I. LEGAL ETHICS

A. Practice of law (Rule 138)

Any person heretofore duly admitted as a member of the bar, or hereafter admitted as such in accordance with the provisions of this rule, and who is in good and regular standing, is entitled to practice law (Sec. 1, Rule 138).

Practice of Law – any activity, in or out of court which requires the application of law, legal procedure, knowledge, training and experience. To engage in the practice of law is to give notice or render any kind of service, which or devise or service requires the use in any degree of legal knowledge or skill (Cayetano v. Monsod, 201 SCRA 210).

1. Concept a) Privilege

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. (In Re: Argosino, 1997).

b) Profession, not business The primary characteristics which distinguish the legal profession from business are: (a) “a duty of public service of which emolument is a by-product, and in which one may attain the highest eminence without making much money”, (b) “a relation as officer of the court to the administration of justice involving thorough sincerity, integrity, and reliability”, (c) “a relation to client in the highest degree fiduciary”, and (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, or dealing directly with their clients”.

   These characteristics make the law a noble profession, and the privilege to practice it is bestowed only upon

individuals who are competent intellectually, academically and morally. Its basic ideal is to render service and to secure justice for those who seek its aid. If it has to remain a noble and honorable profession and attain its ideal, those enrolled in is ranks should not only master its tenets and principles but should also, by their lives, accord continuing fidelity to them. And because they are the vanguards of the law and the legal systems, lawyers must at all times conduct themselves in their professional and private dealings with honesty and integrity in a manner beyond reproach. (PCGG vs. SB, et al.,)

2. Qualifications Requirements  for admission to the

Bar:1. citizen of the Philippines

2. at least 21 years old

3. of good moral character

4. Philippine resident

5. Production before the supreme court

satisfactory evidence of:

1. good moral character

2. no charges against him,

involving moral turpitude,

have been filed or are pending

in any court in the Philippines.

Requirement of Good Moral

Character: a continuing requirement;

good moral character is not only a

condition precedent for admission to the

legal profession, but it must also remain

intact in order to maintain one’s good

standing in that exclusive and honored

fraternity. (Tapucar vs. Tapucar, 1998)

Academic Requirements for

Candidates:1. a bachelor’s degree in arts and

sciences (pre-law course)

2. a completed course in:

1. civil law

2. commercial law

3. remedial law

4. public international law

5. private international law

6. political law

7. labor and social legislation

8. medial jurisprudence

9. taxation

10. legal ethics

The practice of law is a sacred and noble profession. It is limited to the persons of good moral character with special qualifications duly ascertained and certified. (Prieto vs. Corpuz, et al., A.C. No. 6517, December 6, 2006).

3. Appearance of non-

lawyers Non-lawyers who may be authorized

to appear in court:1. Cases before the MTC:  Party to the

litigation,  in person OR through an

agent or friend or appointed by him

for that purpose (Sec. 34, Rule 138,

RRC)

2. Before any other court: Party to the

litigation, in person (Ibid.)

3. 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:

1. resident of the province

2. of good repute for probity and

ability to aid the accused in

his defense (Rule 116, Sec. 7,

RRC).

4. Legal Aid Program – A senior law

student, who is enrolled in a

recognized law school’s clinical

education program approved by the

supreme Court may appear before

any court without compensation, to

represent indigent clients, accepted

by the Legal Clinic of the law

school.  The student shall be under

the direct supervision and control of

an IBP member duly accredited by

the law school.

5. Under the Labor code, non-lawyers

may appear before the NLRC or any

Labor Arbiter, if

1. they represent themselves, or

if

2. they  represent their

organization or members

thereof (Art 222, PO 442, as

amended).

6. Under the Cadastral Act, a non-

lawyer can represent a claimant

before the Cadastral Court (Act no.

2259, Sec. 9).

a) Law student practice (Rule 138-A)

b) Non-lawyers in courts c) Non-lawyers in

administrative tribunals

d) Proceedings where lawyers are prohibited from appearing

4. Sanctions for practice or

appearance without authority

a) Lawyers without authority

b) Persons not lawyers

5. Public officials and practice of law

a) Prohibition or disqualification of former government attorneys

What are the two theories on the disqualification of former government lawyers in representing a client on a matter in which they intervened when they were in office? 

They are the adverse-interest conflict

and the congruent-interest

representation conflict.

 

In the “adverse-interest conflict” a

former government lawyer is enjoined from

representing a client in private practice is the

matter is substantially related to a matter that

the lawyer dealt with while employed by the

government and if the interests of the current

and former clients are adverse. It must be

observed that the “adverse-interest conflict”

applies to all lawyers in that they are generally

disqualified from accepting employment in a

subsequent representation if the interests of

the former client and the present client are

adverse and the matters involved are the

same or substantially related. On the other

hand, in “congruent-interest conflict”, the

disqualification does not really involve a

conflict at all, because it prohibits the lawyer

from representing a private practice client

even if the interests of the former government

client and the new client are entirely parallel.

The “congruent-interest representation

conflict”, unlike the “adverse-interest conflict”,

is unique to former government lawyers.

(PCGG vs. SB, et al.)

Does the restriction against a public official from appearing as counsel on a matter he intervened when he was in government temporary? Explain.

No. The restriction against a public official

from using his public position as a vehicle to

promote or advance his private interests

extends beyond his tenure on certain matters

in which he intervened as a public official.

Rule 6.03 makes this restriction specifically

applicable to lawyers who one held public

office. A plain reading of the rule shows that

the interdiction (1) applies to a lawyer who

once served in the government, and (2)

relates to his accepting “engagement or

employment in connection with any matter in

which he had intervened while in said

service.” (PCGG vs. SB, et al., supra.).

b) Public officials who cannot practice law or with restrictions

Public Officials who cannot engage

in the private practice of Law in the

Philippines:1. Judges and other officials as

employees of the Supreme

Court (Rule 148, Sec. 35, RRC).

2. Officials and employees of the

OSG (Ibid.)

3. Government prosecutors (People v.

Villanueva, 14 SCRA 109).

4. President, Vice-President, members

of the cabinet, their deputies and

assistants (Art. VIII Sec. 15, 1987

Constitution).

5. Members of the Constitutional

Commission (Art IX-A, Sec. 2, 1987

Constitution)

6. Ombudsman and his deputies (Art.

IX, Sec. 8 (2nd par), 1987

Constitution)

7. All governors, city and municipal

mayors (R.A. No. 7160, Sec. 90).

8. Those prohibited by special law

Public Officials with Restrictions in

the Practice of Law:

1. 1.        No Senator as member of the

House of Representative may

personally appear as counsel before

any court of justice as before the

Electoral Tribunals, as quasi-judicial

and other administration

bodies (Art. VI, Sec. 14, 1987

Constitution).

2. Under the Local Government

Code (RA 7160, Sec. 91)Sanggunian

members may practice their

professions provided that if they are

members of the Bar, they shall not:

1. appear as counsel before any

court in any civil case wherein

a local government unit or any

office, agency, or

instrumentality of the

government is the adverse

party;

2. appear as counsel in any

criminal case wherein an

officer or employee of the

national or local government is

accused of an offense

committed in relation to his

office;

3. collect any fee for their

appearance in administrative

proceedings involving the local

government unit of which he is

an official;

4. use property and personnel of

the government except when

the Sanggunian member

concerned is defending the

interest of the government.

3. Under RA 910, Sec. 1, as amended,

a retired justice or judge receiving

pension from the government,

cannot act as counsel in any civil

case in which the Government, or

any of its subdivision or agencies is

the adverse party or in a criminal

case wherein an officer or employee

of the Government is accused of an

offense in relation to his office.

What is the revolving door theory on representation of a client by former government lawyers?

The “revolving door” theory is the process by

which lawyers temporarily enter government

service from private life then leave it for large

fees in private practice, where they can exploit

information, contacts, and influence garnered

in government service. (PCGG vs. SB, et al.,

citing Wolfman, Modern Legal Ethics, [1986],

p. 456).

The rationale for the congruent-interest representation conflict

The rationale for the “congruent-interest

representation conflict” doctrine has been

explained, thus:

The rationale for disqualification is

rooted in a concern with the impact that any

other rule would have upon the decisions and

actions taken by the government lawyer

during the course of the earlier representation

of the government. Both courts and

commentators have expressed the fear that

permitting a lawyer to take action in behalf of

a government client that later could be to the

advantage of private practice client would

present grave dangers that a government

lawyer’s largely discretionary actions would be

wrongly influenced by the temptation to

secure private practice employment or to favor

parties who might later become private

practice clients…

6. Lawyers authorized to

represent the government

7. Lawyer’s oath

B. Duties and responsibilities of a

lawyer

1. To society

a) Respect for law and legal processes

b) Efficient and convenient legal services

c) True, honest, fair, dignified and objective information on legal services

d) Participation in the improvement and reforms in the legal system

e) Participation in legal education program

2. To the legal profession