PROBLEMS AREAS IN LEGAL ETHICSby Atty. Editha Arciaga-Santos

A View on Lawsuits:

Lawsuits: A method of collecting half the debt by collecting twice the payment. – Ralph Woods

What kind of lawyer should one be?

“I am not angry. I am irate. I am foaming in the mouth. I am homicidal. I am suicidal. I am humiliated, debased, degraded. And I am not only that, I feel like throwing up to be living my middle years in a country of this nature. I am nauseated. 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 if I was to be surrounded by idiots. I would rather be in another environment but not in the Supreme Court of idiots.”—Miriam Santiago’s reaction after being bypassed for the post of Chief Justice of the Supreme Court

Pope Francis to a Filipino lawyer:“To be a lawyer is to live in a position with continuing temptation. Justice is not easy. You have the eyes closed or blindfolded. The devil wants that the cover will fall and the mouth will be closed.

“You have to fight this temptation because I have seen this in my country and in other countries,”

“No other breed of men has served our country more, and no other profession is more important to the liberty, security, and prosperity of our people.”

- Jose W. Diokno

Memorize!

I, ___________________, do solemnly swear, that I will maintain allegiance to the Republic of the Philippines; that I will support its constitution and obey the laws as well the duly constituted authorities therein. I will do no falsehood or consent to the doing of any in court, I will not wittingly or willingly promote or sue any groundless, false or unlawful suit or give consent to the same. I will delay no man for money or malice and I will conduct myself as a lawyer according to the best of my knowledge and discretion with all good fidelity as well to the courts as well as to the clients, and I impose unto myself this voluntary obligation without any mental reservation or purpose of evasion. So help me God.

LEGAL ETHICS is that branch of moral science which treats of the duties that an attorney owes to the court, to his clients, to his colleagues in the profession and to the public

SIGNIFICANCE OF LEGAL ETHICS

Legal Ethics will guard against the abuses and ills of the profession such as dishonesty, deceit, immorality, negligence, slothness, lack of diligence and the many forms of malpractice of the members of the Bar.

The practice of law is geared towards public service, for which reason, it is considered a profession and not a mere trade.

Practice of Law

In the traditional sense, it implies customary or habitually holding one’s self out to the public as a lawyer, for compensation as a source of livelihood or in consideration of his service (People vs. Villanueva, 14 SCRA 109)

In the modern sense, it is any activity, in and out of court, which requires the application of law, legal procedure, knowledge, training and experience. It includes conveyancing, the giving of legal advice on a variety of subjects, and the preparation and execution of legal instruments covering an extensive field of business and trusts relations and other affairs. (Cayetano vs. Monsod, 201 SCRA 210)

The practice of law is not a right but a privilege. It is bestowed by the State only on those who show they possess, and continue to possess, the qualifications required by law for the conferment of such privilege. (Bongalonta vs. Castillo, 240 SCRA 310)

In the practice of law, good moral character is not only a condition precedent but must remain extant. (Villanueva vs. Sta. Ana, 245 SCRA 707)

What happens if this occurs?

Good moral character is of greater importance to the public than legal learning (Re: Al C. Argosino, B.M. 712 July 13, 1995 and B.M. 712 March 19, 1997)

The practice of law is a privilege granted only to those who possess the strict intellectual and moral qualifications required of lawyers who are instruments in the effective and efficient administration of justice. It is the sworn duty of this Court not only to “weed out” lawyers who have become a disgrace to the profession but, also of equal importance, to prevent “misfits” from taking the lawyer’s oath, thereby further tarnishing the public image of lawyers x x x (Ibid.)

The Code of Professional Responsibility applies even to government lawyers.

A prosecutor shall see to it that justice is done (P. vs. Madera, 57 SCRA 349, Dimatulac vs. Villon, 297 SCRA 679)

Significance of the Title

The title “Attorney” is reserved to those who, having obtained the necessary degree in the study of law and successfully taken the Bar, have been admitted to the Integrated Bar of

the Philippines and remain members thereof of good standing and it is only they who are authorized to practice law in the Philippines.

…burdened with conditions…

Membership in the bar is a privilege burdened with conditions, one of the most important of which is the mindfulness that a lawyer is an officer of the court, a minister in the temple of justice, whose high vocation is to assist in the administration of justice.

A Lawyer is an Officer of the Court

As an officer of the court, he is subject to the disciplinary authority of the court and its orders and directives. His admission to the bar is upon the implied condition that he remains fit to exercise the profession.

And because he is an officer of the court…

Good Moral Character:

Not only one of the qualifications required for a candidate for membership in the bar, but continued possession of good moral character after admission is a requirement for enjoyment of the privilege to practice

What is good moral character?

R Honesty – included in the term

R Absence of moral turpitude

Moral Turpitude: anything which is done contrary to justice, honesty, modesty or good morals, or any act of vileness, baseness or depravity in private and social duties that a man owes his fellowmen or society, contrary to the accepted rule of right and duty between man and man (In Re Gutierrez, 5 SCRA 661)

Examples showing absence of good moral character:

making false statement in one’s application

one who lives an adulterous life

one who contracted a bigamous marriage

one who issued bounced checks

one with unethical and questionable business practices

Legal Profession vs. Business

The legal profession is different from a business in terms of the following: a) duty of public service; b) a relation as an officer of the court possessing sincerity, integrity and reliability; c) a relation to the client in the highest degree of fiduciary; d) a relation to colleagues at the bar characterized by candor, fairness and

unwillingness to resort to current business methods of advertising and encroachment on their practice.

Pronouncements on the case of In Re Argosino, B.M. No. 712 March 19, 1997

The practice of law is a privilege granted only to those who possess the strict intellectual and moral qualifications required of lawyers who are instruments in the effective and efficient administration of justice. It is the sworn duty of this Court not only to "weed out" lawyers who have become a disgrace to the noble profession of the law but, also of equal importance, to prevent "misfits" from taking the lawyer's oath, thereby further tarnishing the public image of lawyers which in recent years has undoubtedly become less than irreproachable.

Good moral character is not only a condition precedent to admission to the legal profession but it must also remain extant in order to maintain one’s good standing in the exclusive and honored fraternity of lawyers. (Villanueva vs. Sta. Ana, 245 SCRA 707)

The practice of law is not a natural, absolute or constitutional right to be granted to everyone who demands it. Rather, it is a highly personal privilege limited to citizens of good moral character, with special educational qualifications, duly ascertained and certified.

Consider for a moment the duties of a lawyer. He is sought as counselor, and his advice comes home, in its ultimate effect to every man’s fireside. Vast interests are committed in his care; he is the recipient of unbounded trust and confidence; he deals with his client’s property, reputation, his life, his all. An attorney at law is a sworn officer of the Court, whose chief concern, as such, is to aid the administration of justice.

In compliance with the above resolution, petitioner submitted no less than fifteen [15] certifications/letters executed by, among others, two [2] senators, five [5] trial court judges, and six [6] members of religious orders. Petitioner likewise submitted evidence that a scholarship foundation had been established in honor of Raul Camaligan, the hazing victim, through joint efforts of the latter's family and the eight [8] accused in the criminal case.

Comments by the Complainant…[a] He still believes that the infliction of severe physical injuries which led to the

rather than accidental. The offense, therefore, was not only homicide but murder since the accused took advantage of the neophyte's helplessness implying abuse of confidence, taking advantage of superior strength and treachery.

[b] He consented to the accused's plea of guilt to the lesser offense of reckless imprudence resulting in homicide only out of pity for the mothers of the accused and a pregnant wife of one of the accused who went to their house on Christmas day 1991 and Maundy Thursday 1992, literally on their knees, crying and begging for forgiveness and compassion. xxx

[c] As a Christian, he has forgiven petitioner and his co-accused for the death of his son. However, as a loving father who had lost a son whom he had hoped would succeed him in his law practice, he still feels the pain of an untimely demise and the stigma of the gruesome manner of his death.

[d] He is not in a position to say whether petitioner is now morally fit for admission to the bar. He, therefore, submits the matter to the sound discretion of the Court.

The Court’s Ruling:The Court is persuaded that Mr. Argosino has exerted all efforts to atone for the death of Raul Camaligan. We are prepared to give him the benefit of the doubt, taking judicial notice of the general tendency of youth to be rash, temerarious and uncalculating.

We stress to Mr. Argosino that the lawyer's oath is NOT a mere ceremony or formality for practicing law. Every lawyer should at ALL TIMES weigh his actions according to the sworn promises he makes when taking the lawyer's oath. If all lawyers conducted themselves strictly according to the lawyer's oath and the Code of Professional Responsibility, the administration of justice will undoubtedly be faster, fairer and easier for everyone concerned.

The Court sincerely hopes that Mr. Argosino will continue with the assistance he has been giving to his community. As a lawyer, he will now be in a better position to render legal and other services to the more unfortunate members of society.

Note Again: The practice of law is a privilege granted only to those who possess the strict intellectual and moral qualifications required of lawyers who are instruments in the effective and efficient administration of justice. It is the sworn duty of this Court not only to "weed out" lawyers who have become a disgrace to the noble profession of the law but, also of equal importance, to prevent "misfits" from taking the lawyer's oath, thereby further tarnishing the public image of lawyers which in recent years has undoubtedly become less than irreproachable.

A lawyer is an officer of the court; he is like the court itself, an instrument or agency to advance the ends of justice.” An incorrigible practitioner of “dirty tricks” like x x x would be ill-suited to discharge the role of “an instrument to advance the ends of justice.” (Fernandez vs. Grecia 223 SCRA 425)

Note: A lawyer may be disbarred or suspended for any misconduct whether in his professional or private capacity which shows him to be wanting in moral character, in honesty, in probity and good demeanor or unworthy to continue as an officer of the court. (Nadayag vs. Grageda, 237 SCRA 202)

What is malpractice?Malpractice, as used in the Rules of Court, is the practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers (Rule 138, Sec. 27, Rules of Court). But the Supreme Court, in deciding disciplinary cases against lawyers has so broadened its meaning as to denote any kind ofprofessional misconduct.

You are a lawyer whose services are being retained by Mr. Rodriguez to defend him from the charge of malversation pending before the Sandiganbayan. He confessed to you that he actually committed the misappropriation out of the need to pay the medical expenses for the operation of his child. Will you still take his case? Why or why not?

More pronouncements…We stress to Mr. Argosino that the lawyer's oath is NOT a mere ceremony or formality for practicing law. Every lawyer should at ALL TIMES weigh his actions according to the sworn promises he makes when taking the lawyer's oath. If all lawyers conducted themselves strictly according to the lawyer's oath and the Code of Professional

Responsibility, the administration of justice will undoubtedly be faster, fairer and easier for everyone concerned.

QUIZ:1. Attorney Raul Mendoza has been a lawyer for twenty years. He worked as a real estate

broker for ABC Company in the whole duration of this period. He is applying for a position in the Judiciary as a Regional Trial Court Judge in Manila. He is opting to be assigned in a Family Court or a special court trying heinous crimes. Is he qualified for the position?

2. Allan Dela Merced finished Magna Cum Laude in the FEU Institute of Law. In the recent past, he figured in a case of Reckless Imprudence Resulting to Homicide for which he disclosed in his application to take the Bar Examinations. He subsequently passed the Bar Examinations. Should he be denied the privilege of swearing to the Attorney’s Oath? Why?

3. What is the significance of the Attorney’s Oath?

Assignment: Once, the Supreme Court issued a show cause order for several members of the UP Faculty of Law to explain why they should not be sanctioned for criticizing the supposed plagiarism committed by a Justice of the Supreme Court in one of its cases. E-mail your comments to attyeditharciaga@gmail.com. E-mail it as is, and don’t do it as an attachment.

SOME NOTES ON THE PROSECUTION…

… the prosecution’s finest hour is not when he wins a case with the conviction of the accused. His finest hour is still when, overcoming the advocate’s natural obsession for victory, he stands up before the Court and pleads not for the conviction of the accused but for his acquittal. For indeed, his noble task is to prosecute only the guilty and to protect the innocent. (People vs. Madera, 57 SCRA 349)

Prosecutors must never forget that they are the representatives not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win every case but that justice be done. As such, they are in a peculiar and very definite sense the servants of the law… (Dimatulac vs. Villon, 297 SCRA 679)

Good moral character is a continuing condition for membership in the Bar (Cordova vs. Cordova, 179 SCRA 680)

Immoral conduct is that conduct which is so willful, flagrant or shameless as to show indifference to the opinion of good and respectable members of the community (Narag vs. Narag, 291 SCRA 451). But for such conduct to warrant disciplinary action, the same must be so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible in a high degree. (Ui vs. Bonifacio, 333 SCRA 38)

The requirement of good moral character has three ostensible purposes: 1) to protect the public; 2) to protect the public image of lawyers; and 3) to protect prospective clients. A writer added a fourth: to protect the errant lawyers from themselves.

One cannot make “a mockery of the inviolable social institution of marriage.”

Citing the ruling in Pangan v. Ramos, viz:

x x x The acquittal of respondent Ramos [of] the criminal charge is not a bar to these [administrative] proceedings. The standards of legal profession are not satisfied by conduct which merely enables one to escape the penalties of x x x criminal law. Moreover, this Court, in disbarment proceedings is acting in an entirely different capacity from that which courts assume in trying criminal case(Italics in the original), this Court in Gatchalian Promotions Talents Pools, Inc. v. Atty. Naldoza, held:

Administrative cases against lawyers belong to a class of their own. They are distinct from and they may proceed independently of civil and criminal cases.

My everdearest Irene,

By the time you open this, you'll be moments away from walking down the aisle. I will say a prayer for you that you may find meaning in what you're about to do.

Sometimes I wonder why we ever met. Is it only for me to find fleeting happiness but experience eternal pain? Is it only for us to find a true love but then lose it again? Or is it because there's a bigger plan for the two of us?

I hope that you have experienced true happiness with me. I have done everything humanly possible to love you. And today, as you make your vows . . . I make my own vow to YOU! (to be continued...)

I will love you for the rest of my life. I loved you from the first time I laid eyes on you, to the time we spent together, up to the final moments of your single life. But more importantly, I will love you until the life in me is gone and until we are together again.

Do not worry about me! I will be happy for you. I have enough memories of us to last me a lifetime. Always remember though that in my heart, in my mind and in my soul, YOU WILL ALWAYS . . . AND THE WONDERFUL THINGS YOU DO!

BE MINE . . . . AND MINE ALONE, and I WILL ALWAYS BE YOURS AND YOURS ALONE!

I LOVE YOU FOREVER, I LOVE YOU FOR ALWAYS. AS LONG AS I'M LIVING MY TWEETIE YOU'LL BE!"

NOTE: x x x respondent violated Rule 1.01 of Canon 1 of the Code of Professional Responsibility which proscribes a lawyer from engaging in "unlawful, dishonest, immoral or deceitful conduct," and Rule 7.03 of Canon 7 of the same Code which proscribes a lawyer from engaging in any "conduct that adversely reflects on his fitness to practice law."

“The fact that respondent continues to publicly and openly cohabit with a woman who is not his legal wife, thus, siring children with her, shows his lack of moral character.” Tolentino, Laygo, Lumalang, Evangelista and Melgar vs. Atty. Norberto Mendoza (A.C. 5151, October 19, 2004)

Canon 18 provides: A lawyer shall serve his client with competence and diligence.

Canon 19 states: A lawyer shall represent his client with zeal within the bounds of law.

BUT...This has to be balanced with the principle that a lawyer’s first and foremost duty is to the Court. He is an officer of the Court and his main mission is to assist it in the administration of justice.

An attorney is bound to protect his client’s interest to the best of his ability and with utmost diligence.

A failure to file brief for his client certainly constitutes inexcusable negligence on his part. The respondent has indeed committed a serious lapse in the duty owed by him to his client as well as to the Court not to delay litigation and to aid in the speedy administration of justice. Sps. Galen vs. Atty. Antonio Paguirigan (A.C. No. 5558 March 7, 2002)

Canon 16 says that a lawyer shall hold in trust all moneys and properties of his clients that may come into this possession.

Rule 16.01 says that a lawyer shall account for all money or property collected or received for or from the client.

That the respondent lawyer had a lien on complainant’s funds for his attorney’s fees did not relieve him of his duty to account for it. The lawyer’s continuing exercise of his retaining lien presupposes that the client agrees with the amount of attorney’s fees to be charged.

In case of disagreement or when the client contests that amount being unconscionable, however, the lawyer must not arbitrarily apply the funds on his possession to the payment of his fees. He can file, if he deems it desirable, the necessary action or proper motion with the proper court to fix the amount of such fees.” Daniel Lemoine vs. Atty. Amadeo E. Balon Jr. (A.C. No. 5829, Oct. 28, 2003)

Complete candor or honesty is expected from lawyers, particularly when they appear and plead before the courts for their own causes against former clients. Dolores Silva Vda. De Fajardo vs. Atty. Rexie Efren Bugaring, A.C. 5113, October 2, 2004.

A lawyer is entitled to be the protection of the courts against any attempt on the part of a client to escape payment of legitimate attorney’s fees. However, such protection must not be sought at the expense of truth. (Ibid.)

With his armada of legal knowledge and skills, respondent clearly enjoyed the upper hand. More important, he had the sole opportunity to present evidence in the collection case after complainant was declared in default, and after he was allowed to present his evidence ex parte. (Ibid.)

The general rule is that the client is bound by the mistakes of his counsel, save when the negligence of counsel is so gross, reckless and inexcusable that the client is deprived of his day in court. Espinosa vs. Court of Appeals (G.R. No. 128686, May 28, 2004)

A lawyer owes entire devotion to the interest of his client, warmth and zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability, to the end that nothing can be taken or withheld from the client except in accordance with the law. (Victoria Legarda vs. Court of Appeals, G.R. No. 94457, March 18, 1991)

Note Again:He should present every remedy or defense authorized by the law in support of his client’s cause, regardless of his own personal views. (Ibid.)

In full discharge of his duties to this client, the lawyer should not be afraid of the possibility that he may displease the judge or the general public. (Ibid.)

The Supreme Court held that deliberate failure to pay just debts and the issuance of worthless checks constitute gross misconduct, for which a lawyer may be sanctioned with suspensions from the practice of law. Lawyers are instruments for the administration of justice and vanguards of our legal system. Isidra Barrientos vs. Atty. Elerizza Libiran-Meteoro (A.C. No. 6408, August 31, 2004)

They are expected to maintain not only legal proficiency but also high standards of morality, honesty, integrity and fair dealing so that the people’s faith and confidence in the judicial system is ensured. (Ibid.)

They must at all times faithfully perform their duties to society, to the bar, the courts and to their clients, which include prompt payment of financial obligations. They must conduct themselves in a manner that reflects the values and norms of the legal profession as embodied in the Code of Professional Responsibility. (Ibid.)

“liar”“perjurer”“blasphemer”“crafted in order to fool the winning party”“hypocritical judgment in plaintiff’s favor”“you could have sworn it was the devil who dictated it”“robber”“manipulator”“cross-eyed”

We concede that a lawyer may think highly of his intellectual endowment. That is his privilege. And he may suffer frustration as to what he feels is others’ lack of it. That is his misfortune. Such frame of mind, however, should not be allowed to harden into a belief that he may attack a court’s decision in words calculated to jettison the time-honored aphorism that courts are the temples of right. He should give due allowance to the fact that judges are but men; and men are encompassed by error, fettered by fallibility. Tiongco vs. Aguilar, G.R. 115932 (January 25, 1995)

It does not, however, follow that just because a lawyer is an officer of the court, he cannot criticize the courts. That is his right as a citizen, and it is even his duty as an officer of the court. (Ibid.)

Attorney’s Duties to the BarA 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 only with his counsel. It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel and he should not undertake to advise him as to the law. (Canon 8, Code of Professional Ethics)

Be courteous to your adversaries!

A story...Once, a female lawyer was prosecuting an accused in a rape case so vigorously that a judge was prodded to ask her, “Are your sure, Madam Counsel, that you are not the victim in this case?”

Having been the object of previous insulting remarks from the judge before, the counsel, replied, “Are you sure, your Honor, that you are not the accused in this case?”

But it is a cardinal condition of all such criticism that it shall be bona fide, and shall not spill over the walls of decency and propriety. A wide chasm exists between fair criticism, on the one hand, and abuse and slander of courts and the judges thereof, on the other. Intemperate and unfair criticism is a gross violation of the duty of respect to courts. It is such misconduct that subjects a lawyer to disciplinary action. Re: Almacen, 31 SCRA 562

The right to criticize, which is guaranteed by the freedom of speech and of expression in the Bill of Rights in the Constitution, must be exercised responsibly, for every right carries with it a corresponding obligation. Freedom is not freedom from responsibility, but freedom with responsibility. (Ibid.)

When the integrity of a member of the bar is challenged, it is not enough that he denies the charges against him. He must meet the issue and overcome the evidence against him. He must show proof that he still maintains that degree of morality and integrity which at all times is expected of him. Carmelita Rangwani vs. Atty. Ramon S. Dino (A.C. No. 5454 November 23, 2004)

Section 5, Rule 139-B of the Rules of Court

No investigation shall be interrupted or terminated by reason of the desistance, settlement, compromise, restitution, withdrawal of the charges, or failure of the complainant to prosecute the same.

Withdrawal of the complaint will not free respondent from his administrative liability (Estreller v. Manatad Jr. 268 SCRA 608 [1997]), particularly because administrative proceedings are imbued with public interest, public office being a public trust (Gacho vs. Fuentes Jr. 291 SCRA 474 [1998])

It was held that in administrative cases for disbarment or suspension against lawyers, the quantum of proof required is clearly preponderance of evidence and the burden of proof rests upon the complainant. Moreover, an administrative case against a lawyer must show the dubious character of the act done as well as of the motivation thereof. Rudecon

Management Corporation and Atty. Rudegelio Tacorda vs. Atty. Manuel N. Camacho (A.C. No. 6403 Aug. 31, 2004)

Rule 2.03- A lawyer shall not do or permit to be done any act designed primarily to solicit legal business.

Rule 3.01– A lawyer shall not use or permit use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement or claim regarding his qualifications or legal services.

It has been repeatedly stressed that the practice of law is profession in which duty to public service, not money, is the primary consideration. Lawyering is not primarily meant to be a money-making venture, and law advocacy is not capital that necessarily yields profits. (Ibid.)

The gaining of a livelihood should be a secondary consideration. The duty to public service should be the primary consideration of lawyers, who must subordinate their personal interests or what they owe to themselves”. (Ibid.)

The best advertisement for a lawyer is his reputation for competence, probity and integrity.

Our most precious license to practice law, acquired at great pains and sacrifices, are at stake at every turn of our lives.

- Atty. Rosa Maria Juan-Bautista (Author)

Listen to that small voice called your conscience because the basic principles of morality are inborn in you, placed there by your Creator.

- Justice Hector L. Hofilena