pale report group 6

7/30/2019 PALE Report Group 6

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ATENEO DE DAVAO UNIVERSITY

COLLEGE OF LAW

How Far Can Lawyers Go to Protect the Clients Interest

In Partial FulfillmentOf the Requirements in

Problem Areas in Legal EthicsAtty. January Faye Risonar-Bello

By

Rizada, Resci AngelliNartatez, Carell RyzaQuibod, Kristine Mae

Tumanda, Raia Angelie

De Castro, Ian JuliusGalagar, Philip

Bote, Karina Ana

April 24, 2013


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LAWYER AS CLIENT PROTECTORHow Far Can Lawyers Go to Protect Clients Interest

Consider this situation:

Your client is a small business tenant who is involved in a civil dispute with his landlord regardingwhether the lease entitles him to use certain space in the basement of the building for the storage ofinventory items. You have demanded that the landlord give the client access to the space but the landlordwill not agree unless your client agrees to pay significantly more rent. During the course of therepresentation you discover that the landlord has failed to maintain the property in accordance with localbuilding codes that may subject him to criminal prosecution.

Can you threaten to report the landlord to the appropriate authorities if he fails to agree to yoursettlement terms?

Litigation is both romanticized and vilified in modern Philippine culture. Trial lawyers are often seenas the briefcase warriors of right, truth, and justice, protecting individuals' rights and advancing the commongood. Yet, simultaneously, and by the very same people, litigators are also seen as the personification ofavarice and self-centeredness, profiting from multi-million peso verdicts that drive good doctors out ofpractice and encouraging frivolous lawsuits. These disparate images in the popular imagination reflect themoral complexity of the trial lawyer's role and form the societal backdrop of professional regulation in thisarea. They also form the backdrop of the ideas presented by the academic and practicing lawyers all overthe world.

A critical issue facing the criminal justice system today is how best to promote ethical behavioramongst lawyers in client representation. The legal profession has left much of a lawyers day -to-day

activity unregulated, in favor of a general, catch-all admonition to "seek justice." Professional norms aretruly functional only if those working with a given ethical framework recognize the system's implicitdependence on character. A code of professional conduct in which this dependence is not recognized isboth contentless and corrupting.

As held in Suzuki v. Tiamson, Canon 19 of the Code of Professional Responsibility enjoins alawyer to represent his client with zeal. However, the same Canon provides that a lawyers performance ofhis duties towards his client must be within the bounds of the law. Rule 19.01 of the same Canon requires,among others, that a lawyer shall employ only fair and honest means to attain the lawful objectives of hisclient. Canon 15, Rule 15.07 also obliges lawyers to impress upon their clients compliance with the lawsand the principle of fairness. To permit lawyers to resort to unscrupulous practices for the protection of the

supposed rights of their clients is to defeat one of the purposes of the state the administration of justice.While lawyers owe their entire devotion to the interest of their clients and zeal in the defense of their clientsright, they should not forget that they are, first and foremost, officers of the court, bound to exert every effortto assist in the speedy and efficient administration of justice.


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The case Foronda v Guerrero1 was one of cases in which the Supreme Court had taken time tocomment on overzealousness. It was also explicit therein the justification of the lawyer who was held to beoverzealous and meted with a 2-year suspension. Atty. Foronda said:

It is basic that a counsel may resort to all legal reliefs and remedies available and toinvoke all pertinent provisions of the law and rules, to protect the interest of a client in

order that justice may be done and duly administered. In fact, it is not only the right of acounsel to do so but rather, it is his bounden and sacred obligation as an officer of thecourt and as an advocate who is tasked to protect the interest of a client within thebounds of law.

While he may have spoken the truth, this group believes that such zeal and dedication in protectinga clients causes are not reason enough to blur a lawyers first and most important duty as an officer of thecourt. This is because the court is ultimately the one who suffers when the lawyers bombard it with the filingof multiple pleadings and remedies, in the hopes of reviving their clients case or trying to get justice swayin their favour. But as lawyers, they should have known that equity does not work that way. There is nothingwrong with the primordial intent of advancing a clients causes, but it is also insult to the intelligence and

dignity of a judge when a lawyer resorts to such desperate and ignorant acts just to delay the execution of ajudgment against his client.

In a similar case, Plus Builders, Inc. v Atty. Anastacio Revilla, Jr.2, the lawyer was alleged tohave misused court processes with the intention to delay the execution of the decision through the filing ofseveral motions, petitions for temporary restraining orders, and an action to quiet title despite the finality ofthe decision.

Relative to the Foronda case, Atty. Revilla was even more unethical because he allowed non-lawyers to engage in the unauthorized practice of law by holding themselves out as his partners andassociates in the law firm. However, his ultimate repentance for such gross misconduct mitigated thesupposed 1-year suspension to just 6 months, as the court was very merciful to those who realize thewrong they have done and who openly admit to doing such wrongdoing.

The Supreme Court had taken the chance to acknowledge that a lawyers overzealousness is stillrooted on the intent to be the protector and champion of their clients cases. According to the Forondacase:

A lawyers devotion to his clients cause entitles him to deploy every honorable means tosecure for the client what is justly due him or to present every defense provided by law toenable the latters cause to succeed ... In support of the cause of their clients, lawyershave the duty to present every remedy or defense within the authority of the law. Thisobligation, however, is not to be performed at the expense of truth and justice. This is thecriterion that must be borne in mind in every exertion a lawyer gives to his case.

On a last note, the Supreme Court emphasized that every effort exerted in the defense of theirclients right must be in line with the duty to assist in the speedy and efficient administration of justice.

1 (A.C. No. 5469. August 10, 2004)2 A.C. No. 7056, February 11, 2009)


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In this paper, we move on to consider what we see as a critical context in which any considerationof lawyering skills should be set: professional ethics and personal values. The idea of a professionconventionally carries with it a collective commitment to ethical standards. Being a good lawyer is aboutmore than just technical competence, it begs the question to what ends should our skills be used? And thatis an ethical question!

We now explore how this issue is addressed (or not) in the Code of Professional responsibility andlook at the general standards they set. We also will think about whether this kind of codified ethics isenough or whether a genuinely ethical standard of professionalism needs to be based on other internal orexternal criteria.

Objectives

This papers aims to:

Demonstrate knowledge of major concepts, values and rules of legal system in the Philippines;

Enable the recognition of the value conflicts inherent in legal practice; Introduce the main ethical and conduct responsibilities identified by the Code of Professional

Responsibility; Enable a critical evaluation of the form, focus and content of professional conduct regulations; Provide the basis for evaluating ones own sense of ethics; and Encourage one to consider the relationship between ethics and the skills of legal problem-framing

and problem solving.


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Beyond Legal Ethics: The Distinctive Demands of Professionalism

Professionalism must be distinguished from the more familiar topic of legal ethics. Over time, thelatter has become synonymous with efforts in every jurisdiction to establish the minimum standards towhich all members of a profession must adhere simply to maintain their licenses to practice.

Professionalism, on the other hand, is aspirational in character. It is about lawyers at their best, rather thantheir acceptable least.

This drive for superior quality is more, however, than simply a point of personal pride, for it is basedin the professions profound importance to our social heritage: the indispensable connection of the practiceof law to the maintenance of civil community everywhere.

Professionalism is therefore the set of values that the legal system itself inspires in those who seekto preserve and extend that professional legacy. These demanding values are beyond the requirementsof the rules of legal ethics.

Certain basic duties are essential to law practice of any sort: for example, competence, diligence,loyalty to a client, honesty, independent judgment, and duties of confidentiality. Certain traits are sought tobe identified in the discussion that follows.

The Fundamental Values for Client Protection

1. an ethic of excellence: the courage and resolve to maintain the highest standards of legalacumen

2. an ethic of integritya duty to say no to a client when faced with inappropriate pressure3. a respect for the system and rule of law: a duty to explain why one has professional limits4. a respect for other lawyers and their work: recognizing the importance of professional civility


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An Ethic of Excellence

Within the practice of law generally, the quality of an individuals work is an obvious point ofdeparture, for little else matters if the job performed by the lawyer is second-rate or the clients interestshave not been thoroughly addressed.

All clients certainly deserve the lawyers appropriate attention and the full measure of his or herexpertise. But as a matter of professionalism, excellence means more than just immediate skill of somesort. What is required is an ethic in the sense of an attitude a deeper sense of direction concerning howto conduct oneself as a professional, and what to expect from ones colleagues.

While excellence might be associated with particular results, an ethicof excellence is a long-termcommitment to providing the best service possible to a client, overcoming whatever obstacles, in terms ofknowledge or circumstances that might compromise that responsibility. It demands, then, a special form ofprofessional courage: To assist a client may sometimes place the lawyers own personal interests at risk,but that is professionalisms price.

This critical aspect of professional character is not limited, however, to the individual lawyer itextends as well to groups of lawyers bound together professionally, whether in private firms, associations oflaw firms, corporate legal departments, government agencies, or otherwise. Within these entities, the ethicof excellence creates a responsibility of that group to develop internally an environment ofexcellence: anexpectation that the firm or office will generate within itself the appropriate support services, intellectualresources, and thoughtful supervision that will enable its lawyers to flourish professionally, and thus bethe strongest assets for their clients that they can be.

Excellence in this setting means pressing for the highest common denominator.

Case in Focus: THE ENRON CASE: Lawyers As Client Protectors Of Private Corporations

The main question of the section of this report is, should disclosure of corporate fraud or anomaliesof a client company be part of a lawyers duty? In this part of the report, the article of Deborah L. Rhode &Paul D. Patons Lawyers, Ethics, and Enron proved to be a good guide in tackling whether or no t the lawyeras a client protector of corporation face disclosure requirements.

In Philippine Jurisdiction, a lawyer has four-fold duties. First, is to the Court. Second, is to theClient. Third, is to the Bar/Legal Profession; and the last one is to Society. Lawyers are expected to complyto these four duties to the best of his knowledge and with good fidelity.

In the practice of Corporate Law, one thing is peculiar; generally, there is no litigation to speak of.Corporate Lawyers seldom went to the court to file pleadings and motions. Most of the time, these lawyersspend their time guiding their clients in making business decisions. The lawyers enlighten their clients inchoosing what are the best paths that the law provides for business operation.

Unlike, the regular lawyer contemplated under the Code of Professional Responsibility, thecorporate lawyer faces three main groups to whom he has a sacred obligation to serve and protect.


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First, would be the interest of the client. The client is either a private or a public corporation. Itsprimary goal is to profit. It takes the services of skilled lawyer, that the latter may give sound legal andbusiness advices for the clients business.

Second, would be the interest of the Society. Society constitutes the workers who rely on theClient Corporation for employment. They are the consumers of the products and services of thecorporation. They are the regular man and women whose living standards depends on the vigor or on theweakness of the economy.

Third, is the Government who regulates the cans and the cannot bes of the lawyer in fulfillinghis obligation on the two mentioned groups. The latter makes sure that the lawyer will balance the interestof the client which is to profit and the interest of society to be protected from any injury resulting fromcorporate fraud.

There are times, when the lawyer is placed between apparent conflicting interests. For example,

some officers of the company wanted to stretch their business operation beyond on what is legallypermissible. The lawyer in this case is tasked to improvised schemes for the company to complyrequirements imposed by the law just to maintain the regularity of their operations.

Overview of the Enron Case

During the past years, Corporate Fraud became synonymous to the Enron Scandal. Enron is Heldup as the way to NOT run a company. Former energy corporation rampant with corporate corruption andaccounting fraud.

The company positioned itself as a leader in the industry by falsifying accounting records companywide. In 2001 all was uncovered. By 2007, sold the majority of its remaining assets following the filing forbankruptcy following the revelation. For their involvement in the accounting scheme, many companyexecutives paid very stiff fines, and some additionally went to jail3.

Brief Summary of Enron Scandal4

Enron was a Houston-based natural gas pipeline company formed by merger in 1985.

By early 2001, Enron had morphed into the 7th largest U.S. company, and the largest U.S. buyer/seller ofnatural gas and electricity.

Enron was heavily involved in energy brokering, electronic energy trading, global commodity and optionstrading, etc.

On October 16, 2001, in the first major public sign of trouble, Enron announces a huge third-quarter lossof $618 million.

3 http://www.sfo.gov.uk/fraud/what-is-fraud/corporate-fraud.aspx4 http://www2.econ.iastate.edu/classes/econ353/tesfatsion/enron.pdfThe Enron Scandal and Moral Hazard, Prof. Leigh Tesfatsion, Department of Economics Iowa State University


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On October 22, 2001, the Securities and Exchange Commission (SEC) begins an inquiry into Enronsaccounting practices.

On December 2, 2001, Enron files for bankruptcy.

In 2001, the United States of America was rocked by the collapse of Enron, a multibillion dollarcorporation that employed thousands of people and had affiliations right up to and including The WhiteHouse itself.[2]

The fall of Enron, once the seventh largest corporation in America, is more than the story ofindividual misconduct, greed, and deceit. As Senator Fred Thompson has rightly noted, the real scandalhere may be from not what is illegal, but what is totally permissible. . . . The system is clearly not designedwith the interest of the general public or the investor in mind. Enron and the other corporate scandals thathave followed in its wake have focused new attention on longstanding problems, including inadequatedisclosure obligations, conflicts of interest, offshore tax havens, and insider trading. All of these inquiries

are essential for creating greater awareness of the structural features that permitted Enron and similardebacles to take place, and to ensure meaningful reform. Scrutiny of lawyers conduct is equally critical.Too many members of the legal profession were part of the problem, rather than the solution. [1, P625]

When Enron crashed, employees were affected in several ways. Most obvious is the loss ofemployment for thousands of highly skilled and well paid employees, who were forced to try to find workelsewhere virtually overnight. To add insult to injury, many of these employees also had their life savingstotally invested in Enron stock which was now worthless. Unemployed and bankrupt, many Enronemployees saw their whole life come undone when it came to light exactly what Lay, Skilling and theirminions had in fact done. Likewise, the collapse of Enron had implications for the United States as awhole.5

Enron affected the United States in several important ways, in addition to the individual employeesthemselves. If anything positive can be said about the Enron scandal, it is that the scandal itself heightenedawareness of the importance of integrity in Accounting and business in general, and led to the creation ofnew safeguards to make sure that something like this would not happen again, or at least not to the fullextent of the Enron damage6.

The stakes in clarifying these issues are self-evident. With the collapse of the former energy giant,more than 4,000 employees lost their jobs; thousands of investors also lost their life savings, as $70 billionin wealth vanished. Confidence in corporate America plunged, and the stock market has yet to recoverfrom the aftershock.

5 Lawyers, Ethics, and Enron, Deborah L. Rhode & Paul D. Paton6http://voices.yahoo.com/the-enron-scandal-crime-scandal-tragedy-controversy-136695.html
http://voices.yahoo.com/the-enron-scandal-crime-scandal-tragedy-controversy-136695.htmlhttp://voices.yahoo.com/the-enron-scandal-crime-scandal-tragedy-controversy-136695.htmlhttp://voices.yahoo.com/the-enron-scandal-crime-scandal-tragedy-controversy-136695.html


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Lawyers Role In Enrons Fall

These attorneys all played an important role in the process of drafting and certifying disclosurestatements, and in advising whether the legal and accounting requirements governing SPEs [SpecialPurpose Entities] and SPVs [Special Purpose Vehicles] had been met. The Powers Report noted that, in

some cases, transactions were designed specifically for the results they would produce on financialstatements, not for legitimate economic objectives. Nor were the transactions adequately disclosed.Further, even though Enrons public filings revealed the existence of Enrons transactions with thepartnerships, the disclosures were obtuse, did not communicate the essence of the transactionscompletely or clearly, and failed to convey the substance of what was going on between Enron and thepartnerships. Other transactions were used to offset investment losses and to create the appearance thatthe investments had been hedged against risk of loss by a third party, even though Enron was the onlyinvestor with a significant financial stake in the third party. In effect, it was hedging against itself and thusstill liable for the losses.

As the Powers Report later concluded, these transactions appear to have been designed to

circumvent accounting rules by recording hedging gains to offset losses . . . in the value of merchantinvestments on Enrons quarterly and annual income statements. The economic reality of thesetransactions was that Enron never escaped the risk of loss, because it had provided the bulk of the capitalwith which the SPEs would pay Enron.

As the value of the merchant investments continued to fall in 2001, credit problems in SPE entitiesmeant that they could no longer pay Enron on the hedges. The SPEs were terminated in September2001, resulting in a surprise announcement that was the first public disclosure even hinting at the severityof the problems.

US Governments Response

The Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley), which cleared the House of Representativesby a vote of 423-3 and which cleared the Senate by a 99-0 vote a few hours later, included a provision thatobligates lawyers to report corporate fraud, and new rules that would require the SEC to establishminimum standards of professional conduct for the lawyers who practice before the Commission.

Sarbanes-Oxley also obligates lawyers to report evidence of a material violation of securities lawor breach of fiduciary duty, first to a companys general counsel, then to its CEO, and ultimately to itsboard of directors. The statute also provides greater protection for whistleblowers and directs the SEC toadopt rules to interpret and implement this legislation. The bars resistance to these regulatory initiativesreflects a disturbing gap between professional interests and societal values.

Disclosure Obligations

Such disclosure obligations have figured prominently in recent legislative responses to corporatemisconduct. Experts have long sought to have the SEC take a more active role in the regulation of lawyerconduct and in disclosure of fraudulent conduct. The recent legislative focus is, in turn, a product of thebars own failure to impose adequate requirements.


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Just before the Enron scandal broke, the ABA voted twice against a recommendation by its Ethics2000 Commission to amend the bars Model Rules of Professional Conduct governing disclosureobligations. The proposed reform would have required lawyers to reveal information when necessary toprevent or rectify substantial economic harm, as well as preserve life.

Section 307 of Sarbanes-Oxley, and the rule the SEC originally proposed to implement it wouldhave provided the ethical safeguards that the bar has not. Section 307 has two dimensions. First, itinstructs the SEC to adopt a rule of practice establishing minimum standards of professional conduct forlawyers appearing or practicing before the Commission. Second, Section 307 specifically directs the SECto include a rule requiring all such lawyers to report evidence of a material violation of fraud and othercorporate misconduct to the companys senior management and, if necessary, to its board of directors. TheProposed Rule that the SEC designed to implement these requirements attracted a barrage of criticismfrom the ABA and corporate lawyers, and pitted the corporate bar against some fifty law professors whoargued that it was long overdue.

Under the initially proposed rule, if a lawyer believed that the company had not adequately

responded to reports of misconduct, the lawyer must then 1) withdraw from representation; 2) notify theSEC of the withdrawal, indicating that it was based on professional considerations; and 3) disaffirm anyfiling with the SEC the attorney has prepared or assisted in preparing that the attorney believes is or maybe materially false or misleading.

Under the initially proposed rule, if a lawyer believed that the company had not adequatelyresponded to reports of misconduct, the lawyer must then 1) withdraw from representation; 2) notify theSEC of the withdrawal, indicating that it was based on professional considerations; and 3) disaffirm anyfiling with the SEC the attorney has prepared or assisted in preparing that the attorney believes is or maybe materially false or misleading.

Many academic experts were skeptical. Geoffrey Hazard, former Director of the American LawInstitute and Reporter for the Model Rules of Professional Conduct, saw the bars reaction as anotherinstance of lawyers being allergic to regulation of any kind that could expose them to liability ordisciplinary action.

Moreover, as law professor Richard Painter pointed out in his comm ents to the Commission, it isno secret that the most pervasive argument against disclosure requirements is that it reduces lawyers riskof liability to defrauded parties. But, as Painter noted, professional responsibility rules should not bedesigned with defense of malpractice claims as their primary objective, but with a view toward minimizinglawyer complicity in fraud that gives rise to malpractice claims to begin with. The [Commissions] ProposedRule furthers this objective.

Under the Final Rule, evidence of a material violation means credible evidence, based upon whichit would be unreasonable, under the circumstances, for a prudent and competent attorney not to concludethat it is reasonably likely that a material violation has occurred, is occurring, or is about to occur. This newdouble negative definition was, in the view of many experts, both confusing and toothless, particularlysince the Commission added a provision absolving the lawyer of reporting responsibilities if another lawyerfinds that the company has a colorable defense for the companys actions.


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While these models are not in all respects a direct fit for the legal profession, their direction is worthexploring. Adding a role for public representation in formulating and e nforcing lawyers ethicalresponsibilities would provide a critical perspective on rules designed primarily by and for the profession.

Liability: One is the absence of appropriate standards of third-party liability for lawyers who

passively acquiesce in client fraud. In some states, including Texas, privity requirements now bar non-clients from suing attorneys for wilful blindness to client misconduct.

Ethical Questions:

What should a lawyers obligation be when he or she has reservations about the morality or legality of acompanys conduct, even though that conduct might not constitute material violations of securities laws?

The Philippine Experience

The United States of America had experienced the Enron Scandal as a disturbing blow to its

economic stability. This blow lead their Legislative Branch to even passed laws, [among it is the Sarbanes-Oxley Act of 2002] compelling lawyers to follow stricter disclosure requirements. Tighter regulation was theimmediate response of the government to ensure that what happened in ENRON will never happen again.

Under Philippine jurisdiction, the lawyer has the following duties to the clients:

UnderCanon 17, A lawyer owes fidelity to the cause of his client and he shall be mindful of thetrust and confidence reposed in him.

Canon 15 of the Canons of Professional Ethics also demands a lawyer's fidelity to client: Thelawyers owes "entire devotion to the interest of the client, warm zeal in the maintenance and defense of hisrights and the exertion of his utmost learning and ability," to the end that nothing be taken or be withheldfrom him, save by the rules of law, legally applied.

No fear of judicial disfavor or public popularity should restrain him from the full discharge of hisduty. In the judicial forum the client is entitled to the benefit of any and every remedy and defense that isauthorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense.But it is steadfastly to be borne in mind that the great trust of the lawyer is to be performed within and notwithout the bounds of the law. The office of attorney does not permit, much less does it demand of him forany client, violation of law or any manner of fraud or chicanery. He must obey his own conscience and notthat of his client.

The lawyers fidelity is however, qualified.

Under Canon 19, Rule 19.01 A lawyer shall employonly fair and honest means to attain thelawful objectives of his clients.

This rule suggests that lawyer could guide and advise the client corporation within the metes andbounds of law.


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Could this rule also mean that the lawyer could disclose past and possibly future transactions ofthe company that would constitute corporate fraud?

However, in the Philippines there are laws that prohibit lawyers from disclosing privilegedcommunication made by the client to the former and the following are some of them:

1] Under the Canons of Professional Ethics, 32.

The lawyer's duty in its last analysis

No client corporate or individual, however, powerful nor any cause, civil or political,however important, is entitled to receive nor should any lawyer render any service or adviceinvolving disloyalty to the laws whose ministers we are, or disrespect of the judicial office, which weare bound to uphold, or corruption of any person or persons exercising a public office or private trust, ordeception or betrayal of the public.

When rendering any such improper service or advice, the lawyer invites and merits stern and justcondemnation. Correspondingly, he advances the honor of his profession and the best interests of his clientwhen he renders service or gives advice tending to impress upon the client and his undertakingexact compliance with the strictest principles of moral law. He must also observe and advice hisclient to observe the statute law, though until a statute shall have been construed and interpretedby competent adjudication he is free and is entitled to advise as to its validity and as to what heconscientiously believes to be its just meaning and extent. But above all a lawyer will find his highesthonor in a deserved reputation for fidelity to private trust and to public duty, as an honest man and as apatriotic and loyal citizen.7

2] Under Rule 130, Section 24.

Disqualification by reason of privileged communication. The following persons cannot testify asto matters learned in confidence in the following cases:

(b) An attorney cannot, without the consent of his client, be examined as to any communicationmade by the client to him, or his advice given thereon in the course of, or with a view to,professional employment, nor can an attorney's secretary, stenographer, or clerk be examined,without the consent of the client and his employer, concerning any fact the knowledge of which hasbeen acquired in such capacity;

3] Under Rule 15.02 A lawyer shall be bound by the rule on privilege communication in respect of mattersdisclosed to him by a prospective client.

4] Further, Rule 138 of the Rules of Court states: Sec. 20.

It is the duty of an attorney: (e) to maintain inviolate the confidence, and at every peril to himself, topreserve the secrets of his client, and to accept no compensation in connection with his client's businessexcept from him or with his knowledge and approval.

7 http://www.chanrobles.com/canonsofprofessionalethics.htm#.UXOgmCFicZ4


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5] Anti-Money Laundering Act REPUBLIC ACT NO. 10365, Sec. 1, (FEB 15 2013)

"Notwithstanding the foregoing, the term covered persons shall exclude lawyers and accountantsacting as independent legal professionals in relation to information concerning their clients or

where disclosure of information would compromise client confidences or the attorney-clientrelationship: Provided, That these lawyers and accountants are authorized to practice in thePhilippines and shall continue to be subject to the provisions of their respective codes of conductand/or professional responsibility or any of its amendments."

As of now, there is difficulty for lawyers to disclose corporate matters covered by the client-lawyerrelationship. It makes it harder for the lawyers as individuals to decide to become whistleblowers ofcorporate fraud.

As to the members of the bar, they are allergic to the heavy regulation that it might be imposedupon them heavy punishments in the future, in case of breach. The lawyers wanted to enjoy a certain

leeway to do their job as client-protector as it is legally permissible by law.

Recommended Questions:

1) Who determines whether a client is committing or is in intending to commit a material fraud?2) Does stricter obligations preclude lawyers from participating in corporate fraud?3) Is compliance of disclosure requirements contrary to the client-lawyer privilege?4) Should we wait for a Philippine version of Enron to happen before we enforce stricter obligations?5) Should we rely on the self-regulation of lawyers from avoiding corporate fraud?6) Is the Filipino Lawyer ready for the stricter disclosure obligations?

The ENRON Case should be used as a spring board for tackling not how to evade being caught incorporate fraud but how to prevent corporate fraud. This case had produced many works, manuscripts,case studies that would remind lawyers of the importance of professional ethics in their practice.

Enron et al. should serve as a wakeup call to improve both teaching and research on professionalethics. More interdisciplinary approaches should be crucial priorities. The ethical challenges that confrontthose in professional roles cut across subject-matter boundaries.

An effective response to corporate abuses requires collaboration among professionals from diversebackgrounds, such as law, management, economics, organizational behavior, and public policy.Professional schools could play a central role in identifying the structural causes of misconduct and thestrategies most effective in addressing them.8

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An Ethic of Integrity: The Duty to Say No

While the concept of excellence is relatively easy to grasp, even if it is difficult to measure, thevalue of integrity is more complicated than most realize. Particularly in the context of professionalism, itmeans much more than simply honesty. It is a wholeness or unity of person, an inner consistency between

deed and principle. In law practice, it entails the lawyers ability to remain steadfast and consistent whenthe stress of delivering strong client service pushes against the lawyers own personal and professionalvalues.

The value of integrity is therefore closely related to the idea of professional independence thecapability of a lawyer to exercise unclouded and uncompromised judgment on behalf of a client. In itsstarkest form, it is the question of the point at which the lawyer must reject a clients direction or request forservicewhen the answer must be no.

Further, to become an ethicof integrity, this resistance to inappropriate pressure must become ahabit of mind, a virtue exercised over a lifetime.

For lawyers, then, an ethic of integrity becomes synonymous with trust: Can a client, or a fellowlawyer with whom you are working, rely upon you to deliver advice that is unwelcome? As painful andeconomically dangerous as this may be in the short run, professionalism demands a recognition of thelong-range benefit produced by forthright appreciation of the limits of the law.

This does not mean, however, that lawyers have a responsibility to, or that clients should expectthat their lawyer will, sacrifice the clients interests to some highergood, whether defined by the lawyerpersonally or by society. Instead, integrity requires a lawyer to recognize a middle ground between, on theone hand, simply being a slave to a client, mindlessly doing whatever one is told, and, on the other,assessing each client request for its moral orpolitical worthiness.

This principled position does not involve moral rationalizing, in which the lawyer engages in self-deception, imagining that the clients interests are indeed the lawyers own. To the contrary, professionalintegrity simply demands that integrity be understood in a professional context: In private practice, thelawyer is being paid by a client, not by the public, which necessarily means that the client is entitled to havethe lawyer act as if the clients interests were his or her own. Rather than abandoning ones personalvalues, professionalism requires a lawyer to engage in what could be termed a principled substitution ofprinciples, in which the lawyer recognizes that one of his or her own principles is to vindicate the values ofthe client up to the limits of the law.

This final restraint is an important one, of course, but it is much narrower than many in the publicrealize. An ethic of integrity means that a lawyer can be trusted to be consistently zealous in pursuing aclients interests up to aparticularpoint: notwhen the lawyers actions would be inconsistent with valuescurrently important to the general public, and notwhen those actions might be thoughtinconsistent with thevague idea of the common good.

Instead, the constraints of integrity on the lawyer are the limits imposed by professionalism: thedemands of excellence, respect, and service discussed here.


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Case in focus:SANTIAGO V. RAFANAN: Lawyer as witness for his client

One of the four-fold duties of an Attorney is his duty to his CLIENT. The client reposed upon himthe trust and confidence thus making him his agent in the protection and upholding his cause. The lawyeralso sworn in the Lawyers Oath that he will conduct himself as a lawyer according to the best of his

knowledge and discretion; with all good fidelity as well to the court as to his clients.

The first aspect of being a Client-Protector that this paper will discuss is the Lawyer as a WITNESSto his client. The question is as a Client-Protector, can a lawyer TESTIFY in behalf of his client? Is it notproscribed by the Code of Professional Responsibility?

Canon 12A lawyer shall exert every effort and consider it his duty to assist in the speedy and efficientadministration of justice.

Rule 12.08 A lawyer shall avoid testifying in behalf of his client, except;a.) On formal matters , such as mailing, authentication or custody of an instrument, and the like; orb.)

On substantial matters, in cases where his testimony is essential to the ends of justice, in whichevent he must, during his testimony, entrust the trial of the case to another counsel.

The Code of Professional Responsibility specifically under Canon 12 puts an emphasis on the lawyersduty to exert every effort in the efficient administration of justice. It would seem that as long as the effortexerted is within the bounds of law then it would qualify as something legal and ethical. However, in Rule12.08 a clear prohibition is laid down as to the lawyer testifying in behalf of his client. The said rule madeexceptions depending on formal matters and substantial matters.

In other jurisdictions, like in Texas, their Disciplinary Rules of Professional Conduct provides for almostthe same prohibition of a lawyer testifying for his client. However, it provided for other exceptions not foundin our Code of Professional Responsibility.

3.08 - Lawyer as Witness9(a) A lawyer shall not accept or continue employment as an advocate before a tribunal in acontemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyeris or may be a witness necessary to establish an essential fact on behalf of the lawyer's client,unless:

(1) the testimony relates to an uncontested issue;(2) the testimony will relate solely to a matter of formality and there is no reason to believethat substantial evidence will be offered in opposition to the testimony;(3) the testimony relates to the nature and value of legal services rendered in the case;(4) the lawyer is a party to the action and is appearing pro se; or(5) the lawyer has promptly notified opposing counsel that the lawyer expects to testify inthe matter and disqualification of the lawyer would work substantial hardship on the client.

9 http://www.legalethicstexas.com/Ethics-Resources/Rules/Texas-Disciplinary-Rules-of-Professional-Conduct/III--ADVOCATE/3-08-Lawyer-as-Witness.aspx
http://www.legalethicstexas.com/Ethics-Resources/Rules/Texas-Disciplinary-Rules-of-Professional-Conduct/III--ADVOCATE/3-08-Lawyer-as-Witness.aspxhttp://www.legalethicstexas.com/Ethics-Resources/Rules/Texas-Disciplinary-Rules-of-Professional-Conduct/III--ADVOCATE/3-08-Lawyer-as-Witness.aspx


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(b) A lawyer shall not continue as an advocate in a pending adjudicatory proceeding if thelawyer believes that the lawyer will be compelled to furnish testimony that will be substantiallyadverse to the lawyer's client, unless the client consents after full disclosure.(c) Without the client's informed consent, a lawyer may not act as advocate in an adjudicatoryproceeding in which another lawyer in the lawyer's firm is prohibited by paragraphs (a) or (b)

from serving as advocate. If the lawyer to be called as a witness could not also serve as anadvocate under this Rule, that lawyer shall not take an active role before the tribunal in thepresentation of the matter.

Now, there is this case of Santiago vs. Atty. Rafanan (2004) case which would exemplify anddiscuss this particular act of a lawyer being a witness to his client.

Atty. Rafanan faced a disbarment case for alleged violation of Rule 12.08 of the Code ofProfessional Responsibility. Atty. Rafanan was the defense counsel for the accused who were charged withAttempted Murder. The accused invoked the defense of Alibi by saying that they were not in the placewhen the alleged incident happened.

Then, controversy arose when Atty. Rafanan filed an Affidavit with the Fiscal during the preliminaryinvestigation and offered the same as evidence in the case wherein he was actively representing his client.It was an affidavit corroborating the defense of alibi proffered by respondents clients. The affidavit averredthat the accused were in his house when the alleged crime occurred. So the accused could not possiblycommit the said felony for they were not in the place at the time of the incident. Atty. Rafanan said that "histestimony is very essential to the ends of justice." So Atty. Rafanan in this case acted both as Lawyer andat the same time a witness for his client.

The relevant issue involved is if it is legal and ethical for a lawyer to testify in behalf of his client?

The Supreme Court discussed the following matters. Under the law, a lawyer is not disqualifiedfrom being a witness, except only in certain cases pertaining to privileged communication arising from anattorney-client relationship. It is the duty of a lawyer to assert every remedy and defense that is authorizedby law for the benefit of the client. It is the fundamental right of the accused to be afforded full opportunity torebut the charges against them. He had the duty to present by all fair and honorable means every defenseand mitigating circumstance that the law permitted, to the end that his clients would not be deprived of life,liberty or property, except by due process of law.

Acting or appearing to act in the double capacity of lawyer and witness for the client will provokeunkind criticism and leave many people to suspect the truthfulness of the lawyer because they cannotbelieve the lawyer as disinterested. The testimony of the lawyer becomes doubted and is looked upon aspartial and untruthful.

Thus, although the law does not forbid lawyers from being witnesses and at the same timecounsels for a cause, the preference is for them to refrain from testifying as witnesses, unless theyabsolutely have to; and should they do so, to withdraw from active management of the case. Nonetheless,we deem it important to stress and remind respondent to refrain from accepting employment in any matterin which he knows or has reason to believe that he may be an essential witness for the prospective client.


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The Supreme Court did not disbar Atty. Rafanan for executing the said affidavit and dismiss thecase. The case would tell us that the said act testifying in behalf of the client is neither absolutely illegal norunethical. Rule 12.08 as said earlier provides for a prohibition but also put some exceptions. The case ofAtty. Rafanan may fall under the exceptions provided but the Supreme Court reminded him that such actmay not constitute a violation of the Canons and Rules but this does not favor him since negative criticism

may arise and his integrity might be affected.

In the article written by John Stuart Wallace entitled The Attorney as a Witness for His Client10,it opined that generally all courts have stated that it is improper for an attorney to appear in a trial both as awitness and as an advocate of his client. John Stuart Wallace mentioned 3 instances which are theexceptions to the said prohibition.

First, if the testimony relates to the uncontested matters in the case. Second, it is allowed onformal matters. Lastly, when denial of the testimony would defeat the ends of justice. If we will look at it, the2nd and the 3rd exceptions are also the same with the exceptions laid down in our Code of ProfessionalResponsibility. However, the 1st instance is not found in our jurisdiction but is present in the above-

mentioned Texas Rules of Professional Conduct.

The author of the said article also discussed US cases wherein the lawyers where allowed to testifyin behalf of the client based on the said exceptions given. The US cases mentioned in his articles said thatthe courts declared that it is not unethical for counsel to testify on behalf of his client without withdrawingfrom the case. The author said further that in most jurisdictions (referring to US States) the rule against anattorney being a witness for the client is a rule of ethics and not of law. He reasoned that under the law ofevidence the attorney is a competent witness and his testimony is admissible regardless whether he isbreaching his professional ethics.

If legal profession is to continue enjoy the esteem and confidence of the public, it must police itselfeffectively. It submitted that, in order to achieve this end, both the trial and the appellate courts must bestricter in their enforcement of the professional ethics and, in particular , the rule on against an attorneytestifying in behalf of his client.

Therefore, a lawyer may protect his client as far as becoming a witness in behalf of his client butdoing so entails extreme caution and professional responsibility. Going as far as giving testimony for theclient may be legal and ethical but this depends so much on the circumstance and the manner of doing it.Like what the Supreme Court said in the case of Atty. Rafanan, a lawyer should avoid accepting caseswhen he has already foreseen or it could be reasonably foreseen the possibility that he has to testify for hisclient.

The problematic area in this aspect is that cases and articles provided above would allow thelawyer to become his clients witness if the situation would fall among the exceptions given in Rule 12. 08. Itwould seem that it will not violate any law but not at all times it is considered ethical.

10 http://www.law.ua.edu/pubs/jlp/files/issues_files/vol03/vol03art13.pdf


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Respect for the System and Rule of Law:The Duty to Explain Why

For integrity to have any practical meaning, then, rather than remaining some pious platitude, alawyer must be able to explain a refusal to act as directed by a client, or as pressured by society more

generally. This means that there must indeed be some good some value that is higher than theclients or societys immediate interests. This cannot be, however, as noted above, the amorphous conceptof the common good, even though social welfare is always relevant in a general way to anyones actions.The problem that all lawyers confront in this context is the difficulty in defining satisfactorily and consistentlythe nature of the good that is alleged to be common, or the interest that is supposed to be shared bysome unidentified public.

Lawyers must constantly confront clashing and interweaving interests that must be resolved anduntangled, and reasonable people can very much disagree concerning which path to doing so isappropriate. Instead, to be a legitimate part of legal professionalism, the public interest must beunderstood more narrowly and specifically One fundamental value does exist upon which everyone in civil

society can agree one that is not only essential to the fabric of any community, but is also a value at theheart of lawyering itself: the critical importance ofthe rule of law.

Citizens connect with each other in significant part by the way they make claims against eachother: When disputes arise, rather than resort to self-help, we invoke our system of law to vindicate ourrights. The practice of law, then, is central to this fundamental aspect of modern culture. Professionalism,in turn, requires lawyers to acknowledge their intimate connection to, and responsibility for, the rule of law.

One part of that duty therefore imposes a special professional courage: resisting the demands ofpopular interests by remaining dedicated to the clients rights, regardless of immediate consequence.Another part of this duty is to practice law in such a way that we do not compromise the legal systemsability to structure social relationships appropriately and efficiently, and to resolve disputes as fairly andharmoniously as circumstances will allow.

Lawyers must recognize that the social usefulness of the legal system, and in turn the esteem inwhich lawyers are held by the general public, depends ultimately on the respect the law receives from non-lawyers. Others will understand the importance of the rule of law to their communities only if lawyersthemselves take seriously their responsibility to hold the system and rule of law in respect. And only withthat public understanding will society accept that, to preserve our communities, lawyers must be able to actwith independent professional judgment, unimpeded by inappropriate pressure from either clients orgovernment.

Case in Focus: Lawyers use of Dilatory Tactics

Dilatory tactics are methods by which the rules of procedure are used by a party to a lawsuit in anabusive manner to delay the progress of the proceedings. For example, when numerous motions broughtbefore a court for postponement are baseless, time is wasted because the court must stop the course ofongoing proceedings to examine whether there is any merit to the motions. The party in whose interests themotion is brought uses this tactic to gain time to enhance his or her position, or to postpone an action by a


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court as long as possible to minimize the impact of a decree rendered against him or her. A party found toengage in dilatory tactics may be held in Contempt of court.11

In the case of Edrial v. Quilat-Quilat12, Respondents filed a case for recovery of a parcel of landagainst petitioners. The case was already submitted for decision, however, Atty. Sedillo, the counsel of

petitioners filed a Motion to postpone the hearing for several reasons.

The decision was postponed three (3) times, all at the motion of Atty. Sedillo, but the latter did notappear before the court in any of the scheduled dates. The lower court ruled against their favor, and deniedtheir motion to reopen trial, hence this petition.

Counsel for petitioners alleges that the addresses of his clients on file in his law firm were incorrect;hence, the notices and other forms of communication he had sent to them were not received. He allegedlydiscovered this fact only after he had filed his withdrawal as their counsel. He also argues that the denial ofthe Motion to Reopen Trial was "plainly capricious and oppressive" because private respondents wereequally guilty of delay and procrastination. Finally, he maintains that allowing petitioners to present their

remaining evidence would be "in the interest of substantial due process and humane justice."

Respondents disagree, reasoning that the trial court thrice reconsidered its Order to submit the casefor decision; that is, petitioners were given several opportunities to present their evidence, but theysquandered them. Petitioners, they further point out, were intentionally seeking to delay the resolution ofthe case because they were in physical possession of the land in dispute.

The Supreme court held that the Code of Professional Responsibility requires that lawyers, afterobtaining extensions of time to file pleadings, memoranda or briefs, shall not let the period lapse withoutsubmitting the same or offering an explanation for their failure to do so (Rule 12.03). Moreover, they shouldavoid any action that would unduly delay a case, impede the execution of a judgment or misuse courtprocesses (Rule 12.04).

For the benefit of the bench and bar, worth repeating is the CA's reminder to petitioners' counsel of hisduty to his client and to the court:

"Being an officer of the court a lawyer is part of the machinery in the administration of justice. Like thecourt itself, he is an instrument to advance its ends-the speedy, efficient, impartial, correct and inexpensiveadjudication of cases and the prompt satisfaction of final judgments. A lawyer should not only help attainthese objectives but should likewise avoid any unethical or improper practices that impede, obstruct orprevent their realization, charged as he is with the primary task of assisting in the speedy and efficientadministration of justice.

In the case ofOlivares v. Villalon13, the original case involved is a complaint for an alleged violationof the lease contract executed by the client of Atty. Villalon, Al-Rasheed, and the complainant Olivares.

11 West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc.12 [G.R. No. 133625. September 6, 2000]13 A.C. No. 6323 April 13, 2007
http://legal-dictionary.thefreedictionary.com/Contempthttp://legal-dictionary.thefreedictionary.com/Contempt


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Respondent, as counsel, filed an action for damages and prohibition with prayer for preliminarymandatory injuction before the RTC of Manila, but the case was dismissed on the ground of impropervenue.

Subsequently, the counsel assisting his client initiated an action for breach of contract with

damages before the RTC of Paranaque, but the same was dismisssed for failure to prosecute.

They refiled the case before the same court, and was dismissed on the ground of res judicata.

Olivares, complainant herein, contended that the Atty. Villalon must be dismissed due to violationsof Rule 12.02, Canon 12 of the Code of Professional Responsibility and the rue on forum shopping.

Respondent, on the other hand, asserts that he was only performing his legal obligation as alawyer to protect and prosecute the interests of his client. He denied that he was forum shopping as hisclient, in her certificate of non-forum shopping,disclosed the two previous cases involving the same causeof action which had been filed and dismissed. Respondent further claims he could not refuse his clients

request to file a new case because Al-Rasheed was the "oppressed party" in the transaction.

The Supreme Court held that all lawyers must bear in mind that their oaths are neither mere wordsnor an empty formality. When they take their oath as lawyers, they dedicate their lives to the pursuit ofjustice. They accept the sacred trust to uphold the laws of the land. As the first Canon of the Code ofProfessional Responsibility states, "[a] lawyer shall uphold the constitution, obey the laws of the land andpromote respect for law and legal processes." Moreover, according to the lawyers oath they took, lawyersshould "not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid norconsent to the same."

With all this in mind, respondent should have refrained from filing the second complaint againstOlivares. He ought to have known that the previous dismissal was with prejudice since it had the effect ofan adjudication on the merits. There was no excuse not to know this elementary principle of procedural law.

The facts of this case reveal that Atty. Villalon purposely filed the second complaint. Respondentappealed the 1999 case to the Court of Appeals and subsequently to this Court. Both actions weredismissed for lack of merit, not on mere technicality. The certificate of non-forum shopping attached to the2004 complaint disclosed that Al-Rasheed previously sued Olivares for violating their lease contract. As ifsuch disclosure was a sufficient justification, Atty. Villalon unapologetically reproduced his 1999 argumentsand assertions in the 2004complaint. Respondent obviously knew the law and tried to go around it. ThisCourt therefore concludes that respondent willfully violated Rule 12.02, Canon 12 which provides that:

A lawyer shall not file multiple actions arising from the same cause.

Furthermore, he violated Rule 10.03, Canon 10 of the Code of Professional Responsibility:

A lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends ofjustice.

A lawyers fidelity to his client must not be pursued at the expense of truth and justice. Lawyershave the duty to assist in the speedy and efficient administration of justice. Filing multiple actions


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constitutes an abuse of the Courts processes. It constitutes improper conduct that tends to impede,obstruct and degrade justice. Those who file multiple or repetitive actions subject themselves to disciplinaryaction for incompetence or willful violation of their duties as attorneys to act with all good fidelity to thecourts, and to maintain only such actions that appear to be just and consistent with truth and honor.

In the case ofSumcad v. Cusi14

, the Court imposes a three-months suspension from the practiceof law upon counsel of respondents for improper conduct and abuse of the Court's good faith by his acts inthe case at bar manifesting gross disrespect for the Court's processes and a willful disregard of his solemnduty to conduct himself with all good fidelity to the Court and tending to embarrass gravely theadministration of justice.

Atty. Delante, the counsel for respondents filed several motions for extension which the SupremeCourt outlined as follows: In his previous motions for extension, he nevermentioned his belated allegationnow that another lawyerhad been retained to file the required comment, and no other lawyer, much lessAtty. Fernandez, ever entered an appearance herein on behalf of respondents; In his second motion forextension, supra, Atty. Delante's law office cited as reason the fact that he had gotten sick on December 6,

1972 and had just recovered and needed the additional 10-day extension "in order to enable him to finishthe comments for the respondents;"; In his third motion for a last15-day extension, Delante assured theCourt "that (he) has already preparedthefinal draftof the desired comments" and cited "pressure of work inhis office" and the Christmas Season for not having "finalized and typed out (the comments) in a cleancopy" which comments never came to be submitted to this Court; his present explanation is notevenborne out by Atty. Fernandez' medical certificate which shows that he was confined in the hospital forsinusitis onlyfrom December 23-26, 1972and therefore had sufficient time and opportunity to submit thecomments by the extended deadline on January 12, 1973.

Atty. Fernandez' own affidavit as submitted by Atty. Delante belies the latter's claim that therecords of the case had been given to the former, for Atty. Fernandez swore therein that when GregorioCaeda of respondent corporation saw him at the hospital (sometime between December 23-26, 1972) headvised Caeda of his inability to prepare the "answer" and Caeda got back the records of the case fromhim; He submits no explanation whatsoever, why if his "final draft of the desired comments" was "alreadyprepared" since year-end of 1972 and only had to be "finalized and typed out" he utterly failed to submit thesame notwithstanding the lapse of over six months and worse, in his "explanation" of May 7, 1973 askedyet for "an opportunity to prepare the anser [which] he will try his best to do it within the period granted bythe Honorable Tribunal" when he had utterly ignored and disregarded the numerous extensions grantedhim which lapsed on January 12, 1973; and He likewise submits no explanation for his gross neglect in notseeing to it, assuming that Atty. Fernandez was to prepare the required comment, that the requiredcomment was filed within the last extension (that expired on January 12, 1973) secured by him from theCourt on his assurance that the final draft was ready and did nothing for three months until after hereceived the Court's resolution of April 12, 1973 requiring his explanation.

The Court has ever stressed that a lawyer must do his best to honor his oath, as there would be agreat detriment to, if not a failure of the administration of justice if courts could not rely on the submissionsand representations made by lawyers in the conduct of a case. As stated by the Court in one case, "Timeand time again, lawyers have been admonished to remember that they are officers of the court, and that

14 G.R. No. L-35766 July 12, 1973


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while they owe their clients the duty of complete fidelity and the utmost diligence, they are likewise held tostrict accountability insofar as candor and honesty towards the court is concerned."

Hence, the Court has in several instances suspended lawyers from the practice of law for failure tofile appellants' briefs in criminal cases despite repeated extensions of time obtained by them, (except to file

the missing briefs), with the reminder that "the trust imposed on counsel in accordance not only with thecanons of legal ethics but with the soundest traditions of the profession would require fidelity on their part."

In the more recent case ofQue v. Revilla15, this is a complaint for disbarment filed by ConradoQue against Atty. Revilla for committing violations of the provisions of the Code of ProfessionalResponsibility in filing petitions that unlawfully abused court processes and procedures.

In this case, the Supreme Court took into consideration the commission of respondent of variousacts of professional misconduct and thereby failed to live up to the exacting ethical standards imposed onmembers of the Bar. We cannot agree, however, that only a penalty of one-year suspension from thepractice of law should be imposed. Neither should we limit ourselves to the originally recommended

penalty of suspension for two (2) years.

Given the respondents multiple violations, his past record as previously discussed, and the natureof these violations which shows the readiness to disregard court rules and to gloss over concerns for theorderly administration of justice, we believe and so hold that the appropriate action of this Court is to disbarthe respondent to keep him away from the law profession and from any significant role in the administrationof justice which he has disgraced. He is a continuing risk, too, to the public that the legal profession serves.Not even his ardor and overzealousness in defending the interests of his client can save him. Such traits atthe expense of everything else, particularly the integrity of the profession and the orderly administration ofjustice, this Court cannot accept nor tolerate.

Additionally, disbarment is merited because this is not the respondents first ethical infraction of thesame nature. We penalized him in Plus Builders, Inc. and Edgardo Garcia versus Atty. Anastacio E.Revilla for his willful and intentional falsehood before the court; for misuse of court procedures andprocesses to delay the execution of a judgment; and for collaborating with non-lawyers in the illegalpractice of law. We showed leniency then by reducing his penalty to suspension for six (6) months. Wecannot similarly treat the respondent this time; it is clear that he did not learn any lesson from his pastexperience and since then has exhibited traits of incorrigibility. It is time to put a finisto the respondentsprofessional legal career for the sake of the public, the profession and the interest of justice.

Supreme Courts Opinion as to Defenses of Equity and Client Protection

For all its conceded merits, equity is available only in the absence of law and not as itsreplacement. Equity is described as justice outside legality, which simply means that it cannot supplantalthough it may, as often happens, supplement the law. We said in an earlier case, and we repeat it now,that all abstract arguments based only on equity should yield to positive rules, which pre-empt and prevailover such persuasions. Emotional appeals for justice, while they may wring the heart of the Court, cannotjustify disregard of the mandate of the law as long as it remains in force. The applicable maxim, which goes

15A.C. No. 7054 December 4, 2009


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back to the ancient days of the Roman jurists and is now still reverently observed is "aequetasnunquam contravenit legis."16

It bears stressing that a lawyers fidelity to his client must not be pursued at the expense offerreting the truth and administering justice to all. His responsibility to protect and advance the interests of

his client does not warrant a course of action propelled by ill motives and malicious intentions. He had, afterall, taken the oath upon admission to the Bar that he "will not wittingly or willingly promote or sue anygroundless, false or unlawful suit nor give aid nor consent to the same;" and that he "will conduct himself asa lawyer according to the best of his knowledge and discretion with all good fidelity as well to the courts asto his clients." Far from being an empty exhortation, this oath embodies a sacred trust that every lawyermust uphold and keep inviolable at all times.17

What Tactics Can a Lawyer Resort to, to Validly and Legally Protect His Client?

In the article written by Floridas Assistant Ethics Counsel, Kathy Bible, Dilatory Tactics andLack of Diligence in Representation18, she discussed that lawyers often see delaying tactics as fair

game and to be expected in litigation and other matters. Thus, when do dilatory tactics cross the line fromstrategy into unethical behavior? When can a lawyer be disciplined for delay as part of trial strategy orsimply as a matter of neglect?

The group agrees with Atty. Bible, in saying that in order to avoid such problems, attorneys mustbe careful to calendar all their matters to make sure that action is taken on all cases in an expeditiousmanner. This advice applies to both litigation and transactional matters. A delay in preparing a lease or inclosing on sale of property can cause serious consequences for clients and must not be allowed to happen.Complaints should be filed as soon as the attorney has the requisite evidence to establish the claims in thecomplaint. Investigations should be begun immediately upon signing up a new client with a potential claim.

Attorneys should keep an action list of all pending matters that is reviewed at least once a month.This list should reflect the date of the last action taken in a matter. If there is any matter that has had noaction for a month or more, that file should be placed at the top of the attorneys action list for telephonecalls, complaint preparation, commencement of settlement negotiations (with client consent) or whateverother action may be appropriate. Defense counsel may need to move to dismiss a plaintiffs languishingcase or move for summary judgment in a clients favor. In short , attorneys should do whatever they can tomove their clients cases along at all times. Failing to do so can result in costly mistakes for both lawyer andclient.

16 G.R. No. 89571 February 6, 1991; FRANCISCO LIM TUPAS and IGNACIO LIM TUPAS, petitioners,vs. HON. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

17 G.R. No. 145915 April 24, 2003; PEOPLE OF THE PHILIPPINES, appellee,vs. VILMA ALMENDRAS y ZAPATA and ARSENIO ALMENDRAS y LOCSIN, appellants.

18 http://www.floridabar.org/divcom/jn/jnnews01.nsf/Articles/7398DB8C24204B9B8525788F0054BFF3
http://www.floridabar.org/divcom/jn/jnnews01.nsf/Articles/7398DB8C24204B9B8525788F0054BFF3http://www.floridabar.org/divcom/jn/jnnews01.nsf/Articles/7398DB8C24204B9B8525788F0054BFF3


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Respect for Other Lawyers and Their Work

A fourth value within professionalism follows directly from the former discussion: If we truly respectthe rule of law, and appreciate its importance to our civic culture, then we must also respect those wholabor within it. This, then, is the proper foundation for the requirement of civility among lawyers not

simply to enable people to interact without unnecessary social and personal pain, but to permit the legalsystem to function without unnecessary interference and cost.

Although the limits lawyers impose on themselves in the name of civility will always be vague andsomewhat controversial, this restraint will nevertheless always be connected with professionalism: Ourrespect for each other as lawyers will inevitably continue to have an impact on the functioning of the legalsystem.

The respect required by professionalism extends beyond just contacts among lawyers, however. Itincludes as well a special responsibility involving a lawyers conversations with his or her clients. Whendiscussing other lawyers who are representing a clients opponents, or judges who may have ruled

unfavorably in a matter, professionalism demands that these adversaries not be held in disrepute ordenigrated behind their backs in a misguided effort by the lawyer to curry favor with the client, or to explainaway an adverse result.

The obvious exception to this restraint, however, is the circumstance in which the actions by theopposing lawyer were themselves contrary to professionalism. This more limited range to legitimatecriticism of other practitioners recognizes that the publics respect for the rule of law will be closely relatedto the respect it gives to those who practice it.

Case in Focus: the Use of Blackmail

Blackmail is defined as coercion by threats especially of public exposure or criminal prosecution. 19In ordinary practice, blackmail involves using baseless coercion to obtain an advantage or otherwise bringharm to another unless some requirement is done.

It is a form of coercion which may extend from using threats to deter somebody in doing aparticular task to writing or releasing libelous statements for the purpose of soliciting money or collectingdebts.

In the Philippines, blackmailing is considered a felony. Under the Revised Penal Code20,blackmailing is tantamount to light threats.

An example would be A threatens B with accusation or exposure if B does not give P1,000 to bedeposited in an indicated place. 21

19 Merriam-Webster Dictionary20 Art. 283. Light threats. Any threat to commit a wrong not constituting a crime, made in the manner expressed in subdivision 1 of the next

preceding article, shall be punished by arresto mayor.21 Revised Penal Code Book Two by Luis B. Reyes


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American jurisprudence which is cited in several Philippine Supreme Court cases provided for adefinition of blackmail in this wise: Blackmail is "the extortion of money from a person by threats ofaccusation or exposure or opposition in the public prints obtaining of value from a person as a condition ofrefraining from making an accusation against him, or disclosing some secret calculated to operate to hisprejudice." 22

Blackmail is indeed prevalent in the society nowadays. People from all walks of life wouldsometimes resort to unlawful ways such as blackmailing to gain an advantage or to coerce someone intodoing something favorable to him.

Lawyers are likewise not exempted from such acts. There are those who, oblivious to the Code ofProfessional Responsibility they have avowed to fulfill, would sometimes undertake unlawful means eitherto serve their own motives or as a result of their overzealousness to protect their clients claim.

Duty of the Lawyer under the Code of Professional Responsibility

Canon 1923

of the Code of Professional Responsibility requires lawyers to represent their clientswith zeal. More particularly, Rule 19.0124, a lawyer is proscribed from using threats of filing unfounded orbaseless criminal case or cases against the adversaries of his client designed for the purpose of acquiringsome advantage.

Philippine Cases where counsel resorted to Blackmailing

There are several cases under Philippine jurisprudence wherein a lawyer as a client protector usedthe means of blackmailing to serve the claims of his client against opposing the opposing party.

In the case of Fernando Martin O. Pena vs Atty. Lolito G. Aparicio 25, the Supreme Courtspeaking through Justice Tinga held that Respondent lawyer did exactly what Canon 19 and its Ruleproscribe. Through his letter, he threatened complainant that should the latter fail to pay the amounts theypropose as settlement, he would file and claim bigger amounts including moral damages, as well asmultiple charges such as tax evasion, falsification of documents, and cancellation of business license tooperate due to violations of laws. The threats are not only unethical for violating Canon 19, but they alsoamount to blackmail.

In this case, the complainant is Fernando Martin O. Pena, President of MOF Company and thedefendant on the other hand is Atty. Lolito Aparicio. Atty Aparicio appeared as counsel for a certain GraceHufana, an employee of MOF company. Hufana, represented by her counsel sought for payment ofseparation pay but the same was rejected by Pena for being baseless.

Thereafter, Atty. Aparicio wrote demand letter the contents of which threatened complainant withthe filing of criminal cases for tax evasion and falsification of documents. The complainant Pena filed an

22 (Am. Jur. 2d, Vol. 5, citing Hess v. Sparks, 24 P. 979, 980, 44 Kan. 465, 21 Am.St.Rep. 300.)23 Canon 19 - A lawyer shall represent his client with zeal within the bounds of the law.24 Rule 19.01 - A lawyer shall employ only fair and honest means to attain the lawful objectives of his client and shall not present, participate in

presenting or threaten to present unfounded criminal charges to obtain an improper advantage in any case or proceeding.25 A.C. No. 7298 June 25, 2007 [Formerly CBD Case No. 05-1565]


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administrative complaint alleging that the Atty. Aparicio violated Canon 19.01 of the Code of ProfessionalResponsibility for using threats to compel him to pay for backwages and separation pay.

In another case, the case ofAlex Ong vs Elpidio Unto26, a disbarment case was also filed againsta lawyer who threatened to file criminal charges unless the opposing party comply with the demands of the

party the lawyer is representing.

In both cases, neither lawyer was disbarred for writing demand letters which is tantamount toblackmail letter. However, they were meted with different sanctions. In the first case, Atty. Aparicio was onlyreprimanded whereas in the second case, Atty. Unto was given a penalty of suspension from the practiceof law for a period of 5 months.

What is even peculiar is that in one case, the Supreme Court held that An accusation for blackmailand extortion is a very serious one which, if properly substantiated, would entail not only respondentsdisbarment from the practice of law, but also a possible criminal prosecution27

The Problem Area

With these series of similar cases with different corresponding sanctions to erring lawyers, we arenow led to the gray area of legal ethics as we are faced with the question When can an overly zealouslawyer be held responsible for writing a demand letter which the court itself held to be tantamount toblackmail?

The Resolution

Indeed, writing demand letter is one basic duty of a lawyer as an agent of his client. However thereare standards that must be strictly complied with by lawyers to remove the impression that a demand letterwritten is not equivalent to a blackmail letter.

The tenor and the language that must be used by the lawyer must be characterized byprofessionalism that is in conformity with good customs and public policy. When a lawyer seeks that anappropriate action must be done by an opposing party, the demand must be couched in a formal letterwhereby failure to comply would result to suitable legal action.

Hence, when a lawyer is writing a letter for the collection of outstanding balance from the opposingparty, he may state that failure to pay within a reasonable period would constrain him to file a collectioncase in court. This type of demand letter is still within the ambit of legality.

However, if such lawyer will threaten the other party that he will file a criminal case for bigamyagainst such party if the latter fails to pay his obligations, then such letter is now tantamount to blackmail.

26 [Adm. Case No. 2417. February 6, 2002]27 Boyboy vs Yabut [A.C. No. 5225. April 29, 2003]


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Avoidance of Overzealousness

In the case of People v. Ignacio, It remains to de-bunk the alternative defense that, assumingthere was sexual intercourse between Ignacio and Gloriann, the same was consensual. This is ridiculous.

This kind of argument insults the intelligence of the Court and sorely tests its patience.

This is not even a case of consenting adults for Gloriann was barely over twelve years old at thetime of the rapes; and at any rate there is no evidence whatsoever of any romantic relationship betweenher and the appellant.

Attys. Al A. Castro and Virgilio M. Villanueva are warned against a repetition of this fatuity. Whilethe lawyer is expected to exert his best efforts on behalf of his client, he must nevertheless do so within thebounds of reason and common sense.

Excess of zeal cannot justify paucity of logic and can only prejudice rather than advance a clients

cause.

In the case ofLacsamana v. Judge dela Pena, The complainant Jose Lacsamana charges therespondent Municipal Judge Meljohn de la Pea of Maripipi, Leyte with (a) a violation of the lawyer's oath to"do no falsehood, nor consent to the doing of any in court," and (b) failure to comply with the lawyer's duty,imposed by section 20(d) of Rule 138 of the Rules of Court, "to employ, for the purpose of maintaining thecauses confided to him, such means only as are consistent with truth and honor."

Lacsamana alleges in his complaint that de la Pea, as counsel for the defendants therein,introduced in court, in the course of the presentation of evidence for the defense, a document which deedappears to have been notarized and entered in his notarial register but that a verification of the notarialregister of the said notary public pertained instead to an affidavit of one Ireneo Machete and not tothe compraventa document. Upon the foregoing allegations, Lacsamana brands the document asspurious..

The Supreme Court held that noprima facie case has been established, hence further investigationis not warranted. That the "Escritura de Compraventa Absoluta" was entered in the notarial register aheadby one notch or number than the affidavit does not necessarily make the compraventa document simulatedor spurious; and even assuming that it is, the complainant has not alleged that the respondent knew ofsuch infirmity, and that despite such knowledge he nevertheless presented the document as evidence incourt. Thus, the administrative complaint against the respondent Judge Meljohn de la Pea is herebydismissed.

In the case of Equitable Banking v. Liwanag, Neither did his special or affirmative defensestender any real issue. Aside from the bare affirmation that plaintiff has "no cause of action" and that"plaintiff's claim for interest and attorney's fees are exorbitant", there is nothing in appellant's answer to giveany semblance of seriousness to or merit in these defenses.


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In fact, his own brief has not even tried to prove the contrary.Appellant has not even attempted toshow that it is so. It is, accordingly, obvious that this appeal has been interposed for the sole purpose ofdelay.

In the case of Galofa v. Nee Bon Sing, It is to be noted that, to the plaintiff's allegation of his

inability to take actual possession of the parcel of land due to "an unwarranted adverse claim of rights ofownership and possession by the defendant . . .", followed by an allegation of how such claim wasexercised, the defendant's denial is as to "the materials averments contained in paragraph 4 of theComplaint, . . ." conjoined with his disclaimer or dominical or possessory rights in the manner alleged in thecomplaint.

The defendant's denial is, therefore, a negative pregnant, which is equivalent to an admission. Adenial in the form of a negative pregnant is an ambiguous pleading, since it cannot be ascertained whetherit is the fact or only the qualification that is intended to be denied.

Where a fact is alleged with some qualifying or modifying language, and the denial is conjunctive, a

"negative pregnant" exists, and only the qualification or modification is denied, while the fact itself isadmitted.

The practice of law is, after all, a service industry: Private practice involves being paid a fee by awilling client who is convinced that it is receiving something of value in the exchange. The days of theimperious lawyer who can command respect and payment simply from the status of being the lawyer aregone.

They have been replaced with relationships that are closer to ordinary consumerism, where marketforces (long disdained by much of the legal profession as beneath their dignity) now rule.

Professionalism requires lawyers to recognize, accept, and indeed respect that situation. Thoselawyers who reflect the professions deepest values will readily be able to do so.

Accountability is therefore the cornerstone of the professional independence that lawyers enjoy, forthe public generally accepts the proposition that lawyers need to be unfettered to be able to provide theirfull value to society.

But people will continue to believe this only if lawyers respect their reciprocal duty to take seriouslythe need to make the value of their work clear, and their fees fair.

A final, but crucial, step in the effort to define legal professionalism is to examine the combinationof the separate values to determine, the nature of law practice at the center of the earlier diagram ofconcentric circles. The blending that occurs there is itself important, for the interaction of the various valuesproduces a distinctive set of three fundamental virtues, listed earlier, that uniquely define the practice of lawat its very best.


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The Good Lawyer as Client Protector: Ethics and Values in Legal Work

The demand for excellence and accountabilitycreates a sense that a clients interests should bevindicated in the most effective and efficient manner possible. This does not mean that the best lawyersalways win from the clients perspective, whether in litigation or in the negotiation of a deal. Instead, these

lawyers, and their firms, should be able to link their efforts to results they can fully justify as a professionalmatter. Excellent and accountable lawyering in this sense therefore means producing the highest practicalvalue or benefit for the client in the circumstances. The client, in other words, should be in the best positionthat could reasonably have been achieved, and the lawyer should be able to demonstrate that positiveresult to the client.

This concept of practical value can be difficult to articulate, but the professional skills on which itwill be based can be identified.

First, one must have the basic analytic skills the rigorous thinking that should be produced by alaw school education. Any good lawyer should, early on, be able to understand the importance of

investigating facts and law thoroughly on behalf of a client; to be able to reason in a logical, syllogistic orderthrough a series of analytic steps to an appropriate conclusion; and to be precise and careful in his or herthinking, rather than loose and haphazard. But professionalism will push lawyers further: They will honetheir reasoning, through experience and reflection, to truly master the area of law with which they deal.This lawyer will be able to perceive within the haze of facts and law the correct elements on which to focusto best serve the clients interests. In turn, this command of the material will enable the lawyer more readilyto make his or her thinking evident and comprehensible to others, not just to himself or herself.

With this strong grasp of the situation, the lawyer moves from mere facility with the material to adeeper confidence in the message he or she will deliver, giving the client an equal confidence in the valueof the lawyers advice.

For the best lawyers, professionalism produces additional steps. Adroit and resourceful lawyeringalso enables one to act pragmatically in the clients best interests. Concerningthe lawyers reasoning, thismeans that research and results must be achieved with minimum expenditure by the client that is,professional products must be generated efficiently.

Those results must also be, from the clients perspective, practical, reasonable, and realistic. Andthe best lawyers also understand that, because confidence can sometimes be perceived as arrogance,they must temper their approach to, and interaction with, clients and others with a professional characterand attitude that is engaging rather than smug or haughty.

Second, the professional values of integrity and respect for the rule of law and otherlawyers aresometimes understood to mean that a lawyers efforts in advocating a clients interests must be measured,restrained, and aloof that the relationship between lawyer and client must be distant.

While there is some truth to this perspective, it should not become exaggerated. Excellence is stilla foremost value of professionalism, and it demands that clients be given zealous representation. Theproper balance between these considerations can be labeled principled enthusiasm.


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Clients pay their lawyers not just for results, but for attitude as well. Clients are therefore entitled toa special commitment from their lawyer, meaning that the best lawyers will manifest and cultivate traits thatdemonstrate their lack of neutrality concerning the clients interests: bias, interest, partiality, [and]favoritism.6 This commitment should be

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