Memory Aid - Ethics

7/27/2019 Memory Aid - Ethics

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SAN BEDA COLLEGE OF LAW, 2000 2001

MEMORY AID in LEGAL ETHICSAny form of reproduction of this copy is strictly prohibited!!!

I. LEGAL ETHICS

Legal Ethics branch of moral science which

treats of the duties which an attorney owes tothe court, to his client, to his colleagues in theprofession and to the public.

The Supreme Court under Sec. 5(5), Art.VIII of the 1987 Constitution shall have thepower to admit candidates to the practice of law.

The constitutional power to admit candidatesto the legal profession is a judicial function andinvolves the exercise of discretion. Petition tothat end is filed with the Supreme Court as areother proceedings invoking judicial function (In

re: Almacen 31 SCRA 562)

The SC acts through a Bar ExaminationCommittee in the exercise of its judicial functionto admit candidates to the legal profession.Thus, the Committee is composed of a memberof the Court who acts as Chairman and 8members of the bar who acts as examiners inthe 8 bar subjects with one subject assigned toeach. (In re: Lanuevo 66 SCRA 245)

Brief History Of The Canons Of

Professional EthicsPennsylvania Justice GeorgeSharswood published in 1854 his essay onLEGAL ETHICS. Earlier, David Hoffman wrotehis FIFTY Resolutions dealing with lawyersduty. In 1881, Thomas Goode Jones of the

Alabama Bar proposed adoption of a Code ofLegal Ethics. The code was drafted in 1883 andadopted in December 1887. It contained 56canons. In 1908, the American Bar Associationadopted the Canons. New Canons wereintroduced in 1928, 1933 and 1937. The ABACanons of Legal Ethics was adopted by the Phil.Bar Association in 1971, and this adoption wasrestated in 1946. In the meantime, the AmericanBar Association adopted a new Code ofProfessional Responsibility on August 12, 1969,which underwent several amendments until1976.

Today, the main basis of our legal ethicsis the Code of Professional Responsibility. It isthe embodiment into one Code of the variouspertinent and subsisting rules, guidelines, andstandards on the rule of conduct of lawyerssourced from the Constitution, Rules of Court,Canons of Professional Ethics, statutes, speciallaws, treaties and decisions which must be

observed by all members of the Bar in theexercise of their profession whether in or out ofcourt as well as in their public and private lives.

The Code of Professional Responsibility wasinitially drafted in 1980 by the IBP Committee OnResponsibility, Discipline and Disbarment andwas submitted to the Supreme Court for

approval. It took the Supreme Court more thanseven years to decide on its formal promulgationas a code of conduct for members of the Bar.

The Code of Professional Responsibilitywas finally promulgated by the Supreme Courton June 21,1988. The Code is a judicialcommand, not a suggestion, promulgated as it isby no less than the Highest Court of the landwhich has supremacy of supervision over allmembers of the Bar.

Practice of Law means any activity in or outof court which requires the application of law,

legal principle, practice or procedure and callsfor legal knowledge, training and experience.

To engage in the practice of law is toperform those acts which are characteristics ofthe legal profession. Generally, to practice lawis to give notice or render any kind of service,which devise or service requires the use, in anydegree, of legal knowledge or skill.

Q: Atty. A has plans to join the judiciary. Hehas been a lawyer for about twenty years now.He has been a legal consultant to a number of

business entities, and an of counsel of amedium sized law firm. Never during his 20 yearstint as a lawyer, has he had the opportunity toconduct any actual trial or litigation work. Doeshe possess the necessary qualifications for aRegional Trial Court judge?

A: YES. In Cayetano vs. Monsod 201SCRA 210, the Supreme Court defined thepractice of law as any activity, in or out ofcourt, which requires the application of law, legalprocedure, knowledge, training and experience.Under the said definition, Atty. A is qualified tobe appointed as a member of the judiciary,assuming that he has the other qualifications forthe particular position.

Strictly speaking, the word practice oflaw implies the customary or habitual holding ofoneself to the public as a lawyer and demandingcompensation foe his services. (People vs.Villanueva 14 SCRA 111)

The practice of law is not a propertyright but a mere privilege and as such must bowto the inherent regulatory power of the Court toexact compliance with the lawyers publicresponsibilities. (In re Edillion 84 SCRA 568)

1Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA, Chairperson, JANALYN GAINZA, EDPMEMBERS : Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee


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SAN BEDA COLLEGE OF LAW, 2000 - 2001


Q: Is the practice of law a right or aprivilege?

A: The practice of law is basically aprivilege because it is limited to persons of good

moral character with special qualifications dulyascertained and certified. However, Prof. Agpaloin his book has pointed out that the practice oflaw is also a right because a lawyer holds officeduring good behavior and he cannot be deprivedof the right to practice law except for misconductascertained and declared by judgment of thecourt after observing due process.

Essential Criteria Determinative ofEngaging in the Practice of Law:

1. Habituality- implies customarily or habitually

holding oneself out to the public as a lawyer2. Compensation- implies that one must have

presented himself to be in the activepractice and that his professional servicesare available to the public for compensation,as a source of his livelihood or inconsideration of his said services.

3. Application of law, legal principe, practice, orprocedure which calls for legal knowledge,training and experience is within the termpractice of law

4. Attorney client relationshipThe practice of law is not a natural, property

or constitutional right but a mere privilege. Butwhile the practice of law is a privilege, a lawyercannot be prevented from practicing law exceptfor valid reasons, the practice of law not being amatter a states grace or favor.

1. He holds office during good behaviorand can only be deprived of it formisconduct ascertained and declared by

judgment of the court after opportunity to beheard has been afforded him. The statecannot exclude an attorney from the practiceof law in a manner or for reasons that

contravene the due process or equalprotection clause of the Constitution. Nocourt, including a court-martial, can deny anattorney the right to appear before it for aparty litigant, in the absence of a validstatutory limitation or ground disqualifyinghim to practice. A quasi-judicial oradministrative agency cannot restrict hisprivilege to practice law by imposingconditions that amount to discrimination, norlimit such privilege by requiring the passingof an examination that is not expresslysanctioned by law as a prerequisite toappearing before such agency.2. The practice of law is in the nature of aright which cannot be lightly or capriciouslyrestricted or taken away from him.

Private Practice is more than an isolatedappearance for it consists of frequent orcustomary actions, a succession of acts of thesame kind. An isolated appearance may,however, amount to practice in relation to the

rule prohibiting some persons from engaging inthe exercise of the legal profession.

The fact that the service is renderedbefore a quasi-judicial or administrative agencyand not before the court is immaterial to thequestion as to whether the service constitutespractice of law because the character of theservice, and not the place where it is performed,is the decisive factor determinative of thatquestion

Power to Regulate the Practice ofLaw

The practice of law is a privilegeimpressed with public interest.

Reason: Lawyer owes duties not only to hisclient but also to the court, to his brethren in theprofession and to the public, and takes part inone of the most important functions of the state-the administration of justice.

The Constitution vests this power ofcontrol and regulation in the Supreme Court.The power of the SC to regulate the practice oflaw includes:

1. The authority to define the term2. Prescribe the qualifications of a

candidate to and the subjects of the barexaminations

3. Decide who will be admitted to practice4. Discipline, suspend or disbar any unfit

and unworthy member of the bar5. Reinstate any disbarred or indefinitely

suspended attorney6. Ordain the integration of the Philippine

Bar7. Punish for contempt any person for

unauthorized practice of law

8. Exercise overall supervision of the legalprofession

9. Exercise any other power as may benecessary to elevate the standards ofthe bar and preserve its integrity.

On the other hand, the LEGISLATURE, inthe exercise of its POLICE POWER may,however, enact laws regulating the practice oflaw to protect the public and promote the publicwelfare. But the legislature MAY NOT pass a lawthat will control the SC in the performance of itsfunction to decide who may enjoy the privilege of

practicing law and any law of that kind isunconstitutional as an invalid exercise oflegislative power.

2Legal Ethics and Practical Exercises Memory Aid Committee : DERELA DEVERA, Chairperson, JANALYN GAINZA, EDPMEMBERS: Christina Molino, Florabelle Rey, Catherine Nuval, Leah Lee


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WHO MAY PRACTICE LAW?Any person heretofore duly admitted as

a member of the bar, or hereafter admitted assuch in accordance with the provisions of thisrule, and who is in good and regular standing, is

entitled to practice law. (Sec. 1, Rule 138)

Basic Requirements for All Applicantsfor Admission to the Bar1. Citizen of the Philippines because he isrequired to maintain allegiance to the Republicof the Philippines, support its Constitution andobey its laws;2. At least 21 years of age because maturityand discretion are required in the practice of law;3. Of good moral character because thelawyer, being an officer of the court, is a vitalpart of the administration of justice and unless

he is possessed of good moral character he maynot prosecute the ends of justice to his ownpersonal ends.

Well-settled is the rule that good moralcharacter is not only a condition precedent to anadmission to the legal profession but it must alsoremain extant in order to maintain ones goodstanding in that exclusive and honored fraternity.(Villanueva vs. Sta. Ana, 245 SCRA 707)4. Resident of the Philippines because hisduties to his client and to the court will requirethat he be readily accessible and available;5. Must produce before the SC satisfactory

evidence of good moral character6. No charges against him, involving moralturpitude, have been filed or are pending in anycourt in the Phil. (Sec. 2, Rule 138)7. Must have complied with the academicrequirements

Academic Requirements forCandidates1. Must have already earned a BachelorsDegree in Arts or Sciences (Pre-law)2. Law Course completed courses inCivil Law, Commercial Law, Remedial Law,

Criminal Law, Public and Intl Law, PoliticalLaw, Labor and Social Legislation, MedicalJurisprudence, Taxation, Legal Ethics.(Sec. 5 and 6, Rule 138)

8. Pass the bar examinations

Moral Turpitude imports an act of baseness,vileness or depravity in the duties which oneperson owes to another or to society in generalwhich is contrary to the usual accepted andcustomary rule of right and duty which a personshould follow. The question as to whether an

offense involves moral turpitude is for theSupreme Court to decide.

Requirements Before a Candidate CanEngage in the Practice of Law

I. He must have been admitted to the Bara. Furnishing satisfying proof of

educational, moral and other classification

b. Passing the barc. Taking the Lawyers Oath before the SC

A lawyers oath signifies that thelawyer in taking such an oath acceptsand affirms his ethical obligations in theperformance of his duties as a lawyerand signifies likewise his awareness ofhis responsibilities that he assumes byhis admission to the legal profession.

d. Signing the Attorneys Roll and receivingfrom the Clerk of Court of the SC a

Certificate of the license to practice

II. After his admission to the bar, a lawyer mustremain in good and regular standing, whichis a continuing requirement for the practiceof law. This means that he musta. Remain a member of the IBP

(membership therein by every attorneyis made compulsory)

b. Regularly pay all IBP membership duesand other lawful assessments, as wellas the annual privilege tax

c. Faithfully observe the rules and ethics of

the legal profession andd. Be continually subject to judicial

disciplinary control

Privileges of Attorney:1. Has the privilege and right to practice

law during good behavior before anyjudicial, quasi-judicial, or administrativetribunal.

2. He has the privilege as the first one tosit in judgment on every case, to set the

judicial machinery of his duty.3. Enjoys the presumption of regularity in

the discharge of his duty.4. He is immune, in the performance of his

obligation to his client, from liability to athird person insofar as he does notmaterially depart from his character as aquasi-judicial officer.

5. His statement, if relevant, pertinent ormaterial to the subject of judicial inquiryare absolutely privileged regardless oftheir defamatory tenor and of thepresence of malice.

Other Privileges:

1. The passing of the bar examinations isequivalent to a first grade civil serviceeligibility for any position in the classifiedservice in the government the duties ofwhich require knowledge of law.



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2. Second grade civil service eligibility forany other government position whichdoes not prescribe proficiency in law asa qualification.

FOUR-FOLD DUTIES OF A LAWYERa. Court- respect or defend against criticisms,

uphold authority and dignity, obey order andprocesses, assist in the administration of

justice.b. Bar - candor, fairness, courtesy and

truthfulness, avoid encroachment in thebusiness of other lawyers, uphold the honorof the profession.

c. Client- entire devotion to clients interest.d. Public- should not violate his responsibility

to society, exemplar for uprighteousness,ready to render legal aid, foster social

reforms, guardian of due process, aware ofspecial role in the solution of specialproblems and be always ready to lendassistance in the study and solution ofsocial problems.

Classification of Duties of a Lawyer:1. Public duty consists of his obligation toobey the law, aid in the administration of justiceor cooperate with it whenever justice wouldotherwise be imperiled, uphold the honor anddignity of the court and respect its authority.2. Private duty- refers to his obligation to

faithfully, honestly, and conscientiouslyrepresent the interest of his client.3. Personal duty- what he owes to himself.

Duties of a Lawyer

Rule 138, Sec. 201. To maintain allegiance to the Republic

of the Philippines and to support theConstitution and obey the laws of thePhilippines

2. To observe and maintain the respectdue to the courts of justice and judicialofficers

3. To counsel and maintain the respectdue to the courts of justice and judicialofficers

4. To employ, for the purpose of maintaining the causes confided to him,such means only as are consistent withtruth and honor, and never seek tomislead the judge or any judicial officerby an artifice or false statement of factor law

5. To maintain inviolate the confidence andat every peril to himself, to preserve thesecrets in connection with his client and

to accept no compensation inconnection with his clients businessexcept from him or with his knowledgeand approval

6. To abstain from all offensive personalityand to advance no fact prejudicial to the

honor and reputation of a party orwitness, unless required by the justice ofthe cause with which he is charged

7. Not to encourage either thecommencement or the continuance of

an action or proceeding, or delay anymans cause, from any corrupt motive orinterest

8. Never to reject, for any considerationpersonal to himself, the cause of thedefenseless or oppressed

9. In the defense of a person accused ofcrime, by all fair and honorable means,regardless of his personal opinion as tothe guilt of the accused, to present everydefense that the law permits to the endthat no person may be deprived of life orliberty, but by due process of law.

The Primary Characteristics whichDistinguish the Legal Profession fromBusiness1. Legal Profession is a duty of public service2. A relation, as an officer of the court, to the

administration of justice involving thoroughsincerity, integrity and reliability

3. A relation to clients with the highest degreeof fiduciary

4. A relation to the colleagues at the barcharacterized by candor, fairness andunwillingness to resort to current business

methods of advertising and encroachmenton their practice, or dealing directly with theirclients

Non-Lawyers who are Authorized toAppear in Court

General Rule: Only those who are licensed topractice law can appear and handle cases incourt.

Exceptions:1. Before the MTC - a party may conduct his

case or litigation in person with the aid of anagent or friend appointed by him. (Sec. 34,Rule 138)

2. Before any court a party may conduct hislitigation personally. But he gets someoneto aid him and that someone must be anauthorized member of the Bar (Sec. 34,Rule 138). He is bound by the same rulesin conducting the trial of his case. Hecannot, after judgment, claim that he wasnot properly represented.

3. In a criminal case before the MTC in alocality where a duly licensed member of the

Bar is not available, the judge may appoint anon-lawyer who is a resident of thatprovince, of good repute for probity andability to the accused in his defense. (Sec.7, Rule 116)



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4. A law student who has successfullycompleted his 3rd yr. Of the regular 4 yr.Prescribed law curriculum and is enrolled ina recognized law schools clinical legaleducation program approved by the SC

may appear without compensation in anycivil, criminal or administrative case beforeany trial court, tribunal, board or officer, torepresent indigent clients accepted by theLegal Clinic of the school. (Sec. 1, Rule138-A) The student shall be under directsupervision and control of a member of theIBP duly accredited by the law school. (Sec.2)

5. Under the Labor Code non-lawyers mayappear before the NLRC or any Labor

Arbiter if they (a) represent themselves; (b)represent their organization or members

thereof(Art. 222, PD 442)6. A non-lawyer may represent a claimant

before the Cadastral Court (Sec. 9, Act.No. 2259)

7. Any person appointed to appear for thegovernment of the Philippines inaccordance with law (Sec. 33, Rule 138)

Partnership with Non-Lawyers Void

Q: A and B, both lawyers, and C, a certifiedpublic accountant, in order to enhance theirrespective practice, decided to pool their

resources together and establish a partnershipfor the combined purposes of law andaccounting under the firm name of A, B, C and

Associates. Is the proposed partnershipallowed?

A: NO. In the formation of partnership forthe practice of law, no person should beadmitted or held out as a practitioner or memberwho is not a member of the legal profession dulyauthorized to practice, and amenable toprofessional discipline.

Partnerships between lawyers and

members of other professions or non-partnerships employment consists of thepractice of law.

Practice by CorporationIt is well-settled that a corporation

CANNOT engage in the practice of law. It may,however, hire an attorney to attend to andconduct its own legal business or affairs. It is notunusual for a big corporation to hire a staff oflawyers as its in-house counsel, pay themregular salaries, rank them in its table oforganization, and otherwise treat them like itsother officers and employees. But it cannotpractice law directly or indirectly by employing alawyer to practice for it or to appear for others forits benefit.

Reasons:1. Nature of the privilege and on the

confidential and trust relation betweenattorney and client.

2. A corporation cannot perform the

conditions required for membership inthe bar, such as the possession of goodmoral character and other specialdisqualifications, the taking of an oathand becoming an officer of the court,subject to its discipline, suspension orremoval.

3. The relation of trust and confidencecannot arise where the attorney isemployed by a corporation to practicefor it, his employer and he owing, atbest, a secondary and divided loyalty tothe clientele of his corporate employer.

4. The intervention of the corporation isdestructive of that confidential and trustrelation and is obnoxious to the law.

Q: Is pro se practice allowed in thePhilippines? Explain.

A: YES. Section 34, Rule 138 of theRevised Rules of Court provides as follows:

By whom litigation conducted.---In the court of justice of the peace aparty may conduct his litigation inperson with the aid of an agent or friendappointed by him for that purposes, orwith the aid of an attorney. In any othercourt, a party may conduct his litigationpersonally or by aid of an attorney andhis appearance must be either personalor by a duly authorized member of thebar.

Right of Party to RepresentHimself

Civil Cases: An individual litigant has the rightto conduct his litigation personally.

Criminal Cases: Involving grave and less graveoffenses, an accused who is a layman mustalways appear by counsel; he CANNOT conducthis own defense, as his right to counsel mayNOT be waived without violating his right to dueprocess of law.By a Juridical Person: A juridical person mustalways appear in court by a duly licensedmember of the bar, except in the municipal trialcourt where it may be represented by its agentor officer who need not be a lawyer.

Persons authorized to represent

the GovernmentAny official or other person appointed ordesignated in accordance with law to appear forthe government of the Philippines or any of itsofficials shall have all the rights of a dulyauthorized member of the bar to appear in any



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case in which the government has an interest,direct or indirect, or in which such official ischarged in his official capacity.

Limitations on Appearance of Non-

Lawyers Before the Courts1. He should confine his work to non-

adversary contentions. He should notundertake purely legal work, such as theexamination or cross-examination ofwitnesses, or the presentation of evidence.

2. Services should not be habitually rendered.3. Should not charge or collect attorneys fees.

(PAFLU vs. Binalbagan Isabela SugarCo. 42 SCRA 302)

Public Officials Who Cannot PracticeLaw in the Philippines1. Judges and other officials or employees of

the superior court2. Officials and employees of the Office of the

Solicitor General3. Government Prosecutors4. President, Vice-President, members of the

Cabinet, their deputies and assistants5. Chairmen and members of the

Constitutional Commissions6. Ombudsman and his deputies7. Governors, city and municipal mayors8. Those who, by special law are prohibited

from engaging in the practice of their legal

profession

Public Officials with Restrictions in thePractice of Law1. Senators and Members of the House of

Representatives2. Members of the Sanggunian3. Retired Justice or Judge4. Civil Service officers or employees without

permit from their respective departmentheads (Noriega vs. Sison 125 SCRA 293)

Restrictions in the Practice of Law ofMembers of Legislature

A lawyer-member of the legislature is onlyprohibited from appearing as counsel before anycourt of justice, electoral tribunals or quasi-

judicial and administrative bodies

The word appearance includes not onlyarguing a case before any such body but alsofiling a pleading on behalf of a client as bysimply filing a formal motion, plea or answer.(Ramos vs. Manalac 89 PHIL 270)

Neither can he allow his name to appear insuch pleading by itself or as part of a firm nameunder the signature of another qualified lawyerbecause the signature of an agent amounts tosigning of a non-qualified senator or

congressman, the office of an attorney beingoriginally of agency, and because he will, bysuch act, be appearing in court or quasi-judicialor administrative body in violation of theconstitutional restriction. He cannot do

indirectly what the Constitution prohibitsdirectly. (In re: David 93 PHIL 461)

Restrictions in the Practice of Law of theMembers of the Sanggunian

Members of the Sanggunian may engage inthe practice of law EXCEPT in the following:1. They shall not appear as counsel before any

court in any civil case wherein a localgovernment unit or any office, agency orinstrumentality of the government is theadverse party

2. They shall not appear as counsel in anycriminal case wherein an officer or employeeof the national or local government isaccused of an offense committed in relationto his office

3. They shall not collect any fee for theirappearance in administrative proceedingsinvolving the local government unit of whichhe is an official. (Sec. 90, R.A. 7160)

4. Use property and personnel of thegovernment except when the Sanggunianmember concerned is defending the interestof the government

Remedies Against Unauthorized Practice1. Petition for Injunction2. Declaratory Relief3. Contempt of Court4. Disqualification and complaints for

disbarment5. Criminal complaint for estafa against a

person who falsely represented to be anattorney to the damage of a party

THE LAWYERS OATH

I (state your name), do solemnly swearthat I will maintain allegiance to the Republic ofthe Philippines; I will Support its Constitution andobey the law as well as the legal orders of theduly constituted authorities therein; I will do nofalsehood nor consent to the doing of the samein court; I will not wittingly or willingly promote orsue any groundless, false or unlawful suit, norgive aid nor consent to the same; I will delay noman for money or malice and will conduct myselfas a lawyer according to the best of myknowledge and discretion with all good fidelity aswell to the courts as to my clients; and I imposeupon myself this voluntary obligation without anymental reservation or purpose of evasion. Sohelp me God.



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TERMS TO REMEMBER:

Bar and Bench Bar refers to the whole bodyof attorneys and counselors collectively, themembers of the legal profession: Benchdenotes the whole body of judges.

Lawyer this is the general term for a persontrained in the law and authorized to advice andrepresent others in legal matters

Trial Lawyer one who personally handlescases in court, administrative agencies of boardswhich means engaging in actual trial work, eitherfor the prosecution or for the defense of cases ofclients.

Practising Lawyer one engaged in the

practice of law. All trial lawyers are practisinglawyers, but not all practising lawyers are triallawyers.

Client one who engages the services of alawyer for legal advice or for purposes ofprosecuting or defending a suit in behalf andusually for a fee.

Attorneys-At-Law that class of persons whoare licensed officers of the courts empowered toappear, prosecute and defend, and upon whompeculiar duties, responsibilities and liabilities are

developed by law as a consequence.

Counsel/Attorney de oficio is an attorneyappointed by the court to defend an indigentdefendant in a criminal action.

In a criminal action, if the defendantappears without an attorney, he must beinformed by the court that it is his right to havean attorney before being arraigned and must beasked if he desires the aid of an attorney. If hedesires and is unable to employ an attorney, thecourt must assign a counsel de oficio to defendhim. The appointment of a counsel de oficio in

that instance is a matter of right on the part ofthe defendant.On appeal in a criminal case, the

appellate court must also appoint a counsel deoficio if, as shown by the certificate of the clerkof court of the trial court, a defendant (a) isconfined in prison, (b) without means to employan attorney, (c) desires to be defended de oficio.Atty. ad hoc- a person named appointed by thecourt to defend an absentee defendant in thesuit in which the appointment is made.Attorney of record- is the attorney whose nameis entered in the records of an action or suit asthe lawyer of a designated party thereto.

Of Counsel to distinguish them from attorneysof record, they are associate attorneys

Atty. in fact- is simply an agent whose authorityis strictly limited by the instrument appointinghim. His authority is provided in a special powerof attorney or general power of attorney or letterof attorney. He is not necessarily a lawyer.

Lead Counsel the counsel on either side of alitigated action who is charged with the principalmanagement and direction of a partys case, asdistinguished from his juniors or subordinates.

House Counsel one who acts as attorney forbusiness though carried as an employee of thatbusiness and not as an independent lawyer.Pro Se - an appearance by a lawyer in his ownbehalf

Notary Public- public officers whose duty is to

attest to the genuineness of any deed or writingin order to render them available as evidence ofthe facts stated therein, and who is authorizedby statute to administer various oaths.

Amicus Curiae- is an experienced and impartialattorney invited by the court to appear and helpin the disposition of the issues submitted to it. Itimplies friendly intervention of counsel to call theattention of the court to some matters of law orfacts which might otherwise escape its noticeand in regard to which it might go wrong. Anamicus curiae appears in court not to representany particular party but only to assist the court.

Amicus Curiae par excellence barassociations who appear in court as amici curiaeor friends of the court. Acts merely as aconsultant to guide the court in a doubtfulquestion or issue pending before it.

Bar Association an association of membersof the legal profession like the IBP wheremembership is integrated or compulsory.

Duty of Counsel de OfficioA counsel de officio is expected to

render effective service and to exert his bestefforts on behalf of an indigent accused. He hasas high a duty to a poor litigant as to a payingclient. He should have a bigger dose of socialconscience and a little less of self-interest.

Duty of Public ProsecutorThe primary duty of a public prosecutor

is not to convict but to see that justice is done.He owes the state, the court and the accusedthe duty to lay before the courts the pertinentfacts at his disposal with methodical attentionfilling up the gaps and loopholes in evidence to

the end that the courts mind may not be torturedby doubts, the innocent may not suffer and theguilty may not escape punishment.

It is as much his duty to refrain fromimproper methods calculated to producewrongful conviction as it is to use legitimate



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means to bring about a just one. Also, heshould not hesitate to recommend to the courtthe accuseds acquittal if the evidence in hispossession shows that the accused is innocent.

Role of Private ProsecutorA private prosecutor may intervene in

the prosecution of a criminal action when theoffended party is entitled to indemnity and hasnot waived expressly, reserved or instituted thecivil action for damages. There is nothingobjectionable about it as long as the publicprosecutor is always present at every hearing,retains control thereof, and without allowing thetrial in the hands of a private prosecutor todegenerate to public prosecutor.

THE CANONS OF PROFESSIONALRESPONSIBILITY (IN A NUT SHELL)

Chapter I: The Lawyer and Society

CANON -1. Uphold the Constitution and obey

the laws of the land2. Make legal services available in an

efficient and convenient manner3. Use of true, honest, fair, dignified

and objective information in making

known legal services4. Participate in the improvement ofthe legal system

5. Keep abreast of legal developmentand participate in continuing legaleducation program and assist indisseminating information regardingthe law and jurisprudence

6. Applicability of the CPR to lawyersin the government service

Chapter II: The Lawyer and the LegalProfession

CANON -7. At all times uphold the integrity and

dignity of the Profession andsupport the activities of the IBP

8. Conduct himself with courtesy,fairness and candor toward hiscolleagues and avoid harassingtactics

9. Not to directly or indirectly assist inthe unauthorized practice of law

Chapter III: The Lawyer and the Courts

CANON -10. Owes candor, fairness and good

faith to the court11. Observe and maintain the respect

due courts and judicial officers

12. Duty to assist in the speedy andefficient administration of justice

13. Rely upon the merits of his cause,refrain from any impropriety whichtends to influence courts, or give the

appearance of influencing the court

Chapter IV: The Lawyer and the Client

CANON -14. Not refuse his services to the needy15. Observe candor, fairness and

loyalty in all his dealings andtransactions with clients

16. Hold in trust all the moneys andproperty of his client that may cometo his possession

17. Owes fidelity to clients cause and

be mindful of the trust andconfidence reposed in him

18. Serve client with competence anddiligence

19. Represent client with zeal andwithin the bounds of law

20. Charge only fair and reasonablefees

21. Preserve the confidence andsecrets of client even after the atty.-client relation is terminated

22. Withdraw services only for goodcause and upon notice

A. Important Concepts from the Code ofProfessional Responsibility

UnderRule 1.03, a lawyer shall not for anycorrupt motive or interest, encourage any suit orproceeding

A lawyer shall refrain from committingbarratry and ambulance chasing of cases.

Barratry offense of frequently exciting andstirring up quarrels and suits. The lawyers act

of fomenting suits among individuals andoffering his legal services to one of them

Ambulance Chasing a lawyers act of chasingthe victims of an accident for the purpose oftalking to the same victim or the latters relativesand offering his legal services for the filing of thecase against the person who caused theaccident.

Ambulance Chaser is a lawyer who hauntshospitals and visits the homes of the afflicted,officiously intruding their presence andpersistently offering his service on the basis of acontingent.

Q: Distinguish Ambulance Chasing fromBarratry



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A: Both are improper and unethical acts ofa lawyer.

However, ambulance chasing refersmore to a lawyer who instigates a victim in a

motor vehicle accident to file a case. Barratry isany form of fomenting suit.

Restriction against using publicoffice to promote private interest1. Own, control, manage or accept

employment as officer, employee,consultant, counsel, broker, agent,trustee or nominee in any privateenterprise regulated, supervised orlicensed by their office unless expresslyallowed by law

2. Engage in the private practice of their

profession unless authorized by theconstitution or law, provided that suchpractice will not conflict or tend toconflict with their official functions.

3. Recommend any person to any positionin a private enterprise which has aregular or pending official transactionwith their office

4. Use or divulge confidential or classifiedinformation officially known to them byreason of their office and not available tothe public.

Restriction against former officialfrom accepting certain employment

A lawyer shall NOT, after leaving thegovernment service, accept engagement oremployment in connection with any matter inwhich he had intervened while in said service.(Rule 6.03, Code of Professional Responsibility)

Section 7 (b), RA 6713 prohibits anyformer public official or employee for a period ofone year after retirement or separation fromoffice to practice his profession in connectionwith any other matter before the office he used

to be with.

Rule against advertising by legalpractitioners

General Rule: A lawyer cannot advertise histalent as he is a member of an honorableprofession whose primary purpose is to renderpublic service and help secure justice and inwhich the remuneration is a mere incident.

It is highly unethical for an attorney toadvertise his talents or skill as a merchantadvertises his wares. (In re: Tagorda 53 PHIL

42)

Exceptions:1. Writing legal articles

2. Engaging in business or otheroccupations except when suchcould be deemed improper, be seenas indirect solicitation or would bethe equivalent of law practice.

3. Law lists, but only brief biographicaland informative data

4. Ordinary, professional cards5. Notice to other local lawyers and

publishing in a legal journal of onesavailability to act as an associate forthem

6. The proffer of free legal services tothe indigent, even when broadcastover the radio or tendered throughcirculation of printed matter to thegeneral public.

7. Seeking a public office, which can

only be held by a lawyer or, in adignified manner, a position as a fulltime corporate counsel.

8. Simple announcement of theopening of a law firm or of changesin the partnership, associates, firmname or office address, being forthe convenience of the profession.

9. Listing in a phone directory, but notunder a designation of a specialbranch of law.

10. Activity of an association for thepurpose of legal representation.

Solicitation of Cases ConstitutesMalpractice

The law prohibits lawyers from solicitingcases for the purpose of gain, either personallyor through paid agents or brokers and makes theact malpractice (Rule 138, sec. 27, Rules ofCourt). The rule prohibits professional touting.Neither shall a lawyer charge rates lower thanthose customarily prescribed unless thecircumstances so warrant.

Use of Law Firm NameIn the choice of a firm name, no false,

misleading or assumed name shall be used. Thecontinued use of the name of a deceasedpartner is permissible provided that the firmindicates in all its communications that saidpartner is deceased. (Rule 3.02, Code ofProfessional Responsibility). Hence, the ruleabandoned the doctrine laid down in the case ofIn re: Sycip 92 SCRA 1 (1979).

Reason: All of the partners by their joined effortsover a period of years contributed to the goodwillattached to the firm name, and this goodwill is

disturbed by a change in firm name every time apartner dies.

Where a partner accepts public office,he shall withdraw from the firm and his nameshall be dropped from the firm name unless the



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law allows him to practice concurrently.(Rule3.02, Code of Professional Responsibility).

Three-Fold Obligations of a Lawyer:1. He owes it to himself to continue

improving his knowledge of the law

2. He owes it to his profession to take anactive interest in the maintenance ofhigh standards of legal education

3. He owes it to the lay public to make thelaw a part of their social consciousness.

Lawyers Duties to Courts

Candor, Fairness and Good Faith toCourts

A lawyer shall NOT do any falsehood,

nor consent to the doing of any in court; nor shallbe misled, or allow the court to be misled by anyarticle. (Rule 10.01, Code of ProfessionalResponsibility)

Q: Is the unsolicited appearance of Atty. Ain the absence of client-lawyer relationship withMr. B unbecoming of a member of the bar?

A: YES. Res ipsa loquitor. Atty. A is notonly guilty of falsehood but had mislead the trialcourt as well when he represented himself as

counsel of Mr. B when in fact there was nosuch client-lawyer relationship in the first place.

And he transgressed his oath as an attorney.For Canon 10.01 of the Code of ProfessionalResponsibility is clear.

A lawyer shall NOT knowingly misquoteor misrepresent the contents of a paper, thelanguage or the argument of opposing counsel,or the text of a decision or authority, orknowingly cite as a law a provision alreadyrendered inoperative by repeal or amendment,or assert as a fact that which has not been

proved. (Rule 10.02, Code of ProfessionalResponsibility)A lawyer shall observe the rules of

procedure and shall NOT misuse them to defeatthe ends of justice. (Rule 10.03, Code ofProfessional Responsibility)

Observance of Respect Due theCourts

A lawyer shall observe and maintain therespect due to the courts and to judicial officersand should insist on similar conduct by others.(Canon 11, Code of Professional

Responsibility)A lawyer should show respect due the

court and judicial officer by appearing during thetrial of a case punctually and in proper attire.

A lawyers language should be forcefulbut dignified, emphatic but respectful as befitting

an advocate and in keeping with the dignity ofthe legal profession.

Assisting in Speedy and Efficient

Administration of JusticeA lawyer shall NOT appear for trialunless he has adequately prepared himself onthe law and the facts of his case, the evidencehe will adduce and the order of its preference.He should also be ready with the originaldocuments for comparison with the copies.(Rule 12.01 Code of Professional Responsibility)

A lawyer shall NOT unduly delay a case,impede the execution of judgment or misusecourt processes. (Rule 12.04, Code ofProfessional Responsibility)

The duty of a lawyer to assist in thespeedy and efficient administration of justiceincludes the duty to refrain from talking to hiswitness during a break or recess in the trial whilethe witness is still under examination.

Avoiding impropriety that Tends toInfluence the Court

A lawyer shall rely upon the merits of hiscause and refrain from any impropriety whichtends to influence, or gives the appearance ofinfluencing the court. (Rule 13, Code ofProfessional Responsibility)

A lawyer shall not extend extraordinaryattention or hospitality to nor seek opportunity forcultivating familiarity with judges ( Rule 13.01,Code of Professional Responsibility)

A lawyer shall not make publicstatements in the media regarding a pendingcase tending to arouse public opinion for oragainst a party. (Rule 13.02, Code ofProfessional Responsibility)

A lawyer shall not brook nor inviteinterference by another branch or agency of thegovernment in the normal course of judicialproceedings. (Rule 13.03 Code of Professional Responsibility)

FORUM SHOPPING the filing of repetitioussuits in different courts.

The penalties for the violation ofSupreme Court Circular No. 28-91, preventingforum shopping, are the following:

1. Any violation of this circular shall be acause for the summary dismissal of themultiple petition or complaint;

2. Any willful and deliberate forumshopping by any party and his lawyerwith the filing of multiple petitions orcomplaints to ensure favorable action

shall constitute direct contempt of court;3. The submission of a fake certification

under par. 2 of the Circular shall likewiseconstitute contempt of court, withoutprejudice to the filing of a criminal actionagainst the guilty party. The lawyer may



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also be subjected to disciplinaryproceedings.

Three Ways in which the Forum Shopping isCommitted:

1. Going from one court to another in the hopeof securing a favorable relief in one court,which another court has denied.

2. Filing repetitious suits or proceedings indifferent courts concerning the same subjectmatter after one court has decided the suitwith finality.

3. Filing a similar case in a judicial court afterreceiving an unfavorable judgment from anadministrative tribunal.

TESTS TO DETERMINE CONFLICTINGINTERESTS:

1. Will the attorney be required to contest forthat which his duty to another client requireshim to oppose? (Conflicting duties)

2. Will the acceptance of a new relation invitesuspicion and/or actually lead tounfaithfulness or double-dealing towardsanother client?(Invitation of suspicion)

3. Will the attorney be called upon in his newrelation to use against his first client anyknowledge acquired in the previousemployment? (Use of prior knowledgeobtained)

INSTANCES WHEN A LAWYER ISCONSIDERED HAVING CONFLICTINGDUTIES:1. As an employee of a corporation whose duty

is to attend legal affairs, he cannot join alabor union of employees in that corporation

2. As a lawyer who investigated an accident ascounsel for an insurance, he cannotrepresent the injured person

3. As a receiver of a corporation, he cannotrepresent the creditor

4. As a representative of the obligor, he cannotrepresent the obligee

5. As a lawyer representing a party in acompromise agreement, he cannot besubsequent lawyer representing anotherclient who seeks to nullify the agreement

DUTY OF A LAWYER TO HIS CLIENT INCASE THERES CONFLICT OF INTEREST

A lawyer, in conferring with a prospectiveclient shall ascertain as soon as practicablewhether the matter would involve a conflict withanother client or his own interest, and if so, shallforthwith inform the prospective client. (Rule

15.01)

It is the duty of a lawyer at the time ofretainer to disclose to the client allcircumstances of his relations to the parties andany interest in connection with the controversy,

which might influence the client in the selectionof counsel.

It is unprofessional to represent conflictinginterests, except by express consent of allconcerned given after a full disclosure of facts.Within the meaning of this Canon, a lawyerrepresents a conflicting interests when, in behalfof one client it is his duty to contend for thatwhich duty to another client requires him tooppose.

EFFECTS OF REPRESENTING ADVERSEINTERESTS:1. Disqualification as counsel of new client on

petition of former client.2. Where such is unknown to, and becomes

prejudicial to the interests of the new client,a judgment against such may, on thatground be set aside.

3. A lawyer can be held administratively liablethrough disciplinary action and may be heldcriminally liable for betrayal of trust.

4. The attorneys right to fees may be defeatedif found to be related to such conflict andsuch was objected to by the former client, orif there was a concealment and prejudice byreason of the attorneys previousprofessional relationship with the oppositeparty.

Elements of the Prohibition againstPurchasing Clients Property inLitigation:

1. There is an attorney-client relationship2. The property is in litigation;3. The attorney is the counsel of record in the

case;4. The attorney, by himself or through an

agent, purchases such property during thependency of said case (Art. 1491 of theCivil Code)

Q: Atty. X is As lawyer in a falsification casefiled against the latter. While undergoing trial inthe said criminal case, PNB foreclosed the 2-hectare riceland belonging to A. The land wassold at public auction to Atty. X as the highestbidder. Did Atty. X violate the provision underthe Civil Code regarding purchase of propertyunder litigation?

A: NO. In the absence of the requisites underArt. 1491 of the Civil Code, the prohibition willnot operate. In this case, the riceland was notthe subject matter of litigation.

Q: Atty. X appeared as counsel for plaintiff in adamage suit. Judgment was rendered in favorof the plaintiff, and to satisfy the award, a parcelof land was levied upon which was sold at



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auction sale. Plaintiff assigned one-half of hisinterest to Atty. X in accordance with theircontingent contract of attorneys fees. Is theassignment a violation of Art. 1491 of the CivilCode and Canon 12 prohibiting the purchase by

lawyer of property under litigation?

A: NO. The lot was not the subject matter ofthe litigation. It was acquired by the client in theexecution sale. (Guevarra vs. Calalang 117SCRA)

The Right and Duty of Lawyer to CriticizeCourts

The fact that a person is a lawyer doesnot deprive him of the right, enjoyed by everycitizen, to comment on and criticizes theactuations of a judge.

However, what he can ordinarily sayagainst a concluded litigation and the mannerthe judge handed down the decision therein maynot generally be said to a pending action. Thecourt, in a pending litigation, must be shieldedfrom embarrassment or influence in its allimportant duty of deciding the case. On the otherhand, once a litigation is concluded the judgewho decided it is subject to the same criticism asany other public official because then his rulingbecomes public property and is thrown open topublic consumption.

But it is the cardinal condition of all such

criticism that it shall be bona fide, and shall notspell over the walls of decency and propriety.

CANON 20 RULE 20.1A lawyer should be guided by the

following FACTORS IN DETERMINING HISFEES:

- The time spent and the extent of theservices rendered or required;

- The novelty and the difficulty of thequestions involved;

- The importance of the subjectmatter;

-The skill demanded

- The probability of losing otheremployment a result of theacceptance of the proffered case;

- The customary charges for similarservices and the schedule of fees ofthe IBP Chapter to which hebelongs;

- The amount involved in thecontroversy and the benefitsresulting to the client from theservice

- The contingency or certainty ofcompensation;

- The character of the employmentwhether occasional or established;and

- The professional standing of thelawyer

TWO CONCEPTS OF ATTORNEYSFEES:1. Ordinary- it is the reasonable compensationpaid to the lawyer for the legal services he hadrendered the client. The basis of thiscompensation is the fact of employment by theclient.2. Extraordinary- an indemnity for damagesordered by the court to be paid by the losingparty to the prevailing party in a litigation. Thebasis of this is any of the cases authorized bylaw and is payable not to the lawyer but to theclient unless they have agreed that the awardshall pertain to the lawyer as additionalcompensation or as part thereof.

FORMS OF EMPLOYMENT AS COUNSEL

TO A CLIENT

1. Oral when the counsel is employedwithout a written agreement, but theconditions and amount of attorneys fees areagreed upon.

2. Express - when the terms and conditionsincluding the amount of fees, are explicitlystipulated in a written document which maybe a private or public document. Writtencontract of attorneys fees is the lawbetween the lawyer and the client.

3. Implied when there is no agreement,

whether oral or written, but the client allowedthe lawyer to render legal services notintended to be gratuitous without objection,and the client is benefited by reason thereof.

Sufficiency of professional employmentWhile a written agreement for professionalservices is the best evidence to show therelation, formality is not an essential element ofthe employment of an attorney. The absence ofa written contract will not preclude a finding thatthere is a professional relationship.Documentary formalism is not an essential

element in the employment of an attorney; thecontract may be express or implied. It issufficient, to establish professional relation.

ADVANTAGES OF A WRITTENCONTRACT BETWEEN THE LAWYERAND THE CLIENT:

1. It is conclusive as to the amount of compensation.

2. In case of unjustified dismissal of anattorney, he shall be entitled to recover fromthe client full compensation stipulated in the

contract ( RA 636)

Attorney-Client Relationship



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Q: May a client dismiss his lawyer at anytime?

A: YES. A client may dismiss his lawyer atany time with or without cause because the

relationship is one of trust and confidence.

Q: May a lawyer withdraw as counsel atany time?

A: NO. A lawyer may withdraw as counselonly with the consent of the client and with leaveof court, and only for good cause enumerated inRule 22.01 of the Code of ProfessionalResponsibility.

The relation of attorney-client

relationship is strictly personal and highlyconfidential and fiduciary. Necessity and publicinterest require that it be so.

A lawyer cannot decline to represent a personfor the SOLE reason of the latters

1. race2. sex3. creed4. status in life5. lawyers opinion that the said person is

guilty of the charge (Legarda vs. CA195 SCRA 418)

Q: Should a lawyer accept a losing case:(1) in a criminal case; (2) in a civil case. Explain.

A: (1) YES. A lawyer may accept a losingcriminal case because every accused ispresumed innocent and is entitled to counsel.

(2)YES.A lawyer may likewise accept alosing civil case provided that in so doing, hemust not engage in dilatory tactics and mustadvise his client about the prospects andadvantage of settling the case thru acompromise.

General Rule protecting attorney-clientrelationships

1. Best efforts must be exerted by theattorney to protect his clients interest

2. The attorney must promptly account forany fund or property entrusted by orreceived for his client

3. An attorney cannot purchase his clientsproperty or interest in litigation

4. The privacy of communications shall atall times be upheld

5. An attorney cannot represent a party

whose interest is adverse to that of hisclient even after the termination of therelation.

Situations when Counsel cannotRecover the Full Amount, DespiteWritten Contract for Attorneys fees:

1. When the services called for were notperformed as when the lawyer withdrewbefore the case was finished. He will beallowed only reasonable fees

2. When there is a justified dismissal of theattorney, the contract will be nullified andpayment will be on the basis of quantummeruit only. A contrary stipulation will beinvalid.

3. When the stipulated attorneys fees areunconscionable i.e., when it isdisproportionate as compared to the value ofservices rendered and is revolting to humanconscience.

4. When the stipulated attorneys fees are inexcess of what is expressly provided by law.

5. When the lawyer is guilty of fraud or badfaith toward his client in the matter of hisemployment

6. When the counsels services are worthlessbecause of h is negligence.

7. When contract is illegal, against morals orpublic policy.

8. Serving adverse interest unless lawyerproves that it was with the consent of bothparties.

KINDS OF PAYMENT WHICH MAY BESTIPULATED UPON

1. FIXED OR ABSOLUTE FEE which ispayable regardless of the result of the case.

2. CONTINGENT FEE that is conditioned onthe securing of a favorable judgment andrecovery of money or property and theamount of which may be on a percentagebasis.

3. A fixed fee payable PER APPEARANCE.4. A fixed fee computed upon the NUMBER

OF HOURS SPENT

5. A fixed fee base on PIECEWORK.6. COMBINATION of any of the above.

Retainer or EmploymentRETAINER may refer to either of two concepts.1. It may refer to the act of a client by which heengages the services of an attorney to renderlegal advice or;2. To defend or prosecute his cause in court.

KINDS OF RETAINER AGREEMENTS:

1. General retainer is the fee paid to a

lawyer to secure h is future services asgeneral counsel for any ordinary legalproblem that may arise in the ordinarybusiness of the client and referred to him forlegal action. The client pays fixed retainerfees, which could be monthly or otherwise.



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The fees re paid whether or not there arecases referred to he lawyer.

2. Special retainer fee for a specific case orservice rendered by the lawyer for the

client.

QUANTUM MERUIT - literally means as muchas he is merited. In determining attorneys fees,it means that the attorney will be paid for hisservices as much as he deserves, when theservices are prematurely terminated by the actof either of the parties, by reason of deathdisability or operation of law considering theimportance of the subject matter of thecontroversy, the extent of the services rendered,and the professional standing of a lawyer.

GUIDES FOR DETERMININGATTORNEYS FEES ON QUANTUMMERUIT BASIS:

1. The time spent and extent of the servicesrendered or required a lawyer is justified infixing higher fees when the case is socomplicated and requires more time andeffort to finish it.

2. Novelty and difficulty of questions involved when the questions in a case are novel anddifficult, greater effort, deeper study andresearch are bound to burn the lawyers time

and stamina considering that there are nolocal precedents to rely upon

3. Importance of subject matter- the moreimportant the subject matter or the biggerthe value of the interest of property inlitigation, the higher is the attorneys fees

4. Skill demanded of a lawyer- the totality ofthe lawyers experience provides him theskill and competence admired in lawyers.

Recovery of Attorneys Fees on theBasis of Quantum Meruit is AuthorizedWhen:

1. There is no express contract for payment ofattorneys fees agreed upon between thelawyer and the client;

2. When although there is a formal contract forattorneys fees, the fees stipulated are foundunconscionable;

3. When the contract for attorneys fees is voiddue to formal matter.

4. When for justifiable cause the lawyer wasnot able to finish the case.

5. When the lawyer and the client disregard thecontract for fees.

CHAMPERTOUS CONTRACT - is one wherethe lawyer stipulates with his client in theprosecution of the case, that he will bear all ofthe expenses for the recovery of things orproperty being claimed by the client, and the

latter agrees to pay the former a portion of thething or property recovered as compensation. Itis void for being against public policy.

CONTINGENT

CONTRACT

CHAMPERTOUS

CONTRACT1. Contingent fee ispayable in cash

1. Payable in kindONLY

2. Lawyers do notundertake to pay allexpenses of litigation

2.Lawyers undertaketo pay all expensesof litigation

3. Not prohibited 3. Void

When is a fee considered reasonable?There is no hard and fast rule which

could be utilized to determine thereasonableness of attorneys fees, it must bedetermined from the facts of each case.

When is a fee unconscionable?The amount contracted for must be such

that no man in his right senses would offer onthe one hand and no honest and fair man wouldaccept on the other.

A lawyer should avoid the filing of anycase against client for enforcement ofattorneys fees EXCEPT:1. to prevent imposition

2. to prevent injustice3. to prevent fraud

As a general rule, attorneys fees cannot beshared to a non-lawyer. It is immoral

Instances when a lawyer may divide afee for legal services with persons notlicensed to practice law:

1. where there is a pre-existing agreement witha partner or associate that, upon the lattersdeath, money shall be paid over a

reasonable period of time to his estate or topersons specified in the agreement;

2. where a lawyer undertakes to completeunfinished legal business of a deceasedlawyer;

3. where a lawyer or law firm includes non-lawyer employees in retirement plan, evenif the plan is based in whole or in part on theprofit sharing agreement

EFFECT OF NULLITY OF CONTRACT ONTHE RIGHT TO ATTORNEYS FEES:

1. if the nullification is due to the illegality of itsobject, the lawyer is precluded fromrecovering;

2. if the nullity is due to a formal defect orbecause the court has found the amountto



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be unconscionable, the lawyer mayrecover for any services rendered based onquantum meruit.

An independent civil action to recover

attorneys fees is necessary where:

1. The main action is dismissed or nothing isawarded

2. The court has decided that the mainlitigation has no jurisdiction over the actionof has already lost it

3. The person liable for attorneys fees is not aparty to the main action

4. The court reserved to the lawyer the right tofile a separate civil suit for recovery ofattorneys fees

5. The subject services are not connected with

the subject litigation6. The judgment debtor has fully paid all of the

judgment proceeds to the judgment creditorand the lawyer has not taken any legal stepto have his fees paid directly to him from the

judgment proceeds.

COMPENSATION TO WHICH A LAWYERIS ENTITLED DEPENDING ON HISCAPACITY

1. Counsel de Parte - He is entitled to areasonable attorneys fees agreed upon orin the absence thereof, on quantum meruitbasis.

2. Counsel de Oficio - The counsel may notdemand from the accused attorneys feeseven if he wins the case. He may howevercollect from the government funds ifavailable based on the amount fixed by thecourt.

3. Amicus Curiae He is not entitled toattorneys fees.

Presumption of AuthorityAn attorney is presumed to be properly

authorized to represent any cause in which heappears in all stages of the litigation and nowritten authority is required to authorize him toappear.

The presumption is a strong one. Amere denial by a party that he has authorized anattorney to appear for him, in the absence ofcompelling reason, is insufficient to overcomethe presumption especially when the denialcomes after the rendition of an adverse

judgment.

Ratification of Unauthorized Appearance1. EXPRESS: categorical assertion by

client that he has authorized a lawyer orthat he confirms his authorization torepresent him in the case.

2. IMPLIED: where party with knowledge offact that a lawyer has been representinghim in a case, accepts benefits ofrepresentation or fails to promptlyrepudiate the assumed authority.

Requisites for Implied Ratification bySilence

1. Party represented by lawyer must be ofage, competent or if suffers fromdisability, has guardian or legalrepresentative.

2. Party or guardian is aware of attorneysrepresentation.

3. He fails to promptly repudiate assumedauthority.

Q: State the rule with respect to theauthority of an attorney to compromise hisclients case.

A: The attorney, as a general rule, has noauthority to compromise his clients case. This isso because the client, even if represented bycounsel, retains exclusive control over thesubject matter of the litigation. The client can, ofcourse, authorize his lawyer to compromise hiscase, and the settlement made by the lawyer willbind his client. An exception to the rule is thecase where the lawyer is confronted with an

emergency and prompt, urgent action isnecessary to protect the interest of his client andthere is no opportunity for consultation with him.

PRIVILEGE COMMUNICATION

REQUISITES:1. There exists an attorney and client

relationship or a kind of consultancyrelationship with a prospective client. Thatis, legal advise is what is sought;

2. The communication was made by the clientto the lawyer in the course of the lawyers

professional employment; and3. The communication must be intended to be

confidential. (Uy Chico vs. Union LifeAssociation Society, 29 Phil 163)

PURPOSES OF THE RULE ONPRIVILEGE COMMUNICATION1. To encourage a client to make a full

disclosure of the facts of the case to hiscounsel without fear;

2. To allow the lawyer freedom to obtain fullinformation from his client.

CHARACTERISTICS OF THE ATTORNEY-CLIENT PRIVILEGE:

1. A-C privilege where legal advice isprofessionally sought from an attorney.



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2. The client must intend the abovecommunication be confidential.

3. A-C privilege embraces all forms ofcommunication and action.

4. As general rule, A-C privilege also extends

to the attorneys secretary, stenographer,clerk or agent with reference to any factrequired in such capacity.

5. The above duty is perpetual and isabsolutely privileged from disclosure.

EXCEPTIONS TO THE A-C PRIVILEGE:1. There is consent or waiver of client.2. Such is required by law.3. Such is made to protect the lawyers rights

(i.e., to collect his fees or defend himself, hisemployees or associates or by judicialaction).

4. When such communications are made incontemplation of a crime or the perpetuationof a fraud.

Q: Specify not more than five (5) instanceswhen a lawyer may testify as a witness in a casewhen he is handling for a client.

A: (1) On formal matters, such as themailing, authentication or custody of aninstrument and the like;

(2) Acting as an expert on his fee;

(3) Acting as an Arbitrator;(4) Deposition;(5) On substantial maters in cases

where his testimony is essential to the ends ofjustice, in which event he must, during histestimony, entrust the trial of the case to anothercounsel.

Q: Specify not more than five (5) instanceswhen a lawyer may not testify as a witness in acase which he is handling for a client.

A; (1) That which adversely affects any

lawful interest of the client with respect to whichconfidence has been reposed on him;

(2) Having accepted a retainer, hecannot be a witness against his client;

(3) He cannot serve conflicting interests;(4) When he is to violate the confidence

of his client;(5) When as an attorney, he is to testify

on the theory of the case.

Duty to disclose matters material toemployment

It is the duty of a lawyer to disclose andexplain to a prospective client all circumstancesof his relations to the parties and any interest inor connection with the controversy, which in hishonest judgment might influence the client in theselection of counsel. The disclosure is more for

the protection of the lawyer than that of theclient.

Duty to advice candidlyAs officers of the court, counsels are

under obligation to advise their clients againstmaking untenable and inconsistent claims. Thecounsel should inform his client and dissuadehim from filing the case if totally devoid of merit.If he finds that his clients cause as fairlymeritorious and ripe for judicial adjudication, heshould refrain from making bold and confidentassurances of success.

Duty to comply with clients lawfulrequest

A lawyer should endeavor to seek

instruction from his client on any substantialmatter concerning the litigation, which mayrequire decision on the part of the client, such aswhether to compromise the case or to appeal anunfavorable judgment. He should give his clientsound advice on any such and similar mattersand comply with the clients lawful instructionsrelative thereto. He should resist and shouldnever follow any unlawful instruction of his client.

Duty to restrain client fromimpropriety

A lawyer should use his best efforts to

restrain and to prevent his client from doingthose things which he himself ought not to do,particularly with reference to the conduct towardthe court, judicial officer, witness and suitor andif the client persists in such wrong doing, thelawyer should terminate their relation.

Duty of Lawyer in case of knowledgeof clients fraud

He must promptly call upon the client to:1. Rectify the same and failing which2. He shall terminate their relationship with suchclient in accordance with the Rules of Court.

Protection of clients interestThe attorneys duty to safeguard the clients

interests commences from his retainer until hiseffective release from the case or the finaldisposition of the whole subject matter of thelitigation. During that period he is expected totake such reasonable steps and such ordinarycare as his clients interests may require.

Preparation of pleadingsA lawyer should prepare his pleading

with great care and circumspection. He should

refrain from using abrasive and offensivelanguage, for it merely weakens rather thanstrengthens the force of legal reasoning anddetracts from its persuasiveness. In preparing acomplaint for damages, counsel for plaintiffshould allege and state the specific amounts



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claimed not only in the body of the complaint butalso in the prayer, so that the proper docket feescan be assessed and paid.

Interviewing witnessesA lawyer may interview a witness in

advance of trial to guide him in the managementof the litigation. A lawyer may also interview aprospective witness for the opposing side in anycivil or criminal action without the consent of theopposing counsel or party. A lawyer mayproperly obtain statements from witnesseswhose names were furnished by the opposingcounsel or interview the employees of theopposing party even though they are undersubpoena to appear as witnesses for theopposite side.

Duty to keep client fully informedHe should notify his client of an adverse

decision while within the period to appeal toenable his client to decide whether to seek anappellate review. He should communicate withhim concerning the withdrawal of appeal with allits adverse consequences. The client is entitledto the fullest disclosure of the mode or mannerby which his interest is defended or why certainsteps are taken or omitted.

Duty when the accused intends to pleadguilty

A PLEA OF GUILTY is an admission bythe accused of his guilt of crime as charged inthe information and of the truth of the factsalleged, including the qualifying and aggravatingcircumstances.

It is the duty of the defense counselwhen his client desires to enter a plea of guiltyto:

1. Fully acquaint himself with the recordsand surrounding circumstances of thecase

2. Confer with the accused and obtain fromhim his account of what had happened

3. Advise him of his constitutional rights4. Thoroughly explain to him the import of

a guilty plea and the inevitableconviction that will follow

5. See to it that the prescribed procedurewhich experience has shown to benecessary to the administration of

justice is strictly followed and disclosedin the court records.

Doctrine of Imputed Knowledge - is based onthe assumption that an attorney, who has noticeof matter affecting his client, has communicated

the same to his principal in the course ofprofessional dealings. The doctrine appliesregardless of whether or not the lawyer actuallycommunicated to the client what he learned inhis professional capacity, the attorney and hisclient being one judicial person.

Exceptions to the rule that notice to counsel isnotice to client:

1. If strict application might fosterdangerous collusion to the detriment of

justice.2. Service of notice upon party instead of

upon his attorney is ordered by court.3. Notice of pre trial is required to be

served upon parties and their respectivelawyers.

4. In appeal from the lower court to theRTC, upon docketing of appeal.

Mistakes or negligence of lawyer bindingupon client

Client is bound by attorneys conduct,negligence and mistake in handling case or in

management of litigation and in proceduraltechnique, and he can not be heard to complainthat result might have been different and hislawyer proceeded differently.

Exceptions to rule that client bound bylawyers mistake or negligence1. Where adherence thereto results in

outright deprivation of clients liberty orproperty or where interest of justice sorequires.

2. Where error by counsel is purelytechnical which does not affect

substantially clients cause.3. Ignorance, incompetence or

inexperience of lawyer is so great anderror so serious that client, who hasgood cause prejudiced and denied a dayin court.

4. Gross negligence of lawyer.5. Lack of acquaintance with technical part

of procedure.

Right to decline employment; exceptions

General Rule: A lawyer is not obliged to act as

legal counsel for any person who may wish tobecome his client. He has the right to declineemployment.

Exceptions:1. A lawyer shall not refuse his services to the

needy.2. He shall not decline to represent a person

solely on account of the latters race, sex,creed or status of life or because of his ownopinion regarding the guilt of said person.

3. He shall not decline, except for serious andsufficient cause like (1) if he is not in a

position to carry out effectively orcompetently; (2) if he labors under a conflictof interest between him and the prospectiveclient or between a present and prospectiveclient.



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Duty to decline employmentA lawyer should decline professional

employment even though how attractive the feeoffered may be if its acceptance will involve:1. A violation of any of the rules of the legalprofession2. If it will nullify a contract which he prepared.3. He should not accept employment as anadvocate in any matter in which he hadintervened while in the government service.4. He should not accept employment thenature of which might easily be used as a meansof advertising his professional services or hisskill.5. He should not accept employment from acollection agencywhich solicits business tocollect its claims.

6. He should not accept employment in anymatter in which he knows or has reason tobelieve that he or his partner will be an essentialwitness for the prospective client.

A counsel can WITHDRAW his servicesunder the following circumstances:1. When the client pursues an illegal or

immoral course or conduct in connectionwith the case he is handling.

2. When the client insists that the lawyerpursue conduct violative of these Canonsand Rules.

3. When his inability to work with co-counselwill not promote the best interest of theclient.

4. When the mental or physical condition of thelawyer renders it difficult for him to carry onthe employment effectively.

5. When the client deliberately fails to pay thefees for the services or fails to comply withthe retainer agreement.

6. The lawyer may withdraw from the case if hefinds out that he might be appearing for aconflicting interest. In all the above cases,the lawyer must file a written motion with an

express consent of his client and must waitfor the approval of the court.

7. When the lawyer is elected or appointed topublic office.

8. Other similar cases (Canon 22 Rule 22.01)

Duties of a Discharged Lawyer or OneWho Withdraws1. Immediately turn-over all papers and propertyto which the client is entitled;2. To cooperate with the succeeding lawyer inthe orderly transfer of the case.

ATTORNEYS LIEN

CHARGING LIEN-is an equitable right tohave the fees and lawful disbursements duea lawyer for his services in a suit secured to

him out of the judgment for the payment ofmoney and executions issued in pursuancethereof in the particular suit.

REQUISITES:1. Existence of a client-lawyer relationship;2. The attorney has rendered services;3. Favorable judgment secured by the counsel

for his client which judgment is a moneyjudgment;

4. The attorney has a claim for attorneys feesor advances

5. Noting into the records of the case throughthe filing of an appropriate motion of thestatement of the lawyers claim for attorneysfee with copies furnished to the client andadverse party.

Comparative Distinctions Retaining Lien andCharging Lien

Point ofDistinction

RetainingLien

ChargingLien

1. Nature PassiveLien. Itcannot beactivelyenforced. Itis a generallien.

Active Lien.It can beenforced byexecution. Itis a speciallien.

2. Basis Lawful

possessionof papers,documents,propertybelonging tothe client.

Securing of a

favorablemoney

judgment forthe client.

3. Coverage Coverspapers,documents,andproperties inthe lawfulpossession

of theattorney byreason of hisprofessionalemployment.

Covers alljudgment forthe paymentof moneyandexecutionissued in

pursuance ofsuchjudgments.

4. Effect As soon asthe attorneygetspossessionof thepapers,documents,or property.

As soon asthe claim forattorneysfees hadbeen enteredinto therecords ofthe case.

5. Notice Client neednot benotified tomake iteffective.

Client neednot benotified tomake iteffective.

6. Applica- May be Generally, it



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bility exercisedbefore

judgment orexecution orirregardless

thereof.

isexercisableonly whenthe attorneyhad already

secured afavorable

judgment forhis client.

7.Extinguish-ment

Whenpossessionlawfully endswhen aslawyervoluntarilyparts withfunds,documents,

and papersof client oroffers themas evidence.

When clientloses actionas lien mayonly beenforcedagainst

judgmentawarded infavor of

client,proceedsthereof/executedthereon.

When can the Client Terminate theAttorney-Client Relationship?

The client has the right to terminate at anytime WITH OR WITHOUT JUST CAUSE.

Just cause is material only in determiningcompensation.

a. if without just cause, full payment ofcompensation agreed to in writing.

b. If no written agreement, quantummeruit.

Client cannot discharge counsel as anexcuse to secure repeated extensions oftime.

Notice of discharge required in so far ascourt and adverse party are concerned.

Q: A lawyer who is an employee of PNBparticipated in its transaction with client X. Afterhe retired from the bank he was asked torepresent client X in a suit involving the latterand the bank. Can the lawyer legally representX?

A: The lawyer cannot, he will violate Rule 6.03,Canon 6 of the CPR which states that A lawyershall not, after leaving government service,accept engagement or employment inconnection with any matter in which he hadintervened while in said service. It isunprofessional to represent conflicting interest. Alawyer represents conflicting interest when, inbehalf of one client, it is his duty to contend forthat which duty to another client requires him tooppose.(PNB v. Cedo)

Q:Atty. A failed to file a brief for his client. Atty.X contends that his non-filing of the brief wasdue to volume and pressure of legal work. Is this

contention valid?

A: NO. A lawyer engaged to represent a clientin a case bears the responsibility of protectingthe latters interest with utmost diligence. Thevolume and pressure of legal work provide noexcuse for Atty. Xs inability to exercise duediligence in the performance of his duty. Canon1,Rule 1.03 provides A lawyer shall not neglecta legal matter entrusted to him, and hisnegligence in connection therewith shall renderhim liable.(Santiago vs. Fojas)

Q: S, a candidate to the bar , was charged withhomicide in connection with the death of Y(dueto hazing) X pleaded guilty to a lesser offense,was convicted and placed on probation. Afterpassing the bar examination can he be allowedto take the lawyers oath, sign the Roll of

Attorneys and practice of lawOn the basis of various certifications

showing that he is a devout Catholic with agenuine concern for civic duties and publicservice?

A: YES. After a very careful evaluation of thecase, the Supreme Court allowed petitioner totake the lawyers oath, sign the Roll of Attorneysand practice the legal profession with thefollowing admonition : In allowing petitioner totake the lawyers oath, the Court recognizes thathe is not inherently of bad moral fiber. On thecontrary, the various certifications show that heis a devout Catholic with a genuine concern forcivic duties and public service. This Court ispersuaded the he has exerted all efforts to atonefor the death of Raul Camaligan. This Courtgives him the benefit of the doubt, taking judicialnotice of the general tendency of youth to berash, temerarious and uncalculating. ( In Re: Al

Argosino, 270 Scra 26 )

Q: Atty. X filed with the CA a plea for injunctiverelief and also a motion for the issuance of a writof preliminary injunction with the QC RTC whenthe SC had already with finality on the samematter. Were the acts of Atty. X ethical?

A: NO. Atty. X is guilty of forum shopping. TheCourt has warned counsel of litigants not toabuse court processes. Lawyers should not

resort to forum shopping for this practice clogsthe court dockets. Willful and deliberate forumshopping has been made punishable either asdirect or indirect contempt of court. (Sanchezvs. Brion)



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Q: Atty. X is a retained counsel of V corporation.After the A-C relationship was severed. Atty. Xwas consulted by the employees of Vcorporation and agreed to handle their labor

case against corporation V. Can Atty. X handlethe case?

A: NO. An Atty. owes loyalty to his client notonly in the case in which he has representedhim but also after the relation of A-C hasterminated as it is not a good practice to permithim afterwards to defend in another case otherperson against his former client under thepretext that the case is distinct from, and takeadvantage of the secrets of client obtained whileconfidential relation of atty. and client exist(Rosacia vs. Bulalacao)

Liability for Damages

Requisites1. Attorney - client relationship2. Want of reasonab

Memory Aid - Ethics

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