CANON 10: A LAWYER OWED CANDOR, FAIRNESS AND GOOD FAITH TO THE COURT. Rationale: burden on the judiciary would be intolerable if it cannot take at face value what is asserted by counsel.. Rule 10.01- A lawyer shall do no falsehood, nor consent to the doing of any in court; nor shall he mislead or allow the court to be mislead by any artifice. Cases of Falsehood: -raising issues long laid to rest by a final and executor judgment -making it appear that a person, long dead, executed a deed of sale in the lawyer’s favor -denying having received the notice to file brief which denial is belied by a return card -presenting falsified documents before the court HUEYSUWAN VS FLORIDO A.C NO 5624, Jan. 20, 2004 Rule 10.02- A lawyer shall not knowingly misquote or misrepresent the contents of a paper, the language or the argument of the opposing counsel, or the text of, a decision of authority, or knowingly cite as a law a provision already rendered inoperative by appeal or amendment, or assert as a fact that has not been proved. QUOTATION OF DECISION -must be verbatim -provide the proper citation -do not quote the syllabus Rule 10.03- A lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice Litigation is not a game of technicalities ETERNAL GARDENS MEMORIAL PARK VS CA, GR NO. 123698, AUG 5, 1998 To thwart the execution of judgment which has long been rendered final and executor, petitioner resorted to: First, opposing the writ of possession in favor of Sps. Seelin before the RTC by filing MFR, petition to CA, petition denied, MFR, petition to SC, petition denied, MFR, denied; Second, petition for certiorari before CA, denied, MFR, denied; Petition for review before SC, denied, MFR, denied; Third, same as second.

In the meanwhile that the case was protracted and execution delayed due to the unmeritorious petitions of petitioner, the case has dragged on for 17yrs., wherein interment on the parcel of land has taken place, rendering execution in favor of Sps. Seelin impossible.

CANON 11 - A LAWYER SHALL OBSERVE AND MAINTAIN THE RESPECT DUE TO THE COURTS AND TO JUDICIAL OFFICERS AND SHOULD INSIST ON SIMILAR CONDUCT BY OTHERS.

-lawyer’s first duty is to the court. -not only to judges but also to judicial officers who take part in the judicial work.

-obedience to court orders and processes. -criticism must be bona fide and must not spill over the walls of decency. IN RE: ALMACEN, 31 SCRA 581

Rule 11.01 - A lawyer shall appear in court properly attired.

Rule 11.02 - A lawyer shall punctually appear at court hearings.

Rule 11.03 - A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the Courts.

Rule 11.04 - A lawyer shall not attribute to a Judge motives not supported by the record or have no materiality to the case.

IN RE ARGUAS, 1 PHIL. 1 -the instructed witness not to look at defendant’s lawyer but instead focus his attention on the former. When the witness did not give heed to the warning, judge arose from his seat and grabbed the witness by the shoulder.. Lawyer asked that the incident be placed on the

record, was held in contempt. SC ruled that such act of insisting that the matter be placed on record is not contemptuous. Lawyers must however be courageous enough to expose arbitrariness and injustices of judges. WICKER VS ARCANGEL, GR NO. 112869, JAN. 29, 1996 IN RE ALMACEN, GR NO. L-27654, FEB. 18, 1970

Rule 11.05 - A lawyer shall submit grievances against a Judge to the proper authorities only.

Proper Authorities:

1. Supreme Court

2. Office of the Ombudsman- MACEDA VS OMBUDSMAN, GR NO. 102781, APRIL 22, 1993

3. HR and Senate- for SC Justices (impeachable officers)

CANON 12 - A LAWYER SHALL EXERT EVERY EFFORT AND CONSIDER IT HIS DUTY TO ASSIST IN THE SPEEDY AND EFFICIENT ADMINISTRATION OF JUSTICE.

Rule 12.01 - A lawyer shall not appear for trial unless he has adequately prepared himself on the law and the facts of his case, the evidence he will adduce and the order of its preferences. He should also be ready with the original documents for comparison with the copies.

If you are newly hired counsel who appears in a case in midstream?

Rule 12.02 - A lawyer shall not file multiple actions arising from the same cause.

Forum-Shopping -as a result of or in anticipation of adverse opinion in one forum, a party seeks favorable opinion in other forum(s) on the gamble that one will render a favorable disposition. Elements: -same parties -same cause of action -same issues -same reliefs (relate to res judicata and litis pendentia) What are the evils of forum-shopping? -duplication or multiplicity of suits -double or multiple vexation of lawsuits arising from only one cause of action -clogging of court dockets -waste of time, energy and resources -reprehensible manipulation of court processes and proceedings -may result in tribunals rendering conflicting rulings. How do the courts seek to prevent forum-shopping and what are the sanctions for non-compliance? -Sec. 5, Rule 7, ROC: CERTIFICATION OF NON_FORUM SHOPPING in initiatory pleadings signed by the party, not the lawyer. Otherwise: -failure to comply not curable by amendment -dismissal without prejudice, unless otherwise provided, upon motion and after hearing -submission of a ―false certification/noncompliance with any of the undertakings therein-indirect contempt of court, administrative and criminal sanctions -willful and deliberate forum-shopping-summary dismissal with prejudice, direct contempt, administrative action

Rule 12.03 - A lawyer shall not, after obtaining extensions of time to file pleadings, memoranda or briefs, let the period lapse without submitting the same or offering an explanation for his failure to do so.

Rule 12.04 - A lawyer shall not unduly delay a case, impede the execution of a judgement or misuse Court processes.

NUNEZ VS ATTY. RICAFORT, AC NO. 5054, MAY 29, 2002

Rule 12.05 - A lawyer shall refrain from talking to his witness during a break or recess in the trial, while the witness is still under examination.

-to prevent lawyers from teaching or coaching witness to testify in his favor or to rectify some mistakes or statements damaging to his cause -in the last analysis, to uphold the truth

Rule 12.06 - A lawyer shall not knowingly assist a witness to misrepresent himself or to impersonate another.

-lawyer should do no falsehood nor consent to the doing of any in court Criminal Liability: -witness: false testimony (Art 281, 282, 283 RPC, depending upon the nature of the case) -lawyer: offering false testimony in evidence (Art. ___, RPC); criminal and administrative liability

Rule 12.07 - A lawyer shall not abuse, browbeat or harass a witness nor needlessly inconvenience him.

What are the rights of the witness under the Rules of Court? Sec. 3, Rule 132, ROC -to be protected from irrelevant, improper or insulting questions and from harsh and insulting demeanor -not to be detained longer than the interests of justice requires -not to be examined except only as to matters pertinent to the issue -not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law -not to give an answer which will degrade his reputation, unless it be the very fact at issue or to a fact from which the fact in issue unless would be presumed. But a witness must answer to the fact of his previous final conviction for an offense.

Rule 12.08 - A lawyer shall avoid testifying in behalf of his client, except: a) on formal matters, such as the mailing, authentication or custody of an instrument, and the like, or b) on substantial matters, in cases where his testimony is essential to the ends of

justice, in which event he must, during his testimony, entrust the trial of the case to another counsel.

SANTIAGO VS ATTY. RAFANAN, AC NO. 6252, OCT 5, 2004

CANON 13 - A LAWYER SHALL RELY UPON THE MERITS OF HIS CAUSE AND REFRAIN FROM ANY IMPROPRIETY WHICH TENDS TO INFLUENCE, OR GIVES THE APPEARANCE OF INFLUENCING THE COURT

Rule 13.01 - A lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for cultivating familiarity with Judges.

REASON?- to protect the good name and reputation of both lawyer and judge -to avoid misconstruction of motive so as not to seriously affect the confidence of the litigants and the public in general on the courts and justice system Lantoria Case Defenses of the Lawyer: D1. ―Draft Decisions were at best recommendatory on the judge. The Judge is free to disregard the draft decisions, to modify or whatever he wants to do.‖

Is that a proper defense? NO. Any propriety, which tends to influence or gives appearance of influencing the court.

o It means actual influence on the judge is not necessary as long as there is the APPEARANCE of having influencing the judge, it is already sufficient.

o The draft decisions of Lantoria had the appearance of influencing the court. D2. “Complainant is in pari delicto (EQUALLY GUILTY), Lantoria did not come to court with clean hands.‖ Lantoria was the client of Bunyi. He is a manager of a certain property (subject of the litigation), and he is representing the owner of the property. They really are in the same side in the ejectment case. According to Bunyi, it was Lantoria who made him write the draft

decisions. It was Lantoria who asked the judge. He instructed Bunyi and the latter did as instructed. Once he was done with the decisions, he gives the them to Lantoria who will also deliver to the judge. Lantoria is equally guilty. Held:

The defense of in pari delicto is not applicable in administrative cases. *What is the concern of Administrative Cases?

Whether a lawyer has committed an ethical violation? What is protected then is the public interest.

Administrative case does not concern with private rights and interests of the parties. It has nothing to do with quarrels among the parties

13.02 A lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against the party

Evil sough to be avoided by the rule: TRIAL BY PUBLICITY; tending to arouse the media Trial by Publicity – when there is overwhelming public opinion regarding the case *Who tries and decides cases? Judge, based on facts and law presented in the court room and none other. Effect of Trial by Publicity – Judge no longer decides independently based solely on facts, evidence and law but also his decision is not tainted with overwhelming public opinion Q: There are sensational cases we always hear about in the news that have been publicized, so many blogs about it, status updates, etc. Is there trial by publicity? A: YES Q: When does it becomes a legal ethics issue? A: If the source of the publicity is a lawyer.

-if the source is the media practitioners – that is just their job. The CPR does not include them

Q: What about the Lawyers you see in the news being interviewed about their cases and then answering the questions? Is there violation of 13.02? A: It depends on what the statements are.

Is there tendency to arouse public opinion against a party? Q: What if there is an effect of inciting the public opinion? Of course, you cannot expect the lawyer in the news to be biased to give statements favorable to his client. A: One option is to say NO COMMENT. Another is to answer, how do you answer in a safe way? DO NOT GO BEYOND A SIMPLE QUOTATION OF YOUR PLEADINGS, DO NOT GO BEYOND STATING YOUR ARGUMENTS, EVIDENCES ALREADY CONTAINED IN FILED PLEADINGS. There is no danger of publicity there because the judge already know what you are stating about. You can answer as long as it does not go beyond what is manifested in the court. Estrada vs Sandiganbayan Atty. Paguia is the counsel for Estrada. They had several pending petitions before the Supreme Court. Among the contentions they raised is the constitutionality of GMA’s assumption to presidency. Paguia questioned the impartiality of the Supreme Court because according to him the SC has pre-empted itself by participating the oath taking of GMA as president. They impliedly announced that GMA is the rightful president. What made this wrong is that Paguia did not limited his arguments within the court forum. He also used broadcast and print media.

The situation during the EDSA II was volatile, the lawyer’s public statement in the media did not improve the situation – it made it worst.

He was suspended indefinitely for violation of 13.02

13.03 – A lawyer shall not brook or invite interference by another branch or agency of the government in the normal course of judicial proceedings. - SELF-EXPLAINATORY

It is consistent of the independence of the judiciary. Lawyers must respect the independence of the court and must therefore not invite other agencies or other branches of the government to interfere in normal judicial proceedings. LAWYER AND THE CLIENT 14.01 A lawyer shall not decline to represent a person solely on account of the latter’s race, sex, creed or status of life, or because of his own opinion regarding the guilt of said person. Q: Are lawyers compelled to accept cases then? A: What is merely prohibited in 14.01 is the refusal of cases based solely on those grounds (sex, race, creed or status of life or his opinion). If that is your only grounds, it is unethical. Q: What if you do not think that the client is guilty? You know for CERTAIN that he is guilty because he admitted the crime to you. Can you refuse to be his defense lawyer? A: Still, NO. If that is your only reason, it is not justifiable. Otherwise, trial has not been started the lawyer has already convicted the client. He has now assumed the character of the judge.

There is also a danger that an innocent person who are victims only of suspicious circumstances might be in danger of denied of proper defense.

*The Law should defend by all means that the law permits regardless of his personal opinion. Study if you have defenses in your favor, grounds to dismiss the case even if he is guilty.

Court has no jurisdiction The crime has prescribed

Information does not state his guilt Double-Jeopardy Maybe you have mitigating circumstances available in your favor – assuring your client

to have lower penalty If after trial you will know that your client is guilty. But there’s just no proof beyond

reasonable doubt, then fight for the acquittal for your client. *continue with the defense and use all fair and honorable means of doing so, see to it that due process in observed and that the client is according with a correct penalty Q: What if your reason of declining is based on Religious Reasons? A: Perhaps, YES. Because it's not any of the grounds.

BUT, it’s different when you are a judge. You cannot allow your Religious Beliefs to prevail the settle law and jurisprudence.

Q: Is this rule applicable to Civil Cases (14.01)? A: Not applicable. In Civil Cases, it is the lawyer’s duty to counsel or maintain such actions or proceedings only as appear to him to be just and such defenses that he believes are debatable under the law.

The lawyer’s signature in the pleading is deemed as a certification by him that he has read the pleading, that to the best of his knowledge, information and belief, there is good ground to support it.

14.02 – A lawyer shall not decline, except for serious and sufficient cause, an appointment as counsel de oficio or as amicus curiae, or a request from the Integrated Bar of the Philippines or any of its chapters for rendition of free legal aid. - SELF-EXPLAINATORY

If you are appointed as counsel de officio or amicus curae, do not decline except you have efficient cause GR: DO NOT DECLINE BUT!!! Q: Can an accuse refuse a counsel de officio? A: YES. He may want to defend for himself or hire another counsel of his own choice, the court can give him reasonable time to find a lawyer of his own choice.

BUT the criminal case cannot be at the mercy of the accused. Let’s say he asks for extension of time to find a lawyer of his own choice. Judge postpone the arraignment of the case, set to another date. When that day comes, and still no lawyer. 3x ni nya gibuhat pero wa gihapon.

Q: Can the court compel him to have a counsel de officio? YES, because the case cannot be at the mercy of the accused.

Q: Can the judge assign a lawyer to give free legal aid to destitute or indigents in Civil Cases? A: YES, under Sec. 21 Rule 138 – it is allowed even in civil cases where the services of counsel are needed to attain the ends of justice.

14.03 A lawyer may not refuse to accept representation of an indigent client,unless: a) he is in no position to carry out the work effectively or competently; b) he labors under a conflict of interest between him and the prospective client or between a present client and the prospective client;

GR: do not refuse a case of an indigent EXCEPTIONS: A – SELF-EXPLAINATORY B – he labors under the conflict of interest between him and the prospective client or between a present client and the prospective client Conflict of Interest – when the lawyer would argue a claim on one hand and would have to argue the defense against such claim on the other hand.

One essence of the attorney client relationship is the LOYALTY to the client. What loyalty is there if you argue for a client and later argue for the defense against his claim? – You can only be loyal to one side of the controversy. - You cannot serve both sides of the Controversy 14.04 – SELF-EXPLAINATORY same degree of diligence should be given to paying and non-paying clients

CANON 15 - A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENTS.

15.01 a lawyer in comparing with the perspective client shall ascertain as soon as practicable whether the matter would involve with another client or of his own interest and if so shall forthwith inform the prospective client You are talking for prospective client and when he tells you his story, you realize that his interest is adverse to an existing client of yours. What should you do? - Under 15.01, you immediately tell the client to stop disclosing further information. Tell him honestly that there is potential conflict of interest and that you cannot take his case. It would be unethical if after detecting that his interest is adverse to a client of yours and then you encourage him to disclose. There is an abuse of the situation; you are giving yourself an opportunity to know that other party’s strengths and weaknesses of his case. You can use it to the prejudice of that prospective client. MEJIA vs REYES Atty reyes was counsel and notary public of PNP, in such capacity he handled a case of PNP

vs a certain MEJIA. Meija lost and wanted to appeal, at reyes advice meija did not push through with his appeal later on meija learned that the accused was PNPs council. The act constitutes malpractice. 15.03 A lawyer shall be bound by the rule on privilege communication in respect of matters disclosed to him by a prospective client. -Important – we know that lawyers cannot represent conflicting interests. EXCEPT:

By written consent by all concerned given up the full disclosure of the facts EX: you are a defense counsel in a criminal case. Accused are 2 brothers – accused of homicide. You have been the long time lawyer of the family of the 2 brothers. In the course of the trial, the prosecution gets hold of the evidence pointing the innocence of A and the guilt of B. A may have information to incriminate B.

What prosecution did is that they dropped A as an accused and used him as a witness against B. Can this be done? YES, the court grants it so A is no longer an accused but is now a hostile state witness. Q: Can you still represent both A and B? There interest now have became adverse. A will now have to testify against B, as counsel of the latter you must prove his innocent. What should you do? A: (1) You tell A and B that you can no longer their lawyer because your interest are not adverse, etc… (2) If A and B says that he trusted you that you can still represent them without prejudicing their separate interests. – YOU CAN STILL BE THEIR LAWYER. *YES, PROVIDED THAT THE LAWYER GET THEIR WRITTEN CONSENT

Verbal consent is not enough, IT MUST BE REDUCED TO WRITING. Representing Conflicting Interest – Criminal offense, you study the betrayal of public trust (Art. 309 of the RPC) Let’s say you’re a lawyer and then the governor wants to hire your services. The governor tells his case, narrates to you his story and then ask you, ―what do you think attorney?‖ You give your legal advice, after listening to your legal advice; the governor decides not to hire you. ―Attorney, lahi man tag ganahan mahitabo, I decided not to hire you. Bye‖ The next day, the mayor visits you. He tells you his story, you immediately realize that the mayor is the adverse party in the governor’s story. You gave your legal opinion, he is happy and decided to hire you. Q: Can you take the case of the mayor? A: In Helato vs David, the Supreme Court said that the lawyer need not be employed, he need not even be paid. The duty not to represent the conflicting interest is already there. MERE CONSULTATION SUFFICES TO ESTABLISH A LAWYER CLIENT RELATIONSHIP. There being such relationship, there is already the duty not to represent a conflicting interest.

It does not matter if it is the lawyer’s fault that he was not hired by the governor. It is of no moment.

Q: What if the Attorney-Client Relationship has been terminated? The lawyer is fired; the client dies. Is the duty still there not to represent conflicting interest? A: YES, the duty outlasts the relationship. Northwestern University Case There were many labor cases consolidated into one case. There were many complainants, Atty Arquillo represented them. There were also many respondents, but Arquillo also represented one of them. He is convinced that there is no conflict of interest because the complainants and that one respondent were similarly situated. They were on the same side. His argument seems to be correct because when the labor court rendered decision, it really found that that one respondent that he represented was not guilty of the charge, only the other respondents. Hence, there was a little legitimacy of his claim.

But it did not convince the Supreme Court, still there is representation of conflicting interest. No matter how convinced the lawyer that his clients are on the same side, the mere fact that as counsel for complainants he filed the complaint and as counsel for that one respondent he filed a motion to dismiss his own complaint. And as counsel for the complainants, he filed an opposition to the motion to dismiss. So you have spectacle of a lawyer filing pleadings against his own pleadings. It necessarily show that there was really a conflicting interest in the case no matter how convinced he is that his clients are on the same side. Artezuela vs Maderazo You have lawyer for complainant preparing the answer, he did not admit but it was shown that the answer was printed in his law office. His defense was: he is not the counsel for record for both parties so he could not be representing conflicting interests. Supreme Court did not like this argument, if we have to inquire a lawyer to be counsel of record for both parties before there is representing conflicting interest then we are only punishing the most obvious forms of treachery. Usually, when a lawyer represents conflicting interest, it is done in the most covered, most secret manner. You do not really put it on record that you are representing both parties. So the mere fact that in his own law office, the answer was prepared as well as printed, even without the admission from the lawyer there is already the appearance that the lawyer is not loyal, not faithful to his client’s cause PNB vs Cedo We have a PNB lawyer who after living PNB accepted cases involving parties against PNB and involving transactions in which he had intervened while he was connected with PNB. 15.02 a lawyer shall be bound on the rule on the privilege communication in respect of the matters disclosed to him by a perspective client

This is another instance of loyalty to the client It’s like going to a confession, you can expect that the priest cannot divulge whatever

sins you have confessed. Just like lawyer and client, it is like a virtual confessional seal of the client secrets and confidences.

Q: What form of communication are covered? A: ALL. Oral, Written, text messages, email, private messages. When a client tell a lawyer, whatever advices the latter give are privileged.

Rule 15.02 talks about the rule on privilege communication. Q: What is this rule and where do we find this? A: Found in Sec. 24 Rule 130 of the Rules of Court. An attorney cannot, without consent of his client, be examined as to any communication made by the client to him or his advice given thereon in the course of OR WITH A VIEW TO PROFESSIONAL EMPLOYMENT. This tells us that attorney client relationship already exist even if it is still during consultation. The client need not hire the lawyer in the end or the lawyer need not take the case, as long as there have been communication with a view to professional employee

Q: When can a lawyer disclose? A: Only with a consent of his client. Without his client’s consent, a lawyer cannot be compelled to answer questions on the witness stand and what the lawyer need only invoke this rule. The communication is practically untouchable.

Extension: The privilege extends also to other people: to the lawyers’ secretary, stenographer, clerk – legal staffs of the lawyer cannot be also compelled for disclosure.

Q: When can they disclose? Who must give consent? A: This time, 2 people must consent: the client and the lawyer.

Q: Are pleadings confidential? A: Before they are filed in court, they are confidential.

LIMITATIONS TO CONFIDENTIAL PRIVILEGE – not all communications are privileged. Basic Limitations: 1. The purpose must be to seek legal advice

Let’s say the lawyer and his client, wa sila date pag valentines, they had drinking spree. Nahubog na ang client, nahambugiro na. ―You know attorney, every time I go abroad I always bring with me local celebrities and starlets as my dates. That’s how I get away with my wife. To escape my reality.‖ So the lawyer says, ―I know you’re rich, you’re a bank manger but not that rich that you can afford such vices.‖ The client says, ―I get money from the bank. And I’m not worried about it because in few months, I will be resigning and be long gone. No one will even notice.‖

Q: Is it communication privilege? A: NO. It was not for the purpose of seeking legal advice. Storya ra to sa hubog. The

lawyer can be compelled to testify in court as to the contents of the communication.

2. It does not extend to communication of future crimes

The client talks to his lawyer, ―Attorney, 1 ra man jd ang witness nako noh? I already made arrangements, I plan to kill him.‖ True enough, lawyer heard of the incident. He confronted his client, the latter admitted.

Q: Can the lawyer testify against the client regarding the plan? But its already done. What time should you be looking at?

A: At the time the communication was made, if it is still a future crime. It is not covered by the privilege communication. A person committing or about to commit a crime can have no privilege witness. Communication must be for a lawful purpose or in furtherance of a lawful end. Otherwise, if the purpose is criminal, it is not only lawful to divulge but the lawyer should be bound to disclose at once in the interest of justice.

o Privilege also apply to law students under Law Students Practice Rule. When you reach 4th year, you will be handling cases but remember that the privilege also apply to you. Don’t go tell people about your case.

Purpose: 1. To encourage clients to fully disclose to the lawyer without fear.

If there is not attorney-client privilege, there is not man in right mind would make full disclosure to the lawyer if the latter can just blackmail him anytime. Or use that information against the client.

2. To enable counsel to obtain information so as not to be mislead in the evaluation of the merits or demerits of the client

A lawyer can only have a true appreciation of the client’s case if he knows all the pertinent facts. And only if the lawyer can know the pertinent facts that he can arrive for workable strategy on how to manage and handle the case.

So if the client withholds valuable information, that can be the skew of the lawyer’s picture of the case. And it is unfair on the part of the lawyer.

To know a valuable information the first time the client testifies, there is a danger that all the strategy is thrown out of the window kay mausab tanan if d sya kahibaw.

2 Fold Purpose: In favor of both lawyer and client Regala vs Sandiganbayan – long case, focus your readings on whether or not the identity of the client is covered by attorney-client privilege. Dili ba that the privilege only covers the communication between them or does it also involve even to the extent of not disclosing the client’s identity? *If your answer is YES, is there exceptions? If NO, exceptions? Verbatim from the Case: GR: Lawyers may not refuse to divulge the identity of his client As a matter of public policy, a client's identity should not be shrouded in mystery: 1. The court has a right to know that the client whose privileged information is sought to be protected in flesh and blood. 2. The privilege begins to exist only after the attorney-client relationship has been established. 3. The privilege generally pertains to the subject matter of the relationship 4. Due process considerations require that the opposing party should, as a general rule, know his adversary. EXCEPTIONS 1. When there is a strong probability exists that revealing the client's name would implicate that client in the very activity for which he sought the lawyer's advice. 2. Where disclosure would open the client to civil liability. 3. Where the government's lawyers have no case against an attorney's client unless, by revealing the client's name, the said name would furnish the only link that would form the chain of testimony necessary to convict an individual of a crime. Other Exceptions -the content of any client communication to a lawyer lies within the privilege if it is relevant to the subject matter of the legal problem on which the client seeks legal assistance -where the nature of the attorney-client relationship has been previously disclosed and it is the identity which is intended to be confidential, the identity of the client has been held to be

privileged, since such revelation would otherwise result in disclosure and the entire transaction. *information relating to the identity of a client may fall within the ambit of the privilege when the client's name itself has an independent significance, such that disclosure would then reveal client confidences.

Rule 15.04 - A lawyer may, with the written consent of all concerned, act as mediator, conciliator or arbitrator in settling disputes.

Rule 15.05 - A lawyer when advising his client, shall give a candid and honest

opinion on the merits and probable results of the client’s case, neither overstating nor understating the prospects of the case.

This is an instance of candor

Do not sugar coat, do not over state, do not understate the merits of the case.

There’s a shooter, shot a man in the middle of a busy street in colon. Many witnesses at least 50 who were able to identify the shooter and willing to testify. They have executed respective affidavits. Plus the shooting was also captured by 10 CCTV cameras. The shooter goes to you, that he shoot a man in colon but does not have a defense. He discloses all evidences against him. Lawyer say, ―don’t worry, it’s a criminal case and we can always have those evidences excluded for one reason or another. Don’t worry, you will not go to jail‖ Q: Is that overstating or understating? A: Overstating, it is in reality a very difficult case. No defenses and the evidences are all against you.

Can you exclude those evidences? – the are not fruits of a poisonous tree. They are not seized evidences. There is a slim chance that you could exclude them so it’s a difficult

defense. THE LAWYER MADE IT SEEM EASY. – THAT’S OVERSTATING You gave false hope to the client and to you the lawyer – you gave yourself impossible

levels of stress and pressure to win because you have promised a victory. o Because you are pressured, the lawyer might resort to extra-legal means just to

win. o If you lose – What will the client think of you? – INCOMPETENCE

*Let’s say that the victim’s family seeks your legal advice – THE SAME SITUATION

The lawyers says, ―it very difficult to prove. Ayaw lang jd pagdahom nga mudaog kay lisud, apiki.‖

This time, it’s UNDERSTATING. You are subjecting the client to impossible levels of stress. Just like ordinary client, he would likely seek for 2nd, 3rd, 4th opinions.

o What if the subsequent lawyer gives him an honest opinion, so did the 3rd and 4th.

o What would the client think of the 1st lawyer? ―kaBOGO ato nya oi!‖

*But even though how easy a case is, DON’T PROMISE A VICTORY. You don’t see that in the CPR but for practical reasons lang ba. It’s suicide if you do. But if its not easy case, you also give your client your honest opinion.

You can do that in a subtle way without promising any victory by telling him the strength and weakness of the case. It’s up to the client to think the outcome.

15.06 a lawyer shall not state or imply that he is able to influence any public official, tribunal or legislative body. ―Ay labor case d.i ni, ay kabalaka kay kanang mga labor arbiters diha kay ako nang mga amigo tanan‖ – UNETHICAL

15.07 a lawyer shall impress upon his client compliance with the laws and the principles of fairness This brings us our previous lesson: Who controls the case? The lawyer controls the case, no matter how powerful your client maybe (wealth or political figure or goons). It could be intimidating but always remember that on matters of law, the lawyer prevails over the client and should not allow the client to dictate the case. Wicker vs Arcangel ―I was just Lawyering. I was just serving as a mouth piece of my client‖ - UNTENABLE ARGUMENTS Lawyers should advice client on matters of decorum and proper attitude towards courts of justice

Let’s say the lawyer must curve the client’s desire to publicize the litigation. ―I have so many friends in media, Atty. If you want we can assassinate the character of the

adverse party and his lawyer overnight‖ – trial for publicity is prejudicial to the administration of justice.

Curve the clients desire to match on the streets and rally. There’s a particular case where a union has a pending appeal in the CA and dugay na

kaau, wala pa juy action sa CA. so the Labor Union went to their lawyer, that he will stage a picket before the CA to remind them of their case and position.

The lawyer advised them to pursue with the picket because it is their right to peaceably assemble, it is also an exercise of their freedom of speech and expression.

Supreme Court held that it is UNETHICAL for the lawyer to make such advice. Picketing and Rallying before courts and any other quasi-judicial agencies are forms of influence on such forum.

*Remember that even the appearance of influencing the court is already unethical. You do not prove actual influence on the court

15.08 a lawyer who is engaged in another profession or occupation concurrently on the practice of law shall make clear to his client whether he is acting as a lawyer or in another capacity May it appear to the lawyer if you are still being a lawyer or you are not being a real estate agent or an insurance agent.

―Mam, mao ni nahitabo sa atong kaso. Naghearing yesterday and these are blah blah blah.. Do you have any questions?‖, ―No more attorney, everything is perfect, thank you.‖

o ―so wala na man kay questions mam, karun naa koy baligya nimo nga yuta (sales talk dayun)‖

*In this case, the lawyer must make it clear that this time around, he is no longer acting as a lawyer but rather, acting as a real estate agent whose primary purpose is to sell and to profit. (all fiduciary relations, confidnecial relation – WALA JUD NA AT THIS POINT) -This is also in order for client to be more cautious, the lawyer must be honest – a different dynamics apply.

CANON 17 - A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM. – JUST READ, IT’S JUST 1 PAR. 16 a lawyer shall hold in trust all money and properties of his client may come into his possession In so far as his client is concern, there are DUAL ROLES OF THE LAWYER:

1. that of a fiduciary or a trustee – at most good faith and fidelity on the part of the lawyer; strict compliance with canon 14-22

2. as agent of the client – to appear in court as representative of the client, binds the client in matters of procedure; foremost an officer of the court

Regala vs Sandiganbayan The Supreme Court made it clear that the lawyer is more than an ordinary agent, he is an officer of the court. The lawyer controls the case and if his client insists on illegal means, it is the lawyer’s ethical duty not to follow the client’s instructions. An ordinary agent would have to follow principal instructions. But the lawyer may or may not follow; it depends on the lawyer’s discretion. IT’S MORE THAN AN ORDINARY AGENT. EXAMPLES WHERE A LAWYER BREACH HIS CLIENT’S TRUST IN TERMS OF HANDLING MONEY OF THE CLIENT 1. Misappropriation by lawyer of rentals This happened in an ejectment case to evict a tenant or leasee who has not been paying rentals which violated the contract. An incidental relief would be the payment of the unpaid rentals while the case is still pending. Unknown to the client who is the landlord, the

tenant has been paying to the lawyer. The lawyer did not tell his client and instead used it for himself. It even constraint the client to look for another lawyer just so he can file a collection suit against his other lawyer. 2. Securing money from client for fictitious bond and appropriating the same Misappropriating money given by client to be used for amicable settlement. In fact, the lawyer did not even attempt to enter into amicable settlement and just pocketed the same. 16.01 – A lawyer shall account for all money or property collected or received for or from the client. - SELF-EXPLAINATORY Q: Why should a lawyer account? A: because the money or the property is not his. 16.02 - a lawyer shall keep the funds of each client separate and apart from his own and those of others kept by him

No co-mingling of funds – do no mingle your own funds with client funds or if you are handling funds of different client, keep all of them separate.

REASONS: 1. If you co mingle, you will be confused after some time.

How much go to whom? How much do I own here and how much will go to my client? 2. To prevent temptation on the part of the lawyer to appropriate client funds. REPERCUSSIONS OF UNLAWFUL RETENTION OF CLIENT FUNDS – because it is a violation of Canon 16, ADMINISTRATIVE LIABILITY Q: Can it constitute contempt of court? A: YES. It is a ground for indirect contempt of court. It is the officer of the court who misbehaves in his official functions. There could be also criminal and civil prosecution. If all elements of Estafa are there, then he can also be sued for Estafa.

Q: Can a lawyer borrow money from the client? A: GR: NO. REASON:

The lawyer might take advantage of his legal superiority. There is also moral ascendancy.

There can also be an undesirable effect on the lawyer. o A client might propose illegal means and kay maikog man ka, so sugot nlang ka

because you are indebted to your client. Exceptions:

If the client’s interests are fully protected by the nature of the case or by independent advice.

o Let’s say your client is himself a lawyer (successful in civil litigation and mercantile law). You may borrow from that client, it may fall under the exception. Your client is protected of independent advice. Client knows the law, he as a lawyer also knows that you cannot really take advantage.

YOU ARE CONSIDERED TO BE EQUALLY BALANCED o Let’s say your client is a bank. Can you borrow from the bank? YOU MAY,

because the bank is protected by independent advice. Aside from you, it also has other lawyers to protect its interests.

OTHER SIDE OF THE COIN: Can a lawyer lend money to his client? GR: NO, same reason why he cannot borrow. Exceptions: When in the interest of justice, he has to advance necessary expenses in a legal matter he is handling for his client.

You have finished your position paper, deadline tomorrow. The pages for your position paper is very2 thick to be submitted to many respondents. Then you realize that you need to get money for photocopying and mailing expenses. The client cannot give you the money, but promise to reimburse you afterwards. Q: Can the lawyer shoulder the expense and extend it by way of a loan? YES

Client borrow money from lawyer for the tuition fee of his children. Can the lawyer lend? NO, the law is very particular. The loan must be necessary, a legal expense in a legal matter that the lawyer is handling.

Q: Can a lawyer enter into business transaction with the client? YES, it is allowed because there is no prohibition. He is not barred from dealing with his client but he transaction must be exercised with outmost honesty.

16.03 A lawyer shall deliver the funds and property of his client when due or upon demand. However, he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client. He shall also have a lien to the same extent on all judgements and executions he has secured for his client as provided for in the Rules of Court. “black font – GR, SELF-EXPLANATORY red and Blue – EXCEPTIONS – instances that the lawyer can retain funds and property of the client” – MAO NI GIINGON NI ATTY ANI HAP! D AKO! Red Part – pertains to Retaining Lien Blue Part – Charging Lien 2 KINDS OF ATTORNEY’S LIENS 1. RETAINING LIEN – also known as the general or a possessory lien

This is the right of the lawyer to withhold his clients’ property (funds and documents) that lawfully comes to his possession until payment of his attorney’s fees.

Why the recognition of the attorney’s lien? -It is but not natural that the lawyer be secured in the fruits of his professional labor. -Proper administration of justice cannot be secured without an intelligent and prosperous bar. (STANSELL VS ROACH, 29 ALR 143)

*Let’s say the lawyer has in his possession the client’s original title to his property. Time passed, wa nay bayad2 ang client then he wants to get back the title because he needs it. -the lawyer says he will return his title if the client will pay his attorney’s fees. Q: Can the lawyer do that? A: YES. That is the Retaining Lien. The lawyer can retain funds and documents of the client until he is paid of his attorney’s fees. 2. CHARGING LIEN – also known as special particular possessory lien -this is the right of the lawyer to request the court to annotate his claim for attorney’s fees in what ever recoveries made by the client prom the losing adversary. A lawyer shall have a lien:

upon all judgments for the payment of money, and executions issued in pursuance thereof

which he has secured in a litigation for his client from and after the time when he shall have caused a statement of his claim of such

lien to be entered upon the records of the court rendering such judgment, or issuing such execution and

shall have caused written notice thereof to be delivered to his client and to the adverse party

4 REQUISITES:

the lawyer has won the case for the client, it is already final and executory it is a money judgment the lawyer must annotate his claim for attorney’s fees in the record of the case

written notice to the losing party and to his client Q: If the lawyer has done all four, what is the effect? A: The lawyer now gets a portion of the winnings to the extent of his unpaid attorney’s fees.

Let’s say the lawyer has won the case for the client and the judgment award is 100K. The lawyer has an amount of unpaid attorney’s fees of 30K, he annotate his claim and give written notice to his client and the losing party. Q: What is the effect? A: The lawyer gets 30K, only 70K goes to his client. *The purpose of the attorney’s lien is to make collection of attorney’s fees easier. It is sort of a security device to ensure that lawyers will get paid. Usually, lawyers utilize this liens with difficult client, d jd mamayad. RATIONALE OF ATTORNEY’S LIEN: It is but natural that the lawyer shall be secured of fruits of his professional labor. Di man jud pwede nga cge lang jd kag pro bono. You have to earn a livelihood. Used to pay his legal staffs also. It does not mean nga pro bono man to nmu, pro bono ra pd sa imo staffs, it cannot be.

BASIS: Rules of Court An attorney shall have a lien upon the funds, documents, papers of his client which have lawfully come to his possession and may retain the same until he’s lawful fees and disbursements have been paid and may apply such funds to such satisfaction thereof. The lawyer shall have the same right and power over such judgments and executions as his clients would have in order to enforce his liens and secure the payment of his just fees and disbursements. As a result a legal fiction is created. It is as if the lawyer won or the prevailing party litigant in the case. But the execution of the money judgment in his favor extends only in so far as the amount of his fees and disbursements. LIMITATIONS OF A RETAINING LIEN 1. funds, documents, papers only

if a lawyer has in his possession a car of the client, the latter did not pay. The lawyer decided that he will not return the car unless he is paid of attorney’s fees. – NOT ALLOWED BECAUSE IT IS ONLY LIMITED TO FUNDS, DOCUMENTS AND PAPER ONLY, NOT ON OTHER KINDS OF PROPERTIES

2. the thing retained should have lawfully come into possession of the lawyer under circumstances consistent with the enforcement of a lien for services

thus a retaining liens does not apply to funds coming into the lawyers possession in trust

―Mam we need to post a cash bond kay maoy gi require sa court‖ Client agreed and gave you cash. Can you decide not to post the bond and just apply the money to the client’s unpaid attorney’s fees? NO, IT DOES NOT APPLY TO FUNDS COMING INTO A LAWYER’S POSSESSION IN TRUST FOR A PARTICULAR PURPOSE

3. a lawyer cannot retain files the client needs to pursue his case

So if the client fires you and he needs the files, you did not give it because of his unpaid dues. But the client needs the documents to pursue his case. Then there can be no retaining lien.

CHARGING LIENS 1. the lawyer has won the case for the client, it is already final and executory 2. it is a money judgment 3. the lawyer must annotate his claim for attorney’s fees in the record of the case 4. written notice to his client AND TO THE ADVERSE PARTY *The lawyer shall have the same right and power over such judgments and executions as his client would have in order to enforce his need -so a legal fiction is created – it is as if the lawyer won or is the prevailing party litigant in the case – but the execution of money judgment in his favor is only as so far as the amount of his fees.

Let’s say all the requisites have been complied with but the losing party paid the entire money judgment to the client. Q: Can the lawyer still collect FROM THE LOSING PARTY? A: YES, because that’s the effect of a charging lien. The losing party cannot claim ignorance because he has been notified but nonetheless he paid everything to the winning party. REMEDY OF THE LOSING PARTY: Reimbursement from the winning party on the ground of UNJUST ENRICHMENT. Q: Do you consider amicable settlement as a winning claim? A: Go back to the rules of court. It says all judgments for the payment of money xxx which he has secured for his client.

-strictly construe – it refers only to decisions rendered by the court LIMITATIONS ON THE CHARGING LIEN 1. applies only to a specific action in which the charging lien is recorded Let’s say the lawyer is handling many cases for the client. They have won Case1 and the charging lien is recorded therein. Then the lawyer realizes that he has still unpaid attorney’s fees in Case2, 3 and 4, he also applied the charging liens to them. Q: can that be? A: NO, because it is a particular lien, applicable only to that case where it is recorded. 2. Favorable money judgments and execution pursuant thereto The lawyer won the case for the client and the dispositive portion says, ―wherefore premises considered, judgment is hereby rendered declaring complainant ABC corporation as the rightful owner of lot # 1234. Accordingly, XYZ corporation is directed to deliver ownership and possession of the said Lot # 1234 as well as TCT #8 covering such property to complainant.” Q: Can there be charging lien? A: NO. It is not a money judgment. It is a delivery of a property

What if the dispositive portion says. ―wherefore premises considered, the marriage between complainant and defendant declared null and void ab initio by reason of psychological incapacity” Q: Can there be charging lien? A: NO. “wherefore, premises considered, the contract between complainant and defendant is declared valid and hence, defendant is directed to repair the vehicle of the complainant in accordance with the provisions of the contract” Q: Can there be a charging lien? A: NO. not a money judgment but for specific performance DISTINGUISH RETAINING LIEN AND CHARGING LIEN *SLIDES:

Retaining Lien

Charging Lien

Nature Passive General

Active Specific

Basis Lawful possession of papers, documents and funds belonging to client

securing favorable money judgment for client

Coverage Only documents, papers and funds in the lawful possession of the lawyer by reason of his professional employment

Covers all judgments for the payment of money and executions pursuant thereto

Effectivity As soon as lawyer takes possession

As soon as claim for lien is entered into the records of the case

Notice Client need

not be notified

Client and

adverse party must be notified

Applicability May be exercised before judgment execution or regardless thereof

Exercised only when lawyer has already secured a favorable money judgement

DISCUSSION

RL – passive and general

o CL – active in the sense that it does not become effective without any action on the part of the lawyer -specific because it pertains only to the case in which it is recorded

BASIS OF RL – lawful possession of papers documents and funds belonging to the client

o BASIS OF A CL – favorable money judgment

COVERAGE OF RL – documents papers funds o COVERAGE OF CHARGING LIEN – money judgments

*When does RL take effect? – As soon as the lawyer takes possession *When does CL take effect? – As soon as it is annotated in the records of the case *Is notice required for RL? NO, it becomes automatic as soon as the lawyer takes possession. *Is notice necessary before CL can be imposed? YES. Notice to the LOSING PARTY AND TO THE CLIENT.

APPLICABILITY OF RL – maybe exercised before judgment or execution or regardless thereof Q: Can you exercise RL even if you are not handling litigation for the client? – Let’s say simply advisory, but you have funds and documents of your client – YES. It is not dependent on any favorable outcome of the litigation.

o APPLICABILITY OF CL – there must be a favorable money judgment

Rule 16.04 - A lawyer shall not borrow money from his client unless the client’s interests are fully protected by the nature of the case or by independent advice. Neither shall a lawyer lend money to a client except, when in the interest of justice, he has to advance necessary expenses in a legal matter he is handling for the client.

BUSINESS TRANSACTIONS WITH CLIENTS:

-lawyer is not barred from dealing with his client with the business transaction must be characterized with utmost honesty and good faith. (NAKPIL VSVALDEZ, AC NO 2040, MARCH 4, 1998) -much higher standard of good faith is required compared to business transactions that are at arm’s length.

CANON 18 - A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE.

Rule 18.01 - A lawyer shall not undertake a legal service which he knows or should know that he is not qualified to render. However, he may render such service if, with the consent of his client, he can obtain as collaborating counsel a lawyer who is competent on the matter.

You can say that you are not competent in that field of law anymore. Lawyers are only human; you cannot expect him to know all cases. It would be unethical for a lawyer to take a case knowing that he is not competent to handle it. Q: But can he still handle it even if he is incompetent? A: YES. but he must he collaborating counsel who is competent of that matter WITH THE CONSENT OF THE HIS CLIENT. 18.02 – A lawyer shall not handle any legal matter without adequate preparation. 18.03 - - A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection there with shall render him liable. SLIDES: Effects of negligence and incompetence of lawyer:

disciplinary action against the lawyer malpractice suit for damages a criminal conviction may be set aside

a retrial may be had in civil cases DISCUSSION: Let’s go to the matter of negligence EFFECTS OF NEGLIGENCE AND INCOMPETENCE OF A LAWYER:

1. Obviously, you have administrative liability 2. There could be a malpractice suit for damages – CIVIL SUIT

*GENERALLY, a criminal conviction is not set aside, no retrial will be held in civil cases but in exceptional circumstances, IT HAS BEEN KNOWN TO HAPPEN EXCEPTIONAL CIRCUMSTANCES

3. Criminal conviction may be set aside if the errors of the defense counsel were so shocking that they deprived the accused of the constitutional right to effective counsel

You can set aside conviction but it must be proven that the counsel’s acts or omissions were outside the range of professionally competent assistance. And the negligence must have an actual effect on the outcome of the case, not just a conceivable or a speculated effect on the outcome of the case ANOTHER EXAMPLE: A lawyer who simply forgot the case. Which explain why he wasn’t able to appear hearings and he did not file a single pleading. He simply forgot about it

4. Clients are bound by the negligence of the lawyer DILIGENCE REQUIRED OF A LAWYER: - ORDINARY CARE AND DILIGENCE – GOOD FATHER OF A FAMILY A lawyer is not an insurer of the result of the case. He can only do his best; do what he could, according to his knowledge, capacity and discretion. Q: is the client bound to the negligence of his counsel?

A: YES. A lawyer is an agent of a client. As agent, the lawyer binds the client. Any act of the lawyer within the scope of his general and implied authority is considered an act of the client. *If we adopt a contrary rule, magbalik2 ra ang case. If a party senses nga pildihunon na jd siya, he can always have a retrial afterwards because of his lawyer’s negligence. *the acts of the counsel must be outside the range of professionally competent assistance

18.04 - A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to client’s request for information.

-lawyer must inform the client of the status of the case

He has a duty to keep his client informed but clients have corollary duty also to be in contact with his counsel from time to time to be informed of the progress of his case There are instances where lawyers are hired by clients and the latter will just disappear. And what if the lawyer needs the client’s assistance in gathering documentary evidences? Or locating and identifying witnesses? No cooperation from the client. It does not mean that a lawyer took the case, he can be the detective. There are matters which needs the client’s participation. NO PRUDENT PARTY WOULD LIVE HIS CASE ENTIRELY TO HIS LAWYER. SLIDES: EFFECTS OF NEGLIGENCE AND INCOMPETENCE OF COUNSEL: CIVIL CASES

-retrial may be conducted -courts are slow in setting aside judgments in civil cases

CRIMINAL CASES

-criminal conviction may be set aside if the errors of the defense counsel were shocking that they deprived the accused of the constitutional right to effective counsel. (MCMANN VS RICHARDSON, 387 US 759)

-conviction may be set aside but accused must show that his counsel’s acts or omissions ―were outside the range of professionally competent assistance‖. Furthermore, the acts or omissions must have caused actual prejudice, not just some conceivable effect on the outcome of the case. (STRICKLAND VS WASHINGTON 466 SCRA 668)

DILIGENCE REQUIRED OF COUNSEL: ORDINARY CARE AND DILIGENCE A lawyer is not an insurer of the result of the case.

19 - A LAWYER SHALL REPRESENT HIS CLIENT WITH ZEAL WITHIN THE BOUNDS OF THE LAW. - Just a reiteration of the things you already know. In representing a client, you represent him with zeal. The key phrase there – ―within the bounds of the law.‖ No amount of zeal can ever justify by breaking the law.

You were overzealous then you forgot the law because you are too passionate to safeguard your client’s interest. – THIS IS NOT JUSTIFIABLE. – MUST BE ALWAYS WITHIN THE BOUNDS OF THE LAW

A lawyer’s duty is not to his client but to the administration of justice. To that end, his client’s success is fully subordinate and his conduct ought to and always be scrupulously observant of law and ethics.

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. -Counter suits are alright if they are founded on facts and law but if they are just there to intimidate, to oppress, to gain leverage or advantage, they are unethical. -Fair and honorable means – we have discussed this extensively in the CPR – THERE IS A PARALLEL PROVISION IN RULES OF COURT – practically the same tenor (fair and honorable means regardless of your opinion of the guilt of the accused) EX: This involve unjustified litigation. A secretary is fired because his boss found another secretary. The boss and the lawyer manufactured spurious criminal action of theft 19.02 a lawyer who has receive an information that his client has in the course of the representation perpetuated a fraud upon a person or a tribunal shall promptly call upon the client to rectify the same and failing which, he has to terminate such client in accordance with the rules of court Your client presented documents in the court as evidence. Later on, you discover that the client falsified the presented evidences. You confronted him then he admitted. Because of the falsified documents, you are sure that you will win the case. Q: What should you do knowing that the documents presented were falsified? A: First, advice the client to rectify the fraud. If he will not, next step, WITHDRAW AS COUNSEL, BUT YOU CANNOT EXPOSE IT TO THE COURT (respecting client’s secret) – just withdraw, you cannot expect to participate in an unethical act. Q: How about the new lawyer? What is he supposed to do? A: “IT’S UP TO HIM HAHAHA‖ – Atty. 19.03 A lawyer shall not allow his client to dictate the procedure on handling the case. THE LAWYER CONTROLS THE CASE – not the client

-the lawyer must know the difference between matters that he as lawyer should decide and matters which his client should rightfully decide. -He(the lawyer) should follow his own decision and not that of the client. Thus, a lawyer may agree to postpone the trial of the case despite the client’s contrary wishes, if the opposite counsel is sick or under bereavement, or under other justifiable cause. -Counsel however is hidebound to comply with his client’s lawful requests. EX: Lawyer advises client for settlement. Client doesn’t want to. Can the lawyer enter into settlement? NO, because the matter whether to settle or not resides in the client to decide. *How much should we settle for? Client wants to settle but only up to 100k. Can the lawyer enter into settlement for an amount bigger than 100k? NO, he should comply to his client’s lawful request *Should we appeal or not? Client does not want to. The lawyer wants to appeal because he believes that they can win the case. Can he file? NO, the decision of the client in this case is controlling. -The lawyer can at best RECOMMEND, but the decision rest with the client. 20 - A LAWYER SHALL CHARGE ONLY FAIR AND REASONABLE FEES. ATTORNEY’S FEES – ―fair and reasonable‖ – no such thing as standard rate. Q: What do we know about Attorney’s Fees so far? A: Customarily prescribed rates. In practice, they are published by the local IBP chapter. Lawyers CANNOT CHARGE LOWER than the prescribed rates. There is a floor price but no ceiling price, no standard rule. So how do we know it is fair and reasonable? Attorney’s fees – remuneration given to a lawyer as a reasonable compensation for his professional services

RATIONALE: Although the legal profession is not a business undertaking, the lawyer like all other human being has a right to livelihood. Dli lang jd pwede nga magcge na lang ug pro bono perme. 2 CONCEPTS OF ATTORNEY’S FEES: 1. Ordinary Concept – ordinary payment as we know it. Q: Is there a presumption that a lawyer is entitled to attorney’s fees? A: YES, there is. Let’s say there is no written contract, not even a verbal contract for attorney’s fees but the lawyer already rendered valuable legal services and the client has been benefited thereby. Q: How do you presume that the Attorney is entitled to Attorney’s fees? A: 1. Let’s go to the principle of UNJUST ENRICHMENT.

The client cannot unjustly enrich himself at the expense of his lawyer

2. There is no express contract, oral contract, but there is innominate contract called FACIO UT DES – I DO SO THAT YOU’D GIVE

Which is why there is a presumption that the lawyer is entitled to attorney’s fees. EX: such service is intended to be gratuitous Q: Who has the burden of proof that it is gratuitous? A: the client to prove, “WA OI!!!”

HOW THE AGREEMENT IS MADE:

Oral

Written Implied – the lawyer has rendered valuable services (based on Unjust enrichment

and Facio ut des) *of the 3, the best is written 2. Extra-Ordinary Concept – refers to indemnity for damages ordered by the court to be paid by the losing party in a litigation - one form of damages – IN THE NATURE OF INDEMNITY – paid to the client. - it is wrong for the lawyer to claim the Attorney’s Fee in the pronouncement of judgment that he owns the Attorney’s fees – kay ―Attorney’s‖ fees gd! – WRONG! BECAUSE IT IS IN THE NATURE OF INDEMNITY – IT IS PAYABLE TO THE CLIENT, THUS CLIENT OWNS THE ATTORNEY’S FEES. - EXCEPT – if there is an agreement of the lawyer and his client that the Attorney’s Fees is an additional compensation or as part thereof To avoid controversy over attorney’s fees, it is advisable to agree in advance as to the matter of how the lawyer should be compensated AND TO REDUCE IT INTO WRITING. -for the benefit of both client and lawyer There is ADDED BENEFIT ON THE PART OF THE LAWYER

-in case of unjustified dismissal of the attorney, he shall be entitled to recover from the client FULL AMOUNT OF COMPENSATION BASED ON THE STIPULATIONS OF THE CONTRACT (WRITTEN CONTRACT) HOW DO YOU MAKE A CONTRACT FOR ATTORNEY’S FEES?

The ideal contract for attorney’s fees is as simply as you have it, as simple as it can be.

It does not need to look like the real contract (kanang mga whereas2, hereunder, hereunto, under the over – wala nang mga ing.ana!)

The idea is to make the client understand what he is dealing with. It would be ironic that he would hire another lawyer to help him interpret the contract because he can’t understand.

As long as there’s a letter and the client’s conformity. HOW TO CONSTRUE ATTORNEY’S FEES CONTRACT

If there is doubt or ambiguity, construe in favor of the client. It is subject to judicial review.

The lawyer cannot use his right to privacy because of the nature of the contract. The court can always scrutinize this kind of contract and agree if the fees are reasonable and fair.

RETAINER’S FEE ARRANGEMENT 2 Kinds of Retainer: 1. General Retainer - you are retained by the client to handle ordinary legal services that arise from his ordinary business. EX: simple legal queries, request for legal advisories, review of contracts/drafting – ordinary

legal problems. *When a lawyer is retained by the client, the lawyer must be accessible at any time so long as the retainer fees is in arrangement. Let’s say you are retained by the client, 30K per month but for the month of February, wala juy gubot and company. Nothing was referred to you for legal counsel. You did not render any legal services. Q: Are you still entitle to the 30K? A: YES. You will still get paid because it would not be dependent on actual performance. What is being paid is the undertaking of he lawyer that he is available to that particular client at anytime and he cannot offer his services to parties of conflicting interest. -GENERAL RETAINER IS LIKE A COMPENSATION FOR LOST OPPORTUNITIES 2. Special Retainer – fee of a specific case handle or a special service rendered by the lawyer for a client

a client might have several cases demanding individual or special attention. If in every case, there is independent and separate contract of attorney’s fees, each fee is

considered a special retainer

so it is no longer an ordinary legal problem. You now have a special case or a special legal service which needs you undivided attention.

*so in the contract of attorney’s fees, you must specify what kind of retainer you are using. If it is a General Retainer: it is best to indicate or have a separate provision that if the service must require more than the usual attention, then it would have different payment -you must have those kinds of provisions because you might be spreading yourself too thin. General Retainer lage then hatagan kag mga kaso nga lisud kaau and d nlang ka katug kay mag cge nlang kag tuon, it takes too much of your time pero General Retainer gihapon ang bayad (it should have been a special retainer already when you think about it). -and remember that in case of doubt and ambiguity, it will be construed in favor of the client, so you as a lawyer should be very careful Q: Is it possible for a single client, you have general retainer and special retainer agreement?

A: YES KINDS OF ATTORNEY’S FEES ARRANGEMENTS

1. Fix or Absolute – the lawyer gets paid, regardless of what will happen 2. Contingent Fee – the lawyer gets paid only if he will win the case 3. Fixed Fee payable per appearance in court 4. Fixed Fee on an hourly rate or Time Billing – you will be accountable for your

time -advisable if you are always running out of time. Best way to have time management. Kay nay usahay ang client tabi.an kaau. Ma.waste imo time that should have been used to make other pleadings.

5. Fees for every piece work – charging every page of the pleading, or you can have provision that you will be paid different rates in different court

Q: Should the lawyer and client choose only one? A: They can have ONE, SOME OR EVEN ALL. Q: What is the most important consideration? A: Most important consideration is that the agreement has been voluntarily entered into by the lawyer and client. *Regardless of what kind of fee, always remember the basic rule that it should be fair and reasonable CONTINGENT FEE CONTRACT – also know as no cure, no pay basis -lawyer will be paid only if they win, there is a fix percentage of what ever they will recover from the suit Q: Why is this allowed? A: Such contract is the only way in which the poor and helpless can have their rights litigated.

Advantageous on the part of the client because they can find lawyer that is willing to waive all other fees until he win the case and ONLY IF YOU WIN

Advantageous on the part of the lawyer he is assured of payment when they win the case

o Wala man guro lawyer nga mukuha ug kaso nga dli meritorious – it is a winnable case, although there is risk of not winning, the risk is not that high.

Q: How many percent? A: Under the CPE – a contract for contingent fee were sanctioned by law, should reasonable under circumstances including the risk and uncertainty of the compensation and should be subject to the supervision of the court as to its reasonableness - it tells us that because in contingency contracts, there is uncertainty of compensation. Lawyers are allowed to charge higher percentage to compensate for the risk an attorney engaged in a contingency basis may not, in order to collect his fees, prosecute an appeal despite his client’s refusal to appeal

-―Attorney di nlang ta mu.appeal kay murag mamatay na ko aning kasuha.‖ ―Mu appeal ta mam! Wa pa rba ka kabayad nako!‖ – HE CANNOT INSIST -Contingency contract does not make the Lawyer a Creditor of the Client, it neither give the lawyer any right in the client’s winning of the suit. If the contingency does not occur, then the lawyer is not entitled to fees *In here, what the attorney waives is only the attorney’s fees, THERE IS NO UNDERTAKING TO BEAR EXPENSES OF LITIGATION. (filing fee, docket fee, etc – charged to the client) ART. 2208, NEW CIVIL CODE: In the absence of stipulation, attorney’s fees and expenses of litigation, other than judicial costs, cannot be recovered, except:

1. When exemplary damages are awarded 2. When the defendant’s act or omission has compelled the plaintiff to litigate

with third persons or to incur expenses to protect his interest 3. In criminal cases of malicious prosecution against plaintiff 4. In case of a clearly unfounded civil action or proceeding against the plaintiff 5. Where the defendant acted in gross and evident bad faith in refusing to

satisfy the plaintiff’s plainly valid, just and demandable claim. 6. In actions for legal support 7. In actions for recovery of wages of household helpers, laborers and skilled

workers. 8. In actions for indemnity under workmen’s compensation and employer’s

liability laws 9. In separate civil action to recover civil liability arising from a crime 10. When at least double judicial costs are awarded 11. In any other case where the court deems it just and equitable that

attorney’s fees and expenses of litigation should be recovered.

In all cases, the attorney’s fees and expenses of litigation must be reasonable.

CHAMPERTOUS CONTRACT – where the lawyer agrees to prosecute suits at his own expense for the recovery of things or property belonging to or claimed by the client, the latter agree to pay the former a portion of the property or thing recovered as compensation. Q: Is it the same as contingent fee? A: NO. THIS KIND OF CONTRACT IS VOID.

Champertous Contract Contingent Contract

Lawyer undertakes to bear all expenses incident to litigation

NA

Payable in cash or in kind

Payable in cash or in kind

Void; against public policy and ethics of the profession

valid

*Here, the lawyer bears all expenses incident to the litigation including all filing fees, docket fee, etc. – THIS IS AGAINST PUBLIC POLICY AND ETHICS -You now have a lawyer spending everything for the case. He is now investing in the case, he might want to recover what he has given AT ALL COST – even it means breaking the law

20.01 – A lawyer shall be guided by the following factors in determining his fees: a) The time spent and the extent of the services rendered or required; b) The novelty and difficulty of the questions involved; c) The importance of the subject matter; d) The skill demanded; e) The probability of losing other employment as a result of acceptance of the proffered case; f) The customary charges for similar services and the schedule of fees of the IBP chapter to which he belongs; g) The amount involved in the controversy and the benefits resulting to the client form the service; h) The contingency or certainty of compensation; i) The character of the employment, whether occasional or established; and j) The professional standing of the lawyer. -that it should be fair and reasonable

Q: How do we know it is fair and reasonable? -enumerated – take note of letter H the contingency or certainty of compensation FOR CONTINGENT FEE CONTRACTS Q: Are lawyers allowed to charge more than the usual rates? A: YES. to compensate for the uncertainty of compensation Q: Is the list exhaustive? A: Not exhaustive. There could be other factors as declared in jurisprudence, client’s ability to pay, reasonable requests of fellow lawyers (client is a lawyer – inamigo nga rate), responsibility imposed and results cured can also be factors to determine attorney’s fees. QUANTUM MERUIT – as much as he deserves Q: When is this resorted to? When is attorney’s fees based on quantum meruit? A: There are many instances:

When the fees stipulated excessive, unconscionable or unreasonable, the court can reduce the fees.

When there is no express contract (no oral, no written agreement but the lawyer rendered valuable legal service - implied)

When the contract of employment is void due to some formal matters When there is agreement to attorney’s fees and it is not agreed upon

When the lawyer withdraws with justifiable cause o When can he recover full amount of compensation?

The contract has been reduced into writing The dismissal of the lawyer is WITHOUT justifiable cause.

o If it is the counsel who quits?

If the cause is justified – quantum meruit If the cause is not justified – fees maybe reduced or even forfeited.

o Can the law limit the collection of attorney’s fees? Can congress pass a law limiting the attorney’s fees?

YES. The state as parens patriea may protect the interest of the underprivileged

EX: RA 145 – a lawyer is limited to not more than P20. Q: Is this valid? A: The state can do this. But this was enacted during a time when P20 was still substantial. -the reason behind this is gamay ra ang mga ma.claim sa veterans then dako pa jd ang bayad sa lawyers. The veterans could not gain anything. The underprivileged is not protected from their own lawyers More resent law: Labor Code – attorney’s fees should not exceed 10% of the amount of wages recovered. Q: Can congress do this? Can they limit attorney’s fees? A: YES. Obviously, this is to benefit the workers. -it is ironic that the workers win but they have to pay all their winnings to the lawyers. 20.02 a lawyer shall, in cases of referral, with the consent of the client may entitled to a division of fees in proportion to the work performed and the responsibility assumed -this is fee splitting Q: Can lawyers split the fee among themselves? A: YES. But there must be 3 requisites.

It is a referral With the client’s consent Split must be proportionate to the work performed and the responsibility assumed

*Let’s say walamnang last requisite, you simply refer a case to another lawyer Q: Are you entitled to a split?

A: NO. Otherwise, you will be acting like an agent or a runner for that particular lawyer and you get a kickback for the mere fact of referring. -remember that solicitation of legal business is illegal -you must have performed a work or responsibility in the case Rule 20.03 - A lawyer shall not, without the full knowledge and consent of the client, accept any fee, reward, costs, commission, interest, rebate or forwarding allowance or other compensation whatsoever related to his professional employment from anyone other than the client. 20.04 A lawyer shall avoid controversies with clients concerning his compensation and shall resort to judicial action only to prevent imposition, injustice of fraud. - Lawyers are presumed to be entitled to livelihood. But they are urged to avoid controversies with the clients concerning compensation. Q: What does this mean? A: Kutob sa makaya nimo, ayaw nlang pangaway regarding attorney’s fees. It does not look good in legal profession. It is enough that you will get a heartful and simple, ―Thank you kaau, Attorney. Pero wa lang jud koy kwarta ibayad.‖ (SHIT!) If you can take it, take it sincerely. 2nd part of the rule: resort to judicial action only to prevent a position in justice or fraud -there are clients who take advantage of their lawyers. Let’s say you have a client, makabayad jd pero d lang mubayad. Then by all means, file a case -this rule does not prohibit lawyers from filing cases if the collection is warranted under the circumstances. this is an action of a lawyer against the client for collection of attorney’s fees.

21 – A LAWYER SHALL PRESERVE THE CONFIDENCE AND SECRETS OF HIS CLIENT EVEN AFTER THE ATTORNEY-CLIENT RELATION IS TERMINATED “we have already discussed this during Attorney-Client Relationship” Take note: “even after the attorney-client relationship is terminated‖

the obligation to preserve client confidences and secrets outlasts the professional employment of the lawyer.

in addition to possible administrative liability, there could also be criminal liability (Art. 209 of RPC)

21.01 A lawyer shall not reveal the confidences or secrets of his client except: a) When authorized by the client after acquianting him of the consequences of the disclosure; b) When required by law;

c) When necessary to collect his fees or to defend himself, his employees or associates or by judicial action. GR: a lawyer shall not reveal the confidences of his client EXCEPT: 1. When authorized by the client after appointing him of the consequences of the disclosure -the client’s consent must be intelligently given

-lawyer must have explained to the client consequences of the disclosure *Even if consent is given but the consequences was not explained, not allowed *if the consent is an informed one, it is a waiver on the part of the client for the lawyer’s duty to safeguard the client’s secret EX: Let’s say the one to make disclosure is the secretary, stenographer or clerk of the lawyer.

Aside form the client, they also need the consent of the lawyer. 2. When the disclosure by the lawyer is required by law

the law does not make the law office a nest of vipers in which to hatch crimes or frauds.

Lawyer’s duty forbid the lawyer from assisting a commission of the crime or permitting the privilege to conceal from doing

o So the lawyer can disclose if the client consulted him as to how to commit a crime. – it is even required by law

o The privilege does not apply to future frauds 3. When necessary to collect fees or to defend himself or his staff by judicial action *Let’s say, a client does not want to pay the lawyer. Makabayad gd but d lang jd mubayad. So the lawyer filed a collection suit. In his anwer, the client said he did not pay because the lawyer charges exorbitant fees. -the lawyer is put in a situation that he must justify, there is a need for him to disclose all the work he has done for the benefit of the client. – he is justified in disclosing the client secret

Rule 21.02 - A lawyer shall not, to the disadvantage of his client, use information acquired in the course of employment, nor shall he use the same to his own advantage or that of a third person, unless the client with full knowledge of the circumstances consents thereto.

21.03 a lawyer shall not, without the written consent of his client, give information from his files to an outside agency seeking such information for auditing, statistical, bookkeeping, accounting, data processing or any similar purpose. EX: NBI agents went to the lawyer asking for files because they are investigation a client of his, with subpoena. -if the lawyer complies, he maybe found ethically liable

*If the NBI says, ―Sige na attorney, ok ra sa imo client. We have already talked to him.‖ So the lawyer call his client and confirm if he really consented. Client said YES, to give them all the files. The lawyer gives them the files. Q: Is the lawyer liable? A: YES. He needs a WRITTEN consent Case: the court cannot order an opening of lawyer’s cabinet seized by virtue of a valid search warrant, which cabinet contains files of his clients. Rule 21.04 - A lawyer may disclose the affairs of a client of the firm to partners or associates thereof unless prohibited by the client. 21.05 a lawyer shall adopt such measures as maybe required to prevent those whose services are utilized by him from disclosing or using confidences or secrets of the client it would be useless if the lawyer is very vigilant of client’s secret but his staffs are talking

about his client’s secrets outside the office.

This provision only tells the lawyer that it is their duty to carefully select, train, manage, supervise and control their employees to the end that the client’s secret is safeguarded.

21.06 a lawyer shall avoid discrete conversation about the client’s affair even with members of his family 21.07 a lawyer shall not reveal that he has been consulted about a particular case except to avoid possible conflict of interest lawyers are prevented from advertising who their clients are

if a law firm is advertising about their client, most probably, it has sought the consent of their client before advertising

22 - A LAWYER SHALL WITHDRAW HIS SERVICES ONLY FOR GOOD CAUSE AND UPON NOTICE APPROPRIATE IN THE CIRTUMSTANCES. Q: Can the lawyer withdraw as a counsel? A: YES. It must be with good cause and proper notice. Withdrawal by a Lawyer – 2 possible scenarios 1. with the consent of the client

there must be a consent of the client motion for withdrawal of counsel filed with the court and served upon the adverse

party 2. client does not consent

hearing for the motion of withdrawal as counsel

hearing is done after due notice to the client and the lawyer court would have to determine if the lawyer ought to be allowed to withdraw

*Right of the client to terminate counsel is absolute 22.01 – A lawyer may withdraw his services in any of the following cases: a) When the client pursues an illegal or immoral course of conduct in connection with the matter he is handling; b) When the client insists that the lawyer pursue conduct violative of these canons and rules; c) When his inability to work with co-counsel will not promote the best interest of the client; d) When the mental or physical condition of the lawyer renders it difficult for him to carry out the employment effectively; e) When the client deliberately fails to pay the fees for the services or fails to comply with the retainer agreement; f) When the lawyer is elected or appointed to public office; and g) Other similar cases. - JUST READ – these are the grounds for a lawyer to withdraw a counsel *it only says “MAY” – he may withdraw or he may not A&B – if the client insist in pursuing immoral, unlawful, unethical courses of action C – when his inability to work with co-counsel will not promote the best interest of the client

Say the client hired another lawyer para daghan mo and it turns out he hired your mortal enemy.

E – when the client DELIBERATELY fails to pay the fees -if d sya makabayad kay d jd sya kabayad – not a ground for withdrawal

F – when a lawyer is elected in public office

here we have to qualify: it refers to public office which allows the concurrent private practice of the law

o if the public office prohibits the practice of law, withdrawal of private practice is concurrent and not discretionary

o no choice but to withdraw from all his cases *The list is not exhaustive – G – “in any manner similar” when the client acts in a manner which tends to degrade his profession, cge lag pang chancing. *When it is apparent that the lawyer is required to be a witness of a substantial matter, then the lawyer can voluntarily withdraw the case. 22.02 A lawyer who withdraws or is discharged shall, subject to a retainer lien, immediately turn over all papers and property to which the client is entitled, and shall cooperate with his successor in the orderly transfer of the matter, including all information necessary for the proper handling of the matter.

we are talking of a lawyer who has been discharged or withdrawn as counsel and another lawyer takes over

What would the court do?

Name of the new lawyer shall be entered in the docket of the court in place of the former one.

Written notice of the change shall be given to the adverse party What is the duty of the lawyer being replaced?

To inform the court of such replacement

To ask that he be allowed to withdraw as counsel *shall immediately turn over all papers and property to which the client is entitled - subject to a retainer lien *cooperate to his successor of the transfer of the matter – UNDERSTANDABLE Q: Can the client hire additional counsel? A: YES. In Cannons of Professional Ethics, a client’s proffer of additional assistance should not be regarded as evidence of wanton confidence but the matter should be left on the discretion of the client. However, counsel may withdraw when his inability to work with co-counsel will not promote the best interest of the client -Attorney-Client relationship is purely personal. It is essentially contractual and there has to be contracting parties. Kung patay na ang contracting parties, patay na ang contract? *in the absence of a retainer from the heirs or authorized representative of his diseased client, the attorney would have no power or authority to appear or to take further action in the case save to inform the court to his client’s death and take the necessary steps to safeguard the decedent’s rights in the case -the lawyer cannot insist to the heirs that he should be the lawyer because he is the counsel of the diseased Q: What is the duty of the lawyer upon the death of the client? A: it is his duty to immediately inform the court of such event and to give the name and residents of the client’s executor, administrator, guardian or other legal representatives. -apil pd ang incapacity and incompetency, not just death ADMINISTRATIVE LIABILITES OF LAWYERS

Starts with the filing of a Verified Complaint (it is executed by somebody who has personal knowledge of the facts or the facts alleged can be verified by authentic records)

Who can file? – Any person or the Supreme Court Motu Proprio (at its own instance) or IBP Board of Governors Motu Proprio or upon referral of the Supreme Court by a Chapter Board of Officers, or at the instance of any person. – ANY PERSON RA NA!

- Right to practice law being just a privilege is burdened with conditions. - Courts have the

inherent power to adopt proper and adequate measures to preserve their integrity and render possible and facilitate the exercise of their functions. - Supreme Court has the full authority and power to warn, admonish, reprimand, suspend and disbar a lawyer.

Lawyer violates his obligations under perils of:

Disciplinary action/administrative action Criminal action Civil action/damage suit Contempt of court

Conditions for continued membership in good standing in the Bar:

Rigid standards of mental fitness

Maintenance of the highest degree of morality Faithful compliance with the rules of the legal profession

Different kinds of disciplinary actions:

1. Warning – act or fact of putting one on his guard against an impending danger, evil, consequences or penalties - a statement put forth to a lawyer, that any similar or other

infraction of ethical or other required conduct would be visited with a higher or more

serious penalty

2. Admonition – gentle or friendly reproof, mild rebuke, warning or reminder, counseling, on a fault, error or oversight, an expression of authoritative advice or

warning

3. Reprimand – more severe nature; a public and formal censure or sever reproof,

administered to a person in fault by his superior officer or a body to which he belongs

4. Fine – pecuniary punishment which courts impose against a miscreant lawyer; may

also be imposed in accord with criminal violations of the law

5. Suspension – temporary withholding of the lawyer’s privilege to practice his profession for a certain peri

od, or for an indefinite period of time - act of prohibiting a lawyer from practicing

law for a certain period; qualified disbarment - because the attorney is deprived

temporarily of the right to practice his profession;

6. Disbarment – act of Phil. Supreme Court in withdrawing from an attorney the privilege to practice law; name of the lawyer is to be stricken out from the Roll of Attorneys

7. Contempt

8. Imprisonment

Main objects of disbarment and suspension: 1. To compel the attorney to deal fairly and honestly with his clients

2. To remove from the profession a person whose misconduct has proved him unfit to be

entrusted with the duties and responsibilities belonging to an office of an attorney

3. To punish the lawyer although not so much as to safeguard the administration of justice

4. To set an example or a warning for the other members of the bar 5. To safeguard the administration of justice from incompetence and dishonesty of

lawyers 6. To protect the public

- A disbarred lawyer can take part in pro se practice. - No private interest is involved in

disbarment. - Power to discipline lawyers is judicial in nature.

Characteristics of disbarment proceeding / Nature of disciplinary action:

Sui generis - a class by itself Neither a civil nor a criminal proceeding Double jeopardy cannot be availed of in a disbarment proceeding against an

attorney It cannot be initiated motu proprio by the Supreme Court or by the IBP; it can be

initiated without a complaint

It can proceed regardless of interest or lack of interest of the complainants, if the facts proven so warrant

It is imprescriptible It is conducted confidentially being confidential in nature until its final

determination

It is itself due process of law Whatever has been decided in a disbarment case cannot be a source of right that may

be enforced in another action, like action for reconveyance and damages

In pari delicto rule is not applicable Purpose of disciplinary action:

Preserve the purity of the legal profession

Preserve the proper and honest administration of justice Grounds for suspension or disbarment of members of the bar:

1. Deceit – fraudulent and deceptive misrepresentation, artifice, or device, used by one

or more persons to deceive and trick another

2. Malpractice – any malfeasance or dereliction of duty committed by a lawyer; Gross

misconduct in office – any inexcusable, shameful or flagrant unlawful conduct on the part of the person concerned in the administration of justice which is prejudicial to the rights of the parties or the right determination of a cause, a conduct that is generally

motivated by a premeditated, obstinate or intentional purpose

3. Grossly immoral conduct – that conduct which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members

of the community * ―consenting adults‖ rule grossly immoral conduct is

largely circumstantial

4. Conviction of a crime involving moral turpitude – everything which is done

contrary to justice, modesty, or good morals

5. Violation of oath of office

6. Willful disobedience of any lawful order of a superior court – resistance or

defiance to the order of the Court must be willful

7. Corrupt or willful appearance as an attorney for a party to case without

authority to do so

* Is acquittal in a criminal case a bar to DA?

No. The standards of legal profession are not satisfied by conduct which merely enables one to escape the penalties of criminal law.

* Quantum of proof required:

Criminal case – needs proof beyond reasonable doubt Civil case – needs preponderance of evidence Administrative case – only needs substantial evidence

Disciplinary action not dismisses upon withdrawal by private complainant:

_ The power to discipline lawyers who are officers of the court may not be cut short by

compromise and withdrawal of charges. _ Disciplinary proceedings involve no private interest

and afford no redress for private grievance. They are undertaken and prosecuted solely for public welfare. _ However, if upon desistance, there is nothing more to substantiate the charge, then the case may be dismissed.

* May the pendency of criminal action suspend disbarment proceedings?

No. There are different quantums of proof. It is not sound judicial policy to await the outcome and final resolution of a criminal case before the court may act on a complaint for disbarment.

* Power to discipline – vested in all courts; judicial function; all courts can reprimand, warning, admonition, fine, contempt

* Only the SC, CA, and RTC: suspension; power of CA and RTC to suspend is subject to the review by the SC; until the SC has affirmed the suspension, it shall not take effect.

* Only the SC can disbar a lawyer.

SC trying Disciplinary Cases - court sits en banc à disbarment, suspension for more than 1 year, or a fine for more than P10000. Otherwise, they do it by division.

Direct contempt - Misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings before the same, including disrespect toward the court, offensive

personalities toward others, or refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required to do so.

Indirect contempt Misbehavior of an officer of a court in the performance of his official duties or in his

official transactions. Disobedience of or resistance to a lawful writ, process, order, or judgment of a court,

including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of

any court of competent jurisdiction, enters or attempts or induces another to enter into

or upon such real property, for the purpose of executing acts of ownership or

possession, or in any manner disturbs the possession given to the person adjudged to

be entitled thereto

Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under section 1 of this rule

Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice

Disciplinary Powers

Contempt Powers

Broader scope of behavior

Particular

Over lawyers only

Over any person

* Both may proceed simultaneously.

Disbarment and disciplinary proceedings:

Judicial in nature Presumption exists in favor of lawyer-respondent Quantum of proof: substantial evidence

Mitigating circumstances in disbarment:

Good faith in the acquisition of the property

Inexperience of the lawyer Age Res ipsa loquitor

Apology

JUDICIAL ETHICS Q: Is this important to the lawyers?

A: YES. The administration of justice is always a joint responsibility of the legal profession and the judiciary. -Lawyers must know the judicial standards to be exercised by judges. There relation must be based on mutual respect and a deep appreciation by one of the duties of the other. AM-03-05-01 – New Code of Judicial Conduct for the Philippine Judiciary Took effect on June 1, 2004 Q: Why did we promulgate a new code? Was the old code insufficient? A: To emphasize that we adhere to the Universal Declaration of Judicial Ethics. That we adhere to the Banggalor Draft (the instrument containing the UDJE, written by chief justices all over the world held at the Hague on Nov. 25-26, 2002) Q: What about our old code? Is it superseded? A: NO. The old code still remains; it is still a good law. Nothing in the new code said that it supersedes the old code. CANON 1 INDEPENDENCE Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects. SECTION 1. Judges shall exercise the judicial function independently on the basis of their assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influence, inducement, pressure, threat or interference, direct or indirect, from any quarter or for any reason. Independence is of 2 kinds:

Individual

Institutional *that a judge as an individual must be independent and the judiciary as an institution must likewise be independent. Both aspects of independence must be observed. Q: How do judges exercise independence? A: The should decide based on facts an law and nothing else. There decision must be free from any other factors. POSSIBLE SOURCES OF INFLUENCE:

Internal – how a judge as a person could affect his decision-making. E.g.: He could have biases, prejudices, preconceived notion

o There is an effect that the judge could be correct of what he is thinking but there is also the possibility that he is wrong.

o To be safe, the judge should only confine himself to the facts and law to the case and not allow his prejudices and biases to come into equation.

External – self-explanatory (bribery, etc) Rameriz Case A judge admitted that she rendered ruling based on directive from a government official. In her defense, she contended that it was a revolutionary government so she succumbs to the pressure. SC denounced the judge’s act as patent betrayal of public trust and revelation of weak moral character. Another Case The judge issued a warrant of arrest, and fixed the bail of the accused without the

required hearing. The reason was, outside his courtroom, a rally was conducted by the supporters of the complainant. SC said that there was unjust haste on the part of the judge. The Judge is expected to endeavor to intelligently ascertain the facts and applicable law, not persuaded by partisan or personal interest. S44EC. 2. In performing judicial duties, judges shall be independent from judicial colleagues in respect of decisions which the judge is obliged to make independently. -judges, because they work the same place and the share the same profession, they can become close friends. But regardless of camaraderie, judges should stay independent from their judicial peers. -the reality is, there are really judges asking favors from fellow judges and then being given a favor, there is the utang na luob to reciprocate in the future. *this is true even in collegiate courts (courts where the presiding justice is more than one – CA, Sandiganbayan, SC – by division or en banc) Q: How can they retain independence? A: YES. This is the reason why you read Dissenting Opinions – Separate Opinions – evidence that they did not agree to the pronouncement. SEC. 3. Judges shall refrain from influencing in any manner the outcome of litigation or dispute pending before another court or administrative agency. Q: There is this judge who wrote to NLRC Commissioners telling them that his wife’s allegations are untrue. In his defense the judge explained that he merely wanted the truth to come out, to prevail. Is he liable ethically? A: Regardless of the noble intention of the judge, his act of writing to NLRC is interference in the proceedings in the NLRC. Hence, it is unethical. *A judge is also a litigant in the case. He filed a pleading in his behalf. Ok ran a kay litigant man sya. But what made it wrong in this case is that in his annexes to the complaint, he put his oath of office as RTC judge, pictures of oath taking.

SC held that there is no purpose for the annexes. The only logical conclusion is that it was put there to send the message to the presiding judge that he is a judge and therefore he enjoy privilege or something. SEC. 4. Judges shall not allow family, social, or other relationships to influence judicial conduct or judgment. The prestige of judicial office shall not be used or lent to advance the private interests of others, nor convey or permit others to convey the impression that they are in a special position to influence the judge.

one of the dangers of being a judge. People close to the judge might peddle influence.

If you can’t go to the judge directly, go the people close to the judge. (eg. Wife, son, family) – nabaligya na d.i ka sa imo parente nga wa ka kahibaw.

*if the judge will not allow his relationships influence judicial conduct and he is able to get this message across, then the people around the judge will not peddle influence or minimize the influence. Family (under New Code of Judicial Conduct) – those related by blood or by marriage within the 6th civil degree, or companion to judge’s household. Q: How about live-in partner/ cohabiting without benefit of marriage? A: They are still considered family. ―companion to judge’s household” -yaya, employee, driver – IT’S A VERY BOARD DIFINITION RATIONALE: to acknowledged the Filipino Culture and Tradition that we tend to treat a lot of people as family. Although in reality, you are not related. SEC. 5. Judges shall not only be free from inappropriate connections with, and influence by, the executive and legislative branches of government, but must also appear to be free therefrom to a reasonable observer. -perception is very important -whether you proceeded correctly or not, it is immaterial because even the perception is already crucial -it’s very important to be observed but quiet difficult to be observed. Why? – It’s the Congress who gives the budget to the judiciary. And it is the president who appoints them -considering that the appointments, motions and movements of the judges are subject to executive approval and than the organization budget require legislative grace, JUDGES SHOULD STILL UPHOLD THEIR DUTY TO RENDER JUSTICE FREELY WITHOUT ANY OBLIGATION TO RECIPROCATE ANY BENEFICENCE THAT MIGHT HAVE BEEN BESTOWED UPON THEM BY 2 OTHER BRANCHES. EX: Judges receiving allowances from LGUs. Aside from their salary, they also receive from both city and province. -Judges might feel indebted to the provincial and city government. You file a case against city mayor and he win, one reasonable suspicions you might think is that ―nagdawat

man gd na si judge ug allowance.‖ – it is a reasonable suspicions but the SC acknowledges the legitimate and justifiable criticism against the practice but nonetheless, allows the practice. -“Let’s be realistic and practical, if we just depend on the budget of the judiciary, we can never give those amounts to the judges and justices. And those amounts are commensurate to their high station, impossible works given and occasional threats.” - SC SEC. 6. Judges shall be independent in relation to society in general and in relation to the particular parties to a dispute which he or she has to adjudicate. SEC. 7. Judges shall encourage and uphold safeguards for the discharge of judicial duties in order to maintain and enhance the institutional and operational independence of the judiciary. SEC. 8. Judges shall exhibit and promote high standards of judicial conduct in order to reinforce public confidence in the judiciary, which is fundamental to the maintenance of judicial independence. -just like lawyers, in conduct of private and public life, are subject to administrative action. Same thing for judges, conduct in and out of court should be beyond reproach. CANON 2 INTEGRITY Integrity is essential not only to the proper discharge of the judicial office but also to the personal demeanor of judges. SECTION 1. Judges shall ensure that not only is their conduct above reproach, but that it is perceived to be so in the view of a reasonable observer. -“perceived to be so in the view of a reasonable observer” – you will see thing phrase all throughout the code -appearance is very importance, it not enough that a judge actually have integrity, he must also have to appear to have integrity. -so even the appearance of not being integrity is already punishable -you can say that the judiciary is image conscious because the existence of the courts depend on public perception, public trust and confidence. -kung wa nay salig ang mga taw sa korte, pinusilay nalng diritso, magpinatyanay nlang instead of going to judicial forum Punishable acts: accepting bribe, going to casinos, racetracks A judge was spotted in the casino. His defense was: he was just accompanying his wife who enjoys playing in the casino. He did not even play. - SC said it is not a proper defense.

Q: Why are they not allowed to go to casino? A: People might think nga sugarol na nga judge. They would think that judge’s salary is not enough for his vice. -this is just perception. But perception, whether wrong or not, is not really the issue in the case. The fact that there is the appearance of lack of integrity. Ignorance of the Law -it is a mark of incompetence - it is also a mark of no integrity – when the law involve is so elementary, ignorance thereof if lack of integrity Why? - it’s either the judge too incompetent and undeserving of the title that he hold or he is too vicious that the oversight was deliberately done resulting to travesty of justice. Other examples: judges who misapply determinate sentence, imprisoning a person in civil case SEC. 2. The behavior and conduct of judges must reaffirm the people’s faith in the integrity of the judiciary. Justice must not merely be done but must also be seen to be done. EX: -2 Judges nagsinumbagay tungod lang sa office table -judge nga sige lang pangawat ug kiss sa iyang mga staff ―justice must not merely be done but must also be seen to be done.” -a good fair decision is not enough -the process by which the decision was made must also appear impartial -What good is a fair decision if during the trial of the case the judges seem to be biased? SEC. 3. Judges should take or initiate appropriate disciplinary measures against lawyers or court personnel for unprofessional conduct of which the judge may

have become aware. CANON 3 IMPARTIALITY -implies not only to the decision itself but also to the process by which the decision is made. Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made. SECTION 1. Judges shall perform their judicial duties without favor, bias or prejudice.

SEC. 2. Judges shall ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary. Extra-Judicial Source Rule – to sustain a claim of bias or prejudice, the result opinion or decision of the court must be based upon extra-judicial source that is of influence other than the facts and law presented in the courtroom. -THIS IS HOW YOU PROVE BIAS OR PREJUDICE -you must prove that the decision is from those not found in the law and facts presented in the court EX: A judge having lunch with the litigant. Kung ikaw ang pikas party, you might think nga wa na, giluto na ang kaso. -Standing as sponsor in a litigant’s wedding -Using the car of the litigant as a service vehicle -Undue interference in the cross-examination of witnesses -if the questions of the judge seize to be clarificatory in nature - mura nag nangabugado ang judge SEC. 3. Judges shall, so far as is reasonable, so conduct themselves as to minimize the occasions on which it will be necessary for them to be disqualified from hearing or deciding cases. EX: Case involving Municipal Circuit Trial Court judge. When you say Circuit, the judge is acting as judge in 3 or more municipalities. Aside from being a judge, he is also a real estate broker. He dealt with property which where located in his territorial jurisdiction as a judge. Consequence was, overtime, cases went to his court involving transactions which he has intervened as real estate agent. -this is a proper ground for proper disqualification of the judge because he has a personal knowledge of the disputed facts

But he cannot let go of the case because there is no other judge, siya ra man ang only judge didto. SC told the judge to regulate his business activities in a manner that will minimize the occasion that he has to disqualify himself from cases. Judge explain that he need the additional income to send his children to expensive colleges. – it’s a legitimate reason, kaysa mangurakot. SC said, ―while we commiserate with you, we have to remind you of the high price that should be paid in exchange of the position being a judge. And one of these prices is regulation of activities of judges to minimize the occasions that they will have be disqualified from hearing or deciding cases. -―so maka deal syag yuta, pero kanang layo nlang sa iyang territory.‖ SEC. 4. Judges shall not knowingly, while a proceeding is before or could come before them, make any comment that might reasonably be expected to affect the

outcome of such proceeding or impair the manifest fairness of the process. Nor shall judges make any comment in public or otherwise that might affect the fair trial of any person or issue. -so avoid comments that you have already prejudged the case, careful in public comments EX: Judge advises parties to plea bargain or to compromise. He side comments, he would advise ―accused, I advise you to plea bargain to a lesser offense kay the evidence of the prosecution does not seem to be strong and I’m sure, fiscal here will not oppose.‖ -the judge gives the appearance that he has already prejudged the case. -―defendant, e.settle nlang ni kay pildihunon na ka kay maau kaau ug evidence and complainant‖ SEC. 5. Judges shall disqualify themselves from participating in any proceedings in which they are unable to decide the matter impartially or in which it may appear to a reasonable observer that they are unable to decide the matter impartially. Such proceedings include, but are not limited to, instances where -this is one of the more common source of bar exam questions. It is also the more popular section with regard to cases file to judges -this involves disqualification of judges, take note: “the judges SHALL disqualify themselves” – MANDATORY -they have to other choice but to disqualify themselves (a) The judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings; EX: Judge is watching a basketball game, and he saw player A stab player B. Case was filed to the sala of the judge.

-Judge must disqualify himself because he has personal knowledge of the disputed evidentiary facts (b) The judge previously served as a lawyer or was a material witness in the matter in controversy; (c) The judge, or a member of his or her family, has an economic interest in the outcome of the matter in controversy; -economic interest also extends to members of the family of the judge (d) The judge served as executor, administrator, guardian, trustee or lawyer in the case or matter in controversy, or a former associate of the judge served as counsel during their association, or the judge or lawyer was a material witness therein; -he is in a peculiar position to know certain things, so he must disqualify

“or a former associate of the judge served as counsel during their association” -kung ang judge gikan ug Law Firm, YOU HAVE TO QUALIFY - it is only a ground for mandatory disqualification if the lawyer appearing before the judge is a former associate and that particular case is being handled by that associate during the time of their association -if it is totally a new case handled by the law firm, it is not a ground for mandatory disqualification (e) The judge’s ruling in a lower court is the subject of review; EX: Judge is appointed as CA justice. As CA justice, raffled to him is an appeal which he himself tend while he was still an RTC judge. (f) The judge is related by consanguinity or affinity to a party litigant within the sixth civil degree or to counsel within the fourth civil degree; or -6th Civil Degree – litigant and judge -4th Civil Degree – counsel and judge (g) The judge knows that his or her spouse or child has a financial interest, as heir, legatee, creditor, fiduciary, or otherwise, in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceedings; -Sec 5 is also mirror in the Rules of Court Sec 1, Rule 137 -1st paragraph is just the same with Sec. 5 Paragragh 2 A judge may, in the exercise of his sound discretion, disqualify himself from proceeding in a case for just and valid reasons other than those mentioned about -this refers to voluntary inhibition -on what ground? – the rule is so broad, it just says ―just and valid reasons” -It is strictly a matter of conscience, there is no rule. EX: The judge has utang na loob. Counsel before the judge was a member of the JVC and who, during his membership, recommended his appointment in the Judiciary. -Counsel is also the Judge’s counsel in a separate case -Cases handled by his law firm before he was a judge. In the mandatory inhibition, only those cases handled by associate during the period of their association. -The new cases could be a ground for voluntary disqualification. If the judge believes that he could be partial, then he could inhibit. -Although there is no rule in voluntary inhibition, the SC recognized that it could be abused. There are some cases can SC said that it is not a ground for voluntary inhibition

EX: - counsel has filed an administrative case against the judge -SC said, ―the consequences of a contrary rule is disastrous. If there’s a judge you do not like, simply file an administrative case against him and then he will be out of your case, you can get rid of the judges by mere filing of administrative case.‖ -mere friendship of the judge and party litigant or the lawyer -SC said, ―Judges are not expected to be hermits. They are, of course, people entitled to have friends and it is not even inconceivable that their friends will be within the legal circle. So they will have lawyer friends and if friendship is a round for inhibition, the rule will be abused.‖ -counsel was a classmate of the judge Disadvantage of the Rule on Voluntary Inhibition

It can be used by the judge to extricate himself from a case

Lawyers might use it to extricate a judge Rely on the Guidance of the Supreme Court

Mere suspicion is not enough, there should be hard evidence to prove it as well as manifest showing of bias and partiality

Issuance of erroneous orders that pertain to the judge’s judicial functions may not be proper consideration to charge the judge bias except where the orders taken, not singly but collectively, show that the judge has lost the full neutrality of an impartiality.

o You cannot just presume bias and prejudice. SEC. 6. A judge disqualified as stated above may, instead of withdrawing from the proceeding, disclose on the records the basis of disqualification. If, based on such disclosure, the parties and lawyers, independently of the judge’s participation, all agree in writing that the reason for the inhibition is immaterial or unsubstantial,

the 51judge may then participate in the proceeding. The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceedings. -contemplates that there is a ground for mandatory disqualification -but this section provides exception -it is therefore possible that not withstanding a ground for mandatory disqualification, a judge can still continue in trying, hearing and ultimately deciding the case REQUISITES FOR REMITTAL FOR DISQUALIFICATION: Remittal – waiver of judges disqualification

Parties and their lawyers agree independently on the judges participation to waive the mandatory disqualification

o Judge may give time for the parties to decide They agree that the reason for disqualification is immaterial or unsubstantial

The agreement is reduced into writing, signed by all parties and lawyers and entered upon the records of the case.

CANON 4 PROPRIETY Propriety and the appearance of propriety are essential to the performance of all the activities of a judge. SECTION 1. Judges shall avoid impropriety and the appearance of impropriety in

all of their activities. EX: There are photos of a judge and a subordinate going out of the hotel. The judge said, this prove nothing, this just said that we went to the hotel. SC said that it really proves nothing in whatever you did inside the hotel but the pictures are already sufficient to give the appearance of impropriety. -Judge heard a motion while on vacation in his room wearing just a polo and jacket. – improper SEC. 2. As a subject of constant public scrutiny, judges must accept personal restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. In particular, judges shall conduct themselves in a way that is consistent with the dignity of the judicial office. -just like earlier examples: they cannot go to casinos, etc -so many restriction but judges must accept this restrictions EX: So you are a kind who enjoys getting drunk at parties, kung ma judge na ka pwede gihapon ka mahubog pero not in public places. -We have a judge who confronted her former boyfriend and the latter’s female companion in a restaurant. Nagselos si judge, nag skandalo. Taken from the old code (no slide, not read by atty) Q: We are talking about regulating activities. What particularly should be the restrictions? A: Judges can also have extra curricular activities. Those are possible extra-judicial activities. Q: How should Judges Regulate? 1. Vocational, Civil and Charitable Activities - judges can write, lecture, teach, speak on non-legal subject. Let’s say that the judge is also a good chief. He can also have cooking lessons on weekends. *He can also engage is sports activities Q: Can a judge be director, trustee, non-legal advisor?

A: YES. In non-profit, non-political, educational, religious, fraternal civil organizations only. But all his Vocational, Civil and Charitable activities must not conflict or degrade judicial functions. 2. Can engage in Recreational Activities Q: What if his Recreational Activity is modeling? A: Qualify. He can - It must not conflict or degrade his judicial function. Let’s say gymnast sya then ganahan sya mu attend anang circus. Kaon syag kayo, alambre. Can he do that? It could degrade his judicial function. LISURA NA GURO SA KINABUHI RN OI. Financial Activities – Can a judge enter into business transactions? – YES, but he must refrain from dealings that will affect partiality or fear of performance of judicial functions or increase involvement with lawyers or persons likely to come before the court. -Judge want to open a business. 3 options: Parlor; Bookstore; Charity bonds in the Court -Which should he avoid? – 3rd one, it increasing the likely for lawyers to come into his court Q: Is there an exception for a lawyer to be an adviser, manager of a profit organization or business? A: YES. But, it must be just a DIRECTOR OF A FAMILY BUSINESS. Fiduciary Activities – Q: can a judge be an executor of an estate, trustee or guardian? A: YES. But only to the immediate family. Immediate Family – Spouse and Relative within 2nd Civil Degree of Consanguinity -and only when such services would not interfere with the proper performance of judicial duties. Let’s say the judges wife died and the judges is deem executor of the will of his wife. But the estate is so massive, so many things to manage as an executor with the effect that it will demand all his time for a long time. -He may not be qualified. Why? A: Because the service will interfere with proper performance of judicial duties. Practice of law – no private practice of law Q: What about other professions? A: YES. Provided it will not conflict with judicial functions. You have teachers who are judges. Teaching is allowed as another profession. *MTC Judge as notary public, is this allowed? – Under the Rules on Notarial Practice, only is localities in where there are no lawyers.

Non-Judicial Appointments – cannot accept appointments or designation to any agency performing quasi-judicial court or administrative functions. In Re: Judge Manzano The SC did not allow the judge’s membership in the Ilocos Norte provincial committee on justice which was an administrative entity. Political Activities – Judge should not make political speeches contribute to funds, publicly indorse candidates for political office or participate in other partisan activities “Let’s go back to the new code” SEC. 3. Judges shall, in their personal relations with individual members of the legal profession who practice regularly in their court, avoid situations which might reasonably give rise to the suspicion or appearance of favoritism or partiality. EX: the judge has coffee with sangunian members who appear before his sala. He seems playing favorites. SEC. 4. Judges shall not participate in the determination of a case in which any member of their family represents a litigant or is associated in any manner with the case. -correlate this to mandatory grounds for disqualification SEC. 5. Judges shall not allow the use of their residence by a member of the legal profession to receive clients of the latter or of other members of the legal profession. -judges’ house should not be a law office SEC. 6. Judges, like any other citizen, are entitled to freedom of expression, belief,

association and assembly, but in exercising such rights, they shall always conduct themselves in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary. -in exercising these rights, the must be very careful, they must be very prudent in exercising these rghts EX: A judge is a very good literary writer. In one of his orders, he says, ―Respondent is a self ordained public tyrant with a contaminated mind and assuming the position of a crocodile‖ – this may come form the adverse party but not from the judge which is supposed to be subjective and based only on facts and law. SEC. 7. Judges shall inform themselves about their personal fiduciary and financial interests and shall make reasonable efforts to be informed about the financial interests of members of their family. -SAL-N

SEC. 8. Judges shall not use or lend the prestige of the judicial office to advance their private interests, or those of a member of their family or of anyone else, nor shall they convey or permit others to convey the impression that anyone is in a special position improperly to influence them in the performance of judicial duties. -do not use the judicial office and do not allow others to use judicial office EX: Judge has a case of estafa. He filed the case in his own sala and issued a warrant of arrest against the accused. -Judge is the owner of the restaurant. And you see in the bulletin in his courtroom advertisement, ―Wanted Waiter and Waitresses.‖ He also conducted interview of applicants in his office. SEC. 9. Confidential information acquired by judges in their judicial capacity shall not be used or disclosed for any other purpose not related to their judicial duties. 55EC. 10. Subject to the proper performance of judicial duties, judges may -naa nay leaking decisions before the decision is promulgated by the court, naa nay copy ang parties. (a) Write, lecture, teach and participate in activities concerning the law, the legal system, the administration of justice or related matters; (b) Appear at a public hearing before an official body concerned with matters relating to the law, the legal system, the administration of justice or related matters; (c) Engage in other activities if such activities do not detract from the dignity of the judicial office or otherwise interfere with the performance of judicial duties. SEC. 11. Judges shall not practice law whilst the holder of judicial office.

SEC. 12. Judges may form or join associations of judges or participate in other organizations representing the interests of judges. SEC. 13. Judges and members of their families shall neither ask for, nor accept, any gift, bequest, loan or favor in relation to anything done or to be done or omitted to be done by him or her in connection with the performance of judicial duties. SEC. 14. Judges shall not knowingly permit court staff or others subject to their influence, direction or authority, to ask for, or accept, any gift, bequest, loan or favor in relation to anything done or to be done or omitted to be done in connection with their duties or functions. 13 and 14 – related to section of Bribery

SEC. 15. Subject to law and to any legal requirements of public disclosure, judges may receive a token gift, award or benefit as appropriate to the occasion on which it is made, provided that such gift, award or benefit might not reasonably be perceived as intended to influence the judge in the performance of judicial duties or otherwise give rise to an appearance of partiality. -not all gifts are prohibited Q: What could be acceptable gifts? A: Giving of certificate as a speaker in an activity. - as long as the gift is appropriate and seen as not intended to influence the judge CANON 5 EQUALITY Ensuring equality of treatment to all before the courts is essential to the due performance of the judicial office. SECTION 1. Judges shall be aware of, and understand, diversity in society and differences arising from various sources, including but not limited to race, color, sex, religion, national origin, caste, disability, age, marital status, sexual orientation, social and economic status and other like causes. -telling judges to be aware and to understand diversity and differences arising from various sources. And if there is a legitimate ground to differentiate, then by all means you differ the treatment. -what is prohibited is the prohibition on improper and irrelevant grounds GR: EQUAL. But: Q: Is there always equal treatment? – NO! because there are also valid reasons to differentiate

Differentiation on the basis of Sex Q: Should sex matter on the prohibition on exercise to vote, education, practice of profession? A: NO. There is no proper ground. Exercise of Paternity and Maternity Leave Q: Would there be a proper ground to differentiate? A: They have different dates (M-60 days, P-7days). This is obviously unequal treatment but it is proper because there is legitimate ground for differentiation. Differentiation on the basis of Religion -You cannot compel Muslims to eat anything Q: Can you compel all court employees to attend flag raising and lowering ceremonies? A: NO. Jehovah’s witnesses are exempted.

Differentiation on the basis of Age Juvenile Justice – makes in hard to imprison minors Senior Citizens Act Differentiation on the basis of Disability Magnacarta Act of Disabled Persons Q: Can a body-size be a cause for determination of a case? In a case, it involves a 400 pound flight attendant. She was terminated. The termination is valid because PAL has given so many occasions to trim down and even gave the employee all the support. SC said, ―flight safety is crucial in the airline business, cabin attendant must maintain agility at all times. Passenger safety goes to the core of the job, on board an aircraft the body weight or size of an attendant is an important factor to consider in cases of emergency. Aircraft have conscripted cabin and narrow aisles. The biggest problem with a over-weight necessarily impedes stability. In an emergency situations, seconds are what attendants are dealing with. 3 lost seconds can translate into 3 lost lives. Evacuation might slow down just because a wide body… ‖ Sec 1 tells Judges to not be naïve and presume that everyone should be treated equal because there are legitimate causes for diversity SEC. 2. Judges shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice towards any person or group on irrelevant grounds. SEC. 3. Judges shall carry out judicial duties with appropriate consideration for all persons, such as the parties, witnesses, lawyers, court staff and judicial colleagues, without differentiation on any irrelevant ground, immaterial to the proper performance of such duties.

-treat everyone fairly unless there is material ground to differentiate Instances where you could give different treatment: -Child Witnesses Q: Are child witnesses treated equally to adult witnesses? A: YES, because of their tender age. In family court, there is a TV monitor for? The child witness to be examined in the chambers of the judge and not in open court. The accused has the right to confront the witnesses against him. He is not denied of this right just because the child is in the other chamber, through that TV monitor, he can cross-examine that child. -this is in the consideration of the child being a child. Naay uban mga bata nga makakita lang sa nawng sa accused, muhilak nlang. GR: Leading questions are questionable – not allowed EXC: if the witness is a child

S58EC. 4. Judges shall not knowingly permit court staff or others subject to his or her influence, direction or control to differentiate between persons concerned, in a matter before the judge, on any irrelevant ground. SEC. 5. Judges shall require lawyers in proceedings before the court to refrain from manifesting, by words or conduct, bias or prejudice based on irrelevant grounds, except such as are legally relevant to an issue in proceedings and may be the subject of legitimate advocacy. CANON 6 COMPETENCE AND DILIGENCE Competence and diligence are prerequisites to the due performance of judicial office. SECTION 1. The judicial duties of a judge take precedence over all other activities. -Remember the extra judicial activities of the judges. They can have sports, cultural, financial, fiduciary -However, section 1 tells that judicial duties should be the PRIORITY SEC. 2. Judges shall devote their professional activity to judicial duties, which include not only the performance of judicial functions and responsibilities in court and the making of decisions, but also other tasks relevant to the judicial office or the court’s operations. - this tells us that the judges’ job is not only to adjudicate (to hear and decide cases) - they also have administrative functions Q: In what way are they administrators? A: In there own courts. They are the boss in their court. As the boss, they should have efficient case filing and case keeping. They should know how to manage train court

personnel. If you can see court employees always late, very rude, - it court reflect adversely on the judge’s administrative capabilities. EX: -Some cases, judges are liable for lost records of cases. They said it is their clerk’s fault and not theirs. This is not an excuse because they are administrators of their own courts – they have command responsibility EX: Court employee committed suicide using the pistol in the evidence of one case. Judge was dismissed. Aside form failure to explain how that employee got hold of the evidence, he also did not cooperate with the NBI in the investigation of the case. He did not turn over the firearm for investigation. SEC. 3. Judges shall take reasonable steps to maintain and enhance their knowledge, skills and personal qualities necessary for the proper performance of

judicial duties, taking advantage for this purpose of the training and other facilities which should be made available, under judicial control, to judges. -just like lawyers, it is a never ending study Q: are they compelled to attend MCLE? A: NO. They are exempted under Bar Matter. It does not mean however that they do not have their own version of MCLE. They do under Philippine Judicial Academy. It is also mandatory for them. *Judges should not allow their personal beliefs and convictions prevail over jurisprudence EX: Judge render decisions pursuant to directives of dwarves. He also had healing sessions. Some days of the week, he changes the color of robs to recharge his psychic powers Dismissed. SC said paranormal, supernatural beliefs have no place in the judicial system. They should decide on facts of law. EX: You are a devote Catholic, strong belief of preservation of marriage. If the case before you involves annulment of marriage or declaration of nullity, the law should prevail over his beliefs. -But if lisud jd kaau para sa judge, in his decision he should share or make known his personal opinion, but e grant jd nimo ang nullity as the case maybe. *A judge is not discipline for mere error, to be liable such error must constitute gross ignorance of the law, bad faith, dishonesty, hatred or some other motive -Sayop lang jd iyang decision, it is not a ground for administrative liability. -If we do not have this doctrine walay mag judge, they are human and they commit mistakes REMEDY: motion to appeal, reconsideration, certiorari or what ever applicable mode for review that is there, but not administrative liability SEC. 4. Judges shall keep themselves informed about relevant developments of

international law, including international conventions and other instruments establishing human rights norms. -They should study International law because under the constitution, International Law is part of the law of the land SEC. 5. Judges shall perform all judicial duties, including the delivery of reserved decisions, efficiently, fairly and with reasonable promptness. *Justice delayed is justice denied. -What good is a fair decisions if patay na ang party? -This includes the utilization of pre-trial and discovery of procedures as well as alternative modes of settling the case -We are talking about Promptness

Q: What are the time frame within which the court could render decisions? A: SC – 2years; CA – 6month; Lower Court – 3months -reckoned from the date the case is submitted for -Excuses for delay is not given credits:

Clogged dockets – if this is an excuse, then everyone will just invoke this Delay in the transcription of stenographic notes – that’s why some judge makes

his own notes, they are not allowed to rely on the stenographic notes -Character of decisions – should express clearly and distinctly the facts and laws on which they are based -To show that judge fully understood the case, to contribute to the precedent in the growth of the law. SEC. 6. Judges shall maintain order and decorum in all proceedings before the court and be patient, dignified and courteous in relation to litigants, witnesses, lawyers and others with whom the judge deals in an official capacity. Judges shall require similar conduct of legal representatives, court staff and others subject to their influence, direction or control. -he should maintain decorum but in doing so, he should not resort to violent means like using firearms, compelling witness to swallow the chewing gum SEC. 7. Judges shall not engage in conduct incompatible with the diligent discharge of judicial duties. 60 EX: -holding hearings only on Mondays-Wednesdays, then going home the rest of week (home: Paranaque; Court Balanga Bataan)

-Wednesday declared as "midweek pause" DEFINITIONS In this Code, unless the context otherwise permits or requires, the following meanings shall be attributed to the words used: “Court staff” includes the personal staff of the judge including law clerks. “Judge” means any person exercising judicial power, however designated. “Judge’s family” includes a judge’s spouse, son, daughter, son-in-law, daughterinlaw, and any other relative by consanguinity or affinity within the sixth

civil degree, or person who is a companion or employee of the judge and who lives in the judge’s household. ADMINISTRATIVE LIABILITY OF JUDGES (Rule 140 of Rules of Court) SERIOUS CHARGE Sec. 8 1. Bribery, direct or indirect; 2. Dishonesty and violations of the Anti-Graft and Corrupt Practices Law (R.A. No. 3019); 3. Gross misconduct constituting violations of the Code of Judicial Conduct; 4. Knowingly rendering an unjust judgment or order as determined by a competent court in an appropriate proceeding; 5. Conviction of a crime involving moral turpitude; 6. Willful failure to pay a just debt: 7. Borrowing money or property from lawyers and litigants in a case pending before the court; 8. Immorality; 9. Gross ignorance of the law or procedure; 10. Partisan political activities; and 11.Alcoholism and/or vicious habits. EX: Misappropriation of cash bail bond, Decision not personally prepared by the judge, Immorality, Voyeurism – GRAVE MISCONDUCT *Serious Charge speaks of Grave Misconduct Grave Misconduct – witty, momentous and not trifling, there must be a reliable evidence showing that the judicial complained of were corrupt or inspired and intention to violate the law or were in persistent disregard of well known legal rules

*Kung dli sya grave, misconduct lang? – not a serious charge but less serious charge Gross inefficiency/Gross ignorance of the law EX: lost case records and exhibits -judge issued a warrant of arrest in a civil case -misapplication of indeterminate sentence law -granting bail for non-bailable case -malum prohibitum but the judge looks for malice LESS SERIOUS CHARGE 1. Undue delay in rendering a decision or order, or in transmitting the records of a case; EHSTcC 2. Frequent and unjustified absences without leave or habitual tardiness; 3. Unauthorized practice of law; 4. Violation of Supreme Court rules, directives, and circulars;

5. Receiving additional or double compensation unless specifically authorized by law; 6. Untruthful statements in the certificate of service; and 7. Simple Misconduct. LIGHT CHARGES 1. Vulgar and unbecoming conduct; -Judge sleeping while hearing 2. Gambling in public; 3. Fraternizing with lawyers and litigants with pending case/cases in his court; and 4. Undue delay in the submission of monthly reports. SANCTIONS A. If the respondent is guilty of a serious charge, any of the following sanctions may be imposed: 1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations. Provided, however, that the forfeiture of benefits shall in no case include accrued leave credits; 2. Suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months: or 3. A fine of more than P20,000 00 but not exceeding P40,000.00. B. If the respondent is guilty of a less serious charge, any of the following sanctions shall be imposed: 1. Suspension from office without salary and other benefits for not less than one (1) nor more than three (3) months; or SDEHCc 2. A fine of more than P10,000.00 but not exceeding P20,000.00. C. If the respondent is guilty of a light charge, any of the following sanctions shall

be imposed: 1. A fine of not less than P1,000.00 but not exceeding P10,000.00 and/or 2. Censure; 3. Reprimand; 4. Admonition with warning. Confidentiality of proceedings.—Proceedings against Judges of regular and special courts and Justices of the Court of Appeals and the Sandiganbayan shall be private and confidential, but a copy of the decision or resolution of the Court shall be attached to the record of the respondent in the Office of the Court Administrator. -Proceedings are confidential – only the decision is made public Quantum of proof: Substantial Evidence Burden of proof: on the complainant

Quantum of proof/ Burden of proof In administrative proceedings, the quantum of proof required to establish a respondent’s malfeansance is not proof beyond reasonable doubt but substantial evidence, i.e, that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion is required. More importantly in administrative proceedings, the complainant has the burden of proving by substantial evidence to the contrary, the presumption that the respondent regularly performed his duties will prevail. Indeed, if a respondent judge or a court employee should be disciplined for a grave offense, the evidence against him should be competent and derived from direct knowledge. Charges based on mere suspicion and speculation cannot be given credence.‖(Planas vs Judges Reyes, A.M. No. RTJ-05-1905, February 23, 2005) RES IPSA LOQUITUR (action speaks for itself) – the court may impose his authority upon judges whose actuations are on their face would show gross incompetence, ignorance of the law or misconduct. Circular of Res Ipsa Loquitur – all judges are reminded that the SC has applied Res Ipsa Loquitur rule in the removal of judges even WITHOUT any formal investigation whenever a decision, on its face, indicates gross incompetence or gross ignorance of the law or gross misconduct -this is from the Supreme Court so this is valid Effect on Disbarment - On MTC, RTC, Sandiganbayan, CTA, CA Justices- removed from judiciary; membership in the bar is an essential qualification - On SC Justices- cannot be removed via Disbarment proceedings. A contrary rule would allow an indirect violation of the Constitutional provisions that SC Justices are removable only by impeachment. Q: Can judges be removed by disbarment?

A: YES. They are all lawyers, if you disbar them, they loses the most essential requisite for being a judge. EXCEPT: for SC Justices, they are removable only through IMPEACHMENT AUTOMATIC CONVERSION -Applies to CA, SB justices, Regular and Special Courts Judges, Court Officials who are lawyers. – the administrative case against the judge shall also be considered a disciplinary action against the judge as a member of the bar. The respondent might be required to forthwith comment in the complaint and show cause why he should also be suspended, disbarred or otherwise disciplinary sanction as a member of the bar. -judgment in both respects may be incorporation in one decision or resolution There are some administrative charges that can be used against the judge as a judge or against as a lawyer.

EX: gross immorality, gross incompetence, against moral turpitude – it is administrative charge against a judge; pwede pd magamit against him as a lawyer *Simply put that when there is Automatic Conversion, it’s like a two in one proceeding. You have one proceedings but the SC want to determine the liability of the judge as a judge and as a lawyer. -so it is just to require the judge to show cause why he should not be disciplined *The resulting decision will resolve both aspects. -it’s possible that in one decision, a judge is removed from the judiciary and also disbarred -or removed from the judiciary and suspended as a lawyer -one decision for two aspects CRIMINAL LIABILITY OF JUDGES -Knowingly rendering unjust justice -Judgment rendered through negligence -knowingly rendering an unjust interlocutory order or decree -malicious delay in the administration of justice CIVIL LIABILITY OF JUDGES Arts. 19, 20, 27, 32 New Civil Code *There are also instances that the judge is acquitted but found administratively guilty Art. 1491 Lawyers cannot acquire property pending litigation. -same thing for the judge

Art. 1739 Donations to a judge, his spouse, descendants, ascendants by reason of his office are void -contrary to law Complainant withdraw the administrative complaint Q: What is the effect on administrative case? A: No effect, the administrative case proceeds. To condition the administrative actions upon the will of the complainant who may condone a detestable act is to strip the SC of its supervisory power to discipline members of the judiciary. Administrative cases will not concern itself with private interests Q: What if the complainant dies?

A: The administrative case proceeds. Because the complainant is treated only as a witness but not really a party to the case. EFFECT OF SEPARATION OR RETIREMENT OF RESPONDENT JUDGE -the subsequent retirement of the judge or any judicial offer from the service does not preclude the finding of any administrative liability to which is answerable Q: What if the judge is separated/retired from the government? Is it moot and academic? Can you still suspend him? Can you still remove him? A: NO. There are still applicable penalties like fine or forfeiture or retirement benefit, disqualification of holding government office EFFECT OF DEATH OF RESPONDENT JUDGE -death of the respondent in an administrative case, as a rule, does not preclude a findings of administrative liability. Q: What if not retired, patay na jd? A: Still not moot and academic. You can still withhold retirement benefits. -if the judge is innocent, he deserves that his name be made clean even in death -if guilty and there is still imposable penalty then impose that penalty EXCEPTIONS TO MOOT AND ACADEMIC:

When the respondent is not been heard and the continuation of the case would deny him of due process

o There must be the right to be heard and set his defenses EX: Judge receives the complaint, he reads it, gi ataki patay on the spot. He was not able to ventilate his defenses. The case should not be continued. Otherwise, it would be contrary to due process

Humanitarian consideration

When the penalty imposed or imposable would render the proceedings useless MITIGATING CIRCUMSTANCES

the complaint acts committed prior to his admission to judiciary – he was still a lawyer health old age (can also be aggravating)

lack of stenographer 1st offense long and exemplary service acknowledgement of fault (remorse and apologize)