who assumes to be an attorney

and acting as such without authority

What is the main rule concerning lawyers in government service?o Primary duty is to see that justice is doneo Who are the public officials covered here?

Elective and appointive Permanent and temporary, career and non-career Military and police personnel Compensated and not

Causes for disciplinary action for prosecutor:o 1. Suppression of factso 2. Concealment of witnesses capable of establishing

innocence of the accused

o N.B. Prosecutor must recommend acquittal of the accusedwhose conviction is on appeal if he finds no legal basis tosustain the conviction.

Rules on public position vis-a-vis private interests:o 1. Cannot promote or advance his private interestso 2. Cannot allow private interests to interfere with public duties

Prohibition after leaving government service:o 1. Cannot accept engagement or employment in connection

with any matter in which he had intervened during government

service

o 2. Cannot practice profession in connection with any matterbefore the office he used to be with (1 year prohibition)

o What is a matter? Any discrete act, transaction, or conduct involving a

particular situation and specific party

o What is adverse interest conflict? Where matter in which the former government lawyer

represents a client in private practice is substantially

related to the matter than the lawyer dealt with while

employed with government and the interests of the

clients are adverse

o What is congruent interest conflict? Representing a client in private practice, where the

new client and former government client are entirely

parallel Still prohibited

Which public officials cannot engage in private legal practice?

Absolutely prohibited Restricted

Judges, and other officials andemployees in the SC

Members of Congress

OSG officials and employees Sanggunian membersPublic prosecutors Retired justice or judge receiving

pension from governmentPresident


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Vice PresidentCabinet members, deputies,assistantsConstitutional Commission membersOMB, Deputies of OMBGovernors

Mayors city and municipalThose prohibited by special law

Where can members of Congress not personally appear before ascounsel, as a restriction?

o 1. Courts of justiceo 2. Electoral tribunalso 3. QJ bodieso 4. Admin bodies

What are Sanggunian members not allowed to do?

Type of case Restriction Situation

Civil cases Cannot appear ascounsel

If an LGU or anyinstrumentality is theadverse party

Criminal cases Cannot appear ascounsel

If an officer/employee ofgovernment is accusedof an office-relatedoffense

Administrativeproceedings

Collect fees If it involves LGU ofwhich he is an official

Any Use property andpersonnel of the

government

UNLESS he isdefending government

interest

What is the restriction on retired justices/judges receivinggovernment pension?

o Same as first two prohibitions against Sanggunian members Who are the lawyers authorized to represent government?

o 1. The Solicitor Generalo 2. Any other government official deputized by the Solicitor

General in prosecution of cases

In this case, notice to deputized agent will not bind theSG unless notice is actually received by the latter

o 3. When a government agency which the SG is tasked torepresent is represented by the agencys internal counsel

Notice to counsel is notice to SGLawyers oath:

I __ do solemnly swear that:

I will maintain allegiance to the Republic of the Philippines

I will support its constitution and obey the laws and legal orders of the duly

constituted authorities therein

I will do no falsehood, nor consent to the doing of any in court

I will not willingly nor wittingly promote or sue any groundless, false, or

unlawful suit, or give aid nor consent to the same;

I will delay no man for money or malice, and will conduct myself as a lawyer

according to the best of my knowledge and discretion, with all good fidelity

as well to the court as to my clients; and

I impose upon myself these voluntary obligations without any mental

reservation or purpose of evasion.

So help me God.

Duty To whom/what (hierarchy)

Maintain allegiance The Republic of the PhilippinesSupport; obey Constitution and lawsDo no falsehood or consent to such TruthWillingly nor wittingly promotegroundless, false, unlawful suit; norgiving aid or consenting to such

Respect for legal processes

Delaying no man for money ormalice;

Fidelity to justice, to court, to client

Conduct self as lawyer according tobest of knowledge and discretion

Fidelity to justice, to court, to client

Good fidelity to court and clients Fidelity to justice, to court, to client


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Overview of coverage of the canon duties:

Society Legalprofession

Courts Client

1: UpholdConstitution,

obey laws; anti-barratry;settlements

7: Upholdintegrity of legal

profession;support IBP;application forthe Bar

10: Candor,fairness, GF to

the court; nofalsehood ormisquoting;observeprocedure

14: Not refusethe needy; no

prejudice; notdecline asamicus or deoficio; treatingnon-paying client

2: Acceptingcases; chargingfees

8: Candor,fairness, andcourtesy forcolleagues; notencroachinguponemployment

11: Respect tocourts; attire;punctuality; notimpute wrongmotives to judge;grievances onlyto properauthorities

15: Candor,fairness, loyaltyto client; revealconflicts;privilegedcommunication;conflictinginterest; candid

and fair advice3: Advertisingservices; firmnames; payingmedia

9: Not assistunauthorizedpractice of law;dividing fees

12: Speedyadministration ofjustice; prepare;multiple actions;delays or lapses,talking towitnesses duringbreaks; respectwitnesses; nottestify for client

16: Hold moneyin trust; separatefunds; lien; noborrowing orlending to client

4: Law reformandimprovement

13: Rely onmerits and notimproperinfluence;hospitality tojudges; mediastatements;having otherbranch step in

17: Fidelity tocause of client

5: MCLE;improve schools;disseminate info

18: Competenceand diligence;not take what hecant handle; noneglect

6: Lawyers ingovernment

19: With zeal,within bounds oflaw; fair andhonest means;rectifying clientsfraud; not let

client dictate20: Fair andreasonable fees;nocompensationfrom anyoneelse; avoidcompensationcontroversies21: Preserveconfidence andsecrets of client22: Withdrawal

of services forgood cause;turning overmatters tosuccessor

DUTIES AND RESPONSIBILITIES OF LAWYERS TO SOCIETY

CANON 1 Respect for the law and legal processeso Duties:

1. Uphold the constitution 2. Obey laws of the land 3. Promote respect for law and legal processes

o 1.01no unlawful, dishonest, immoral, or deceitful conducto 1.02 not counsel or abet activities aimed at defying the law or

lessening confidence in legal processes

o 1.03not encourage suit or proceeding or delay any manscause for corrupt motive or interest

NO barratry (instigating groundless suits) NO stirring up litigation NO ambulance chasing


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o 1.04 encourage clients to avoid, end, or settle controversy ifit will admit of fair settlement

o Why? Lawyer must be a mediator for concord and

conciliator for compromise, rather than an initiator of

controversy and conflict CANON 2 Making legal services available

o Qualifications: Available in an efficient and Convenient manner

o 2.01not reject cause of defenceless or oppressed except forvalid reasons

o 2.02if he does not accept a case, not refuse to render legaladvice to person at least, to the extent necessary to safeguard

the persons rights

o 2.03not do or permit to be done an act designed primarily tosolicit legal business

Because law is profession, not businesso 2.04 not charge rates lower than those customarily

prescribed

Unless circumstances warrant Why?

To avoid proliferation of competition amongbrother lawyers

CANON 3 true, honest, fair, dignified, and objective informationon legal services

o 3.01not use or permit the use of false, fraudulent,misleading, deceptive, undignified, self-laudatory, or unfair

statement or claim re: qualifications/services

What is the rule on advertisements? Generally, not allowed because it degrades

the dignity of the profession

What are the exceptions? 1. Reputable law lists according to the

conduct imposed by canons

2. Ordinary simple professional cardo Nameo Law firm

o Address, telephone number, branchof law

3. Simple announcement of opening in firmor changes in partnership, address, or firm

name

4. Advertisements or simple announcementof existence of the firm/lawyer posted

anywhere proper

o Except court rooms or governmentbuildings

5. Advertisements or announcement in legalpublication, books, journals, legal

magazines, phone directories

What are prohibited indirect advertisements? 1. Those connected to causes in which the

lawyer has been engaged in or re: manner of

conduct

2. Magnitude of interest involved 3. Importance of lawyers position 4. All other self-laudation

What is the best advertisement? Well-earned reputation for professional

capacity and fidelity to trust

Soliciting employment is ground for suspension ordisbarment.

What is valid indirect solicitation? A lawyer may write and sell for publication

articles of general nature re: legal subjects

o And send upon request his picturefor publication with the article in a

law journal

Or submit for publication to a bar associationjournal an unsolicited article on a general

subject

What are guarded against? 1. Improper advertisements 2. Giving legal advice to one with whom no

A-C relationship exists


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3. Aiding layman to engage in authorizedpractice of law

What about giving legal advice on legal mattersthrough newspaper column, radio, or television

broadcast?

Improper.o 3.02 not use false, misleading or assumed name in firm

name

What about firms using names of dead partners? Allowed if the firm indicates in all

communications that he is already deceased

o 3.03If the partner accepts public office: 1. Must withdraw from firm 2. Drop name from firm name 3. Unless the law allows him to practice law

concurrently (ex. Member of Congress, although

restricted)

o 3.04not pay or give anything of value to representatives ofmedia in return for or anticipation of publicity (to attract legal

business)

CANON 4 participation in improvement reforms in legal systemo How?

Initiating efforts in law reform and administration ofjustice

Or supporting such effortso Examples?

1. Presenting position papers or resolutions for bills inCongress

2. Petitions with SC to amend the ROC

CANON 5 participation in legal education programo 1. Keep abreast of legal developmentso 2. Participate in MCLE and continuing education programso 3. Support efforts to achieve high standards in law schools and

training of students

o 4. Assist in disseminating law/jurisprudence CANON 6 rules on lawyers in government service

o N.B. see prior discussion on (1) duty of prosecutors, (2) duty ofthose in government services, and (3) those leaving

government service

DUTIES AND RESPONSIBILITIES OF LAWYERS TO THE LEGAL PROFESSION

What is the IBP?o The Integrated Bar of the Philippines is the national

organization of lawyers created on 16 January 1973

oPursuant to Rule 139-A of the ROC

o It was made into a corporate body by PD 181 (4 May 1973) What are the objectives of the IBP?

o 1. Elevate standards of legal professiono 2. Improve administration of justiceo 3. Enable the Bar to discharge its responsibility more

effectively

What is the three-fold obligation of a lawyer?o 1. Owe to himself to continue improving knowledge of the lawso 2. Owe to the profession to take active interest in maintenance

of high standards of legal education

o 3. Owe to the public to make the law a part of socialconsciousness

Re: membership and dueso Look for this

CANON 7 upholding the dignity and integrity of the professiono Includes supporting the activities of the IBPo 7.01re: bar application; cannot:

1. Knowingly make false statements 2. Suppress material facts in connection with

application

o 7.02 not support the application for admission to the Bar of aperson known by him to be unqualified with respect to:

Character Education Or other relevant attribute

o 7.03 not engage in: 1. Conduct that adversely reflects on his fitness to

practice law

2. Scandalous manner to the discredit of the legalprofession, whether in private or public life

o N.B. Good moral character is need to continue membership inthe Bar


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CANON 8 courtesy, fairness, and candor towards professionalcolleagues

o Usual case: avoid harassing tactics against opposing counselo 8.01not use language which is abusive, offensive, or

improper in professional dealings

o 8.02 not directly or indirectly encroach upon professionalemployment of another lawyer Caveat: it is the right of any lawyer to give proper

advise/assistance to those seeking relief against

unfaithful or neglectful counsel

CANON 9 no assistance in unauthorized practice of lawo Who may a lawyer not take as partner or associate:

1. Not a lawyer 2. Disbarred 3. Forever suspended from practice of law 4. Foreign lawyer

Unless licensed by the Supreme Courto 9.01not delegate to any unqualified person the performance

of a task which by law may only be done by a member of the

bar in good standing

o 9.02not divide or stipulate division of legal fees for serviceswith persons not authorized to practice law

o Exceptions? 1. Pre-existing agreement with partner or associate

that upon his death, money will be paid over

reasonable period of time to heirs or estate

2. Lawyer undertakes to complete unfinishedbusiness of deceased lawyer

3. Lawyer or firm includes non-lawyer employees in aretirement plan

Even if the plan is based wholly or partiallyon profit sharing agreement

DUTIES AND RESPONSIBILITIES TOWARDS THE COURTS

CANON 10 candor, fairness, and good faith towards the courtso 10.01lawyer mustnot:

1. Do falsehood 2. Consent to doing falsehood in court

3. Mislead or allow the court to be misled by anyartifice

What prevails between duties to ones clientandcandor to the court?

Candor towards the courts prevails overduties to ones client

o 10.02prohibited falsehoods: 1. Misquotation or misrepresentation of:

Contents of paper Language or argument of other counsel Text of decision or authority

2. Knowingly citing a repealed or amended law 3. Asserting as fact one that had not yet been proved How must quotation be done?

Word for word, punctuation mark forpunctuation mark.

o 10.03re: rules of procedure Must observe rules of procedure Must not misuse them to defeat ends of justice

CANON 11 respect for courts and judicial officerso Must observe and maintain the respect due to the court and

judicial officers AND insist that others do the same

o 11.01 wear proper attire in court What is the consequence of wrong attire?

Contempt of court Barong or tie, not both :P

o 11.02 punctually appear at court hearingso 11.03abstain from scandalous, offensive, or menacing

language or behaviour in courto 11.04not attribute to a judge, motives not supported by the

record or have no materiality to the case

o 11.05 not criticize the personal or official conduct of a judgein an insulting and intemperate language

What is important here? The criticism must be bona fide It must not spill over the walls of decency

and propriety


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In general: cannot testify in behalf of his client Except:

1. Formal matters, such as mailing,authentication or custody of instrument, and

the like

2. Substantial matters, where his testimonyis essential to the ends of justice, in whicheven he must entrust the case to another

counsel during his testimony

CANON 13 reliance on merits of case, not from improperinfluence upon the courts

o Whether it tends to influence or gives the appearance ofinfluencing the court

o 13.01not extend extraordinary attention or hospitality to, norseek opportunity for cultivating familiarity with judges

Ex. preparing a draft decision for the judgeo 13.02 not make public statements in the media re: a pending

case which tend to arouse public opinion for/against a party Ex. preliminary investigation where the public

prosecutor encouraged publicity, fanfare,

sensationalism

What is allowable for post-litigation utterances? In general, can criticize a courts decision

after conclusion of litigation

EXCEPT: when the comments breach thebounds of fair comment and legitimate

criticism

o Where there is erosion of faith inthe judiciary and confidence in itsintegrity

o 13.03not brook or invite interference by another branch oragency of government in the normal course of judicial

proceedings

Basis: separation of powers Ex. submitting grievances against an SC justice to the

President

DUTIES AND RESPONSIBILITIES TOWARDS CLIENTS

What is the characteristic of this relationship?o 1. Strictly personalo 2. Highly confidentialo 3. Fiduciary

What are the duties of lawyers?o 1. Advise client on merit or lack thereof of his case. If he findsthe case defenceless, he must advise the latter to acquiesce

and submit.

o 2. Resist whims and caprices of the client, and temper thelatters propensity to litigate.

o 3. Refrain from giving advice unless they have obtainedsufficient understanding of the clients cause.

Need careful investigation and examination of factso 4. Disclose to the client, at the time of retainer, all the

circumstances of his relations to the parties, or any interest in

or connection with the controversy which might influence the

client in selecting counsel

How must he regard judicial disfavour or public popularity?o These must not restrain him from full discharge of duty

What is competence?o Sufficiency of the lawyers qualification to deal with the matter

in question

o Includes knowledge and skill and ability to use them effectivelyfor the client

o Keep constantly abreast with authoritative pronouncementsand developments in branches of law

What are the kinds of appearance?o 1. General appearance

Party comes to court either as plaintiff of defendantand seeks general reliefs from the court

o 2. Special appearance Defendant appears in court solely for the purpose of

objecting to the jurisdiction of the court over his

person

The moment the client asks for something else,ANYTHING, it becomes a general appearance.

Do attorneys acts bind the client?o Yes. This is the general rule. Even mistakes bind the client.o What are the exceptions?


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1. Gross negligence of lawyers 2. Clients meritorious claim or defense has been

prejudiced

Ex. non-presentation of key document 3. Diligence or absence of gross negligence on the

part of the party represented What is the scope of authority of lawyers to bind clients?

o 1. In any case by any agreement in relation thereto put inwriting

o 2. In taking appealso 3. In all matters of ordinary judicial procedure

What is beyond the scope of authority and need special authority?o 1. Compromise litigationo 2. Receive anything in discharge of a clients claim but the full

amount of cash

What is the rule in notice?o In general, notice to lawyer is notice to client.o Who is entitled to notice?

The attorney must have made a formal appearance tobe entitled to notice

o Exception to this rule? Listed as counsel on record, with no withdrawal or

substitution of counsel

What is the effect of a lawyer signing a complaint or answer?o It means that he has

1. Read the pleading 2. And to the best of his knowledge, information, and

belief, there is good ground to support it

CANON 14 availability of service without discrimination

o Not refuse services to the needyo The poor and indigent must not be further disadvantaged by

preventing access to legal system

This is related to 2.01 (lawyer must not reject cause ofdefenceless or oppressed save for valid reasons)

o 14.01not: 1. Decline to represent person due to race, sex,

creed, or status life alone

2. Decline to represent person due to his own opinionon guilt of that person

For what kind of case does Rule 14.01 apply? ONLY criminal cases

Relate with Rule 138 s. 20? It provides that in the defense of a person

accused of a crime, by all fair and

reasonable means, regardless of personalopinion as to the latters guilt, to present

every defense the law permits

Purpose: so that no person may be deprivedof life or liberty except by due process of law

o 14.02not decline appointment as: 1. Counsel de officio

Rule 138, s. 31 [GENERAL RULE]: a courtmay appoint an attorney to render free

professional aid for a destitute party unable

to employ one

Rule 116, s. 6 [FOR ACCUSED IN CRIMCASE]: before arraignment, if an accused

has no counsel and he is not allowed to

defend self in person, the court must assign

a counsel de officio

Rule 116, s. 7 [SAME]: who may beappointed:

o 1. Members of bar in good standingo 2. Any person, resident of the

province and of good report for

probity and ability (in localities

without lawyers)

oConsider:

1. Gravity of offense 2. Difficulty of questions 3. Experience and ability

of appointee

Rule 124, s. 2 [ACCUSED ON APPEAL]:for cases on appeal, when does the CA clerk

designate a counsel de officio:

o 1. In prison, with no counsel departe on appeal, and he signed

notice of appeal himself


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o 2. If not in prison not entitled toCDO unless appointment of one is

requested within 10 days from

notice to file brief (and right is

established through affidavit)

2. Amicus curiae

Experienced and impartial attorneys invitedby the court to appear and help in disposition

of issues

friend of court 3. One who renders free legal aid as requested by the

IBP or any of its chapters

Exception? Serious and sufficient cause

o 14.03may only refuse to accept representation of indigent if: 1. Not in position to carry out work effectively or

competently

2. Conflict of interest between him and theprospective client

3. Conflict of interest between prospective client andpresent client

o 14.04 Observe same standard of conduct between paying

and non-paying clients

CANON 15 candor, fairness, loyalty to clientso What matters does this canon cover?

1. Conflicts of interest And acting in another capacity (mediator,

etc.)

2. Privileged communication 3. Advice given to client

o 15.01 Ascertain whether matter would involve a conflict with

another client or own interest

AND inform prospective client if there is such a thingo 15.02

Matters disclosed by client are covered by rule onprivileged communication

Exceptions:

1. A lawyer is accused by client and heneeds to reveal information to defend himself

2. Client discloses intention to commit acrime or unlawful act

o 15.03 Not represent conflicting interests Exception?

Written consent of all concerned after fulldisclosure of all facts

What are the types of conflict of interest? 1. Concurrent or multiple representation:

o A lawyer represents clients whoseobjectives are adverse to each

other, no matter how slight or

remote these are

Take note of this minimaldegree

o Ex. A CPA-lawyer being part of afirm that represents the estate and

being part of the accountancy firm

that represents the creditors. The

conflict need not arise from two

legal relationships.

2. Sequential or successive representation:o Representation of present client

who may have an interest adverse

to prior client

What are the tests for determining whetherconcurrent or multiple representation amounts to

conflict of interest:

1. w/n lawyer is duty-bound to fight for anissue or claim on behalf of one client and at

the same time oppose it with another client

2. w/n acceptance of the new relation wouldprevent full discharge of the duty of

undivided loyalty to a client

3. w/n acceptance of the new relation wouldinvite suspicious of unfaithfulness/double-

dealing in duty of undivided loyalty


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4. w/n acceptance of the new relation wouldhave the lawyer use against the client

confidential information acquired through

their connection

Does the lawyer have to be the counsel-of-recordfor the other party to violate this provision?

No. In a case,Artezuela v. Maderazo, thelawyer merely helped with the other partys

pleading by allowing it to be made in his

office. While being counsel-of-record is the

easiest situation, the prohibition covers even

having a mere hand in preparation of the

other party.

Can the lawyer represent a party in a case wherethe other party is his former client, even if the

case is distinct from the former case?

No. This will still give the appearance ofdouble-dealing.

o 15.04 May act as mediator, conciliator, or arbitrator in

dispute IF there is written consent of all concerned

What is special about this rule? The controversy hasnt reach courts in this

case yet. The lawyer is in the best position

to understand both positions and reach a

settlement.

BUT note that the lawyer must have consentof both parties to do this.

o 15.05 Give candid and honest opinion on merits and

probable result of the case

As re: prospects of the case, dont: Overstate Understate

Related with requirement for certification? The certification filed with a pleading states

that the lawyer believes there is good ground

to support the case

o 15.06

Not state or imply that he can influence a publicofficial, tribunal, or legislature

o 15.07Impress upon client: 1. Compliance with laws 2. Principles of fairness

o15.08

If engaged in another profession or occupation Must make either clear to the client w/n he is acting

as a lawyer or in that other capacity

Ex. In a business deal What is the fiduciary duty principle?

o An attorney must derive no undue advantage that mayprejudice or cause loss to a client. The relationship between

lawyer and client is one of mutual trust and confidence to the

highest degree.

What does Article 1491 of the NCC say?o Lawyers cannot acquire or purchase, even in a public or

judicial auction (directly or through another person) theproperty and rights that are the subject of litigation

o Elements: 1. Property or interest is in litigation 2. Attorney takes part as counsel in the case involving

that property

3. Purchase (including mortgage), acquisition by theattorney

Himself or through another During pendency of the case

CANON 16clients money and propertieso

Hold in trust all moneys and properties of client that comeunder his possession

o 16.01 Account all these money and property collected or

received for or from the client

o 16.02Keep funds of each client separate form: 1. His own 2. Other clients funds

o 16.03 Deliver the funds and property of his client when due

or upon demand


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What is his lien? 1. Over the funds, and only so much thereof

as may be necessary to satisfy lawful fees

and disbursements

o May apply such funds to satisfythese

2. On all judgments and executions he hassecured for the client

o From time he causes statement ofclaim of the lien on the records of

the court rendering judgment or

issuing execution

o Written notice delivered to his clientand adverse party

o Same right and power his clientwould have over the judgments, in

order to enforce his lien

What are the kinds of lien? 1. Retaining lien:

o Right of attorney to retainpossession of clients documents,

money, property which came into

his hands professionally

o Until balance it paid 2. Charging lien:

o Equitable right of attorney to havefees and costs due to him for

services in a suit secured by the

judgment/recovery in that same suit

What are the additional rules re: liens? 1. Attorneys lien is not an excuse not to

render accounting.

o NOTE: he must make accounting,deduct attorneys fees, and turn

over balance to client (Tanhueco v.

De Dumo)

2. Must notify client if a retaining lien will beimplemented

3. When the lawyer enforces charging lienagainst his client, the lawyer-client

relationship is terminated

Can the lawyer disburse the clients funds to thelatters creditors without authority?

No.o 16.04 lawyer cannot:

1. Borrow money from his client Unless the latters interests are fully

protected (by nature of the case or by

independent advice)

2. Lend money to client Except if he has to advance necessary

expenses for a legal matter he handles for

the client

CANON 17fidelity to clients causeo Owe fidelity to clients cause and be mindful of trust/confidence

reposed in himo If the court asks the lawyer to withdraw for a valid reason,

what must the lawyer do?

Must advice the client to get another lawyer and whatto do next. Failure to do so is gross negligence.

o Compromising the money claim due to the client without thelatters consent is a violation of this canon.

o The act of receiving money as acceptance fee and failing tosubsequently render legal service is the usual case for this

canon.

o Duty of senior partners? Monitor activities of the associates; else, tantamount

to indifference/neglect

CANON 18 competence and diligenceo When does required diligence start?

From retainer until effective discharge of case or finaldisposition

o What is the required diligence? Ordinary diligence, not extraordinary

o 18.01 NOT render service he knows hes unqualified to

render


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Exception (requisites): If he can obtain a collaborating counsel

competent on the matter

And the client must approve of this What is the presumption?

If a lawyer accepts a case, it means he hasthe learning, skill, and ability to handle thecase

o 18.02 Not handle any legal matter without adequate

preparation

o 18.03 Not neglect a legal matter entrusted to him What if hes negligent?

Hes liable Can a lawyer waive a clients appeal?

NO. Failure to perfect an appeal withinprescribed period is negligence and

malpractice under 18.03. A lawyer is no longer practicing law but is still the

counsel on record. The court sent an order. What

is the lawyers duty?

Must still comply with it. Or at least, informthe court that he has already retired from

practice of law.

The client must not be prejudiced. Remember that extensions of time are not a right, but

a mere discretionary relief granted by courts.

Abandonment of cases also falls under this canon.

What is the effect of gross negligence by thecounsel?

This can be an exception to the general rulethat the counsels mistakes bind his client

o 18.04 Keep client informed of status of the case AND respond within reasonable time to clients

request for information

CANON 19 representation with zeal within legal boundso 19.01

Use only fair and honest means to attain lawfulobjectives of client

NOT present, participate in presenting, or threaten topresent unfounded criminal charges

Done in order to obtain improper advantagein any case/proceeding

Example of a violation of 19.01: Lawyer filed numerous actions,

administrative and criminal against

respondent, which had nothing to do with his

clients civil case

Offered a monetary reward to people whocan give him dirt on the respondent, as

leverage

o 19.02 If he receives information that a client has

perpetrated fraud on a person or tribunal, what

must he do? 1. Promptly tell client to rectify the same 2. Failing, terminate the relationship

When does this rule apply? In the course of the representation

How must termination be effected? According to the ROC. The lawyer needs to

obtain the written consent of the client. Else,

he needs approval of the court, with notice to

client and attorney.

o 19.03 NOT allow client to dictate the procedure in handlingthe case

What are within the clients control? Cause of action, claim/demand, and subject

of litigation

(thus, the attorney cannot, without authoritygiven by the client, compromise the litigation

or receive anything in discharge of the

clients claim)

CANON 20charge only fair and reasonable attorneys fees


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o 20.01charge only reasonable and fair fees. What factorsdetermine his fees?

1. Time spent and extent of service rendered/required 2. Novelty and difficulty of questions 3. Importance of subject matter

4. Skill demanded 5. Probability of losing other employment due to

acceptance of this case

6. Customary charges for similar services andschedule of fees of his IBP chapter

7. Amount involved in the controversy and benefits tothe client from the service

8. Contingency or certainty of compensation 9. Character of employment, whether occasional or

established

10. Professional standing of lawyero What are the factors mentioned in the rules of court (R

138, s. 24)? 1. Importance of subject matter 2. Extent of services rendered 3. Professional standing of attorney

o What is the factor added by jurisprudence? Clients capacity to pay

o Does the considerable value of the property or interestinvolved per se justify high attorneys fees?

No necessarily, especially if the legal services do notcall for too much effort.

o Can the court reduce attorneys fees or impose a newamount?

Yes, it may reduce if the amount is unreasonable orimpose an amount when there was none agreed

upon.

o What about counsels de officio? The court in its discretion and subject to availability of

funds, may order compensation of the counsel de

officio. Amount fixed by court.

o What are the kinds of payment? 1. Fixed or absolute fee

Payable regardless of outcome

2. Contingent fee Dependent on favorable judgment And recovery of property or money

o Usually percentage basis asregards this

3. Fixed per-appearance fee

4. Fixed per-hour fee 5. Fixed fee for piece of work

o What are the kinds of attorneys fees? 1. Ordinary attorneys fees:

Reasonable compensation paid to a lawyerby his clients for legal services rendered

Basis for this compensation is the fact ofemployment and agreement with client

2. Extraordinary attorneys fees: Indemnity for damages ordered by the court

to be paid to losing party in litigation

Payable not to the lawyer but the client,unless they agree that the award pertains to

the lawyer

o What if there is no express contract? The lawyer must still be compensated. Principle: against unjust enrichment Legal effect: innominate contract of facio ut des (I do,

you give) arises

o How are attorneys fees claimed? 1. Asserted in the very action where the services of a

lawyer had been rendered or in a separate action

If in the same action, file motion in sameproceeding

Of course, for separate action, file a new one 2. Petition for attorneys fees filed before judgment in

favor of the client is satisfied or delivered to the client

3. Determination as to the propriety of fees or itsamount held in abeyance until end of main case

Otherwise, determination of courts ispremature


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o What are the kinds of retainer agreements on attorneysfees?

1. General retainer or retaining fee fee paid tolawyer to secure future services as general counsel

For problems arising in ordinary course ofbusiness

2. Special retainer fee for specific or particular caseor service

o What is the nature of retaining fee? It is not a payment for services and is in fact separate

from such. This is just paid for the right to be retained

by a party and to compensate for the deprivation of

the opportunity to render services to the other party.

o What is quantum meruit? As much as he deserves used as basis to

determine a lawyers professional fees in the absence

of a contract, but recoverable by him from the client

When does QM apply? 1. No express contract 2. There is formal contract but the attorneys

fees are unconscionable or unreasonable, as

found by the court

3. Contract is void due to purely formalmatters or defects in execution

4. Counsel through justifiable cause was notable to finish the case to its conclusion

5. Lawyer and client disregarded the contractfor attorneys fees

o 20.02in case of referral with consent of the client: Be entitled to a division of fees in proportion to the

work performed and responsibility assumed by that

other lawyer

o 20.03 Not accept fee, reward, costs, commission, interest,

rebate, or forwarding allowance or other

compensation from anyone not his client

Related to professional employment Unless consented to by client, with

knowledge

o 20.04 General rule: avoid controversies with clients

concerning compensation

Resort to judicial action only to prevent injustice orfraud

oWhen can counsel not recover full amount despite writtencontract stipulating attorneys fees?

1. Attorney withdraws before case is finished 2. Justified dismissal of attorney

What is the payment?o Quantum meruit only

o What is a champertous contract? It is a void contract. Here, the lawyer stipulates with his client that in the

prosecution of the case, the lawyer bears all the

expenses

And the client gives the lawyer a portion of thething/property recovered

How is it different from contingent fees? In contingent fees, the client still reimburses

any advances made by the lawyer, and only

the attorneys fees are contingent.

o Can a lawyer ask for fees for merely recommendinganother lawyer?

No. CANON 21preservation of clients confidence and secrets

o When does this duty last? During and even after the relationship Otherwise, people would refrain from seeking legal

advice

o What does confidence mean? Information protected by attorney-client privilege

o What does secret mean? Other information gained in professional relationship

that

A) the client has deemed to be held inviolate B) or disclosure of which would embarrass or

detriment the client

o When does attorney-client privilege exist?


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1. Attorney-client relationship or prospective attorney-client relationship

2. Client made the communication in confidence 3. Legal advice sought from attorney in professional

capacity

Is there need for a formal contract?

No. Documentary formalism is not arequirement for an A-C relationship.

Is information the client intended for the lawyer tocommunicate to a third person privileged?

No.o What is the nature of the clients identity?

IN GENERAL, it must not be shrouded in mystery. Itmust be divulged by the lawyer.

o What are the exceptions to this under Regala? 1. Strong probability that revealing clients name

would implicate that client for the very activity he

sought advice for 2. Disclosure would open client to civil liability 3. Revealing the name would furnish the only link that

would form the chain of testimony necessary to

convict an individual of a crime

Contra:when the client is still seeking advice how togo around the law for a future misdeed. This is not

covered by the privilege.

o 21.01not reveal the secrets of his client. Exceptions?

1. Authorized by the client after acquaintinghim of the consequences of the disclosure

2. Required by law 3. Necessary to collect his fees or defend

himself, employees, or associates or by

judicial action

o 21.02 Not use information acquired in course of employee Not use the same to his advantage or that of a third

person

UNLESS the client with full knowledge of thecircumstances consents thereto

o 21.03 Not give information from his files to an outside

agency seeking information for:

Auditing Statistics Bookkeeping Accounting Data processing, etc.

UNLESS client gives written consento 21.04

May disclose affairs of client of firm to partners orassociates

UNLESS prohibited by the cliento 21.05

Adopt measures to prevent those who use hisservices from disclosing or using confidences/secrets

of the clients

Does the privilege extend to the lawyersemployees?

Yeso 21.06

Avoid indiscreet conversation about clients affairs EVENWITH members of family

o 21.07 Not reveal that he has been consulted about a

particular case

EXCEPT to avoid possible conflict of interesto What does the duty to preserve a clients secrets cover?

Only lawful purposeso What are not covered by this duty?

1. Announcements or communications of a clientsintent to commit crime or f raud

2. Client jumped bail and lawyer knows where he is 3. Client is living somewhere under assumed name

CANON 22 withdrawal of serviceso When can a lawyer withdraw his services?

1. Only for good cause 2. AND upon notice appropriate in the circumstances

o 22.01 when a lawyer can withdraw his services:


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1. Client pursues illegal or immoral course of conductin the matter he is handling

2. Client insists the lawyer pursue conduct violatinglegal ethics rules

3. Inability to work with co-counsel will prejudice bestinterest of client 4. Mental or physical condition of the lawyer makes itdifficult for him to carry out the employment effectively

5. Client deliberately fails to pay fees or fails tocomply with retainer agreement

6. When the lawyer is elected or appointed to publicoffice

7. Other similar caseso 22.02whathappenswhen the lawyer withdraws or is

discharged:

Turn over all papers and property to which client isentitled

Subject to retainer lien AND cooperate with successor in orderly transfer of

matter, including all information necessary to handle

the matter

o Whose consent is required for withdrawal as counsel for aclient?

1. Written consent of client 2. OR permission of court after due notice and

hearing

o What are requirements for substitution of counsel in acase?

1. Written application 2. Written consent of client 3. Written consent of attorney to be substituted 4. AND if consent of attorney to be substituted cannot

be obtained, there must at least be proof of notice that

the motion for substitution has been served on him

o When can a lawyer not recover from his client? 1. The supposed client did not employ him or

authorize his employment

2. Client conducts himself in manner which tends todegrade his attorney

3. Client refuses to extend cooperation 4. Client stops having contact with him Ang labo ng grounds 2-4. Please check if this is

correct. It doesnt make sense.

o What is the nature of the right of the client to terminate hislawyer?

ABSOLUTE. It may be with or without cause. It may be done anytime.

o When is the lawyer-client relationship terminated? 1. Withdrawal of the lawyer (under 22.01) 2. Discharge or dismissal of the lawyer by the client 3. Death of lawyer

If law firm, however, any of the other lawyersmay continue the case

4. Declaration of presumptive death of the lawyer 5. Death of client 6. Intervening incapacity or incompetence of the client

during the case pendency The guardian may authorize the lawyer to

continue

7. Full termination of the case 8. Appointment or election of the lawyer to

government position that prohibits him from practicing

law

9. Disbarment or suspension of the lawyer 10. Conviction for crime and imprisonment of the

lawyer

LIABILITY OF LAWYERS

When is a lawyer civilly liable?o [against client]o 1. Client is prejudiced by the lawyers negligence/misconducto 2. Lawyer breached fiduciary obligationo 3. Violation of communication privilegeo [Against third persons]o 4. Civil liability to third personso 5. Libellous words in pleadingso [Treble costs]


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o 6. Liability for costs of suit (treble costs) 1. When the lawyer insists on the clients patently

unmeritorious case

2. Interposing appeal merely to delay litigation N.B. same heart for both pursuing litigation not

meant to be pursued

When is a lawyer criminally liable?o 1. Prejudiced client through malicious breach of professional

duty

Cf .Here, it is malicious breach, not just negligence(which attracts civil liability)

o 2. Revealing clients secrets Cf . As opposed to violating privilege (just civil). Here,

secrets are revealed. Recall distinction between

privileged matters and secrets.

o 3. Representing adverse interests N.B. #1-3 are the three betrayal of trust by attorney

crimes in the RPCo 4. Introducing false evidenceo 5. Estafa

A. Misappropriating clients funds B. Unauthorized practice of law

What are the two kinds of contempt?o 1. Direct

Misbehaviour in the presence of or near a court/judgeas to interrupt or obstruct the proceedings before the

court or the administration of justice

Summary punishmento 2. Indirect

One committed away from the court Disobedience or resistance to lawful writ, order,

process, judgment, or command of the court

Or act tending to degrade, interrupt, embarrass thecourt

What are the two types of indirect contempt? 1. Civil failure to do something ordered by

the court for the benefit of a party

2. Criminal conduct directed againstauthority or dignity of the court

o Does the power to punish for contempt preclude thepower to disbar?

No. They can be exercised concurrently or one afterthe other.

o Does the determination whether contempt is criminal orcivil affect the courts jurisdiction?

No, it does not affect the courts jurisdiction or itspower to punish.

Does the lawyer owe loyalty to his client after the relationship hasterminated? What if there is a conflict between client and court?

o Lawyer owes loyalty to the client even after the relationshiphas terminated

o But if there is conflict between client and court, the loyalty andobedience to the court prevails

SUSPENSION,DISBARMENT,DISCIPLINE,REINSTATEMENT

Distinguish disbarment from suspension:

o Disbarment quasi-summary proceeding instituted before acourt to deprive an attorney of his license to practice his

profession due to misconduct

o Suspension act of court prohibiting an attorney formpracticing law for a certain definite period

What are the objectives of disbarment and suspension?o 1. Compel attorney to be honest and fair with clientso 2. Remove from profession a person whose misconduct has

proved him not to be trusted

o 3. Punish the lawyero 4. Set an example and warning to otherso 5. Safeguard administration of justice from

incompetent/dishonest lawyers

o 6. Protect the public What are the characteristics of disbarment proceedings?

o 1. Neither civil nor criminal Cannot claim damages in a disciplinary case

o 2. No concept of double jeopardy Res judicata does not apply either

o 3. Can be initiated motu propio by the SC or the IBPo 4. Does not prescribe


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o 5. Conducted confidentiallyo 6. Can proceed regardless of interest or lack thereof of the

complainant

o 7. Constitutes due processo 8. Sui generis

Not intended to inflict criminal or civil sanctions. Onlyquestion is w/n he is fit to be an officer of the court

No prosecutor or plaintiff What are the grounds for disbarment or suspension?

o 1. Deceito 2. Malpractice or other gross misconduct in officeo 3. Grossly immoral conducto 4. Conviction of crime involving moral turpitudeo 5. Violation of oath of officeo 6. Wilful disobedience of any lawful order of superior courto 7. Corrupt or wilful appearance as attorney for a party to case

without authority to do so

What are the mitigating circumstances in disbarment orsuspension?

o 1. Good faith in acquisition of a property of client subject tolitigation (in re: Ruste)

o 2. Inexperience of the lawyero 3. Ageo 4. Apologyo 5. Lack of intent to slight or offend the court

What is the procedure for disbarment or suspension?o 1. Instituted either by:

SC, motu propio IBP, motu propio Verified complaint by any person

o 2. Six copies of the verified complaint filed with IBP Secretaryor Secretary of any chapter, and forwarded to IBP Board of

Governors

o 3a. Investigation by National Grievance Investigators Submission of investigative report to the IBP Board of

Governors

Board decides within 30 dayso 3b. Or investigation by the Solicitor Generalo 4. SC renders final decision

NOTE: that only the SC can disbar or suspend. TheIBP can only issue a decision

What is presumption of innocence?o In absence of contrary proof, the presumption is that the lawyer

is innocent of the charges and has performed his duty as

officer of the court according to his oath What is needed quantum of proof?

o Clear, convincing, satisfactory (clearly preponderant evidence Gatchal ian v Naldoza)

Who has the burden of proof?o The complainant

Who are the officers authorized to investigate?o 1. SCo 2. IBP through:

Commission on Bar Discipline Authorized investigator

o 3. Office of the Solicitor General What is the rule on discipline of Filipino lawyers practicing in

foreign jurisdictions?

o If the lawyer is also authorized to practice law in thePhilippines, the disbarment or suspension of the lawyer abroad

is also a ground to disbar or suspend here, if the ground is for

any of those listed here

o What is the effect of judgment, order, or resolution of theforeign court?

Prima facie evidence of ground for disbarment orsuspension

What is reinstatement?o Restoration in disbarment proceedings to a disbarred lawyer

the privilege to practice law

o Basis: SCs power under the Constitution of control overadmission of those practicing law

Discretionary on the courto As such, the SC may require special conditions to be fulfilled

How is it initiated?o Filing of appropriate petition for reinstatement with the SC

What will the court consider?o 1. W/n the application is a person of good moral charactero 2.Applicants character and standing prior to disbarment


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o 3. Applicant character and standing after disbarment and priorto application for reinstatement

What is the effect of reinstatement?o Wipes out restrictions and disabilities resulting from prior

disbarment

Differentiate absolute and conditional pardon?

o 1. Absolute disbarment case dismissedo 2. Conditional disbarment case will not be dismissed

What is the rule on lawyers who have been repatriated?MANDATORY CONTINUING LEGAL EDUCATION

What is the purpose of MCLE?o To ensure that through their career:o lawyers keep abreast of law and jurisprudence,o maintain ethics of profession,o and enhance standards of practice

Who are required to take up MCLE?o All members of the IBP

What are the requirements for compliance?o Must complete at least 36 hours of MCLE activities every 3

years, divided as follows:

International law and conventions 2 hours

Legal writing; oral advocacy 4 hoursTrial and pre-trial skills 4 hoursAlternative dispute resolution 5 hoursLegal ethics 6 hoursOther subjects prescribed by the MCLE committee 6 hours

Updates on substantive/procedurallaw/jurisprudence

9 hours

Who are the 3 compliance groups?o A. Group 1 members in NCRo B. Group 2 members in Luzono C. Group 3 members in Vis-Min

What is the concept of credit units?o Members may participate in any legal education activity

wherever it may be available earns units

o For every class of credit, a corresponding number of units isassigned

o What are the classes of credit units? 1. Participatory Credit

Attending approved education activities(seminars, symposia, etc.)

Lecturing or panelling in approved educationactivities

Teaching in law school/teaching bar review 2. Non-participatory

Authoring written materials (article, book,book review) which contribute to legal

education of author-member

o MUST NOT BE prepared inordinary course of practice or

employment

Editing law book, law journal, legalnewsletter

Who exempted from MCLE?o 1. P, VP, Secretaries, Undersecretarieso 2. Senators and Congressmeno 3. Justices of the SC, incumbent and retired members of the

judiciary, incumbent members of the JBC, and incumbent court

lawyers covered by the Phil. Judicial Academy program of

continuing judicial education

o 4. Chief State Counsel, Chief State Prosecutor, AssistantSecs. Of the DOJ

o 5. Solicitor General and Asst. Sol Geno 6. Government Corporate Counsel, Deputy, and Asst. GCCo 7. Chair and members of Con Commissions.o 8. OBM, Overall deputy OMB, Deputy OMB, and Special

Prosecutor

o 9. Heads of government agencies exercising QJ functionso 10. Incumbent deans, bar reviewers, professors of law of at

least 10 years in accredited law schools

o 11. Chancellor, vice chancellor, members of the corps ofProfessional and Professorial Lecturers of the Phil Judicial

Academy

o 12. Governors and mayors


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o Others exempted: 13. Not in law practice, whether private or public 14. Those retired from law practice, with approval of

IBP Board of Governors

o Application for exemption: A member showing good cause can have himself

excused from compliance with MCLE or have some

requirements modified, including time extensions

What is required here? 1. Under oath 2. Supported by documents

o What are the good causes, for instance? 1. Physical disability 2. Illness 3. Post-grad abroad 4. Proven expertise in law

What are the sanctions for failure to comply?o 1. What is non-compliance:

Failure to complete education requirement within thecompliance period

Failure to provide attestation of compliance/exemption Failure to provide satisfactory evidence of compliance

or exemption within prescribed period

Failure to satisfy education requirement and furnishcompliance within 60 days from receipt of non-

compliance notice

Failure to pay non-compliance fee within prescribedperiod

Any other act or omission analogous to foregoing orintended to circumvent MCLE

o 2. Members not complying will: Receive non-compliance notice stating deficiency AND given 60 days from notification to file a response

o 3. Consequences of non-compliance: Listed as delinquent member by the IBP Board of

Governors upon recommendation by MCLE

committee

Listing is administrative in nature by with notice andhearing by committee on MCLE

What is the composition of the committee on MCLE?o 1. Retired SC Justice (chairman)o 2. IBP National President (vice chair)o 3. Three other members

Nominated by PHILJA

Nominated by UP Law center Nominated by Association of law Professorso What is the quality of members?

Proven probity and integrityo Compensation as may be determined by the SC

NOTARIAL PRACTICE

Who can be a Notary Public?o 1. Filipino citizeno 2. Over 21 years oldo 3. Resident in Philippines for at least 1 year and maintains

regular place of work/business in the city or province where thecommission is issued

o 4. Member of Philippine Bar in good standing With clearance by Office of Bar Confidant of the SC With clearance by the IBP

o 5. Not convicted in the first instance of any crime involvingmoral turpitude

What is the term of office of a NP?o 2 years from first day of January of the year when

commissioning was made

o Unless earlier revoked or the NP resigned What is the jurisdiction of a NP?

o A NP can perform notarial acts in any place within the territorialjurisdiction of the commissioning court within the regular

place of work or business

o EXCEPTIONS can perform notarial acts, upon request ofthe parties in the following sites located within his

territorial jurisdiction:

1. Public offices, convention halls, similar placeswhere oaths of office may be administered


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2. Public function areas in hotels and similar placesfor signing of instruments or documents requiring

notarization

3. Hospitals and other medical institutions where aparty to an instrument or document is confined for

treatment

4. Any place where a party to an instrument ordocument requiring notarization is under detention

What must the verified petition for a notarial commission contain?o 1. Petitioners personal qualifications, including the petitioners

date of birth, residence, telephone number, professional tax

receipt, roll of attorneys number, IBP membership number

o 2. Certification of GMC By at least 2 executive officers of the local chapter of

the IBP where he is applying

o 3. Proof of payment for filing of petitiono 4. 3 passport size photos with light background taken within 30

days of application Unretouched Sign name at the bottom part

Before the executive judge conducts a summary hearing, thefollowing are required:

o 1. Petition is sufficient in form and substanceo 2. He proves allegations contained in the petitiono 3. He establishes to the satisfaction of the executive judge that

he has read and fully understood the Rules

What are the powers and limitations of a NP?o May perform the following:

1. Acknowledgements 2. Oaths and affirmations 3. Jurats 4. Signature witnessing 5. Copy certifications 6. Any other act authorized by the rules

o NP can certify the affixing of a signature or thumb mark on aninstrument or document for notarization ifrequisites:

1. The mark is affixed in the presence of the NP andof 2 disinterested and unaffected witnesses to the

instrument

2. Both witnesses sign their own names in addition tothe mark

3. The NP writes below the mark: The thumb or othermark affixed by (name of signatory by mark) in the

presence of (names and addresses of witnesses) and

undersigned notary public

4. The NP notarizes the signature by thumb or othermark through an acknowledgement, jurat, or signature

witnessing

o NP is authorized to sign on behalf of a person who is physicallyunable to sign or make a mark on an instrumentrequisites:

1. NP directed by person unable to sign or make amark to sign on his behalf

2. Signature of NP is affixed in the presence of twodisinterested an unaffected witnesses to the

instrument or document

3. Both witnesses sign their own names 4. NP writes below his signature: signature affixed bynotary in presence of (the names and addresses of

the 2 witnesses)

5. NP notarizes his signature by acknowledgement orjurat

What is the notarial register?o It is a permanently bound book with numbered pages

containing a chronological record of notarial acts performed by

the NP

o What is in the register? 1. Entry number and page number 2. Date and time of day of the notarial act 3. Type of notarial act 4. Title or description of instrument or proceeding 5. Name and address of principals 6. Competent evidence of identity as defined by the

rules if the signatory is not personally known to the

notary

7. Name and address of the witnesses 8. Fee charged 9. Address where notarization performed if not in the

notarys regular place of work or business


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10. Any other important circumstance What is a notarial certificate?

o The part of the notarized document/instrument that iscompleted by the NP, bearing

1. His signature 2. His seal 3. The facts attested to by the NP

o What is in the certificate? 1. Name of notary public as indicated in his

commission

2. Serial number of the commission of the NP 3. Words Notary Public and the province/city where

commissioned, and expiration date of commission,

and office address of the NP

4. Roll of attorneys number, professional tax receiptnumber, place and date of issuance, IBP membership

number

When is the NP disqualified to act?o 1. He is a party to the instrument or document to be notarizedo 2. Will receive, as direct or indirect result, any commission, fee,

advantage, right, title, interest, cash, property, or other

consideration (except as provided by Rules/law)

o 3. Spouse, common law partner, ancestor, descendant, orrelative by affinity or consanguinity of the principal within

FOURTH civil degree

When must a NP refuse to notarize a document?o 1. NP knows or has good reason to believe that the notarial act

or transaction is unlawful or immoral

o 2. Signatory shows demeanour which brings reasonable doubtto the NPs mind that the signatory knows the consequences

of the transaction to be notarized

o 3. In the NPs judgment, the signatory is not acting on his ownfree will

What are the other things a NP will not do?o 1. Execute a certificate containing info known or believed by

the notary to be false

o 2. Affix a signature or seal on a notarial certificate that isincomplete

o 3. Notarize a blank or incomplete instrument

o 4. Notarize an instrument without appropriate notarialcertification

When can a notarial commission by revoked by an executivejudge?

o For any ground on which an application for commission maybe denied

o Plus any of the grounds directly below. When can the executive judge impose appropriate admin

sanctions on a NP?

o 1. Failing to keep a registero 2. Failing to make property entries in the registero 3. Failing to send copy of the entries to the executive judge

within first 10 days of the month following

o 4. Failing to affix acknowledgements the date of expiration ofcommission

o 5. Failing to submit register, when filled, to the executive judgeo 6. Failing to make report, within reasonable time, to the

executive judge re: his performance of duties, when requiredo 7. Failing to require presence of principal during notarial acto 8. Failing to identify principal on the basis of personal

knowledge or competent evidence

What is competent evidence of identity? Either: 1. At least one current ID issued by official

agency bearing the photo and signature of

the individual

2. Oath or affirmation of one credible witnessnot privy to the instrument, document, or

transaction who is personally known to the

NP and who personally knows the individual

o Or two credible witnesses neither ofwhom is privy, who each personally

knows the individual and shows to

the NP documentary identification

o 9. Executing false or incomplete certificateo 10. Knowingly performing a prohibited act or failing to perform

a mandatory act


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o 11. Committing any other dereliction or act which n thejudgment of the executive judge is a good cause to revoke or

impose sanctions

What is the procedure?o How initiated?

1. Verified complaint by interested, affected, oraggrieved person

2. Motu propio, by the executive judgeo The NP is required to file a verified answero If not satisfactory, the executive judge requires a summary

hearing

o If not proved: complaint dismissed

o If charges established: executive judge imposes sanctions

o What is the remedy? Appeal to the SC for review Pending appeal, sanction is executory unless orderedby the SC

What are the special punishable acts?o 1. Person knowingly acts or impersonates a NPo 2. Knowingly obtains, conceals, defaces, or destroys the seal,

register, or official records of a NP

o 3. Knowingly solicits, coerces, or influences a NP to commitofficial misconduct

o Who causes the prosecution thereof? The Executive Judge

Types of acts

Acknowledgement Oath / Aff. Jurat Sig. Wit.Appear, giveintegrally completedocument

Appear Appear, givedocument

Appear, givedocument

Properly identified Properlyidentified

Properlyidentified

Properlyidentified

Says signature isvoluntarily affixed

Avows to truthof contents ofdocument

Signs thedocument inpresence of NP

Sign thedocument inpresence of NP

If in representative Take oath as to

capacity, say hehas authority

the document

ACKNOWLEDGEMENTo 1. Individual appears before NP and presents an integrally

complete instrument/documento 2. Attested to be personally known to the NP or identified by

the NP through competent evidence (see above)

o 3. Represents to the NP that the signature on the instrumentwas voluntarily affixed by him for purposes stated in the

instrument

He declares that he executed it as free and voluntaryact or deed

If he acts in a particular representative capacity, thathe has authority

AFFIRMATION OR OATHo 1. Individual appears before the NPo 2. Is personally known to the NP or identified by the NP

through competent evidence (see above)

o 3. Avows under penalty of law to the whole truth of thecontents of the instrument or document

COPY CERTIFICATIONo 1. Notarial act where the NP is presented with an instrument

that is neither a vital record, public record, or publicly

recordable

o 2. Copies or supervises the copying of the instrumento 3. Compares the instrument with the copyo 4. Determines that the copy is accurate and complete

JURATo 1. Individual appears before the NP and presents an

instrument

o 2. Is personally known to the NP or identified by the NPthrough competent evidence (see above)

o 3. Signs the instrument in the presence of the notaryo 4. Takes an oath or affirmation before the NP as to the

instrument

SIGNATURE WITNESSING


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o 1.Notarial act where the individual appears before NP andpresents an instrument

o 2. Is personally known to the NP or identified by the NPthrough competent evidence (see above)

o 3. Signs the instrument in the presence of the notaryJUDICIAL ETHICS

NOTE: the canons here are already from the NCJC

Independence Integrity Impartiality Propriety Equality Competence,Diligence

Free fromextraneousinfluence

Abovereproach;perception

No bias orprejudice

Avoidimpropriety,andappearancethereof

Socialdiversity

Judicial dutiesovereverythingelse

From judicialcolleagues

Reaffirmfaith injudiciary

Conduct inand out ofcourtinspires

confidence

Acceptpersonalrestrictions

No bias orprejudice onirrelevantgrounds

Professionalactivity tojudicial duties

Anticompanerismo

Disciplinelawyers &personnel

Lessenchance ofbeing DQ

Personalrelations withlawyersappearingbefore him

Nodifferentiation

Enhanceknowledge orskills

Family, social,other relns

Makingcommentson cases

Lawyersusing hisresidence

Nodifferentiationby staff

Keep abreastof I-Law

Other govtbranches

Self-DQ(important)

Freedom ofexpression,belief,assembly

Not allowlawyers tomanifest biasor prejudiceon irrelevantgrounds

Efficientperformanceof duties

Society ingeneral

Remittanceof DQ

Be informedre personal

and familyinterests

Conduct anddecorum

Upholdsafeguards

Using officefor privateinterest;giving wrongidea

Inspire publicconfidence

Confidentiality

Extra-curricularactivitiesCannotpractice law

Judges

associationsAsk/acceptgifts

Court staffasking oracceptinggiftsAppropriate

gifts only

CANON 1 independence

prerequisite to the Rule of Law and a fundamental guarantee of fairtrial

S.1: decide according to assessment of facts and understanding of thelaw free from extraneous influence, pressure, threat or interference

(direct or indirect, from whatever quarter, or for whatever reason)

o Covers influence from: 1. Government officials 2. Public opinion, especially media

o Specifically, from S. 2-6: S2. Judicial colleagues S3. Another court or agency S4. Relationships S5. Other branches of government S6. Society in general

S.2: independent of other judicial colleagues, if he has to make adecision independently

S.3: refrain from influencing outcome of litigation or dispute beforeanother court or agency

o Companerismo due to this camaraderie, judges seekaccommodations from other judges (ex. Provisional remedies,

favorable decisions, etc.)

o Leads to quid-pro-quoo N.B.in the CJC, this was classified under propriety but now it

is deemed an independence issue

S.4: not allow family, social, or other relationships to influence judicialconduct. Also:

o 1. Not use or lend prestige of judicial office to advance privateinterests of others


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o 2. Not convey (or permit others to convey) that they are in aspecial position to influence the judge

o What is the expanded definition of the judges familyunder this section?

1. Those related by blood or marriage up to the sixthcivil degree

2. Those in the judges employ 3. Those living in his household

o The social and other relationships cover business associates,fraternity and sorority mates, those from the same

organization, etc. Decisions are usually controlled by

pakikisama

o Labor union X gave money to Judge A. A accepted it butgave the money away. Is this prohibited by this section?

Yes, because it gave the union the impression that itwas in the position to influence the judge.

o N.B.in the CJC, this was classified under propriety but now itis deemed an independence issue

S.5: must appear free from inappropriate connections with and influenceby the other branches of government to a reasonable observer

o Not just actually free from such, but this also covers theappearance

o Internal personnel issues are dealt with by the court; cannotask other branches or an LGU to do so

S.6: independent in relation to society in general and in relation toparticular parties to a dispute

o Not necessarily become a hermit but at least avoid fraternizingto a point that would arouse suspicions

S.7: encourage and uphold safeguards for discharge of judicial dutieso To maintain/enhance institutional and operational

independence of the judiciary

S.8: exhibit and promote high standards of judicial conduct to reinforcepublic confidence in the judiciary

o Focus here: inspiring public confidence in judiciaryCANON 2 integrity

S.1: conduct must be above reproach AND it must be perceived so by areasonable observer

o Examples of lack of professional integrity: Lack of GMC, demand or accepting bribes, fraternizing with litigants, sexual harassment, ignorance of the law

o Examples of lack of personal integrity: keeping a mistress, inebriation, frequent gambling

o Examples of damaging integrity of judiciary: incompetence such as failing to comply with a basic

rule in the ROC,

conducting hearings in their residence, using intemperate language, even not wearing judicial robes

S.2:behaviour and conduct of judges must reaffirm peoples faith in theintegrity of the judiciary. Justice must not be merely done, but alsoseen to be done.

o The last sentence is important because it also involvesperception by the public.

o Like Caesars wife, he must not just be pure, but also beyondsuspicion.

S.3: judges must take disciplinary action against lawyers or courtpersonnel for unprofessional conduct of which the judge became aware

o The actions of the court personnel must also affirm the integrityof the judiciary

o Judge must be aware of even the slightest transgressions,before these ripen into something bigger or worse

CANON 3 impartiality

Essential to proper discharge of office. Applies to both the decision and the process by which it is made.

o So if the decision is fair but the manner appears biased, thereis still a violation.

S.1:judges must perform judicial duties without favor, bias, or prejudice


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o Note that mere allegations are not enough. The complainanthas the burden of proof. There must be clear and convincing

evidence.

o What must be proved? Extra-judicial Source Rule- that the decision was

based on some influence other than facts or laws

presented in the courtroom

If the decision was based on evidence and testimonypresented, even if erroneous, it will not sustain a

claim of favor/prejudice/bias

S.2: judges must ensure that their conduct in and out of the courtmaintains and enhances confidence of the public, litigants, and the legal

profession in the impartiality of the judge and the judiciary

o No judge should handle a case where he might be perceived,rightly or wrongly, to be biased or partial

Ex. A judge asked for the presentation of specificdocumentary evidence without corresponding motion

from any of the parties Ex. Judge pushes actively for amicable settlement

against the wishes of the complainant

o A judge may not be legally prohibited from sitting in litigation,but when suggestion is made on record that he might be

biased, he must conduct a careful self-examination.

o When can a judge ask a witness questions? To clarify vague points, clear ambiguity

S.3: must conduct selves in manner as to minimize occasions where itwill be necessary for them to be DQ from hearing/deciding cases

o This is a warning against fraternizing too much with litigantso Judges may voluntarily restrict selves from hearing a case but

it must be based on good, sound, ethical grounds, or just/validreasons

o When there is conflict between duty to inhibit and duty tosit (i.e. there wi ll be no judge otherwise available), what

prevails?

Duty to sit. A basic judge is better than no judge atall.

Ex. The SC members decided a suit challenging theconstitutionality of a statute limiting the increases on

cost of living allowances of judges. While they have

an interest in the case, there would be no one else to

decide.

S.4: cannot knowingly, when a proceeding is before or could comebefore him, make any comment that might reasonably be expected to

affect the outcome of the proceeding or impair manifest fairness of the

process

o Judges cannot make comments in public that might affect fairtrial

o Ex. Made a prior comment in a case he decided where hisopinion may lead a party to doubt his impartiality

o BUT merely writing a legal article on the law involved in thecase is not a ground to DQ the judge

o Must not make hasty conclusions, loose statements, orgratuitous utterances that suggest prejudgment should not

make comments on pending cases

o But a statement that is critical of a party or counsel generallydoes not support motion for DQ

S.5: disqualify themselves from participating in proceedings where theycannot decide impartially, or it may appear so to a reasonable observer.Such as:

o 1. Judge has actual bias or prejudice re: a party orpersonal knowledge of disputed evidentiary facts on the

proceedings

Mere filing of admin case against a judge is not aground for DQ on the ground of bias/prejudice

That the judge is a next-door neighbour of thecomplainant is not a ground per se

Strained personal relationship per se is not a ground Judge cannot make out-of-court observations or

extra-judicial research on the interneto 2. Judge previously was a lawyer or material witness in

the controversy

Also, if formerly associated with one of the parties orcounsel

Also, ex. Judge notarized the affidavit to bepresented as witness in a case before him

o 3. Judge or family member has economic interest in theoutcome of the controversy


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Ex. A judge filed complaints in his own sala forrobbery/malicious mischief and issued warrants of

arrest, to protect interest of co-heirs

Ex. The law firm of the judges family member is thecounsel of record (he has economic interest)

But a mere associate or counsel will nottrigger the DQ because there is generally no

economic interest

o 4. Judge served as executor, administrator, guardian,trustee, or lawyer in the case or matter of controversy;

former associate of the judge served as counsel during

their association; judge or lawyer was material witness in

the case

Restriction extends even to closely related caseso 5. Judges lower court ruling is the subject of reviewo 6. Judge is related by consanguinity or affinity to a party

litigant within 6th

civil degree, or counsel is a relative

within 4

th

civil degree Covers preliminary investigation as well, as even if it

is not a case per se, the effect is the same.

o 7. His spouse or child has financial interest as heir,legatee, creditor, fiduciary or otherwise in the subject

matter of the controversy or a party to the proceeding, or

any substantial interest that could affect proceedings

Philippinejurisprudence doesnt distinguish betweendirect and indirect interest

Even if it is according to law, to avoid perceptions ofimpropriety, the judge must inhibit

The petition to DQ a judge must be filed beforejudgment, otherwise it is deemed waived

S.6: a judge instead of DQ-ing himself, may instead disclose the basisfor DQ to the parties. If the parties and lawyers, independent of the

judges participation, all agree in writing that the DQ is immaterial or

insubstantial, the judge may participate. (remittal of disqualification)

o The agreement in writing is incorporated in the records.o The judge must expressly cite the basis, and not just a general

inhibition based on personal reasons because parties have

no basis to decide.

o Who must waive?

Both lawyers and parties If not all, it does not suffice

CANON 4 propriety

S.1: judges must avoid impropriety and the appearance of impropriety inall activities

o An act of a judge that is not illegal per se can violate the NCJC.o Ex. Hearing cases on official leave dayo Ex. Hearing a motion while on vacation, while dressed in a

polo jacket

o Ex. Photos show a judge and his subordinate exiting a moteltogether

o Ex. A judge cracking bastos jokes during the proceedings S.2: as subject of constant public scrutiny, judges must accept personal

restrictions the might be viewed as burdensome by ordinary citizens

must do so freely and willingly.

o Judicial officers subject to scrutiny in both public and privateconduct

Ex. Using intemperate language Ex. Being drunk in parties Ex. Being ma-chicks

o Must not perform acts that show disregard for the law/judiciary Ex. Pattern of hostile conduct towards attorney,

making derogatory and obscene references to

members of the bar in a social setting

S.3: in personal relations with lawyers who practice regularly in his courtmust avoid situations that give rise to suspicion or appearance of

favouritism or partiality

o Not invite counsel from one side into chambers after or prior tocourt sessions without disclosing to the other counsel the

reason for the meetings

o Being aggressive in demeanour towards a lawyer appearingbefore them, making public comments, allowing court staff to

make comments on pending cases

o Fraternizing with lawyers, such as being seen in public eatingwith them in restaurants

o A judge must not be too thin-skinned in his relationship withlawyers (such as being too sensitive to comments)


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S.4:judges cannot participate in the determination of a case where amember of his family represents a litigant or is associated in any

manner with the case

o When the relative is a party to the case or a lawyer S.5: judges must not allow use their residences by a member of the

legal profession to receive clients or other members of the legal

profession

S.6: judges are entitled to freedom of expression, belief, association,assembly.

o But in doing so, they must act in a manner that preservesdignity of judicial office and impartiality/independence of

judiciary.

o Ex. A judge appeared to be engaging in partisan politics byparticipating in a public rally even if his real purpose was just to

explain the concept of block voting to the public. He was

admonished.

S.7: must inform selves about personal fiduciary and financial interestsand

glenn tuazon ethics

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