University of Santo Tomas Faculty of Civil Law
LEGAL ETHICS Pre-week Notes 2017 ACADEMICS COMMITTEE SECRETARY GENERAL: CAMILLE ANGELICA B. GONZALES EXECUTIVE COMMITTEE: EMNIE VALERIE B. DURAN, IRVIN L. PALANCA, MARIELLA A. MARASIGAN, LARA NICOLE T. GONZALES
LEGAL ETHICS COMMITTEE COMMITTEE HEAD: STEFFI NICOLE P. FLORES MEMBERS : FLORRENCE FAYE S. FRANCO AND NEIL L. NABUAB
ATTY . AL CONRAD B. ESPALDON ADVISERS
UST LAW PRE-WEEK LAW PRE-WEEK NOTES 2017 LEGAL ETHICS
only to those who measure up to certain rigid standards of mental and moral fitness. While the practice of law is not a right but a privilege, the Court will not unwarrantedly withhold this privilege from individuals who have shown mental fitness and moral fiber to withstand the rigors of the profession (In Re: Petition to sign in the Roll of Attorneys Michael Medado, B.M. No. 2540, September 24, 2013).
PRACTICE OF LAW Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training, and experience The following acts constitute practice of law: a. b. c.
d.
Giving of advice or rendering any kind of service that involves legal knowledge. Appearance in court and conduct of cases in court. Preparation of pleadings and other papers incident to actions as well as drawing of deeds and instruments of conveyance. Notarial acts
QUALIFICATIONS Requirements for admission to the Bar Under Sections 2, 5 and 6 of Rule 138, the applicant must be [C21-GRENAPOS]: [C21-GRENAPOS]: 1. 2. 3. 4. 5.
Citizen of the Philippines; Philippines; At least 21years 21years of age; Of Good moral character; Resident of the Philippines; Philippines; Must produce before the SC satisfactory Evidence of good moral character; 6. No charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines P hilippines (Sec. 2, Rule 138, RRC) 7. Must have complied with the Academic Academic requirements; 8. Must Pass the bar examinations; 9. Take the lawyer’s Oath 10. Sign the Roll of Attorneys.
Essential criteria in determining whether a person is engaged in the practice of law [CAHA] C ompensation ompensation – implies that one must have presented himself to be in active practice and that his professional services are available to the public for compensation, as a source of livelihood or in consideration of his said services. 2. Application Application of law, legal principle, practice or procedure which calls for legal knowledge, training and experience; 3. Habituality – implies customary or habitually holding oneself out to the public as a lawyer. Practice of law is more than an isolated appearance for it consists in frequent or customary action; and 4. Attorney-Client Attorney-Client relationship - engaging in the practice of law presupposes the existence of a lawyer-client relationship. Ten (10) years of practice of law includes work as a litigator, inhouse counsel, giving of legal advice, teaching of law, and even foreign assignment which requires the knowledge and application of the laws. 1.
Passing the Bar examination is not sufficient for admission of a person to the Philippine Bar. He still has to take the oath of office office and sign the as prerequisites to admission. Attorney’s Roll as Atty. Candido commented commented in a newspaper that the decision of Court of Appeals was influenced by a powerful relative of the prevailing party. The appellate court found him guilty of indirect contempt. Does this involve moral turpitude? (2010 Bar)
NOTE: NOTE: A lawyer who is a detention prisoner is not allowed to practice his profession as a necessary consequence of his status as a detention prisoner. (People v. Maceda, G.R. Nos. 89591-96, January 24, 2000).
No, the published comment does not constitute moral turpitude although contemptuous. Moral turpitude has been defined as everything which is done contrary to justice, modesty, or good morals, an act of baseness, vileness or depravity in the private and social duties which a man owes his fellowmen.
Nature of the Practice of Law
Law Student Practice Rule
It is not a right granted to t o anyone who demands it but Lawyers without Persons not lawyers authority Constitutes May be punished for malpractice and malpractice and contempt of court violation of the lawyer’s oath, for which he may be suspended or disbarred a privilege to be extended or withheld in the exercise of sound judicial discretion. It is a privilege accorded
The appearance of the law student authorized by this rule shall be under the direct supervision and control of a member of the Integrated Bar of the Philippines duly accredited by the law school. Any and all pleadings, motions, briefs, memoranda or other papers to be filed, must be signed by the supervising attorney for and in behalf of the legal clinic.
Bong Tupak, a second year law student, was charged in the RTC for Forcible Abduction with
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UST LAW PRE-WEEK LAW PRE-WEEK NOTES 2017 LEGAL ETHICS
only to those who measure up to certain rigid standards of mental and moral fitness. While the practice of law is not a right but a privilege, the Court will not unwarrantedly withhold this privilege from individuals who have shown mental fitness and moral fiber to withstand the rigors of the profession (In Re: Petition to sign in the Roll of Attorneys Michael Medado, B.M. No. 2540, September 24, 2013).
PRACTICE OF LAW Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training, and experience The following acts constitute practice of law: a. b. c.
d.
Giving of advice or rendering any kind of service that involves legal knowledge. Appearance in court and conduct of cases in court. Preparation of pleadings and other papers incident to actions as well as drawing of deeds and instruments of conveyance. Notarial acts
QUALIFICATIONS Requirements for admission to the Bar Under Sections 2, 5 and 6 of Rule 138, the applicant must be [C21-GRENAPOS]: [C21-GRENAPOS]: 1. 2. 3. 4. 5.
Citizen of the Philippines; Philippines; At least 21years 21years of age; Of Good moral character; Resident of the Philippines; Philippines; Must produce before the SC satisfactory Evidence of good moral character; 6. No charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines P hilippines (Sec. 2, Rule 138, RRC) 7. Must have complied with the Academic Academic requirements; 8. Must Pass the bar examinations; 9. Take the lawyer’s Oath 10. Sign the Roll of Attorneys.
Essential criteria in determining whether a person is engaged in the practice of law [CAHA] C ompensation ompensation – implies that one must have presented himself to be in active practice and that his professional services are available to the public for compensation, as a source of livelihood or in consideration of his said services. 2. Application Application of law, legal principle, practice or procedure which calls for legal knowledge, training and experience; 3. Habituality – implies customary or habitually holding oneself out to the public as a lawyer. Practice of law is more than an isolated appearance for it consists in frequent or customary action; and 4. Attorney-Client Attorney-Client relationship - engaging in the practice of law presupposes the existence of a lawyer-client relationship. Ten (10) years of practice of law includes work as a litigator, inhouse counsel, giving of legal advice, teaching of law, and even foreign assignment which requires the knowledge and application of the laws. 1.
Passing the Bar examination is not sufficient for admission of a person to the Philippine Bar. He still has to take the oath of office office and sign the as prerequisites to admission. Attorney’s Roll as Atty. Candido commented commented in a newspaper that the decision of Court of Appeals was influenced by a powerful relative of the prevailing party. The appellate court found him guilty of indirect contempt. Does this involve moral turpitude? (2010 Bar)
NOTE: NOTE: A lawyer who is a detention prisoner is not allowed to practice his profession as a necessary consequence of his status as a detention prisoner. (People v. Maceda, G.R. Nos. 89591-96, January 24, 2000).
No, the published comment does not constitute moral turpitude although contemptuous. Moral turpitude has been defined as everything which is done contrary to justice, modesty, or good morals, an act of baseness, vileness or depravity in the private and social duties which a man owes his fellowmen.
Nature of the Practice of Law
Law Student Practice Rule
It is not a right granted to t o anyone who demands it but Lawyers without Persons not lawyers authority Constitutes May be punished for malpractice and malpractice and contempt of court violation of the lawyer’s oath, for which he may be suspended or disbarred a privilege to be extended or withheld in the exercise of sound judicial discretion. It is a privilege accorded
The appearance of the law student authorized by this rule shall be under the direct supervision and control of a member of the Integrated Bar of the Philippines duly accredited by the law school. Any and all pleadings, motions, briefs, memoranda or other papers to be filed, must be signed by the supervising attorney for and in behalf of the legal clinic.
Bong Tupak, a second year law student, was charged in the RTC for Forcible Abduction with
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LEGAL ETHICS Rape. Having knowledge of criminal law ad procedure, he dismissed the counsel de oficio assigned and appeared for himself. He asserted that there was lack of force. Eventually, the RTC found him guilty of consented abduction and imposed the penalty. Bong Tupak now assails the decision, saying that there was violation of due process because he was allowed to appear for himself and he did not know that consented abduction is a crime. Decide. (2012 Bar)
The unauthorized practice of law by one assuming to be an attorney or officer of the court, and acting as such without authority, may constitute indirect contempt of court.
Public Officials and Practice of Law Prohibited from practicing
The RTC should have appointed a counsel de oficio to assist the accused even if it was not sought or requested by the accused. Non-Lawyers in Court The following are the instances whereby non-lawyers may appear in court: 1.
Cases before the MTC : A party to the litigation, may conduct his own case or litigation in person, with the aid of an agent or friend appointed by him for that purpose (Sec. 34, Rule 138, RRC); RRC);
2.
Before any other court , a party may conduct his litigation personally but if he gets someone to aid him, that someone must be authorized au thorized member of the Bar (Sec. 34, Rule 138, RRC);
3.
Allowed to practice but subject to restrictions
Approval of department head required
Criminal case before the MTC in a locality where a duly licensed member of the Bar is not available, the judge may appoint a non- lawyer who is (a) Resident of the province; and (b) of good repute for probity and ability to aid the accused in his defense (Sec. 7, Rule 116, RRC);
A party may appear as his own counsel in a civil case. However, in criminal cases involving grave grave and less grave grave offenses, he must always appear through counsel. Before the MTC, a party may appear without his own counsel whether or not for a civil or criminal case. In RTC and appellate courts, a party in a civil suit may conduct his litigation either personally or by attorney. With respect to criminal proceedings in said tribunals, right to counsel of an accused is absolute or immutable.
Proceedings where lawyers are prohibited from appearing Proceedings before the Small Claims Court , unless the attorney is the plaintiff or defendant
2.
Proceedings before the Katarungang Pambarangay - During the pre-trial conference under the Rules of Court, lawyers are prohibited from appearing for the parties.
President Department Secretaries Judges and Justices Prosecutors Solicitor General and Members of the OSG 6. Members of Constitutional Commissions 7. Governors 8. Mayors 1. Senators 2. members of the House of Representatives, 3. Vice-Governors 4. Vice Mayors 5. Members of the Sanggunians Civil Service employees
May a party appear as his own counsel in a criminal or in a civil case? Explain. (2009 Bar)
4. Any official or other person appointed or designated to appear for the Government of the Philippines in accordance with law (Sec. 33, Rule 138, RRC).
1.
1. 2. 3. 4. 5.
DUTIES AND RESPONSIBILITIES OF A LAWYER True or False, the duty of a lawyer to his client is more paramount that his duty to the Court. (2009 Bar)
Sanctions for Practice of Appearance without Authority
False, a lawyer’s paramount duty is to the Court. This is because he is an officer of the court.
1. 2. 3.
Petition for Injunction; Contempt of court; Criminal complaint for E stafa stafa against a person who falsely represented himself to be an attorney to the damage of a party; 4. Disqualification and complaints for disbarment; or 5. Administrative Administrative complaint against the erring lawyer or government official. official.
TO SOCIETY Canon 1 Uphold the Constitution, obey the laws of the land and promote respect respect for law and and legal processes processes
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UST LAW PRE-WEEK LAW PRE-WEEK NOTES 2017 lawyer may be disciplined not only for malpractice and dishonesty in his profession but also for gross misconduct outside of his professional capacity. The Court may be justified in suspending or removing him as an attorney where his misconduct outside of the lawyer’s dealings is so gross in character as to show him morally unfit of the privilege to practice law (Heenan v. Espejo, A.C. No. 10050, December. 3, 2013).
Two-fold duty under Canon 1 1. 2.
Obey the laws and the legal processes Inspire others to maintain respect and obedience thereto.
A lawyer shall not engage in unlawful, dishonest, immoral and deceitful conduct
Impropriety of voluntary giving of advice
“Unlawful ” conduct does not necessarily imply the element of criminality although the concept is broad enough to include such element. It is transgression of any provision of law, which need not be a penal law. To be “dishonest ” means the disposition to lie, cheat, deceive, defraud or betray; be untrustworthy; lacking in integrity, honesty, probity, integrity in principle, fairness and straightforwardness. “Deceitful ” conduct means having the proclivity for fraudulent and deceptive misrepresentation, artifice or device that is used upon another who is ignorant of the true facts, to the prejudice and damage of the party imposed upon.
It is improper to voluntarily give legal advice when the lawyer, in giving such, is motivated by a desire to obtain personal benefit, secure personal publicity, or cause legal action to be taken merely to harass or injure another. Barratry v. Ambulance Chasing Barratry is an offense of frequently exciting and stirring up quarrels and suits, either at law or otherwise; lawyer’s act of fomenting suits among individuals and offering his legal services to one of them. Barratry is not a crime under the Philippine laws. However, it is proscribed by the rules of legal ethics.
Atty. P borrowed P100,000 from Sps. T to finance the reconstitution reconstitution of the title of his land. They had a written agreement that after such reconstitution, the title would serve as security for the loan and that he would pay an interest of P70,000. Atty. P, however, failed to fulfill his obligations. Legal demands were made to no avail. Is Atty. P guilty of violating Rule 1.01?
Ambulance chasing is an act of chasing victims of accidents for the purpose of talking to the said victims (or relatives) and offering his legal services for the filing of a case against the person(s) who caused the accident(s). accident(s). It has spawned a number of recognized evils such as:
Yes. Sps. Tejada could not have been defrauded without the representations of Atty. Palana. He knew that his representations were false since the filing fee for a petition for reconstitution in 2001 was only P3,145, and other expenses including publication would not cost more than P20,000. It is clear that he employed deceit in convincing Sps. Tejada to part with their hard-earned money and the latter could not have been easily swayed to lend money were it not for his misrepresentations and failed promises as a member of the bar. A lawyer shall at all times uphold the integrity and dignity of the legal profession. The trust and confidence necessarily reposed by clients requires in the attorney a high standard and appreciation of his duty to his clients, his profession, the courts and the public. The bar must maintain a high standard of legal proficiency as well as of honesty and fair dealing (Sps. Tejada v. Atty. Palana, A.C. No. 7434, August 23, 2007). 2007).
1. 2. 3. 4.
Fomenting of litigation with resulting burdens on the courts and the public; Subornation of perjury; Mulcting of innocent persons by judgments, upon manufactured causes of action; and Defrauding of injured persons having proper causes of action but ignorant of legal rights and court procedures by means of contracts which retain exorbitant percentages of recovery and illegal charges for court costs and expenses and by settlement made for quick returns of fees and against just rights of the injured persons (Hightower v. Detroit Edison Co. 247 NW 97, 1993).
Canon 2 and 3 Making his legal services available in an efficient and convenient manner compatible with the independence, integrity and effectiveness of the profession.
Atty. E. borrowed P250,000 from VH. To secure such loan, she issued a check for P275,000 to cover the loan and interest. On due date, the check was dishonored. Atty. E refused to pay. Is Atty. E administratively administratively liable? liable?
Making known his legal services shall use only true, honest, fair, dignified and objective information or statement of facts. Advertisement
Yes. Lawyers must at all times faithfully perform their duties to society, to the bar, to the courts and to their clients. The fact that Atty. Espejo obtained the loan and issued the worthless check in her personal capacity and not an attorney is of no moment. A
An active quest for clients involving a public or nonpublic communication. It includes, but is not limited to, communication by means of telephone, television, radio, motion picture, computer-accessed
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LEGAL ETHICS communication, newspaper, sign, directory, listing or through written communication (Rule 7.2(a), Model Rules of Professional Conduct, American Bar Association).
practical training of law students and assist in disseminating information regarding the law and jurisprudence. jurisprudence. Canon 6 Canons shall apply to lawyers in government service in the discharge of their official tasks
If engaged in another profession or occupation concurrently with the practice of law, the lawyer shall make clear to his client whether he is acting as a lawyer or in another capacity.
Provincial Prosecutor Bonifacio refused to represent the Municipality of San Vicente in a case for collection of taxes. He explained that he cannot handle the case with sincerity and industry because he does not believe in the position taken by the municipality. Can Prosecutor Bonifacio be administratively sanctioned?
For solicitation to be proper, it must be compatible with the dignity of the legal profession. If made in a modest and decorous manner, it would bring no injury to the lawyer or to the bar. Rationale for the Prohibition of Advertisements 1. The profession is primarily for public service; 2. Commercializes the profession; profession; 3. Involves self-praise and puffing; 4. Damages public confidence; and 5. May increase lawsuits and result in needless litigation.
Yes, he can be sanctioned administratively. Unlike a practicing lawyer who has the right to decline employment, a government lawyer like a provincial prosecutor cannot refuse the performance of his duties on the grounds not provided for by law without violating his oath of office.
Complainant Linsangan alleged that Atty. Tolentino, with the help of a paralegal, convinced his clients to transfer legal representation. Atty. Tolentino promised them financial assistance and expeditious collection on their claims. To induce them to hire his services, he persistently called them and sent them text messages. Is it allowed?
While Atty. Z was still the Presiding Judge of MTCC, a civil complaint was filed by Ronald Rupinta, who was represented by Atty. P and heard by Atty. Z as Presiding Judge of MTCC. When the case was already scheduled for trial on the merits, Atty. Z suspended the scheduled hearing and the case hibernated and Atty. Z was appointed as RTC Judge of Branch 35, Ozamis City. Sometime on 23 March 2006, the newly appointed appointed th Presiding Judge of MTCC 10 Judicial Region, Tangub City, Judge Rodolfo L. Vapor, issued an Order informing the parties on the aforesaid case whether they were amenable for him to render judgment on the case of which they agreed. However, Atty. P was surprised when he received a Manifestation from the defendants that they are now represented by Atty. Z, the former judge who once presided over the aforesaid case. Is Atty. Z guilty of violating Canon 6 of the CPR?
No. Lawyers should not advertise their talents as merchants advertise their wares. Lawyers are prohibited from soliciting cases for the purpose of gain, either personally or through paid agents or brokers. Such actuation constitutes malpractice. The act of the respondent in including the phrase ―with financial assistance assistance - in his calling card is a conduct of advertising the legal profession with commercialism and with the purpose of enticing clients to change counsels through the promise of loans to finance their legal action (Linsangan v. Tolentino, A.C. 6672, September 4, 2009). Examples deceptive 1. 2.
3. 4.
of
Advertisements
considered
as
Yes. The respondent, in his capacity as the judge of the MTCC of Tangub City, presided over the case before eventually inhibiting himself from further proceedings. His act of presiding constituted intervention within the meaning of the rule whose text does not mention the degree or length of the intervention in the particular case or matter.
Misstatements of fact Suggestions Suggestions that the ingenuity or prior record of a lawyer rather than the justice of the claim are the principal factors likely to determine the result Inclusion of information irrelevant on selecting a lawyer Representations Representations concerning the quality of service, which cannot be measured or verified.
The respondent could not accept work or employment from anyone that would involve or relate to any matter in which he had intervened as a judge except on behalf of the body or authority that he served during his public employment. The restriction as applied to him lasted beyond his tenure in relation to the matters in which he had intervened as judge. Accordingly, the fact that he was already retired from the Bench, or that he was already in the private practice of law when he was engaged for the case was inconsequential. Although the respondent removed himself from the cases once his neutrality
Canon 4 and 5 Participate in the development of the legal system by initiating or supporting efforts in law reform and improvement in the administration of justice. Keep abreast of legal developments, participate in continuing legal education programs, support efforts to achieve high standards in law schools as well as in the
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UST LAW PRE-WEEK NOTES 2017 and impartiality were challenged, he ultimately did not stay away from the cases following his retirement from the Bench, and acted thereon as a lawyer for and in behalf of the defendants (Atty. Pasok v. Atty. Zapatos, A.C. 7388, October 19, 2016).
one year shall be a ground for the removal of the name of the delinquent member from the Roll of Attorneys. Membership and financial support of every attorney is a condition sine qua non to the practice of law and the retention of his name in the Roll of Attorneys. Can a lawyer terminate his membership in IBP?
TO THE LEGAL PROFESSION
Yes. A member may terminate his membership by filing a written notice to that effect with the Secretary of the Integrated Bar, who shall immediately bring the matter to the attention of the Supreme Court. Forthwith he shall cease to be a member and his name shall be stricken by the Court from the Roll of Attorneys.
Canon 7 Uphold the integrity and dignity of the legal profession and support the activities of the integrated bar Membership and Dues in IBP Membership dues are not prohibited by the Constitution. The fee is imposed as a regulatory measure, designed to raise funds for carrying out the purposes and objectives of the integration
NOTE: In a resolution dated 31 January 2017, the Supreme Court granted the Petition for Voluntary Delisting in the Roll of Attorneys of Dionisio Canete. In his petition, Canete invoked “unspeakable injustices” he suffered while practicing law for 56 years as ground for the revocation of his privilege to practice said profession.
A lawyer does not automatically become a member of the IBP chapter where he resides or works after becoming a full-fledged member of the Bar. He has the discretion to choose the IBP Chapter he wants to join (Garcia v. De Vera, A.C. 6052, December 11, 2003).
Canon 8 A lawyer shall conduct himself with courtesy, fairness and candor towards his professional colleagues, and shall avoid harassing tactics against opposing counsel.
IBP must be apolitical No lawyer holding an elective, judicial, quasi-judicial or prosecutory office in the Government or any political subdivision or instrumentality thereof shall be eligible for election or appointment to any position in the Integrated Bar or any Chapter thereof. A Delegate, Governor, officer or employee of the Integrated Bar, or an officer or employee of any Chapter thereof shall be considered ipso facto resigned from his position as of the moment he files his certificate of candidacy for any elective public office or accepts appointment to any judicial, quasijudicial, or prosecutory office in the Government or any political subdivision or instrumentality thereof.
8.02 - A lawyer shall not, directly or indirectly, encroach upon the professional employment of another lawyer; however, it is the right of any lawyer, without fear or favor, to give proper advice and assistance to those seeking relief against unfaithful or neglectful counsel. A person without a retained lawyer is a legitimate prospective client for any lawyer whom he approaches for legal services. But, as soon as he had retained one and had not dismissed the retained counsel, efforts on the part of another lawyer to take him as a client constitutes an act of encroaching upon the employment of another lawyer.
Atty. Gelly passed the Bar in 1975. After taking his oath, he did not enlist in any IBP chapter because he went to the USA to pursue a Master’s Degree. Eventually, he passed the state bar and specialized in Immigration Law. In 2005, he returned to the Philippines and was hired by a law firm. He wishes to pay his IBP dues for the current year but the IBP is charging him from 1975 up to the present and threatening him with expulsion if he does not comply. Is the IBP correct? (2012 Bar)
A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel much less should he undertake to negotiate or compromise the matter with him, but should deal with his counsel. Any act which is aimed to ease out a previous lawyer with the intention to grab the case is highly unethical and should be avoided (Antiquiera, 1992). Exceptions
Yes. Atty. Gelly should pay the dues from 1975 to the present since membership in the IBP is compulsory.
1.
Can a lawyer still practice his profession despite having arrears in his IBP dues? (2014 Bar) 2.
No. Default in the payment of annual dues for six months shall warrant suspension of membership in the Integrated Bar and default in such payment for
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A lawyer may properly interview any witness or prospective witness for the opposing side in any civil or criminal action without the consent of opposing counsel or party. Any person who seeks relief against an unfaithful or neglectful lawyer may approach another lawyer for proper advice and assistance. Any advice or assistance extended after proper
LEGAL ETHICS verification is not encroaching upon the business of another lawyer for such act is justified under the circumstances.
within the reglementary period. AC got wind of the dismissal only when his wife verified the status of the case. Atty. IA promised to seek reconsideration, which the CA later denied for belated filing of the motion. Atty. IA argued that he only received the CA resolution 2 months after it was issued and that the person who received the same in his office was unauthorized. Is he administratively liable?
Atty. Manuel is counsel for the defendant in a civil case pending before the RTC. After receiving the plaintiff's Pre-Trial Brief containing the list of witnesses, Atty. Manuel interviewed some of the witnesses for the plaintiff without the consent of plaintiff's counsel. Did Atty. Manuel violate any ethical standard for lawyers? Explain. (2009 Bar)
Yes, Atty. IA tried to mislead the appellate court about the receipt of a copy of its February 10, 1997 Resolution dismissing the appeal. He denied personally receiving such copy, but the CA found and declared that he himself received said copy. The CA arrived at this conclusion thru the process of comparing Atty. IA’s signature appearing in the pleadings with that in the registry return card. Both signatures belong to one and the same person. Needless to stress, Atty. IA had under the premises indulged in deliberate falsehood, contrary to the selfexplanatory prescriptions of Canon 1, Rule 1.01 and Canon 10, Rule 10.01 (Conlu v. Atty. Aredonia, Jr., A.C. No. 4955, September 12, 2011).
No, because Canon 39 of the Canons of Professional Ethics provides that “a lawyer may interview any witness or prospective witness from the opposing side in any civil or criminal action without the consent of opposing counsel or party.” This is because a witness is supposed to be a neutral person whose role is to tell the truth when called upon to testify. Will your answer be the same if it was the plaintiff who was interviewed by Atty. Manuel without the consent of plaintiff's counsel? Explain. (2009 Bar) My answer will not be the same. Canon 8 of the Canons of Professional Ethics provides that “a lawyer should not in any way communicate upon a subject of controversy with a party represented by counsel, much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel.” If he communicates with the adverse party directly, he will be encroaching into the employment of the adverse party's lawyer.
Instances when lawyers can be disciplined based on the pleadings he filed When a counsel deliberately: 1.
2. 3.
Canon 9 Lawyer shall not, directly or indirectly, assist in the unauthorized practice of law
Files an unsigned pleading in violation of the rules; Alleges scandalous matters therein; Fails to promptly report to the court a change of his address (Sec. 3, Rule 7, RRC).
NOTE: A lawyer should not abuse his right of recourse to the courts for the purpose of arguing a cause that had been repeatedly rebuffed. Neither should he use his knowledge of law as an instrument to harass a party nor to misuse judicial processes, as the same constitutes serious transgression of the Code of Professional Responsibility. For while he owes fidelity to the cause of his client, it should not be at the expense of truth and the administration of justice (Garcia v. Francisco, A.C. No. 3923, March 30, 1993).
Will a lawyer violate the Code of Professional Responsibility if he forms a partnership with professionals of other disciplines like doctors, engineers, architects or accountants? Explain your answer. (2014 Bar) Yes. Under Canon 9, unauthorized practice of law is committed when a person who is not a lawyer performs acts which are exclusive to members of the bar. A general professional partnership with a nonlawyer is VOID. In the formation of partnership for the practice of law, no person should be admitted or held out as a practitioner or member who is not a member of the legal profession duly authorized to practice.
Canon 11 Lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others. All lawyers are expected to recognize the authority of the Supreme Court and obey its lawful processes and orders. Despite errors which one may impute on the orders of the Court, these must be respected, especially by the bar or the lawyers who are themselves officers of the courts. However, the fact that a person is a lawyer does not deprive him of the right, as enjoyed by every citizen, to comment on and criticize the actuations of a judge but it is the cardinal condition of all criticisms that it shall be bona fide,
TO THE COURTS Canon 10 A lawyer owes candor, fairness and good faith to the court. AC, represented by Atty. IA lost a case for recovery of land before the RTC. The appeal was dismissed by the CA for non-filing of the appellant’s brief
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UST LAW PRE-WEEK NOTES 2017 and shall not spill over the walls of decency and propriety.
he only received the CA resolution 2 months after it was issued and that the person who received the same in his office was unauthorized. Atty. IA also failed to file his comment on the complaint despite extensions. Is he administratively liable?
An administrative complaint was filed against Sen. Miriam Defensor-Santiago, a lawyer, for a speech she delivered on the Senate floor which allegedly reflected disrespect towards then Chief Justice Artemio Panganiban and the other members of the Court: “I spit on the face of Chief Justice Artemio Panganiban and his cohorts in the Supreme Court, I am no longer interested in the position [of Chief Justice] if I was to be surrounded by idiots. I would rather be in another environment but not in the Supreme Court of idiots.” Was there a violation of the Code of Professional Responsibility?
A: YES. The Court cannot write finis to this case without delving into and addressing Atty. IA’s defiant stance against the Court as demonstrated by his repetitive disregard of its resolution to file his comment on the basic complaint. After requesting and securing no less than three (3) extensions of time to file his comment, he simply closed, so to speak, communication lines. And when ordered to give an explanation through a show-cause directive for not complying, he asked for and was granted a 30-day extension but the required comment never came. When the Court eventually directed the NBI to arrest him, he just left his last known address and could not be located. Manifestly, he has fallen short of the diligence required of every member of the Bar. The pertinent Canon of the Code of Professional Responsibility which he also violated is Canon 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.” (Conlu v. Atty. Aredonia, Jr., A.C. No. 4955, September 12, 2011).
Yes. To the Court, the lady senator has undoubtedly crossed the limits of decency and good professional conduct. It is at once apparent that her statements in question were intemperate and highly improper in substance. No lawyer who has taken an oath to maintain the respect due to the courts should be allowed to erode the people’s faith in the judiciary. In this case, the lady senator clearly violated Canon 8, Rule 8.01 and Canon 11 of the Code of Professional Responsibility, which respectively provide: Canon 8, Rule 8.01: “ A lawyer shall not, in his professional dealings, use language which is abusive, offensive or otherwise improper ”; and Canon 11: “ A lawyer shall observe and maintain the respect due to the courts and to the judicial officers and should insist on similar conduct by others. ”
Canon 13 Rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appearance of influencing the court
While the factual and legal circumstances of this case prevents the Court from imposing some form of disciplinary action against her, We, however, would be remiss in our duty if we let the Senators offensive and disrespectful language that definitely tended to denigrate the institution pass by. It is imperative on our part to re-instill in Senator/Atty. Santiago her duty to respect courts of justice, especially this Tribunal, and remind her anew that the parliamentary non-accountability thus granted to members of Congress is not to protect them against prosecutions for their own benefit, but to enable them, as the people’s representatives, to perform the functions of their office without fear of being made responsible before the courts or other forums outside the congressional hall (Pobre v. Defensor-Santiago, A.C. No. 7399, August 25, 2009).
Giving of gifts to the judges are discouraged as it tend to give an appearance of influencing the conduct of judicial function or breeding familiarity with judges.
Canon 12 Exert every effort and consider it his duty to assist in the speedy and efficient administration of justice
Yes. Atty. Paterno violated Canon 13 of the CPR. Atty. Paterno has relied on his friendship with the Justice to obtain a Writ of Amparo without a h earing. He thus makes it appear that he can influence the court. Justice Dela Cruz violated sec. 3, canon 4 of the Code of Judicial Conduct for the Philippine Judiciary, which provides that “judges shall, in their personal relations with individual members of the legal profession who practice regularly in their courts, avoid situations which might reasonable give rise to the suspicion or appearance of favoritism or partiality.”
It is improper for a litigant or counsel to see a judge in chambers and talk to him about a matter related to the case pending in the court of said judge. On a Saturday, Atty. Paterno filed a petition for Writ of Amparo with the CA. Impelled by the urgency of the issuance of the writ, Atty. Paterno persuaded his friend, CA Justice Johnny Dela Cruz, to issue the Writ of Amparo and the notice of hearing without the signature of the two other members of the CA division. Are Atty. Paterno and Justice Dela Cruz guilty of unethical conduct? Explain. (2009 Bar)
AC, represented by Atty. IA lost a case for recovery of land before the RTC. The appeal was dismissed by the CA for non-filing of the appellant’s brief within the reglementary period. AC got wind of the dismissal only when his wife verified the status of the case. Atty. IA promised to seek reconsideration, which the CA later denied for belated filing of the motion. Atty. IA argued that
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LEGAL ETHICS Instances when criminal liability arises:
TO THE CLIENT
1.
Canon 14 Lawyer shall not refuse his services to the needy
2.
Counsel de Oficio 1. Members of the bar in good standing; 2. Any person, resident of the province and of good repute for probity and ability, in localities without lawyers
3.
Factors to be considered in appointing a Counsel de Oficio 1. Gravity of offense 2. Difficulty of questions that may arise; and 3. Experience and ability of appointee
4.
Christine was appointed counsel de oficio for Zuma, who was accused of raping his own daughter. Zuma pleaded not guilty but thereafter privately admitted to Christine that he did commit the crime charged. In light of Zuma’s admission, what should Christine do? Explain. (2008 Bar)
5.
Lawyer’s Right to decline employment GR: A lawyer is not obliged to act as legal counsel for any person who may wish to become his client. He has the right to decline employment.
Christine should continue to act as counsel de oficio for Zuma. Her appointment should not be declined even if she believes her client to be guilty. Her client is entitled to presumption of innocence and is not obliged to plead guilty.
XPNs: 1. A lawyer shall not refuse his services to the needy. (Canon 14) 2. He shall not decline to represent a person solely on account of the latter’s race, sex, creed or status in life or because of his own opinion regarding the guilt of said person (Rule 14.01); 3. He shall not decline, except for serious and efficient cause like a. If he is not in a position to carryout effectively or competently; and b. If he labors under a conflict of interest between him and the prospective client. (Rule 14.03)
Atty. DD’s services were engaged by Mr. BB as defense counsel in a lawsuit. In the course of the proceedings, Atty. DD discovered that Mr. BB was an agnostic and a homosexual. By reason thereof, Atty. DD filed a motion to withdraw as counsel without Mr. BB’s express consent. Is Atty. DD’s motion legally tenable? No. He has no valid cause to terminate his services. BB being agnostic and homosexual should not deprive him of his counsel’s representation solely for that reason. A lawyer shall not decline to represent solely on account of clients race, sex, creed or status of life or because of his opinion regarding the guilt of said person.
Privileged Communication A privileged communication is one that refers to information transmitted by voluntary act of disclosure between attorney and client in confidence and by means which, so far as the client is aware discloses the information to no third person other than one reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it was given.
Canon 15 Observe candor, fairness and loyalty in all his dealings and transactions with his clients Fiduciary Relationship Instances when civil liability arises: 1. 2. 3. 4. 5. 6.
Causes prejudice to the client thru malicious breach of professional duty or thru inexcusable negligence or ignorance; Reveals client’s secrets learned in lawyer’s professional capacity thru malicious breach of professional duty or inexcusable negligence or ignorance; A lawyer who has undertaken the defense of a client or has received confidential information from said client in a case may be criminally liable for undertaking defense of opposing party in same cause without consent of first client (Art. 209, RPC); A lawyer who shall knowingly introduce in evidence in any judicial proceeding or to the damage of another or who, with intent to cause such damage, shall use any false document may be held criminally liable therefor (Art. 172, RPC); and A lawyer who is appropriates his client’s funds may be held liable for estafa.
Matters disclosed by a prospective client to a lawyer are protected by the rule on privileged communication even if the prospective client does not thereafter retain the lawyer or the latter declines the employment. It covers crimes and offenses already committed by the client.
Client is prejudiced by lawyer's negligence or misconduct; Breach of fiduciary obligation; Civil liability to third persons; Libelous words in pleadings; Violation of communication privilege; Liability for costs of suit
8
UST LAW PRE-WEEK NOTES 2017 The privilege continues to exist even after the termination of the attorney-client relationship. Privileged Client Identity
1. Conflicting Duties - When, on behalf of one client, it is the attorney’s duty to contest for that which his duty to another client requires him to oppose or when possibility of such situation will develop.
Client identity is privileged where 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 ( Regala v. Sandiganbayan, G.R. No. 105938, September 20, 1996).
2. Invitation of Suspicion - Whether the acceptance of the new relation will prevent a lawyer from the full discharge of his duty of undivided fidelity and loyalty to his client or will invite suspicion of unfaithfulness or double-dealing in the performance thereof.
After representing Lenie in an important lawsuit from 1992 to 1995, Atty. Jennifer lost touch of her client. Ten years later in 2005, Evelyn asked Atty. Jennifer to represent her in an action against Lenie. Such action involved certain facts, some confidential, to which Atty. Jennifer was privy because she handled Lenie's old case. Can Atty. Jennifer act as counsel for Evelyn? (2011 Bar)
3. Use of Prior Knowledge Obtained - Whether a lawyer will be called upon in his new relation to use against the first client any knowledge acquired in the previous employment. What is material in determining whether there is a conflict of interest in the representation is probability, not certainty of conflict.
No. A lawyer shall preserve the confidences or secrets of his client even after the attorney-client relation is terminated. He shall not reveal the confidence or secrets of his client except upon the instances provided for by the rules.
Diongzon, a businessman, retained the services of Atty. Mirano in several cases, one of which involved the execution of two deeds of sale covering the boats Diongzon sold to Spouses Gonzales. Subsequently, Sps. Gonzales sued Diongzon for replevin and damages and sought the annulment of the deeds of sale. Sps. Gonzales was represented by an associate of Atty. Mirano. Atty. Mirano notarized the bond the Sps. Gonzales filed to justify the manual delivery of the boats subject of the suit and eventually entered his appearance as the counsel for the Sps. Gonzales against. Is there a conflict of interest?
Conflict of Interest A lawyer is prohibited from representing new clients whose interests oppose those of a former client in any manner, whether or not they are parties in the same action or on totally unrelated cases. A lawyer may not be precluded from accepting and representing other clients on the ground of conflict of interests, if the lawyer-client relationship does not exist in favor of a party in the first place.
Yes. When Atty. Mirano appeared in court for the benefit of the Gonzaleses, he unquestionably incurred a conflict of interest. Having become privy to the terms of the sale subject of the civil case, the conflict of interest became unmitigated because Diongzon had not expressly consented in writing to Mirano appearing in behalf of the Gonzaleses (Diongzon v. Atty. Mirano, A.C. No. 2404, August 17, 2016).
The termination of the attorney-client relationship does not justify a lawyer to represent an interest adverse to or in conflict with that of the former client. Even after the severance of the relation, a lawyer should not do anything that will injuriously affect his former client in any matter in which the lawyer previously represented the client (Samson v. Atty. Era, A.C. No. 6664, July 16, 2013).
Canon 16 Hold in trust all moneys and properties of his client that may come into his possession
GR: An attorney cannot represent diverse interests. XPN: Representation of conflicting interest may be allowed where the parties consent to the representation after full disclosure of facts (Nakpil v. Valdez, A.C. No. 2040, March 4, 1998).
1. A lawyer shall account for all money or property collected or received for or received from the client
XPN to XPN: Where the conflict is between the attorney’s interest and that of a client; or between a private client’s interests and that of the government or any of its instrumentalities.
a.
Money given for a purpose must be used for such purpose; otherwise, returned to client immediately. b. Failure to do so will raise presumption that lawyer misappropriated it.
What are the three (3) tests to determine conflict of interest for practicing lawyers? Explain each briefly. (2009 Bar)
2. A lawyer shall keep the funds of each client separate and apart from his own and those of others kept by him.
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LEGAL ETHICS
3. A lawyer shall deliver the funds and property of client 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. a.
Canon 17 Lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him. Matias Lagramada was residing with his uncle, Apolonio, when he was invited by the latter to accompany him to the police station, supposedly to pick up a refrigerator they were to repair. Upon their arrival there, Matias was immediately taken in and locked behind bars. Two sets of information were filed against him only 10 months after the first day of his incarceration. With the assistance of counsel, Matias pleaded not guilty when arraigned, without raising the invalidity of the arrest. Was the case properly handled?
A Lawyer may not apply client’s funds to his fees if client is still objecting to the amount thereof (Genato v. Adaza, 328 SCRA 694; Lemoine v. Balon, 414 SCRA511).
A lawyer’s failure to return upon demand the funds held by him on behalf of his client, as in this case, gives rise to the presumption that he has appropriated the same for his own use in violation of the trust reposed in him by his client. Such act is a gross violation of general morality as well as of professional ethics (Agot v. Atty. Rivera, A.C. No. 8000, August 5, 2014).
No. Lawyers owe fidelity to the cause of their clients and must be mindful of the trust and confidence reposed in them. Matias’ counsel, in the spirit of safeguarding his client’s rights, should have taken the necessary steps to correct the situation. However, he allowed his client to enter a plea during the latter’s arraignment without raising the invalidity of arrest. Thus, the former effectively waived his client’s right to question its validity. Defense counsels are expected to spare no effort to save the accused from unrighteous incarcerations.
Atty. F was counsel of LL and a writ of attachment was issued in his client’s favor. However, the sheriff turned over cars subject of the attachment to Atty. F instead of depositing them in the court premises. On several occasions, one of the subject cars, a Nissan Sentra, was seen in several locations in Quezon City. Atty. F also allegedly withheld the whereabouts of the Volvo. It turned out that the same was destroyed by a fire in front of his house and he failed to inform the court of such. Is Atty. F administratively liable?
Matias’ counsel should have not only perfunctorily represented his client during the pendency of the case, but should have kept in mind his duty to render effective legal assistance and true service by protecting the latter’s rights at all times (People v. Lagramada, G.R. Nos. 146357 & 148170, August 29, 2002).
Yes. He is guilty of grave misconduct arising from his violation of Canon 16 of the CPR which provides that “money of the client or collected for the client or other trust property coming into the profession of the lawyer should be reported and accounted for promptly and should not under any circumstances be commin gled with his own or be used by him.” A lawyer is first and foremost an officer of the court. As such, he is expected to respect the court’s order and processes. Atty. F miserably fell short of his duties as such officer. He trifled with the writ of attachment the court issued. Atty. F was remiss in his obligation of taking good care of the attached cars. For his negligence and unauthorized possession of the cars, the Court found Atty. F guilty of infidelity in the custody of the attached cars and grave misconduct (Atty. Salomon v. Atty. Frial, A.C. No. 7820, September 12, 2008).
Canon 18 Lawyer shall serve his client with competence and diligence Collaborating counsel May a client hire additional counsel as collaborating counsel over and above the objection of the original counsel? (2014 Bar) No. The new lawyer cannot just enter his appearance as collaborating counsel without the conformity of the first counsel.
Borrowing and Lending
State the rule on whether a client is bound by the mistake of his counsel.
Borrowing: A lawyer is not allowed to borrow money from his client, except when the client’s interests are fully protected by the nature of the case or by independent advice.
A client is bound by the mistake of his lawyer. However, when the negligence of the lawyer is so gross that the client was deprived of due process, the client is not bound by the negligence of the lawyer.
Lending: A lawyer is not allowed to lend money to his client, except when in the interest of justice, he has to advance necessary expenses in a legal matter he is handling for the client
On account of his mistake, is counsel liable to his client for damages?
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UST LAW PRE-WEEK NOTES 2017 Yes. A client who suffers prejudice by reason of his counsel’s inexcusable negligence in the discharge of his duty may file an action for damages against him.
1.
NOTE: A retained counsel is expected to serve the client with competence and diligence. This duty includes not merely reviewing the cases entrusted to the counsel’s care and giving the client sound legal advice, but also properly representing the client in court, attending scheduled hearings, preparing and filing required pleadings, prosecuting the handled cases with reasonable dispatch, and urging their termination without waiting for the client or the court to prod him or her to do so. The lawyer should not be sitting idly by and leave the rights of the client in a state of uncertainty. The failure to file a brief resulting in the dismissal of an appeal constitutes inexcusable negligence (Conlu v. Atty. Aredonia, Jr., A.C. No. 4955, September 12, 2011).
2.
Atty. Bravo represents Carlos Negar (an insurance agent for Dormir Insurance Co.) in a suit filed by insurance claimant Andy Limot who also sued Dormir Insurance. Limot testified during the trial that he had mailed the notice of the loss to the insurance agent, but admitted that he lost the registry receipt so that he did not have any documentary evidence of the fact of mailing and of its timeliness. Dormir Insurance denied liability contending that the timely notice had not been given either to the company or its agent.
Canon 19 Lawyer shall represent his client with zeal within the bounds of the law
A few days after Negar testified, he admitted to Atty. Bravo that he had lied when he denied receipt of Limot's notice; he did receive the notice by mail but immediately shredded it to defeat Limot's claim. If your were Atty. Bravo, what would you do in light of your client's disclosure that he perjured himself when he testified? (2013 Bar)
Kinds of appearance General appearance – When a party comes to court either as plaintiff or defendant and seeks general reliefs from the court for satisfaction of his claims or counterclaims respectively.
I shall promptly call upon Carlos Negar, my client, to rectify his perjured testimony by recanting the same before the court. Should he refuse or fail to do so I shall then terminate my relationship with him (Canon, 19, Rule 19.02) stating that with his having committed perjury he persuaded an illegal conduct in connection with the case (Ibid., Canon 22, Rule 22.01).
Special appearance – When a defendant appears in court solely for the purpose of objecting to the jurisdiction of the court over his person. Effects of unauthorized appearance 1.
2. 3.
4.
When the lawyer is confronted with an emergency where prompt and urgent action is necessary to protect the interest of his client and there is no opportunity for consultation with the latter. Settlement of monetary obligation to client is full payment in cash.
Canon 20 Charge only fair and reasonable fees
The party represented is not bound by attorney’s appearance in the case neither by the judgment rendered therein; Court does not acquire jurisdiction over the person of the party represented; The adverse party who has been forced to litigate as a defendant by the unauthorized action on the part of the attorney for the plaintiff may, on that ground, move for the dismissal of the complaint; and If unauthorized appearance is willful, attorney may be cited for contempt as an officer of the court who has misbehaved in his official transactions, and he may be disciplined for professional misconduct.
May a lawyer collect fees for services rendered to his client despite the absence of an agreement to pay attorney’s fees? (2014 Bar)
Yes. Generally, the amount of attorney’s fees due is that stipulated in the retainer agreement. In the absence thereof, the amount of attorney’s fees is fixed on the basis of quantum meruit. In the absence of a contract for the payment of attorney’s fees, what factor/s may be considered in fixing the amount of attorney’s fees? (2014 Bar) The following factors may be considered in determining the amount of attorney’s fe es in the absence of any fee arrangement (TINS)
Authority of counsel to compromise GR: The attorney has no authority to compromise his client’s case. This is so because the client, even if represented by counsel, retains exclusive control over the subject matter of the litigation. The client can, of course, authorize his lawyer to compromise his case, and the settlement made by the lawyer will bind his client.
1. 2. 3. 4.
Time spent and the services rendered or required Importance of subject matter Novelty and difficulty of questions Skill demanded of a lawyer
Attorney’s RETAINING Lien XPNs:
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LEGAL ETHICS A retaining lien is the right of an attorney to retain the funds, documents and papers of his client which have lawfully come into his possession and may retain the same until his lawful fees and disbursements have been paid, and may apply such funds to the satisfaction thereof.
until his lawful fees and disbursements have been paid (Sec. 37, Rule 138, Rules of Court).
Attorney’s CHARGING Lien
TRUE. It is active because it requires the lawyer to charge the judgment and its execution for the payment of his fees.
True or False: A charging lien, as distinguished from a retaining lien, is an active lien which can be enforced by execution. (2009 Bar)
A charging lien is the right of a lawyer to the same extent upon all judgments for the payment of money, and executions issued in pursuance of such judgments which he has secured in a litigation of 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; and he shall have the same right and power over such judgments and executions as his client would have to enforce his lien and secure the payment of his fees and disbursements (Sec. 37, Rule 138, Revised Rules of Court).
Contingency Fee A contract for contingent fees is an agreement in writing by which the fees, usually a fixed percentage of what may be recovered in the action, are made to depend upon the success in the effort to enforce or defend a supposed right. Contingent fees depend upon an express contract, without which the attorney can only recover on the basis of quantum meruit . When a contingency fee contract was made verbally and that there was no evidence presented to justify the contingent fees being claimed, the only way to determine his right to appropriate attorney’s fees is to apply the principle of quantum meruit (Aquino v. Casabar, G.R. No. 191470, January 26, 2015).
Requisites in order for an attorney to be able to exercise his retaining lien
For services to be rendered by Atty. Delmonico as counsel for Wag Yu in a case involving 5,000 sq.m. of land, the two agreed on a success fee of P50,000 plus 500 sq.m. of the land. The trial court rendered judgment in favor of Wag Yu which became final and executory. After receiving P50,000, Atty. Delmonico demanded the transfer to him of the promised 500 sq.m. Instead of complying, Wag Yu filed an administrative complaint charging Atty. Delmonico with violation of the Code of Professional Responsibility and Article 1491(5) of the Civil Code for demanding the delivery of a portion of the land subject of litigation. Is Atty. Delmonico liable under the Code of Professional Responsibility and the Civil Code? Explain. (2010 Bar)
1. Attorney-client relationship; 2. Lawful possession by the lawyer of the client’s funds, documents and papers in his professional capacity; and 3. Unsatisfied claim for attorney’s fees or disbursements. 4. 5.
Retaining fee A retaining fee is a preliminary fee given to an attorney or counsel to insure and secure his future services, and induce him to act for the client. M engaged the services of Atty. D to prosecute his annulment of marriage case in the RTC. After a long-drawn trial, Atty. D was able to secure a favourable judgment from the court. Unfortunately, M failed to pay in full the stipulated attorney’s fees of Atty. D. How can Atty. D collect his fees from M? Discuss fully. (2014 Bar)
Atty. Delmonico is not guilty of violating the CPR and the Civil Code. He and his client agreed on a success fee of P50,000 plus 500 sq. of the land involved in the case he was handling. This is a contingent fee contract which is allowed under Canon 20 of the CPR and Canon 13 of the CPE. A contingent fee agreement does not violate Art. 1491 of the Civil Code because the transfer or assignment of the property in litigation takes effect only after the finality of a favorable judgment.
Atty. D can collect his fees from M either in the same case in which it may be asserted either in the very action in which the services of a lawyer had been rendered, or in a separate civil action by a petition for attorney's fees before the judgment in favor of the client is satisfied or the proceeds thereof delivered to the client.
Champertous Contracts Is one where the lawyer stipulates with his client in the prosecution of the case that he will bear all the expenses for the recovery of things or property being claimed by the client, and the latter agrees to pay the former a portion of the thing or property recovered as compensation. It is void for being against public
Can a lawyer who refuses to return certain documents to the client pending payment of his attorney’s fee be sanctioned? No. He is entitled to a retaining lien by virtue of which he may retain funds, documents and papers of his clients which have lawfully come into his possession,
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UST LAW PRE-WEEK NOTES 2017 policy (like gambling). A champertous contract is considered void due to public policy.
When the client has not failed to pay the lawyer's fees or to comply with the retainer agreement but only refused to agree with the lawyer's demand for an increase in his fees, the lawyer’s withdra wal is not justified. Client’s right to refuse is part of his freedom of contract.
The contract of attorney’s fee entered into b y Atty. Quintos and his client, Susan, stipulates that if a judgment is rendered in her favor, he gets 60% of the property recovered as contingent fee. In turn, he will assume payment of all expenses of the litigation. Is the agreement valid?
A lawyer may withdraw his services only for good cause and upon notice appropriate in the circumstances
No. The agreement that the lawyer will assume payment of all the expenses of litigation makes it a champertous contract, which is invalid.
Grounds for withdrawal
Canon 21 Lawyer shall preserve the confidences and secrets of his client even after the attorney-client relation is terminated.
1. Client pursues an illegal or immoral course of conduct; 2. Client insists that lawyer violate canons and rules; 3. Inability to work with co-counsel to detriment of client; 4. Mental or physical condition of lawyer makes it 5. Difficult for him to continue; 6. Client deliberately fails to pay attorney’s fees; 7. Election or appointment to public office; 8. Other similar cases
GR: A lawyer shall not reveal the confidences and secrets of his client. NOTE: An attorney cannot, without the 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, nor can an attorney’s secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity (Sec. 24(b), Rule 130, RRC).
Can a client discharge the services of his lawyer without a cause? Yes. A client has the right to discharge his attorney at any time with or without a cause or even against his consent.
XPNs: 1. When authorized by his client after acquainting him of the consequences of the disclosure; 2. When required by law; 3. When necessary to collect his fees or to defend himself, his employees or associates by judicial action.
1.
2.
NOTE: Payment of retainer fee is not essential before an attorney can be required to safeguard a prospective client’s secret acquired by the attorney during the course of the consultation with the prospective client. This is so even if the attorney did not accept the employment. Instances when a lawyer may testify as a witness in a case which he is handling for a client 1.
2. 3. 4. 5.
On formal matters, such as the mailing, authentication or custody of an instrument and the like; Acting as an expert on his fee; Acting as an arbitrator; Depositions; and 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.
With just cause – lawyer is not necessarily deprived of his right to be paid for his services. He may only be deprived of such right if the cause for his dismissal constitutes in itself a sufficient legal obstacle to recovery. Without just cause a) No express written agreement as to fees reasonable value of his services up to the date of his dismissal (quantum meruit ). b) There is written agreement and the fee stipulated is absolute and reasonable – full payment of compensation. c) The fee stipulated is contingent. d) If dismissed before the conclusion of the action - reasonable value of his services (quantum meruit ) e) If contingency occurs or client prevents its occurrence – full amount.
NOTE: Even if the compensation of the attorney is dependent only on winning the litigation, the subsequent withdrawal of the case upon the client’s initiative would not deprive the attorney of the legitimate compensation for professional services rendered. Although a client may dismiss her lawyer at any time, the dismissal must be for a justifiable cause if a written contract between the lawyer and the client exists. In the absence of the lawyer’s fault, consent or waiver, a client cannot deprive the lawyer of his just fees already earned in the guise of a justifiable reason (Malvar v. Kraft Food, G.R. No. 183952, September 9, 2013).
Canon 22 Lawyer can withdraw his services only for good cause and upon notice appropriate in the circumstances.
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LEGAL ETHICS 3. Duties of a discharged lawyer or one who withdraws 1. 2.
4.
Immediately turn-over all papers and property to which the client is entitled; and To cooperate with his successor in the orderly transfer of the case.
5. 6. 7.
It can be initiated motu proprio by the Supreme Court of by the IBP It can proceed regardless of lack of interest of the complainant It is imprescriptible It is confidential It is in itself due process
Specific grounds for suspension or disbarment (List is NOT exclusive) DISBARMENT, SUSPENSION, AND DISCIPLINE OF LAWYERS The right to institute a disbarment proceeding is not confined to clients nor is it necessary that the person complaining suffered injury from the alleged wrongdoing of the lawyer.
1. 2. 3. 4. 5. 6.
Suspension
7.
When this court orders a lawyer suspended from the practice of law, the lawyer must desist from performing all functions requiring the application of legal knowledge within the period of suspension. This includes desisting from holding a position in government requiring the authority to practice law (Lingan v. Atty. Baliga, A.C. No. 5377, June 30, 2014).
8.
NOTE: In order to hold a lawyer amenable to disbarment by reason of his or her having committed a crime involving moral turpitude, it is not enough to show that there is a pending case involving moral turpitude against him or her, because Section 27 of Rule 138 expressly requires that he or she must have been found by final judgment guilty of the crime involving moral turpitude (Interadent Zahntechnik v. Atty. Francisco-Simbillo, A.C. No. 9464, August 24, 2016).
Disbarment is sui generis Alleging that Atty. Malibu seduced her when she was only 16 years old, which resulted in her pregnancy and the birth of a baby girl, Miss Magayon filed a complaint for his disbarment seven years later. Atty. Malibu contended that, considering the period of delay, the complaint can no longer be entertained much less prosecuted because the alleged offense has already prescribed. Is Atty. Malibu’s contention tenable?
Cliff and Greta were law school sweethearts. Cliff became a lawyer, but Greta dropped out. One day, Cliff asked Greta to sign a marriage contract. The following day, Cliff showed Greta the document already signed by an alleged solemnizing officer and two witnesses. Cliff then told Greta that they were already married and Greta consented to go on a honeymoon. Thereafter, the couple cohabited and begot a child. Two years later, Cliff left Greta and married a Venezuelan beauty. Incensed, Greta filed a disbarment complaint against Cliff. Will the case prosper? Explain. (2009 Bar)
No, his contention is not tenable. Disbarment proceedings are sui generis. They are neither criminal nor civil proceedings. Disbarment is imprescriptible. Unlike ordinary proceedings, it is not subject to the defense of prescription. The ordinary statute of limitations has no application to disbarment proceedings.
The disbarment case will prosper. In the case of Cabrera v. Agustin, a lawyer who deceived a woman to believe that they were already married after they had signed an application for marriage license, and afterward took advantage of her belief to satisfy his lust, until she bore him a child, was considered by the Supreme Court to be lacking in integrity and good morals to remain a member of the Bar.
Is the defense of Atty. R in a disbarment complaint for immorality filed by his paramour P that P is in pari delicto material or a ground for exoneration? Explain. (2010 Bar) The defense of in pari delicto is immaterial in an administrative case which is sui generis. The administrative case is about the lawyer’s conduct, not the woman’s.
Lawyer’s misconduct committed prior and after admission to the bar and its effects
Give at least five (5) reasons why disbarment is sui generis. 1. 2.
Deceit; Malpractice; Grossly immoral conduct; Conviction of a crime involving moral turpitude; Violation of oath of office; Willful disobedience of any lawful order of a superior court; Corrupt or willful appearance as an attorney for a party to a case without authority to do so (Sec. 27, Rule 138, RRC); Non-payment of IBP membership dues
1.
It is neither a civil nor a criminal proceedings Double jeopardy cannot be availed of as a defense
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Prior to admission to the bar - acts of misconduct prior to admission include those that indicate that at the time the lawyer took his oath, he did not possess the required qualifications for membership in the bar.
UST LAW PRE-WEEK NOTES 2017 2. After admission to the bar - those which cause loss of moral character on his part or involve violation of his duties to the court, his client, to the legal profession and to the public.
If the Filipino lawyer is disbarred or suspended from the practice of law by a competent court or disciplinary agency in a foreign jurisdiction where he has been admitted as an attorney, and a ground therefor includes any of the acts enumerated in Section 27, Rule 138 of the RRC, such disbarment or suspension is a ground for his disbarment or suspension in the Philippines
Proceedings in Disbarment 1.
2.
3. 4. 5. 6. 7.
8.
9.
Initiated by the Supreme court motu proprio or by the IBP, or upon verified complaint by any person filed with the Supreme Court or an IBP Chapter If complaint is prima facie meritorious, referred to the IBP, the Solicitor General, any officer of the Court or a judge of a lower court IBP Board of Governors assigns complaint to Commission on Bar Discipline (CBD). CBD will assign complaint to a Commissioner or group Commissioners. If complaint found meritorious, Commissioner(s) will require respondent to file an answer. Commissioner will conduct hearing in which respondent is accorded due process. After hearing, Commissioner(s) will submit Report and Recommendation to IBP Board of Governors. Board of Governors will render decision, either exonerating the respondent and dismissing the case, or imposing a sanction less than suspension, or recommending suspension or disbarment to the Supreme Court.
Atty. Forma is a member of the Philippine Bar. He went to New York City, took the New York State Bar, and passed the same. He then practiced in New York City. One of his American clients filed a case for disbarment against him for pocketing the money which was entrusted to him as payment for the filing fee and other incidental expenses of his damage suit. Atty. Forma was later disbarred for dishonesty. Disheartened, Atty. Forma came back to the Philippines and practiced as a lawyer. Will his disbarment in New York be used against him for purposes of disbarment proceedings here in the Philippines? (2014 Bar) Yes. If the Filipino lawyer is disbarred from the practice of law by a competent court in a foreign jurisdiction where he has been admitted as an attorney, such disbarment can be a ground for disbarment in the Philippines provided that the cause for disbarment is included in Section 27, Rule 138 of RRC. The pocketing of money entrusted to him may constitute deceit which is a ground for discipline and disbarment.
Exoneration may be appealed by the complainant to the Supreme Court. Sanction of less than suspension or disbarment may be appealed by the respondent to the Supreme Court. Either one may file a motion for reconsideration with the IBP Board before appealing. Supreme Court renders decision, by division if penalty is fine of P10,000 less and/or suspension for one year or less, and by the court en banc, if penalty is fine of more than P10,000.00 and/or suspension for more than one year, or disbarment.
Desistance A disbarment proceeding may proceed regardless of interest or lack of interest of the complainant (RayosOmbac v. Rayos, A.C. No. 2884, January 28, 1998). The withdrawal of a disbarment case against a lawyer does not terminate or abate the jurisdiction of the IBP and of the Court to continue an administrative proceeding against a lawyer-respondent as a member of the Philippine Bar (Quianchon v. Atty. Ramos, A.C. No. 9317, June 4, 2014).
Atty. D was required by Judge H of the RTC of Manila to show cause why he should not be punished for contempt of court for shouting invectives at the opposing counsel and harassing his witness. Assuming that there was sufficient cause or ground, may Judge H suspend Atty. D from the practice of law? If Judge H finds that the actuations of Atty. D are grossly unethical and unbecoming of a member of the bar, may Judge H disbar Atty. D instead? Explain your answer. (2014 Bar)
Arabella filed a complaint for disbarment against her estranged husband Atty. P on the ground of immorality and use of illegal drugs. After Arabella presented evidence and rested her case before the Investigating Commissioner of the IBP Committee on Bar Discipline, she filed an Affidavit of Desistance and motion to dismiss the complaint, she and her husband having reconciled for the sake of their children. You are the Investigating Commissioner of the IBP. Bearing in mind that the family is a social institution which the State is duty-bound to preserve, what will be your action on Arabella’s motion to dismiss the complaint? (2010 Bar)
No, Judge H cannot suspend nor disbar Atty. D. Proceedings for disbarment, suspension or discipline of attorneys may be taken only by the Supreme Court motu proprio, or by the Integrated Bar of the Philippines upon the verified complaint of any person.
I would still deny the motion to dismiss. The general rule is that no investigation shall be interrupted or terminated by reason of desistance, settlement, compromise, restitution, withdrawal of charges or
Discipline of Filipino lawyers practicing abroad
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LEGAL ETHICS failure of complainant to prosecute the same unless the SC motu proprio or upon recommendation of the IBP Board determines that there is no compelling reason to continue with the proceedings. An affidavit of desistance will have no effect on it, being a sui generis proceeding.
order to enable him to resume the practice of his profession. Executive Pardon Granted by the President If during the pendency of disbarment proceeding the respondent was granted executive pardon, the dismissal of the case on that sole basis will depend on whether the executive pardon is absolute or conditional.
RE-ADMISSION TO THE BAR The objective of a disciplinary case is not so much to punish the individual attorney as to protect the dispensation of justice by sheltering the judiciary and the public from the misconduct or inefficiency of officers of the court. Restorative justice, not retribution, is the goal in disciplinary proceedings.
1. Absolute or unconditional pardon - the disbarment case will be dismissed. 2. Conditional pardon - the disbarment case will NOT be dismissed on the basis thereof.
Whether or not the applicant shall be reinstated rests on the discretion of the court.
To be reinstated, there is still a need for the filing of an appropriate petition with the Supreme Court
In a petition for reinstatement to the practice of law, the Court will take into consideration his or her character and standing prior to the disbarment, the nature and character of the charge/s for which he or she was disbarred, his or her conduct subsequent to the disbarment, and the time that has elapsed in between the disbarment and the application for reinstatement (Que v. Atty. Rivera, Jr., A.C. No. 7054, November 11, 2014).
Resumption of Practice of Law (2013 Bar) Before a lawyer who reacquires Filipino citizenship pursuant to R.A. 9225 can resume his law practice, he must first secure from the SC the authority to do so, conditioned on: 1. The updating and payment in full of the annual membership dues in the IBP; 2. The payment of professional tax; 3. The completion of at least 36 credit hours of mandatory continuing legal education, this is especially significant to refresh the applicant/petitioner’s knowledge of Philippine laws and update him of legal developments; and 4. The retaking of the lawyer’s oath which will not only remind him of his duties and responsibilities as a lawyer and as an officer of the Court, but also renew his pledge to maintain allegiance to the Republic of the Philippines.
Suspension 1.
2.
3.
4.
5.
6.
After a finding that the respondent lawyer must be suspended from the practice of law, the Court shall render a decision imposing the penalty. Unless the Court explicitly states that decision is immediately executory upon receipt thereof, the respondent has 15 days within which to file a motion for reconsideration thereof. Denial of the motion for reconsideration shall render the decision final and executory. Upon expiration of the period of suspension, the respondent shall file a Sworn Statement with the Court through the Office of the Bar Confidant stating therein that he or she has desisted from the practice of law and has not appeared in any court during the period of his or her suspension. Copies of the sworn statement shall be furnished the Local Chapter of the IBP and to the Executive Judge of the courts where he or she has pending cases and/or has appeared as counsel. The Sworn Statement shall be considered as proof of respondent’s compliance with the order of suspension. Any finding or report contrary to the statements made by the lawyer under oath shall be ground for imposition of a more severe punishment, or disbarment, as may be warranted (Maniago v. Atty. De Dios, A.C. No. 78472, March 30, 2010).
MANDATORY CONTINUING LEGAL EDUCATION State the aims and objectives sought to be accomplished by MCLE. Continuing legal education is required of members of the IBP to ensure that throughout their career, they keep abreast with law and jurisprudence, maintain ethics of the profession and enhance the standards of practice of law. Requirements of completion of MCLE Members of the IBP, unless exempted under Rule 7, shall complete every 3 years at least 36 hours of continuing legal education activities. The 36 hours shall be divided as follows: 1. 2. 3. 4.
Lifting of Suspension
The lifting of a lawyer’s suspension is not automatic upon the end of the period stated in the Court’s decision, and an order from the Court lifting the suspension at the end of the period is necessary in
5.
16
6 hours – legal ethics 4 hours – trial and pretrial skills 5 hours – alternative dispute resolution 9 hours – updates on substantive and procedural laws and jurisprudence 4 hours – legal writing and oral advocacy
UST LAW PRE-WEEK NOTES 2017 6. 7.
2 hours – international law and international conventions Remaining 6 hours – such other subjects as may be prescribed by the Committee on MCLE
12. Governors and mayors 13. Those who are not in law practice, private or public 14. Those who have retired from law practice approved by the IBP Board of Governor 15. Good cause for exemption from or modification of requirement, member may file a verified request (such as physical disability, illness, post-graduate study abroad, proven expertise in law, etc.) from compliance with or modification of any of the requirements.
Non-compliance of the MCLE 1. 2. 3.
4.
5. 6.
Failure to complete education requirement within the compliance period; Failure to provide attestation of compliance or exemption; Failure to provide satisfactory evidence of compliance (including evidence of exempt status) within the prescribed period; Failure to satisfy the education requirement and furnish evidence of such compliance within 60 days from receipt of non-compliance notice; Failure to pay non-compliance fee within the prescribed period; or Any other act or omission analogous to any of the foregoing or intended to circumvent or evade compliance with the MCLE requirements.
NOTARIAL PRACTICE Qualifications 1. 2. 3. 4. 5. 6.
Consequences of non-compliance (2014 Bar)
Citizen of the Philippines Over 21 years of age Resident of the Philippines for at least 1 year Maintains a regular place of work in the city or province where the commission is to be issued, Member of the Philippine bar in good standing Has not been convicted in the first instance of a crime involving moral turpitude.
Term of office: Two (2) years, commencing from the first day of January of the year in which the commission was issued.
A member who fails to comply with the requirements after the 60-day period shall be listed as delinquent member by the IBP Board of Governors upon recommendation of the Committee on MCLE.
Jurisdiction of Notary Public: jurisdiction of the commissioning court.
A lawyer who teaches major subjects in law school for 8 years is not exempt from MCLE, while a professor who teaches for 30 years not in College of Law is also not exempt. (2012 Bar)
Territorial
Place of notarization: Regular place of work, except : 1. public office, convention halls, and similar places where oaths of office may be administered, 2. public function areas in hotels and similar places for the signing of documents or instruments requiring notarization, 3. hospitals and other medical institutions where a party to an instrument is confined for treatment., 4. any place where a party to an instrument is under detention.
Persons exempted from the MCLE 1.
President and Vice-President, Secretaries and Undersecretaries of Executive Departments 2. Senators and Members of the House of Representatives 3. Chief Justice and Associate Justices of the Supreme Court, incumbent and retired members of the judiciary, incumbent members of the Judicial and Bar Council, incumbent court lawyers covered by the Philippine Judicial Academy 4. Chief State Counsel, Chief State Prosecutor, and Assistant Secretaries of the Department of Justice 5. Solicitor General and Assistant Solicitor General 6. Government Corporate Counsel, Deputy an Assistant Government Corporate Counsel 7. Chairmen and Members of Constitutional Commissions 8. The Ombudsman, over-all Deputy Ombudsman, Deputy Ombudsman and Special Prosecutor of the Office of the Ombudsman 9. Heads of government agencies exercising quasijudicial functions 10. Incumbent deans, bar reviewers and professors of law who have teaching experience for at least ten years in an accredited law school 11. The Chancellor, Vice-Chancellor and members of the Corps of Professors and Professorial Lecturers of the Philippine Judicial Academy
The “regular place of work or business” refers to a stationary office in the city or province wherein the notary public renders legal and notarial services. Authority of judges to notarize MTC Judges: MTC and MCTC judges may act as notaries public ex-officio in the notarization of documents connected only with the exercise of their official functions and duties. They may not, as notaries public ex-officio, undertake the preparation and acknowledgment of private documents, contracts and other acts of conveyances which bear no direct relation to the performance of their functions as judges. RTC Judges: No judge or other official or employee of the superior courts shall engage in private practice as a member of the bar or give professional advice to clients. Notarization of documents is considered a practice of law.
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LEGAL ETHICS h. Commission i. j.
A notarial commission may be issued by an Executive Judge to any qualified person who submits a petition in accordance with the Rules on Notarial Practice
k. Commissioned notary public is enjoined from performing a notarial act unless the affiant is: 1. in his presence at the time of the notarization; and 2. personally known to him or otherwise identified by him through competent evidence of identity as defined by the Rules.
fails to identify a principal on the basis of personal knowledge or competent evidence; executes a false or incomplete certificate; knowingly perform or fails to perform any other act prohibited or mandated by the Rules; commits any other dereliction or act which in the judgment of the Executive Judge constitutes good cause for revocation of commission or imposition of administrative sanction
A notary public is empowered to perform the following notarial acts:
Q: Enumerate the instances when a Notary Public may authenticate documents without requiring the physical presence of the signatories. (2010 Bar)
1. 2. 3. 4. 5. 6.
A: 1. If the signatory is old or sick or otherwise unable to appear, his presence may be dispensed with if one credible witness not privy to the instrument and who is known to the notary public, certifies under oath or affirmation the identity of the signatory. 2. If two credible witnesses neither of whom is privy to the instrument, not known to the notary public but can present their own competent evidence of identity of the signatory. 3. In cases of copy certification and issuance of certified true copies.
Acknowledgments; Oaths and affirmations; Jurats; Signature witnessing; Copy certifications; and Any other act authorized by these rules
A notary public is authorized to certify the affixing of a signature by thumb or other mark on an instrument or document presented for notarization. Also, he is authorized to sign on behalf of a person who is physically unable to sign or make a mark on an instrument or document. (1995 Bar) Acknowledgment v. Jurat
Expired Commission A notary public may file a written application with the Executive Judge for the renewal of his commission within 45 days before the expiration thereof. Failure to file said application will result in the deletion of the name of the notary public in the register of notaries public and may only be reinstated therein after he is issued a new commission Revocation of Commission Executive judge may revoke commission: 1. For any ground for which an application for a commission may be denied; 2. Where the notary public – a. fails to keep a notarial register; b. fails to make a proper entry in his notarial register; c. fails to send a copy of his entries to the Executive within10 days of the following month; d. fails to affix to acknowledgments date of expiration of his commission; e. fails to submit his notarial register, when filled, to the Executive Judge; f. fails to make his report to the Executive Judge within a reasonable time, concerning the performance of his duties, as may be required by the Judge; g. fails to require the presence of a principal at the time of a notarial act;
ACKNOWLEDGMENT Act of one who has executed a deed, in going to some competent officer or court and declaring it to be his act or deed
JURAT That part of an affidavit in which the notary public or officer certifies that the instrument was sworn to before him.
The notary public or officer taking the acknowledgment shall certify that the person acknowledging the instrument or document is known to him and he is the same person who executed it and acknowledged that the same is his free act and deed. Two-fold purpose: To authorize the deed to be given in evidence without further proof of its execution, and, to entitle it to be recorded.
It is not part of a pleading but merely evidences the fact that the affidavit was properly made.
Purpose: Gives the document a legal character.
Where used: Where used: 1. To authenticate an 1. Affidavits; agreement between two or 2. Certifications; more persons; or 3. Whenever the 2. Where the document person executing contains a disposition of makes a property. statement of facts
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UST LAW PRE-WEEK NOTES 2017
E.g. The acknowledgment in a deed of lease of land.
Punishable acts under Notarial Practice Law
or attests to the truth of an event, under oath. E.g. An affidavit subscribed before a notary public or public official authorized for the purpose.
1. 2.
3.
Atty. D allegedly notarized an Extrajudicial Settlement with Waiver of Rights where the signatures were forged, the persons did not appear and acknowledge the same before Atty. D as notarizing officer, and the community tax certificates were also not theirs. Atty. D admitted that he notarized the document, relying in good faith on the representation of one of the heirs that the signatures and tax certificates were correct. Was there a violation of the Notarial Law?
Limitations to the performance of notarial acts A person shall not perform a notarial act if the person involved as signatory to the instrument or document is: 1. 2.
3. 4.
Not in the notary's presence personally at the time of the notarization; and Not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by the Rules on Notarial Practice The document is blank or incomplete; An instrument or document is without appropriate notarial certification
Yes. Notaries public should refrain from affixing their signature and notarial seal on a document unless the persons who signed it are the same individuals who executed and personally appeared before the notaries public to attest to the truth of what are stated therein. Without the appearance of the person who actually executed the document in question, notaries public would be unable to verify the genuineness of the signature of the acknowledging party and to ascertain that the document is the party’s free act or deed. Furthermore, notaries public are required by the Notarial Law to certify that the party to the instrument has acknowledged and presented before the notaries public the proper residence certificate (or exemption from the residence certificate) and to enter its number, place, and date of issue as part of certification.
Instances when Notary public may refuse to notarize: 1.
2.
3. 4.
The notary knows or has good reason to believe that the notarial act or transaction is unlawful or immoral; The signatory shows a demeanor which engenders in the mind of the notary public reasonable doubt as to the former's knowledge of the consequences of the transaction requiring a notarial act; In the notary's judgment, the signatory is not acting of his or her own free will If the document or instrument to be notarized is considered as an improper document by the Rules on Notarial Practice.
The 2004 Rules on Notarial Practice (as amended by A.M. No. 02-8-13-SC, February 19, 2008) requires a party to the instrument to present competent evidence of identity: (a) at least one current identification document issued by an official agency bearing the photograph and signature of the individual, such as but not limited to, passport, driver’s license, Professional Regulations Commis sion ID, National Bureau of Investigation clearance, police clearance, postal ID, voter’s ID, Barangay certification, Government Service and Insurance System (GSIS) ecard, Social Security System (SSS) card, Philhealth card, senior citizen card, Overseas Workers Welfare Administration (OWWA) ID, OFW ID, seaman’s book, alien certificate of registration/immigrant certificate of registration, government office ID, certification from the National Council for the Welfare of Disable Persons (NCWDP), Department of Social Welfare and Development (DSWD) certification; or (b) the oath or affirmation of one credible witness not privy to the instrument, document or transaction who is personally known to the notary public and who personally knows the individual, or of two credible witnesses neither of whom is privy t o the instrument, document or transaction who each personally knows
A notary public is disqualified to perform notarial act when he: 1. 2.
3.
Acts or otherwise impersonates a notary public; Obtains, conceals, defaces, or destroys the seal, notarial register, or official records of a notary public; and Solicits, coerces, or in any way influences a notary public to commit official misconduct to be notarized.
Is a party to the instrument or document that is to be notarized; Will receive, as a direct or indirect result, any commission, fee, advantage, right, title, interest, cash, property, or other consideration, except as provided by the Rules on Notarial Practice and by law; or Is a spouse, common-law partner, ancestor, descendant, or relative by affinity or consanguinity of the principal within the fourth civil degree
Notary public is personally accountable for all entries in his notarial register. They cannot be relieved of responsibility for the violation of the aforesaid sections by passing the buck to their secretaries (Lingan v. Atty. Calibaquib, A.C. No. 5377, June 15, 2006).
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LEGAL ETHICS the individual and shows to the notary public documentary identification.
judge shall, therefore, uphold and exemplify judicial independence in both its individual and institutional aspects
JUDICIAL ETHICS
Individual Judicial Independence focuses on each particular case and seeks to insure the ability of the judge to decide cases with autonomy and within the constraints of the law while Institutional Judicial Independence focuses on the independence of the judiciary as a branch of the government and protects judges as a class (In the Matter of the Allegations Contained in the Columns of Mr. Amado P. Macasaet Published in Malaya dated September 18, 19, 20 and 21, 2007).
The branch of moral science which treats of the right and proper conduct to be observed by all judges in trying and deciding controversies brought before them for adjudication and which conduct must be demonstrative of impartiality, integrity, competence, independence and freedom from improprieties. This freedom from improprieties must be observed in both the public and private life of a judge who is the visible representation of the law.
Judges must reject pressure by maintaining independence from, but not limited to the following:
A judge is a public officer who, by virtue of his office, is clothed with judicial authority and is lawfully appointed to decide litigated questions in accordance with law (People v. Manantan, G.R. No. L-14129, August 30, 1962).
1.
The two sources of judicial ethics a. b.
2.
New Code of Judicial Conduct for the Philippine Judiciary (Bangalore Draft); Code of Judicial Conduct
3.
NEW CODE OF JUDICIAL CONDUCT FOR THE PHILIPPINE JUDICIARY (BANGALORE DRAFT) The New Code of Judicial Conduct (NCJC) for the Philippine Judiciary which took effect on June 1, 2004 supersedes the Canons of Judicial Ethics and the Code of Judicial Conduct. Provided, however , that in case of deficiency or absence of specific provisions in this New Code, the Canons of Judicial Ethics and Code of Judicial Conduct shall be applicable in a suppletory character (2007, 2009 Bar Questions).
4.
Principle of Subjudice A judge is prohibited from making public statements in the media regarding a pending case so as not to arouse public opinion for or against a party (2007 Bar)
One of the foundations of the Bangalore Draft of the Code of Judicial Conduct is the importance in a modern democratic society of what? (2011 Bar Question)
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.
Public confidence in its judicial system and in the moral authority and integrity of its judiciary. The six (6) canons under the New Code of Judicial Conduct for the Philippine Judiciary 1. 2. 3. 4. 5. 6.
Independence from public officials – the public laid their confidence on the fact that the official is mentally and morally fit to pass upon the merits of their varied intentions. Independence from government as a whole – avoid inappropriate connections, as well as any situation that would give rise to the impression of the existence of such inappropriate connections. Independence from family, social, or other relationships –avoid sitting in litigation where a near relative is a part of or counsel; be independent from judicial colleagues (Sec. 2) and avoid such actions as may reasonably tend to wake the suspicion that his social or business relations constitute an element in determining his judicial course. Independence from public opinion – the only guide of the official is the mandate of law.
The term “judge’s family” includes: 1. Judge’s spouse 2. Son/s 3. Daughter/s 4. Son/s-in-law 5. Daughter/s-in-law 6. Other relatives by consanguinity or affinity within the sixth civil degree, or 7. Any person who is a companion or employee of the judge and who lives in the judge’s household
Independence Integrity Impartiality Propriety Equality Competence and Diligence INDEPENDENCE
Canon 1 Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. a
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UST LAW PRE-WEEK NOTES 2017 When the judge is related to one of the parties within the sixth degree of consanguinity or affinity, a judge’s disqualification to sit in a case is mandatory, “notwithstanding lack of pecuniary interest in the case”.
No. The act committed by the two lawyers was indirect contempt violative of the rule punishing “any improper conduct tending directly or indirectly, to impede, obstruct, or degrade the administration of justice”, since the judge was then engaged in dictating an order before the morning session was called. The act of the two lawyers constituted obstruction of the administration of justice, which was indirect contempt. Accordingly, they could only be punished after notice and hearing.
Judges of the first and second level courts are allowed to receive assistance from the local government units where they are stationed. This assistance could be in the form of equipment or allowance. Justices at the Court of Appeals in the regional stations in the Visayas and Mindanao are not necessarily residents thereof, hence, they incur additional expenses for their accommodations. Pass on the propriety of the justices' receipt of assistance/allowance from the local governments. (2010 Bar)
IMPARTIALITY Canon 3 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 5, Cannon 1 of the New Code of Judicial Conduct for the Philippine judiciary provides that Judges shall be free from inappropriate connections with, and influence by, the executive branch, and must appear to be free therefrom to a reasonable extent. It is a common perception that the receipt of allowances or assistance from a local government unit may affect the judge's ability to rule independently in cases involving the said unit.
Principle of cold neutrality of an impartial judge A judge should not only render just, correct, and impartial decision but should do so in a manner free from suspicion as to his fairness, impartiality and integrity. This is an indispensable requisite of due process (Rallos v. Gako, A.M. No.RTJ-98-1484, March 17, 2000). Degree of proof required to prove bias on the part of the judge
INTEGRITY Canon 2 Integrity is essential not only to the proper discharge of the judicial office, but also to the personal demeanor of judges
The complainant must prove the same by clear and convincing evidence since allegations of bias are quite serious. Mere allegations are not sufficient to constitute a violation of the rule. Bias and prejudice cannot be presumed and mere suspicion of partiality is not enough.
Presumption regarding judges Judges are presumed honest and men of integrity, unless proven otherwise.
Extra-judicial source rule
Integrity is essential not only to the proper discharge of the judicial office but also to the personal demeanor of judges. The integrity of the judiciary rests not only upon the fact that it is able to administer justice but also upon the perception and confidence of the community that people who run the system have done justice. Justice must not be merely done but must also be seen to be done (Panaligan v. Judge Ibay, A.M. No. TJ-06-1972, June 21, 2006).
It means that the decision is based on some influence other than the facts and law presented in the courtroom In a murder trial, Judge T asked searching questions of all the witnesses for the accused prompting Atty. O, counsel the accused, to request Judge T to desist from acting as counsel for the prosecution. The Judge, however, reminded Atty. O that she wanted to determine whether the accused was guilty of the crime charged. Is it proper for Judge T to take an active part on the examination of th e accused’s witnesses? (1996 Bar)
A judge may summarily punish any person including lawyers and court personnel, for direct contempt for misbehaviour committed in the presence of or so near a court or a judge as to obstruct or interrupt the proceedings before the same.
No, it is not proper. The intervention of the judge in a case must be done with considerable circumspection. It must be done sparingly and not throughout the trial, which will have the effect of or will tend to build or bolster the case for one of the parties. The reason for this rule is that the judge should not only be impartial but also appear to be impartial.
While Judge Tuparin was in his chambers dictating an order to a stenographer, two lawyers who were in the courtroom waiting for the start of the session almost came to blows as a result of a heated argument. Tuparin came out of his chambers and after identifying the lawyers involved in the commotion promptly declared them in contempt of court. Was the action of Judge Tuparin proper?
Judges shall, so far as is reasonable, so conduct themselves as to minimize the occasions on which it
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LEGAL ETHICS will be necessary for them to be disqualified from hearing or deciding cases.
6.
Meaning of “duty to sit” It means that a judge must ensure that he will not be unnecessarily disqualified from a case. A judge cannot inhibit himself as he pleases. A decision to inhibit must be based on good, sound or ethical grounds, or for just and valid reasons. It is not enough that a party cast some tenuous allegations of partiality at the judge.
7.
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 The judge is related by consanguinity or affinity to a party litigant within the 6th civil degree or to counsel within the 4th civil degree
Judge Mijares was charged with grave misconduct for taking cognizance and deciding a special proceeding for correction of entry in the record of her grandson, notwithstanding such relationship. It was also alleged that the judge dispensed with the publication requirement in said proceeding. In her answer, Judge Mijares contended that the prohibition provided for under the Code did not apply to special proceedings which are not controversial in nature and that she does not have any pecuniary interest in the case. Is the contention correct?
Judge Segotier is a member of Phi Nu Phi Fraternity. Atty. Nonato filed a motion to disqualify Judge Segotier on the ground that the counsel for the opposing party is also a member of the same fraternity. Judge Segotier denied the motion. Comment on his ruling. (2005 Bar) The ruling of Judge Segotier is correct. The fact that a judge is a former classmate of one of the counsels in a case has been held to be sufficient ground for the disqualification of the judge. Intimacy or friendship between judge and an attorney of record has also been held to be sufficient ground for disqualification.
No. A judge who is related to a party within the 6th degree of consanguinity is mandated to inhibit himself from hearing the case “notwithstanding lack of pecuniary interest in the case”. This is so because lack of such interest does not mean that she can already be free from bias and partiality in resolving the case by reason of her close blood relationship as evident from the fact that here, she waived the publication requirement in order to save the petitioner from the payment of publication fee. Thus, the judge’s taking cognizance of the petition was improper (Villaluz v. Mijares, A.M. No. RTJ -98-1402 288, April 3, 1998).
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. Judges should not only be impartial but should also appear impartial. Judges must not only render just, correct and impartial decisions, but must do so in a manner free from any suspicion as to their fairness, impartiality and integrity.
Inhibition An act when a judge personally prevents himself from taking cognizance of the case. This is made through a written petition to inhibit which shall state the grounds for the same. The explanation of the judge whether or not to take cognizance of the case must also be in writing.
Judges shall disqualify themselves from participating in any proceeding 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.
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 inhibition is immaterial or unsubstantial, the judge may then participate in the proceeding. The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceedings.
The phrase “any proceedings” includes, but is not limited to instances where: 1. The judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings 2. The judge previously served as a lawyer or was a material witness in the matter in controversy 3. A judge may be disqualified if he was formerly associated with one of the parties or their counsel. 4. A judge who previously notarized the affidavit of a person to be presented as a witness in a case before him shall be disqualified from proceeding with the case. 5. The judge, or a member of his or her family, has an economic interest in the outcome of the matter in controversy
Types of disqualification 1. Mandatory or compulsory disqualification 2. Voluntary disqualification or inhibition Disqualification There are specific grounds enumerated under the rules of court
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Inhibition The rule only provides broad basis for inhibition.
UST LAW PRE-WEEK NOTES 2017 for disqualification. The judge has no discretion; mandatory
Grounds for disqualification
issued an order for the arrest of the accused, granted a motion for the reduction of bail, and set the date for the arraignment of the accused. Subsequently, Judge Quintero inhibited himself from the case, alleging that even before the case was raffled to his court, he already had personal knowledge of the circumstances surrounding the case. Is Judge Quintero’s inhibition justified? Explain. (2009 Bar)
The rule leaves the matter to the judge’s sound discretion mandatory/compulsory
1. When he, or his wife, or child is pecuniarily interested as heir, legatee, creditor, or otherwise; 2. When he is related to either party within the 6th degree of consanguinity or affinity or to counsel within the 4th civil degree; 3. When he has been an executor, guardian, administrator, trustee, or counsel; or 4. When he has presided in an inferior court where his ruling or decision is subject to review, without the written consent of the parties (Rule 137, RRC).
Judge Quintero’s inhibition is justified. One of the grounds for inhibition under Section 5, Canon 3 of the New Code of Judicial Conduct for the Philippine Judiciary is “where a judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings”. Rebecca’s complaint was raffled to the sala of Judge A. Rebecca is a dau ghter of Judge A’s wife by a previous marriage. This is known to the defendant who does not, however, file a motion to inhibit the Judge. Is the Judge justified in not inhibiting himself from the case? (2010 Bar)
XPN to compulsory disqualification : The judge may hear and decide the case despite the presence of a disqualification provided the interested parties both give their written consent, signed by them and entered upon the record. It has been decided by the Supreme Court that oral consent is not valid, even though both parties have agreed
The judge is not justified in not inhibiting himself. It is mandatory for him to inhibit if he is related to any of the parties by consanguinity or affinity within the sixth civil degree. Judge A, being the stepfather of Rebecca, is related to her by affinity by just one degree. “Judges shall disqualify themselves from participating in any proceeding 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” . The fact that Rebecca is a daughter of Judge A’s wife is enough to make a reasonable observer doubt his impartiality.
In a verified complaint, Kathy said that Judge Florante decided a petition for correction of entry involving the birth record of her grandson, Joshua, who happened to be child of Judge Florante’s daughter, Pilita. Judge Florante insisted that he committed no wrong since the proceeding was non-adversarial and since it merely sought to correct an erroneous entry in the child’s birth certificate. Is Judge Florante liable? (2011 Bar) Yes, because Florante breached the rule on mandatory disqualification. Sec. 5, Canon 3 provides that: “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: “ xx 6. The judge is related by consanguinity or affinity to a party litigant within the 6 th civil degree or to counsel within the fourth civil degree.” This is considered as a MANDATORY INHIBITION. Strict compliance with the rules on disqualification is required.
Voluntary inhibition of a judge The judge may in his discretion inhibit himself, for just and valid reasons other than the grounds for mandatory disqualification. The rule on voluntary disqualification or inhibition is discretionary upon the judge on the basis of his conscience. The filing of an administrative case against a judge does not automatically disqualify him from sitting in a case. It must be shown that there are other acts or conducts by the judge which constitute a ground for his disqualification. The judge may not voluntarily inhibit himself by the mere fact that a lawyer recommended him to the bench. ‘Utang na loob’ per se, should not be a hindrance to the administration of justice. Nor should recognition of such value in Philippine society prevent the performance of one’s duties as judge. However, in order to avoid any suspicion of partiality, it is better for the judge to voluntarily inhibit himself.
Can a judge who refuses to inhibit himself although one of the lawyers in the case is his second cousin be sanctioned? No. The ground for mandatory disqualification refers to the counsel within the 4th civil degree of the judge. A second cousin of a judge is his relative within his sixth degree, hence, he may not be sanctioned for not inhibiting.
Atty. Abigail filed administrative cases before the Supreme Court against Judge Luis. Thereafter, Atty. Abigail filed a Motion for Inhibition praying
In a case for homicide filed before the Regional Trial Court (RTC), Presiding Judge Quintero
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LEGAL ETHICS that Judge Luis inhibit himself from trying, hearing or in any manner acting on all cases, civil and criminal, in which Atty. Abigail is involved and handling. Should Judge Luis inhibit? (2008 Bar)
Judges shall avoid impropriety and the appearance of impropriety in all of their activities
Judge Luis should not inhibit. The mere filing of an administrative case against a judge is not a ground for disqualification on the ground of bias and prejudice. Remittal of disqualification
During the hearing of an election protest filed by the brother of Judge Dojillo, the latter sat beside the counsel of his brother allegedly to give moral support. Did the judge commit any improper conduct?
A judge disqualified may, instead of withdrawing from the proceeding, disclose in 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 insubstantial; the judge may then participate in the proceeding. The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceedings (Sec. 6, Canon 3, NCJC ).
Yes. The judge violated the rule on propriety under Sec 1, Canon 4, NCJC for even if he did not intend to use his position as a judge to influence the outcome of his brother’s election protest, it cannot be denied that his presence in the courtroom during the hearing of his brother’s case would immediately give cause for the community to suspect that his being a colleague in the judiciary would influence the judge trying the case to favor his brother (Vidal v. Judge Dojillo Jr., A.M. No. MTJ-05-1591, July 14, 2005).
Requirements for a judge to continue hearing a case despite the existence of reasons for disqualifications
NCJC does not prohibit a judge from joining or maintaining an account in social networking sites. Section 6, Canon 4 of the New Code of Judicial Conduct recognizes that judges, like any other citizen, are entitled to freedom of expression. However, the same provision also imposes a correlative restriction on judges: in the exercise of their freedom of expression, they should always conduct themselves in a manner that preserves the dignity of the judicial office and the impartiality and independence of the Judiciary (Lorenzana v. Judge Austria, A.M. No. RTJ-09 2200, April 2, 2014).
1. 2.
Acts done by a judge which are not illegal may still constitute a violation of this rule.
The bona fide disclosure to the parties in litigation; and The express acceptance by all the parties of the cited reason as not material or substantial.
No absolute prohibition against judges from making comments Not all comments are impermissible. Judges may express their open-mindedness regarding a pending issue in cases where the judges’ comments do not necessarily favor one side over the other.
As a general rule, a judge is prohibited from serving as executor, administrator, trustee, guardian or other fiduciary. When a member of the bench serves as administrator of the properties of private individuals, he runs the risk of losing his neutrality and impartiality, especially when the interests of his principal conflicts with those of the litigant who comes before his court. The only exception to this rule is when the estate or trust belongs to, or the ward is a member of his immediate family, and only if his service as executor, administrator, trustee, guardian or fiduciary will not interfere with the proper performance of his judicial duties. The Code defines "immediate family" as being limited to the spouse and relatives within the second degree of consanguinity (Lopez v. Judge Lucmayo, September 24, 2014).
However, judges should avoid side remarks, hasty conclusions, loose statements or gratuitous utterances that suggest they are prejudging a case. Judges should be aware that the media might consider them a good and credible source of opinion or ideas, and, therefore, should refrain from making any comment on a pending case. There is danger not only of being misquoted, but also of compromising the rights of the litigants in the case. PROPRIETY Canon 4 Propriety and the appearance of propriety are essential to the performance of all the activities of a judge
Pending before the sala of Judge Magbag is the case of CDC versus JQT. The legal counsel of JQT is Atty. Ocsing who happens to be the brother of Atty. Ferreras, a friend of Judge Magbag. While the case was still being heard, Atty. Ferreras and his wife celebrated their wedding anniversary. They invited their friends including Judge Magbag who attended the party and was seen conversing with Atty. Ocsing while they were eating at the same
Judges must avoid not only impropriety but also the appearance of impropriety. They are mandated not to allow family, social or other relationships to influence judicial conduct or judgment, nor convey or permit others to convey the impression that they are in a special position to influence the judge.
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UST LAW PRE-WEEK NOTES 2017 table. Comment on the propriety of Judge Magbag’s act. 3. A judge is not required to live in seclusion. He is permitted to have social life as long as it does not interfere with his judicial duties. However, the judge should be careful to avoid suspicion that his social life constitutes an element in determining judicial action. Sitting on the same table and conversing with lawyers with a pending case before him raises such appearance of impropriety.
Judges shall not practice law whilst a holder of judicial office Judges are prohibited from engaging in the practice of law or giving professional advice to clients. Philippine courts not only prohibit judges from overtly representing clients as counsel of record, but also from acting more subtly in a way more befitting an advocate than a judge.
A and B are accused of estafa by C, the wife of Regional Trial Court (RTC) Judge D. Judge D testified as a witness for the prosecution in the estafa case. Did Judge D commit an act of impropriety?
NCJC do not make any distinction in prohibiting judges from engaging in the private practice of law while holding judicial office. A judge who was merely suspended and not dismissed from service is still bound by the prohibition (Binalay v. Lelina Jr, A.M. No. RTJ-08-2132, July 31, 2009).
If the testimony of Judge D is essential for the prosecution of estafa case, it is not improper for him to testify. But if it is not essential, his act of testifying will be improper. 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.
Rules relating to prohibition against accepting gifts, bequests, or loans GR: 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. Also, 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, to be done or omitted to be done in connection with their duties or functions.
In an action to prevent the condominium developer from building beyond ten (10) floors, Judge Cerdo rendered judgment in favor of the defendant developer. The judgment became final after the plaintiffs failed to appeal on time. Judge Cerdo thereafter purchased a condominium unit from the developer. Did Judge Cerdo commit any act of impropriety? (2013 Bar) Yes, Judge Cerdo is guilty of an act of impropriety. It is desirable that he should, so far as reasonably possible, refrain from all relations which would normally tend to arouse the suspicion that such relations warp or bias his judgment, or prevent his impartial attitude of mind in the administration of his judicial duties.
XPN: 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 official duties or otherwise give rise to an appearance of partiality.
It was inappropriate for a judge to have entertained a litigant in his house particularly when the case is still pending before his sala.
Anti-Graft and Corrupt Practices Act Unsolicited gifts or presents of small value offered or given as a mere ordinary token of gratitude or friendship according to local custom or usage are allowed.
It is reprehensible for a judge to humiliate a lawyer, litigant or witness. A judge must at all times be temperate in his language. He must choose his words, written or spoken, with utmost care and sufficient control.
Allowed gifts and grants from foreign countries
Subject to the proper performance of judicial duties, judges may:
1.
1.
2.
2.
legal system, the administration of justice or related matters; 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.
Write, lecture, teach and participate in activities concerning the law, the legal system, the administration of justice or related matter; Appear at a public hearing before an official body concerned with matters relating to the law, the
3.
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The acceptance and retention by a public official or employee of a gift of nominal value tendered and received as a souvenir or mark of courtesy; The acceptance by a public official or employee of a gift in the nature of a scholarship or fellowship grant or medical treatment; or The acceptance by a public official or employee of travel grants or expenses for travel taking place
LEGAL ETHICS entirely outside the Philippines (such as allowances, transportation, food and lodging) of more than nominal value if such acceptance is appropriate or consistent with the interest of the Philippines, and permitted by the head office, branch or agency to which the judge belongs
courts , instead of the courts for the litigants. Here, the judge should be held liable for misconduct when he threatened to punish complainant for contempt of court if he would refuse to withdraw his appearance, as counsel for the accused, when the latter insisted on waiving the presentation of the evidence for the defense (Atty. Quinto v. Judge Vios, A.M. No. MTJ-041551, May 21, 2004).
Reacting to newspaper articles and verbal complaints on alleged rampant sale of Temporary Restraining Orders by Judge X, the Supreme Court ordered the conduct of a discreet investigation by the Office of the Court Administrator. Judges in the place where Judge X is assigned confirmed the complaints. What administrative charge/s may be leveled against Judge X? Explain. (2010 Bar)
Judges shall carry out judicial duties with appropriate consideration for all persons, without differentiation on any irrelevant ground. Judges shall not permit court staff to differentiate between persons concerned in a matter before the judge on any irrelevant ground.
He could be charged with gross misconduct, arising from violations of the Anti-Graft and Corrupt Practices Act. He could also be charged with violations of Canon 4 of the New Code of Judicial Conduct for the Philippine Judiciary which provides that 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.
Judges shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice based on irrelevant grounds. COMPETENCE AND DILIGENCE Canon 6 Competence and diligence are prerequisites to the due performance of judicial office
EQUALITY
To constitute gross ignorance of the law, it is not enough that the subject decision, order or actuation of the respondent judge in the performance of his official duties is contrary to existing law and jurisprudence but, most importantly, he must be moved by bad faith, fraud, dishonesty or corruption.
Canon 5 Ensuring equality of treatment to all before the courts is essential to the due performance of the judicial office Every judge should decide cases with dispatch and should be careful, punctual, and observant in the performance of his functions for delay in the disposition of cases erodes the faith and confidence of our people in the judiciary, lowers its standards and brings it into disrepute. However, in imposing the penalty of fine, other circumstances may be considered such as the judge’s continuous service in the judiciary, his avowed dire need of funds, and his expressed willingness to abide by whatever penalty the Court may impose upon him.
A judge should always be a symbol of rectitude and propriety, and should always comport himself in a manner that will raise no doubt whatsoever about his honesty. A judge’s act of misappropriating the money entrusted to him by litigants in connection with a case pending in his court constitutes gross misconduct. Absent any evidence showing outright bad faith, a judge should not be held liable for gross misconduct and gross ignorance of the law. Thus, for committing acts that manifested poor judgment and negligence, he is only guilty of simple misconduct.
Atty. Quinto was the defense counsel in a criminal case. In his verified complaint, he alleged that during the hearing, he manifested that he was waiving the presentation of evidence for the accused. Judge Vios then allegedly got angry, shouted and scolded him, stating that the defense had no right to waive the presentation of evidence. He did not even listen to Atty. Quinto’s explanation and, thereafter, compelled the latter to withdraw his appearance as counsel of the accused, under pain of contempt. In the presence of the complainant, Judge Vios appointed a counsel de officio. May Judge Vios be held administratively liable for compelling the lawyer to withdraw as counsel for the accused under pain of contempt?
After being diagnosed with stress dermatitis, Judge Rosalind, without seeking permission from the Supreme Court, refused to wear her robe during court proceedings. When her attention was called, she explained that whenever she wears her robe she is reminded of her heavy caseload, thus making her tense. This, in turn, triggers the outbreak of skin rashes. Is Judge Rosalind justified in not wearing her judicial robe? Explain. (2009 Bar) Judge Rosalind is not justified. The wearing of robes by judges as required by Adm. Circular No. 25, serves the dual purpose of heightened public consciousness on the solemnity of judicial proceedings and in impressing upon the judge the exacting obligations of his office. The robe is a part of the judges’ appearance and is as important as the gavel. The Supreme Court
Yes. A judge should avoid unconsciously falling into the attitude of mind that the litigants are made for the
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UST LAW PRE-WEEK NOTES 2017 added that “while circumstances, such as a medical condition claimed by the respondent judge, may exempt one from complying with A.C. no. 25, he must first secure the Court’s permission for such exemption. He cannot simply excuse himself, like respondent judge, from complying with the requirement.
the case in his personal opinion. But still, it undermines the authority of the SC and he may incur administrative liability for it. DISCIPLINE OF MEMBERS OF JUDICIARY The Court en banc has the power to discipline all judges of lower courts including justices of the Court of Appeals.
Judges shall keep themselves informed about relevant developments of international law, including international conventions and other instruments establishing human rights norms.
Disbarment of judges and justices Judges and justices, being lawyers, may also be disbarred, if found guilty of certain crimes and/or other causes for disbarment under the Rules of Court.
Judges shall perform all judicial duties, including the delivery of reserved decisions, efficiently, fairly and with reasonable promptness.
Condition before Justices of the Supreme Court may be disbarred
Unreasonable delay of a judge in resolving a pending incident is a violation of the norms of judicial conduct and constitutes gross inefficiency that warrants the imposition of an administrative sanction against the defaulting magistrate
Justices of the Supreme Court in order to be disbarred must first be impeached in accordance with the Constitution.
Prompt disposition of cases is attained basically through the efficiency and dedication to duty of judges. If judges do not possess those traits, delay in the disposition of cases is inevitable to the prejudice of the litigants. Accordingly, judges should be imbued with a high sense of duty and responsibility in the discharge of their obligation to administer justice promptly.
Purpose of impeachment: Primarily intended for the protection of the State, not for the punishment of the offender. Discipline of the Members of the Lower Court Judges, Justices of the Court of Appeals and the Sandiganbayan The acts of a judge in his judicial capacity are not subject to disciplinary action. In the absence of fraud, malice or dishonesty in rendering the assailed decision or order, the remedy of the aggrieved party is to elevate the assailed decision or order to the higher court for review and correction. However, an inquiry into a judge’s civil, criminal and/or administrative liability may be made after the available remedies have been exhausted and decided with finality.
Judge X was invited to be a guest speaker during the annual convention of a private organization which was covered by the media. Since he was given the liberty to speak on any topic, he discussed the recent decision of the Supreme Court declaring that the President is not, under the Constitution, proscribed from appointing a Chief Justice within two months before the election. In his speech, the judge demurred to the Supreme Court decision and even stressed that the decision is a serious violation of the Constitution. Did Judge X incur any administrative liability? Explain. If instead of ventilating his opinion before the private organization, Judge X incorporated it, as an obiter dictum, in one of his decisions, did he incur any administrative liability? Explain. (2010 Bar)
Discipline of Judges; Grounds 1.
He did not incur administrative liability. Judges, like any other citizen, are entitled to freedom of expression, but in exercising such rights, they shall always conduct themselves in a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary.
2.
In deciding cases, a judge is supposed to be faithful to the law, which includes decisions of the SC. If he feels that a doctrine enunciated by the SC is against his way of reasoning, he may state his personal opinion but should decide the case in accordance with the law. The fact that Judge X ventilated his personal opinion in an obiter dictum indicates that he did not decide
Serious Misconduct – implies malice or wrongful intent, not mere error of judgment. Judicial acts complained of: a. must be corrupt or inspired by an intention to violate the law; or b. were in persistent disregard for well-known legal rules. Inefficiency – implies negligence, incompetence, ignorance and carelessness. A judge would be inexcusably negligent if he failed to observe in the performance of his duties that diligence, prudence and circumspection which the law requires in the rendition of any public service.
Several administrative complaints were filed against Judge Yu for her refusal to comply with the Supreme Court’s AO 19 -2011 which established “night courts” to expedite the handling of criminal cases in foreign tourists arrested at nighttime in Pasay and Makati;
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LEGAL ETHICS sending inappropriate messages with sexual undertones to a fellow judge when she was a state prosecutor; and unlawfully issuing show-cause orders on her colleagues. Should she be disbarred?
easily be the mainspring of injustice (Grageda v. Judge Tresvalles, A.M. MTJ No. 04-1526, February 2, 2004). Judge C was administratively charged with Delay in Rendering Judgement relative to an ejectment case which he dismissed on the ground that the plaintiff’s representative lacked the personality to file the case as his authority to file the same was for another case. It took the judge 6 years to resolve, on technicality, a case governed by the Rule on Summary Procedure. Is Judge C guilty of undue delay?
Yes. Judge Yu unquestionably committed several gross and serious administrative offenses ranging from gross misconduct and gross ignorance to the lesser offense of conduct unbecoming of a judicial officer. The grossness and severity of her offenses taken together demonstrated Judge Yu's unfitness and incompetence to further discharge the office and duties of a Judge. Her arrogance and insubordination in challenging A.O. No. 19-2011, and her unyielding rejection of the appointments of court personnel constituted gross insubordination and gross misconduct, and warranted her immediate dismissal from the Judiciary. Her requiring her fellow Judges to submit to her authority by virtue of her show-cause order, whereby she revealed her utter disrespect towards and disdain for them, as well as her conduct unbecoming of a judicial officer aggravated her liability. The administration of justice cannot be entrusted to one like her who would readily ignore and disregard the laws and policies enacted by the Court to guarantee justice and fairness for all.
Yes. Under the Rule on Summary Procedure, the first duty of the respondent upon the filing of the case for ejectment was to examine the allegations in the complaint and the evidence appended to it, and to dismiss the case outright on any of the grounds apparent for the dismissal of a civil action. In this case, the ground for dismissing the Civil Case existed and was apparent upon the filing of the basic complaint. The representative’s lack of personality was reflected in the corporate secretary's certificate appended to the complaint. Yet, respondent judge allowed the case to unnecessarily drag on for more than five years. Further, respondent having allowed several and doubtless unnecessary postponements which contributed to the delay in the resolution of what was otherwise a simple case. Undue delay in rendering a decision or order constitutes a less serious offense for which respondent is subjected to a fine (Naguiat v. Judge Capellan, A.M. No. MTJ-11-1782, March 23, 2011).
Under Section 27, Rule 138 of the Rules of Court, an attorney may be disbarred on the ground of gross misconduct and willful disobedience of any lawful order of a superior court. Given her wanton defiance of the Court's own directives, her open disrespect towards her fellow judges, her blatant abuse of the powers appurtenant to her judicial office, and her penchant for threatening the defenseless with legal actions to make them submit to her will, we should also be imposing the penalty of disbarment (OCA v. Judge Eliza Yu, A.M. No. MTJ-12-1813, November 22, 2016).
Institution of proceedings for the discipline of judges and justices Proceedings for the discipline of judges of regular and special courts and justices of the Court of Appeals and the Sandiganbayan may be instituted: 1. Motu proprio by the Supreme Court; 2. Upon a verified complaint filed before the Supreme Court supported by: a. Affidavit of persons who have personal knowledge of the facts alleged therein; or b. Documents which may substantiate said allegations. 3. Anonymous complaint supported by public records of indubitable integrity filed with the Supreme Court.
Should a judge be held administratively liable for ignorance of the law for granting bail to an accused in a criminal case without the requisite bail hearing, and despite the fact that there was an eyewitness to the murder who made a positive identification of the accused? Yes. It is already settled that when a judge grants bail to a person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment without conducting the required bail hearing, he is considered guilty of ignorance or incompetence the gravity of which cannot be excused by a claim of good faith or excusable negligence. When a judge displays an utter unfamiliarity with the law and the rules, he erodes the confidence of the public in the courts. A judge owes the public and the court the duty to be proficient in the law and is expected to keep abreast of laws and the prevailing jurisprudence. Ignorance of the law by a judge can
Resignation or retirement pending administrative case The retirement of a judge or any judicial officer from service does not preclude the finding of any administrative liability to which he should still be answerable. Also, the withdrawal or recantation of the complaint does not necessarily result in the dismissal of the case. Confidentiality of proceedings
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UST LAW PRE-WEEK NOTES 2017 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.
Suspension pendente lite not applicable to judges Rules on the liability of judges GR: A judge is not liable administratively, civilly, or criminally, when he acts within his legal powers and jurisdiction, even though such acts are erroneous so long as he acts in good faith. In such a case, the remedy of aggrieved party is not to file an administrative complaint against the judge but to elevate the error to a higher court for review and correction.
Quantum of evidence required: Ground for removal of a judicial officer should be established beyond reasonable doubt. AMALI is the owner and developer of the 37storey condominium project. Needing to use Fordham street as an access road and staging area for the construction, it asked permission from the Wack Wack Residents Association, Inc. (WWRAI) but such request was ignored. Left with no option, AMALI set up a field office along Fordham Street which it enclosed with a temporary fence. WWRAI allegedly tried to demolish the field office and set up a fence to deny access to AMALI’s construction workers, which prompted AMALI to file a petition for the enforcement of an easement of right of way in the RTC in Pasig City. RTC granted AMALI’s prayer. However, CA issued an order granting WWRAI’s petition against AMALI.
XPN: Where an error is gross or patent, deliberate and malicious, or is incurred with evident bad faith; or when there is fraud, dishonesty, or corruption. The filing of administrative complaints or just the threat of the filing of such complaints do subvert and undermine the independence of the Judiciary and its Judges. Disciplinary proceedings and criminal actions brought against any judge in relation to the performance of his official functions are neither complementary to nor suppletory of appropriate judicial remedies, nor a substitute for such remedies. Any party who may feel aggrieved should resort to these remedies, and exhaust them, instead of resorting to disciplinary proceedings and criminal actions (Hernandez v. Judge Gella, A.M. No. RTJ-13 2356, June 9, 2014).
AMALI then brought this administrative complaint, alleging that the decision of the CA had been rendered in bad faith and with conscious and deliberate intent to favor WWRAI, and to cause grave injustice to AMALI. Is the contention of AMALI tenable?
Promotion as Judge does not exculpate liability
No. In administrative proceedings, the complainant has the burden of proving the allegations of the complaint by substantial evidence. Failure to do so will lead to the dismissal of the complaint for its lack of merit. This is because an administrative charge against any official of the Judiciary must be supported by at least substantial evidence. But when the charge equates to a criminal offense, such that the judicial officer may suffer the heavy sanctions of dismissal from the service, the showing of culpability on the part of the judicial officer should be nothing short of proof beyond reasonable doubt, especially because the charge is penal in character.
Promotion as a judge during the pendency of administrative case committed while still a Clerk of Court cannot be considered either as a mitigating or an exculpatory circumstance to excuse him from any administrative liability. A judge is still bound by the same principle enshrined in Section 1, Article XI of the Constitution, which states that a public office is a public trust, and all public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives (OCA v. Atty. Mario Melchor, Jr., A.M. No. P-06-2227, August 19, 2014).
AMALI’s allegations directly attacked the validity o f the proceedings in the CA through an administrative complaint. The attack in this manner reflected the pernicious practice by disgruntled litigants and their lawyers of resorting to administrative charges against sitting judges instead of exhausting all their available remedies. We do not tolerate the practice. Such actuations cannot be tolerated at all, for even a mere threat of administrative investigation and prosecution made against a judge to influence or intimidate him in his regular performance of the judicial office always subverts and undermines the independence of the Judiciary (Re: Verified Complaint for Disbarment of AMA Land, Inc. against Court of Appeals Associate Justices, OCA IPI No. 12-204-CA-J, March 11, 2014).
Reinstatement of a Judge previously disciplined Reinstatement is proper when there is no indication that the judge is inspired by corrupt motives or reprehensive purpose in the performance of his functions. POWERS AND DUTIES OF COURTS AND JUDICIAL OFFICERS GR: Courts of justice shall always be open; justice to be promptly and impartially administered. XPN: Legal holidays Requirement of public hearing
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LEGAL ETHICS
GR: The sitting of every court of justice shall be public.
morning or afternoon session, all the notes he has taken, to be attached to the record of the case (Sec. 17, Rule 136, Rules of Court).
XPN: When the evidence to be adduced is of such nature as to require their exclusion in the interest of morality or decency.
Transcript of notes delivered to the clerk, must be duly initialled on each page, to be attached to the record of the case.
All trials on merits shall be conducted in open court or regular court room.
A clerk’s delayed remittance of cash collections constitutes gross neglect of duty because this omission deprives the court of interest that may be earned if the amounts were to be deposited in the authorized depository bank. SC Circular No. 13-92 requires clerks of court to withdraw interest earned on deposits and to remit the same to the account of the JDF within two weeks after the end of each quarter. Delay in the remittance of court’s funds casts a serious doubt on the concerned court employee’s trustworthiness and integrity (OCA v. Aurora Zuniga, A.M. No. P-10-2800, November 18, 2014).
Availability to the public of court records GR: The records of every court of justice shall be public records and shall be available for the inspection of any interested person, at all proper business hours, under the supervision of the clerk having custody of such records. XPN: Unless the court shall, in any special case, have forbidden their publicity, in the interest of morality or decency.
A clerk’s falsification of an official document like the personal data sheet required for employment in the Judiciary is gross dishonesty, and constitutes a serious administrative offense that warrants the dismissal of the employee (Concerned Citizens of Naval, Biliran v. Florante Ralar, A.M. No. P-14-3278, October 21, 2014).
Enforceability of inferior court’s processes GR: Within the province where the municipality or city lies. XPN: the approval of judge of Regional Trial Court of the province where it would be enforced.
LEGAL FEES Payment should be made upon filing of the pleading or other application and the prescribed fee to be paid in full upon filing of said same. If the fees are not paid, the Court may refuse to proceed with the action until they are paid and may dismiss the action or proceeding.
COURT RECORDS AND GENERAL DUTIES OF CLERKS AND STENOGRAPHERS Records kept by the clerk 1. 2. 3.
General Docket Judgment and Entries Book Execution Book
Fees in Lien If the Court awards claim not alleged or more than that claimed, the amount shall be considered fees in lien and the party concerned shall pay the additional fees which shall constitute a lien on the judgment in the satisfaction of said lien.
Duties of clerks in general 1.
2.
The clerk shall safely keep all records, papers, files, exhibits and public property committed to his charge, including the library of the court, and the seal and furniture belonging to his office ( Sec. 7, Rule 136, Rules of Court); Demand that the stenographer deliver notes of the session of the court to him immediately after each session (Sec. 17, Rule 136, Rules of Court).
Persons authorized to collect legal fees 1. 2. 3. 4.
Furthermore, in the absence of the judge, the clerk may: 1. 2.
5. 6.
Perform all the duties of the judge in receiving applications, petitions, inventories, reports; Issue orders and notices(Sec. 5, Rule 136, Rules of Court)
Clerks of the Supreme Court, Court of Appeals, Sandiganbayan and Court of Tax Appeals Clerks of Regional Trial Courts Clerks of Court of the First Level Courts Sheriffs, process servers and other persons serving processes Notaries Other officers taking depositions
The list is EXCLUSIVE The persons herein authorized to collect legal fees shall be accountable officers and shall be required to post bond in such amount as prescribed by the law.
Duty of stenographer It shall be the duty of the stenographer to deliver to the clerk of court, immediately at the close of such
Exempt from payment of Legal Fees
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UST LAW PRE-WEEK NOTES 2017
1.
2.
b) All decisions, resolutions, and orders issued by courts and by quasi-judicial bodies under the administrative supervision of the Supreme Court shall comply with these requirements. Similarly covered are the reports submitted to the courts and transcripts of stenographic notes (Section 3).
Indigent litigants - the legal fees shall be a lien on any judgment rendered in the case favorable to the indigent litigant unless the court otherwise provides. Republic of the Philippines – but does not include local governments and government-owned or controlled corporations with or without independent charters.
Margins and Prints A left hand margin of 1.5 inches from the edge; an upper margin of 1.2 inches from the edge; a right hand margin of 1.0 inch from the edge; and a lower margin of 1.0 inch from the edge. Every page must be consecutively numbered (Section 4).
COSTS Recovery of Costs Costs shall be allowed to a prevailing party as a matter of course. However, the court shall have power, for special reasons, to adjudge that either party shall pay the costs of an action, or that the same be divided, as may be equitable
Copies to be Filed 1.
Costs cannot be adjudged against the Republic of the Philippines. Dismissed appeal or action Court retains the power to render judgment for costs as justice may require.
Supreme Court: one original (properly marked) and four copies, unless the case is referred to the Court En Bane, in which event, the parties shall file ten additional copies. For the En Bane, the parties need to submit only two sets of annexes, one attached to the original and an extra copy. For the Division, the parties need to submit also two sets of annexes, one attached to the original and an extra copy. All members of the Court shall share the extra copies of annexes in the interest of economy of paper.
Frivolous Appeal Double or Treble Costs shall be imposed on the plaintiff or appellant, which shall be paid by his attorney, if so ordered by the Court False Allegations False Allegation made without reasonable cause and found untrue shall subject the offending party to the reasonable expenses as may have been necessarily incurred by the other part by reason of such untrue pleading.
2.
Non-appearance of Witnesses 3. If a Witness fails to appear at the time and place specified in the subpoena issued by any inferior court, the costs of the warrant of arrest and of the arrest of the witness shall be borne by him, if the court determines that his failure to answer the subpoena was willful and without excuse.
4.
EFFICIENT USE OF PAPER RULE A.M. No. 11-9-4-SC Format and Style a) All pleadings, motions, and similar papers intended for the court and quasi-judicial body's consideration and action (court-bound papers) shall be written in single space with a one and-a-half space between paragraphs, using an easily readable font style of the party's choice, of 14-size font, and on a 13-inch by 8.5-inch white bond paper; and
31
Parties to cases before the Supreme Court are further required, on voluntary basis for the first six months following the effectivity of this Rule and compulsorily afterwards unless the period is extended, to submit, simultaneously with their court-bound papers, soft copies of the same and their annexes (the latter in PDF format) either by email to the Court's e-mail address or by compact disc (CD). This requirement is in preparation for the eventual establishment of an e-filing paperless system in the judiciary. Court of Appeals and Sandiganbayan: one original (properly marked) and two copies with their annexes; Court of Tax Appeals: one original (properly marked) and two copies with annexes. On appeal to the En Banc, one original (properly marked) and eight copies with annexes; Other Courts: one original (properly marked) with the stated annexes attached to it (Section 5).
LEGAL ETHICS
FORMS QUITCLAIM IN LABOR CASES (Release, Waiver and Quitclaim) KNOW ALL MEN BY THESE PRESENTS: That I, __________________, Filipino, of legal age, a resident of __________________, and formerly employed with __________________, do by these presents acknowledge receipt of the sum of __________________, Philippine Currency, from _____________________ in full payment and final settlement of the (financial assistance or separation pay, overtime pay, salary or salaries, wage or wages, commutable sick and vacation leaves, gratuities or any kind of compensation or emoluments) due to me or which may be due to me from ____________________ under the law or under any existing agreement with respect thereto, as well as any and all claims of whatever kind and nature which I have or may have against ________________, arising from my employment with (and the termination of my employment with)______________________. In consideration of said payment, I do hereby release, discharge and waive any and all actions of whatever nature, expected, real or apparent, which I may have against _______________, its directors, officers, employees, agents and clients by reason of or arising from my employment with the company. I will institute no action, whether civil, criminal, labor or administrative against _________________, its directors, officers, employees, agents and clients. Any and all actions which I may have commenced either solely in my name or jointly with others before any office, board, bureau, court, or tribunal against _________________, its directors, officers, employees, agents and clients are hereby deemed and considered voluntarily withdrawn by me and I will no longer testify or continue to prosecute said action(s). I declare that I have read this document and have fully understood its contents. I further declare that I voluntarily and willingly executed this Release, Waiver and Quitclaim with full knowledge of my rights under the law. IN WITNESS WHEREOF, I have hereunto set my hand at _____________, this ___ day of _______________, 2017.
_______________________ Affiant
SIGNED IN THE PRESENCE OF _______________________
______________________
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UST LAW PRE-WEEK NOTES 2017
CONTRACT OF LEASE
This CONTRACT OF LEASE is made and executed at the City of _____, this day of _______________, 20____, by and between:
(NAME OF LESSOR), of legal age, single/married to (Name of spouse if any), Filipino, and with residence and postal address at ( Address), hereinafter referred to as the LESSOR.
-AND-
(NAME OF LESSEE), of legal age, single/married to (Name of spouse if any), Filipino and with residence and postal address at ( Address), hereinafter referred to as the LESSEE.
WITNESSETH; That
WHEREAS, the LESSOR is the owner of a residential property situated at ( Address of property to be leased); hereinafter referred to as the property; WHEREAS, the LESSOR agrees to lease-out the property to the LESSEE and the LESSEE is willing to lease the same; NOW THEREFORE, for and in consideration of the foregoing premises, the LESSOR leases unto the LESSEE and the LESSEE hereby accepts from the LESSOR the property, subject to the following: TERMS AND CONDITIONS 1. PURPOSES: That the property shall be used exclusively by the LESSEE for residential purposes only and shall not be diverted to other uses. It is hereby expressly agreed that if at any time the property are used for other purposes, the LESSOR shall have the right to rescind this contract without prejudice to its other rights under the law. 2. TERM: This term of lease is for ONE (1) YEAR, or from (Date) to (Date). Upon its expiration, this lease may be renewed under such terms and conditions as my be mutually agreed upon by both parties, provided written notice of intention to renew the lease shall be served to the LESSOR not later than seven (7) days prior to the expiry date of the period herein agreed upon. 3. RENTAL RATE: The monthly rental rate shall be in AMOUNT IN WORDS (P 00,000.00), Philippine Currency. All rental payments shall be payable to the LESSOR. 4. DEPOSIT: That the LESSEE shall deposit to the LESSOR upon signing of this contract and prior to move-in an amount equivalent to the rent for THREE (3) MONTHS or the sum of AMOUNT IN WORDS (P 00,000.00), Philippine Currency. wherein the two (2) months deposit shall be applied as rent for the 11th and 12th months and the remaining one (1) month deposit shall answer partially for damages and any other obligations, for utilities such as Water, Electricity, CATV, Telephone, Association Dues or resulting from violation(s) of any of the provision of this contract. 5. DEFAULT PAYMENT: In case of default by the LESSEE in the payment of the rent, such as when the checks are dishonored, the LESSOR at its option may terminate this contract and eject the LESSEE. The LESSOR has the
33
LEGAL ETHICS right to padlock the premises when the LESSEE is in default of payment for One (1) month and may forfeit whatever rental deposit or advances have been given by the LESSEE. 6. SUB-LEASE: The LESSEE shall not directly or indirectly sublet, allow or permit the property to be occupied the property leased in whole or in part by any person or corporation, neither shall the LESSEE assign its rights hereunder to any other person or entity and no right of interest thereto or therein shall be conferred on or vested in anyone by the LESSEE without the LESSOR'S written approval. 7. PUBLIC UTILITIES: The LESSEE shall pay for its telephone, electric, cable TV, water, Internet, association dues and other public services and utilities during the duration of the lease. 8. FORCE MAJEURE: If whole or any part of the property leased shall be destroyed or damaged by fire, flood, lightning, typhoon, earthquake, storm, riot or any other unforeseen disabling cause of acts of God, as to render the property during the term substantially unfit for use and occupation of the LESSEE, then the contract of lease may be terminated, without compensation by the LESSOR or by the LESSEE by notice in writing to the other. 9. LESSOR'S RIGHT OF ENTRY: The LESSOR or its authorized agent shall after giving due notice to the LESSEE shall have the right to enter the property in the presence of the LESSEE or its representative at any reasonable hour to examine the same or make repairs therein or for the operation and maintenance of the building or to exhibit the property leased to prospective LESSEE, or for any other lawful purposes which it may deem necessary. 10. EXPIRATION OF LEASE: At the expiration of the term of this lease or cancellation thereof, as herein provided, the LESSEE will promptly deliver to the LESSOR the property leased with all corresponding keys and in as good and tenable condition as the same is now, ordinary wear and tear expected devoid of all occupants, movable furniture, articles and effects of any kind. Non-compliance with the terms of this clause by the LESSEE will give the LESSOR the right, at the latter's option, to refuse to accept the delivery of the property and compel the LESSEE to pay rent therefrom at the same rate plus Twenty Five (25) % thereof as penalty until the LESSEE shall have complied with the terms hereof. The same penalty shall be imposed in case the LESSEE fails to leave the property after the expiration of this Contract of Lease or termination for any reason whatsoever. 11. JUDICIAL RELIEF: Should any one of the parties herein be compelled to seek judicial relief against the other, the losing party shall pay an amount of One Hundred (100) % of the amount clamed in the complaint as attorney's fees which shall in no case be less than P50,000.00 pesos in addition to other cost and damages which the said party may be entitled to under the law. 12. This CONTRACT OF LEASE shall be valid and binding between the parties, their successors-in-interest and assigns. IN WITNESS WHEREOF, parties herein affixed their signatures on the date and place above written.
(Name of Lessor)
(Name of Lessee)
LESSOR
LESSEE
Signed in the presence of:
_____________________________
______________________________
ACKNOWLEDGEMENT
Republic of the Philippines) _________________________) S.S
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UST LAW PRE-WEEK NOTES 2017
BEFORE ME, personally appeared:
Name
(Name of Lessor) (Name of Lessee)
CTC Number
10000000 10000000
Date/Place Issued
February 24, 20__ / Cavite City January 07, 20__ / Makati
Known to me and to me known to be the same persons who executed the foregoing instrument and acknowledged to me that the same is their free and voluntary act and deed.
This instrument consisting of ____ page/s, including the page on which this acknowledgement is written, has been signed on each and every page thereof by the concerned parties and their witnesses, and and sealed with my notarial seal.
WITNESS MY HAND AND SEAL, on the date and place first above written.
Notary Public
Doc. No.______; Page No. ______; Book No.______; Series of 20___.
35
LEGAL ETHICS
DEED OF ABSOLUTE SALE KNOW ALL MEN BY THESE PRESENTS:
This DEED OF ABSOLUTE SALE is made, executed and entered into by:
(NAME OF SELLER), of legal age, single/married to (Name of spouse if any), Filipino, and with residence and postal address at ( Address of Seller), hereinafter referred to as the SELLER
-AND-
(NAME OF BUYER), of legal age, single/married to (Name of spouse if any), Filipino and with residence and postal address at ( Address of Buyer), hereinafter referred to as the BUYER.
WITNESSETH;
WHEREAS, the SELLER is the registered owner of a parcel of land with improvements located at ( Address of property to be sold) and covered by Transfer Certificate of Title No. (TCT Number) containing a total area of (Land Area of Property in Words) (000) SQUARE METERS, more or less, and more particularly described as follows:
TRANSFER CERTIFICATE OF TITLE NO. 0000 "(Insert the technical description of the property on the title) Example: A PARCEL OF LAND (Lot 20 Blk 54 of consolidation subdivision plan (LRC) Pcs-13265, being a portion of the consolidation of Lots 4751-A and 4751-B (LRC) Psd-50533, Lot 3, Psd-100703, Lot 1, Psd-150980, LRC Rec. Nos. Nos. N-27024, 51768, 89632, N-11782, N-13466, and 21071 situated in the Bo. of San Donisio, Mun. of Paranaque, Prov. of Rizal, Is. of Luzon. Bounded on NE, point 4 to 1 by Road Lot 22, on...to the point of beginning; containing an area of (280) square meters more or less..."
WHEREAS, the BUYER has offered to buy and the SELLER has agreed to sell the above mentioned property for the amount of (Amount in words) (P 000,000.00) Philippine Currency;
NOW THEREFORE, for and in consideration of the sum of ( Amount in words) (P 000,000.00) Philippine Currency, the SELLER DO HEREBY SELL, TRANSFER, and CONVEY by way of Absolute Sale unto the said BUYER, his heirs and assigns, the parcel of land above-described together with all the improvements found thereon, free from all liens and encumbrances of whatever nature including real estate taxes as of the date of this sale.
36
UST LAW PRE-WEEK NOTES 2017
(NAME OF SELLER)
(NAME OF BUYER)
Seller
Buyer
________________________ Name of Seller's Spouse
_________________________ Name of Buyer's Spouse
WITH MARITAL CONSENT:
SIGNED IN THE PRESENCE OF:
__________________________
____________________________
ACKNOWLEDGMENT
REPUBLIC OF THE PHILIPPINES) _____________________________ ) SS.
BEFORE ME, a Notary Public for and in the City of ___________________, personally appeared:
Name
(Name of Seller) (Name of Buyer)
Valid ID Number
10000000 10000000
Date/Place Issued
Jan 15, 20__ / Angeles City Jan 9, 20__ / Manila
Known to me and to me known to be the same persons who executed the foregoing instrument and acknowledged to me that the same are their free act and voluntary deed.
This instrument, consisting of (__) pages, including the page on which this acknowledgment is written, has been signed on the left margin of each and every page thereof by the concerned parties and their witnesses, and sealed with my notarial seal.
WITNESS MY HAND AND SEAL on this ___day of __________________20__ at_______________.
Notary Public
37
LEGAL ETHICS
Doc. No. ........; Page No. .......; Book No. .......; Series of 20__.
PROMISSORY NOTE
P__________ FOR VALUE RECEIVED, I promise to pay without need of demand to the order of __Payee__, at his office at _____________, the principal amount of PESOS: _______________(P_________), on or before _____________. __Date__, _____________, Philippines. Maker
38
UST LAW PRE-WEEK NOTES 2017
VERIFICATION AND CERTIFICATION ON FORUM SHOPPING
I._____________________________________________, of legal age, single/married, Filipino, and with residence at _______________ (Name) after having been duly sworn to in accordance with law, hereby, depose and say:
1. That I am the ____________________in the above-entitled case and have caused this ___________________________________ to be prepared; 2. That I read and understood its contents which are true and correct of my own personal knowledge and/or based on authentic records. 3. That I have not commenced any action of proceeding involving the same issue in the Supreme Court, the Court of Appeals or any other tribunal or agency; that to the best of my knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals or any tribunal or agency, and that, if I should learn thereafter that a similar action or proceeding has been filed or is pending before these courts of tribunal or agency, I undertake to report that the fact to the Court within five (5) days therefrom.
IN WITNESS WHEREFORE, I have hereunto set my hand this ____ day of __________________,20____.
____________________________________ Affiant
Affiant SUBSCRIBED AND SWORN to before me this______day of _______________, 20_____ .
____________________________________ Admin. Officer
39
LEGAL ETHICS
NOTARY PUBLIC
Doc. No. : ________; Page No. : ________; Book No. : ________; Series of 20_______.
AFFIDAVIT OF LOSS
REPUBLIC OF THE PHILIPPINES) _____________________________ ) S.S.
I, (Name of Affiant)., Filipino, of legal age, civil status (single or married, “married to…”) residing at ( Address of Affiant ), after having been sworn in accordance with law hereby depose and state:
1. That I am the true and lawful owner of a certain motor vehicle which is more particularly described as follows:
MAKE
:
MOTOR NO.
SERIES
:
SERIAL/CHASSIS NO.
TYPE OF BODY :
PLATE NO.
YEAR MODEL
FILE NO.
:
: : : :
(Change the declaration below to the actual circumstances)
2. That sometime in June of this year, I was looking for the original Certificate of Registration of my car but to my surprise, said Owner’s original Copy could not found;
3. That I took pains to look for said Certificate of Registration, but to no avail;
40
UST LAW PRE-WEEK NOTES 2017 4. That I am executing this affidavit to attest to the truth of the foregoing and to request from the Land Transportation Office of Angeles City, a copy of said Certificate of Registration.
IN WITNESS WHEREOF, I have hereunto set my hand this _____ day of _______________. 20___ at _________________________.
(Name Over Signature of Affiant)
SUBSCRIBED AND SWORN to before me, this ____ day of ______________, 20___ in ___________________ City, with affiant exhibiting his Valid ID No. _______________, issued on _______________at _______________.
NOTARY PUBLIC Until December 31, 200___
Doc. No. : ________; Page No. : ________; Book No. : ________; Series of 20_______.
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LEGAL ETHICS
CHANGE OF NAME Republic of the Philippines [REGION] [COURT] [BRANCH], [CITY]
[NAME] __________________, Petitioner, SP PROC. No. _____ For Change of Name
x ------------------------------------ x
PETITION FOR CHANGE OF NAME
PETITIONER, by counsel, respectfully states that:
1.
Petitioner is of legal age, [CIVIL STATUS], and a resident of [RESIDENCE];
2.
He/She has been a bonafide resident of the [CITY/PROVINCE] since the year [YEAR], or for at least three (3 years) prior to the date of the filing of this petition;
42
UST LAW PRE-WEEK NOTES 2017 3.
His/her present name is [GIVEN NAME];
4.
Such name is [INDICATE GROUND];
5.
Petitioner requests that his present name be changed to [REQUESTED NAME].
PRAYER
WHEREFORE, it is respectfully prayed that, after due notice, publication, and hearing in accordance with the Rules of Court, this Honorable Court adjudge that the petitioner’s name of ____________ be changed to ____________.
[CITY] ___________; [DATE] _____________.
[SIGNATURE] [NAME] ______________ Counsel for Petitioner/s [ADDRESS] _______________________ IBP Lifetime No. ____________; [CITY] _____________ PTR No. _______________; [DATE], [CITY] Roll of Attorney No. _______________________ MCLE Compliance No. ____________________
VERIFICATION & CERTIFICATION AGAINST FORUM SHOPPING
I, [NAME] _____________________, of legal age, do hereby state that: I am the plaintiff in the pleading/document entitled [PLEADING/DOCUMENT BEING VERIFIED] ___________________ and in such capacity, caused this Complaint to be prepared; I have read its contents and affirm that they are true and correct to the best of my own personal knowledge; I hereby certify that there is no other case commenced or pending before any court involving the same parties and the same issue and that, should I learn of such a case, I shall notify the court within five (5) days from my notice.
IN WITNESS WHEREOF, I have signed this instrument on [DATE]_____________.
[SIGNATURE]
43
LEGAL ETHICS [NAME] _________________
SUBSCRIBED AND SWORN TO before me in the City of _______________ on this day of [MONTH AND YEAR]_________________, affiant exhibiting before me his Government Issued ID no. _______________ issued on [DATE}__________________ at [PLACE OF ISSUANCE]_____________________.
[SIGNATURE] [NAME]_______ Notary Public
Until [DATE]__________________ PTR No. [NUMBER] ____________ Issued at [PLACE]______________ On [DATE] ___________________
Doc. No. Page No. Book No. Series of [YEAR] ___________.
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UST LAW PRE-WEEK NOTES 2017
BILL OF EXCHANGE
P 10,000
Ten (10) days after date, pay Ms. N or order the sum ten thousand pesos (10,000).
_____________________________ Sgd. Ms. L
To: Mr. G Managing Partner Ugong, Pasig
45
LEGAL ETHICS
DEMAND LETTER (to pay) ___________________ (Date) To: Address: Dear:_______________
I write on behalf of _______________or the Company. Despite several oral demands given to you, the latest of which was___________(state the date of demand), to pay the sum________________(amount), you have failed and continue to fail to this date, to pay your outstanding obligation to the Company. Accordingly, this final demand is hereby made upon you to restore and pay to the Company the full amount of PHP_________________ within ________ days from your receipt of this demand letter. Otherwise, we shall file the necessary criminal and civil action against you to protect our client’s intere sts. For payment arrangements, kindly contact_________________________ Very truly yours,
_________
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UST LAW PRE-WEEK NOTES 2017
NOTARIAL WILL LAST WILL AND TESTAMENT of ___________________
KNOW ALL MEN BY THESE PRESENTS:
I, ___________________ , of legal age, married to _________ , residing at _____________, being of sound and disposing mind and memory, and not acting under influence, violence, fraud or intimidation of whatever kind, declare this to be my Last Will and Testament which I have caused to be written in English, the language which is known to me. And I hereby declare that:
I.
The following are my heirs and their addresses;
[INDICATE THE NAME OF HEIRS AND THEIR ADDRESSES)
II.
I give and bequeath to my heirs __________, __________, and __________, in equal shares, the following properties, real and personal, whatsoever and wheresoever located:
47
LEGAL ETHICS [DESCRIPTION OF PROPERTY]
III.
I designate _______________ as the sole executor of this Last Will and Testament.
IN WITNESS WHEREOF, I have set my hand t his ______________ in ________________.
(Sgd.) ________________
ATTESTATION CLAUSE
WE, the undersigned witnesses, whose residences are stated opposite our respective names, do hereby certify that: the testator _________________ has published unto us th e foregoing will consisting of ___ pages numbered correlatively in letters on the upper part of each page, as his/her last will and testament and has signed the same and every page thereof, on the left margin, in our joint presence and we, in turn, at his/her request have witnessed and signed the same and every page thereof, on the left margin, in the presence of the testator and in the presence of each other. (1ST WITNESS) ______________
[RESIDENCE]
(2ND WITNESS) ______________
[RESIDENCE]
(3RD WITNESS) ______________
[RESIDENCE]
JOINT ACKNOWLEDGMENT BEFORE ME, Notary Public for the ____________, this ___________, personally appeared:
_____________ (TESTATOR), with Valid Identification Document _______ issued by _____________ (ISSUING AUTHORITY) on __ ________;
_____________ (WITNESS), with Valid Identification Document _______ issued by _____________ (ISSUING AUTHORITY) on __________;
_____________ (WITNESS), with Valid Identification Document _______ issued by _____________ (ISSUING AUTHORITY) on __________;
_____________ (WITNESS), with Valid Identification Document _______ issued by _____________ (ISSUING AUTHORITY) on __________;
48
UST LAW PRE-WEEK NOTES 2017 all known to me to be the same persons who signed the foregoing Will, the first as testator and the last three as instrumental witnesses, and they respectively acknowledged to me that they signed the same as their own free act and deed.
This Will consists of ___ pages, including the page in which this acknowledgment is written, and has been signed on the left margin of each and every page thereof by the testator and his witnesses and has been sealed with my Notarial seal.
IN WITNESS WHEREOF, I have set my hand the day, year and place written.
(Sgd.) __________ Notary Public Until __________________ PTR No. _______________ Issued at ______________ On ___________________
Doc. No. Page No. Book No. Series of 2007.
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, ______________, of legal age, and resident of _________, do hereby name, constitute and appoint ___________, of legal age, and resident of ____________, to be my true and lawful Attorney-in-Fact and in my name, place and stead, do perform the following specific act(s):
[SPECIFY THE ACTS TO BE PERFORMED]
Giving and granting unto said attorney-in-fact power and authority to do every act necessary and required in connection with these presents, and hereby ratifying and confirming all that said attorney-in-fact shall do or cause to be done under and by virtue of these presents.
IN WITNESS WHEREOF, I have signed this Special Power of Attorney this _________ at __________.
49
