LIABILITIES OF A LAWYER LIABILITY FOR DAMAGES Requisites 1. Attorney - client relationship 2. Want of reasonable care & diligence 3.

Injury sustained by client as proximate result thereof. Kinds of Damages 1. Nominal where client lost the litigation as a consequence of lawyers gross omission or negligence. 2. Actual/compensatory 3. Moral Damages 4. Attorneys fees (Note: for nos. 2-4 there should be showing that had the lawyer exercised due diligence client would have succeeded in recovering from adverse party.) Liability for Breach of Fiduciary Obligation Lawyer holds his clients funds or property in trust for clients and is obliged to make an accounting of such funds that come to his possession. Effect of Failure to Return Clients Money or Property After Demand 1. Presumption that he misappropriated the same 2. Civilly liable in favor of client 3. Criminal liability 4. Administrative liability Remedy of Client Recover property from lawyer together with its fruits, subject to clients returning to his lawyer purchase price & legal interest. Libelous Words in Pleadings A lawyer is exempted from liability for slander, libel or otherwise defamatory, published in course of judicial proceedings, PROVIDED statements are connected with, relevant, pertinent and material to cause in hand or subject of inquiry Test of Relevancy The matter to which the privilege does not extend must be palpably wanting in relation to subject of controversy, that no reasonable man can doubt its relevancy or propriety. Pleadings should contain plain and concise statements of material facts and if pleader goes beyond requisites of law and alleges irrelevant matter which is libelous, he loses his privilege and may be liable in separate suit. Liability for Costs of Suit General Rule: Losing client and not the lawyer is liable for costs of suit in favor of prevailing party, lawyer not being party-litigant. Exception: Where the lawyer insisted on clients patently unmeritorious case or interposed appeal to delay litigation or thwart prompt satisfaction of prevailing partys just and valid claim, court may adjudge lawyer to pay treble costs of suit.

CRIMINAL LIABILITY A lawyer may be held criminally liable if he commits any of the following: 1. Causing prejudice to client thru malicious breach of professional duty or thru inexcusable negligence or ignorance. 2. Revealing clients secrets learned in lawyers professional capacity thru malicious breach of professional duty or inexcusable negligence or ignorance. Specific Acts which May Result to Criminal Liability 1. A lawyer who has undertaken the defense of client or has received confidential information from said client in a case may be criminally liable for undertaking defense of opposing party in same cause without consent of first client.[Art. 209, RPC] 2. A lawyer who shall knowingly introduce in evidence in any judicial proceeding or to the damage of another or who, with intent to cause such damage, shall use any false document may be held criminally liable therefor. [Art.172, RPC] 3. A lawyer who misappropriates his clients funds may be held liable for estafa. CONTEMPT OF COURT Nature It is exercised on preservative and not on vindictive principle and on corrective rather than the retaliatory idea of punishment, for purposes that are impersonal. It is criminal in nature. The power to punish for contempt is inherent in all courts. It is essential in the observance of order in judicial proceedings and to enforcement of judgment, orders and writs. Kinds of Contempt 1. Direct Contempt consists of misbehavior in the presence of or so near a court or judge as to interrupt or obstruct the proceedings before the court or the administration of justice 2. Indirect or Constructive Contempt one committed away from the court involving disobedience of or resistance to a lawful writ, process, order, judgment or command of the court, or tending to belittle, degrade, obstruct, interrupt or embarrass the court 3. Civil Contempt failure to do something ordered by the court which is for the benefit of a party 4. Criminal Contempt consists of any conduct directed against the authority or dignity of the court. Acts of a Lawyer Constituting Contempt 1. Misbehavior as officer of court 2. Disobedience or resistance to court order 3. Abuse or interference with judicial proceedings 4. Obstruction in administration of justice 5. Misleading courts 6. Making false allegation, criticisms, insults, veiled threats against the court 7. Aiding in unauthorized practice of law (suspended or disbarred)

8. Unlawful retention of clients funds 9. Advise client to commit contemptuous acts

III. BAR DISCIPLINE POWER TO DISCIPLINE ERRANT LAWYERS 1. The Supreme Court has the full authority and power to (WARDS) a. Warn b. Admonish c. Reprimand d. Suspend and e. Disbar a lawyer [Section 27, Rules 138, Rules of Court] The Court of Appeals and the Regional Trial Courts are also empowered to (WARS) a. Warn b. Admonish c. Reprimand and d. Suspend an attorney who appears before them from the practice of law for any of the causes mentioned in Section 27, Rule 138 [Section 16, Rule 139-B]. Note: But they cannot disbar a lawyer.

2.

3. 4. 5. 6. 7. 8. 9.

2.

the outcome except as all citizens have in proper administration of justice, no redress for private grievance. NOT a criminal prosecution because it is not meant as a punishment depriving him of source of livelihood but rather to ensure that those who exercise the function should be competent, honorable and reliable so that public may repose confidence in them. SUI GENERIS, it is a class of its own since it is neither civil nor criminal Confidential in nature. Defense of double jeopardy is not available. Can be initiated by the SC motu propio or by the IBP. It can be initiated without a complaint; Can proceed regardless of interest of the complainants; Imprescriptible; It is itself due process of law.

Reason for Making Disbarment Proceedings Confidential To enable the Supreme Court to make its investigation free from any extraneous influence or interference as well as to protect the personal and professional reputation of attorneys and judges from the baseless charges of disgruntled, vindictive and irresponsible clients and litigants. [In Re: Abistado, 57 Phil 668] GROUNDS FOR SUSPENSION OR DISBARMENT OF MEMBERS OF THE BAR 1. Under Rule 138, Sec. 27 of the Revised Rules of Court: a. Deceit- is a fraudulent and deceptive misrepresentation, artifice of device used by one or more persons to deceive and trick another, who is ignorant of the true facts to the prejudice and damage of the party imposed upon. There must be false representation as matter of fact. (Example: Misappropriation of clients fund) b. Malpractice, or other gross misconduct in office- any malfeasance or dereliction of duty committed by a lawyer. (Example: Failure of lawyer to appeal in allowing the period of appeal to lapse) Legal Malpractice- consists of failure of an attorney to use such skill, prudence and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of tasks which they undertake, and when such failure proximately causes damage, it gives rise to an action in tort. [Tan Tek Beng vs. David, 126 SCRA 389] c. Grossly immoral conduct- that conduct which is willful, flagrant or shameless and which shows a moral indifference to the opinion of the good and respectable members of the community. CASE: In the case of Arciaga vs. Maniwang [106 SCRA 591], mere intimacy between a lawyer and a woman with no impediment to marry each other voluntarily

FORMS OF DISCIPLINARY MEASURES (WARS CD)

1. Warning an act or fact of putting one on his 2.

3.

4.

5. 6.

guard against an impending danger, evil consequences or penalties. Admonition a gentle or friendly reproof, mild rebuke, warning or reminder, counseling, on a fault, error or oversight, an expression of authoritative advice. Reprimand a public and formal censure or severe reproof, administered to a person in fault by his superior officer or a body to which he belongs. Suspension temporary withholding of a lawyers right to practice his profession as a lawyer for a certain period or for an indefinite period of time. a. Definite b. Indefinite qualified disbarment; lawyer determines for himself for how long or how short his suspension shall last by proving to court that he is once again fit to resume practice of law. Censure - Official reprimand. Disbarment - It is the act of the Philippine Supreme Court in withdrawing from an attorney the right to practice law. The name of the lawyer is stricken out from the roll of attorneys.

SUSPENSION AND DISBARMENT Nature of Proceedings 1. NOT a civil action because there is no plaintiff and no respondent, involves no private interest. The complainant is not a party and no interest in

cohabited and had two children, is neither so corrupt as to constitute a criminal act nor so unprincipled as to warrant disbarment or disciplinary action against the man as a member of the bar. d. Conviction of a crime involving moral turpitude (Examples: estafa, bribery, murder, bigamy, seduction, abduction, concubinage, smuggling, falsification of public document, violation of B.P. 22)

4.

e. Violation of oath of office f. Willful disobedience of any lawful order of a superior court g. Corruptly or willfully appearing as an attorney for a party to a case without authority to do so.

5. 6. 7.

2. Acquisition of an interest in the subject matter of

the litigation, either though assignment [Art. 1491, Civil Code] purchase

or

3. Breach

of professional duty, inexcusable negligence, or ignorance, or for the revelation of the clients secrets [Art. 208, Revised Penal Code] conflicting Revised Penal Code] interests [Art. 209,

violative of duty to do falsehood nor consent to doing of any in court, nor wittingly or willingly promote or sue any false, groundless, unlawful suit. Requisites a. Charges are fake b. Lawyer knows them to be so Introducing False Evidence it is a violation of oath to do no falsehood nor consent to doing of any in court. When false testimony is material to inquiry or relevant to issue, it requires suspension or disbarment. On the other hand, when the testimony is immaterial or irrelevant and does not cause substantial prejudice, it only warrants lesser sanction, such as warning or reprimand Willfully disobeying court orders lawyer may be punished for contempt and disciplined as officer of court. Using vicious or disrespectful language constitutes direct contempt; violation of oath and Code of Professional Responsibility. Continue to practice after suspension constitutes gross misconduct and willful disregard of suspension order.

4. Representing

Grounds for disbarment NOT EXCLUSIVE: The statutory enumeration of the grounds for disbarment or suspension is not to be taken as a limitation on the general power of courts to suspend or disbar a lawyer. The inherent power of court over its officers cannot be restricted. [Quingwa vs. Puno, Admin. Case No 398, Feb. 28, 1967] The Supreme Court has disbarred or suspended lawyers for reasons not found in the statute as when their acts are contrary to honesty or good morals or do not approximate the highest degree of morality and integrity expected of the members of the bar. [Sta. Maria vs. Tuazon, Admin. Case No. 396, July 31, 1964]. Quantum of Evidence Required: clear, convincing and satisfactory evidence Burden of Proof: rests on the complainant, the one who instituted the suit

BREACH OF DUTIES OF A LAWYER Breach of Duties to Court 1. Obstructing Administration of justice constitutes misconduct and justifies disciplinary action against him and contempt of court. (Example: Forum shopping) 2. Misleading court knowingly making false allegation in pleadings, misquoting text of documents, suppressing material facts 3. Preferring false charges filing or prosecuting false charges against another for his action is

Breach of Duties to Client 1. Negligence in performance of duties Requisites to Warrant Suspension or Disbarment: i. Negligence and carelessness which must be gross in character ii. Caused material prejudice to client Note: Mere negligence without pecuniary damages justifies only reprimand or censure except when breach of duty to client is a gross violation of obligation to court. 2. Employment of unlawful means 3. Deceit or misrepresentation Requisites a. Bad faith on the part of the lawyer b. Material damage to client 4. Representing adverse Interest and revealing clients secrets - If there is no written consent of client, a lawyer may not represent conflicting interest. The fact that lawyer did not acquire confidential information from client nor use the same against the latter does not excuse him from responsibility. 5. Purchase clients property in litigation Requisites: a. Lawyer is counsel for client at the time he acquired the property b. Property is subject of litigation c. Acquires it by himself or through another d. Acquires property during pendency of litigation 6. Failing to account or misappropriation of clients property - presupposes fraudulent intent of lawyer. Immediate repayment by lawyer of clients money or property after demand but before institution by client of disbarment proceedings negate fraudulent intent. If the

lawyer has a lien, it cannot be used as an excuse for not making an accounting. 7. Collecting unreasonable fees Where the law fixes the maximum amount which lawyer may charge client, collection of more than what law allows constitutes malpractice. 8. Acting without authority - a lawyer can bind client without special power of attorney only on procedural matters 9. Willfully appearing without being retained -It must be willful, corrupt or contumacious in order that he may be held liable. Breach of Duties to Bar a. Unethical conduct or unprofessional conduct that which violates rules or ethical code of legal profession. b. Defaming fellow lawyer Use of improper and objectionable language against another lawyer or accuse him wantonly and maliciously of a serious misconduct in the absence of reasonable cause constitutes misconduct. Strongly worded statements by a lawyer against opposing lawyer, if justified by records, may not justify disciplinary action against him. c. Encroaching upon business of another d. Soliciting business - for purpose of gain, personally or through paid agents is MALPRACTICE and agreeing with non-lawyer to divide lawyers fees paid by client or for solicitation by non-lawyer. e. Advertising OTHER GROUNDS FOR DISCIPLINE 1. NON-PROFESSIONAL MISCONDUCT General Rule: Lawyer may not be suspended or disbarred for misconduct in his non-professional or private capacity. Exception: Where such is so GROSS to show him to be morally unfit for office or unworthy of privilege, court may be justified in suspending or removing him from the roll of attorneys. 2. GROSS IMMORALITY- AN ACT OF PERSONAL IMMORALITY ON THE PART OF THE LAWYER IN HIS PRIVATE RELATION WITH OPPOSITE SEX MAY PUT CHARACTER IN DOUBT. BUT TO JUSTIFY SUSPENSION OR DISBARMENT, THE ACT MUST NOT ONLY BE IMMORAL, IT MUST BE GROSSLY IMMORAL. (ABAIGAR VS. PAZ) Grossly Immoral Conduct one so corrupt and false as to constitute criminal act or so unprincipled or disgraceful as to be reprehensible to a high degree. Cohabitation per se is not grossly immoral, it depends on circumstances and it is not necessary that there be prior conviction for offense before lawyer may be disciplined for gross immorality. If the evidence is not sufficient to hold the lawyer liable for gross immorality, he may still be reprimanded where evidence shows failure on his part to comply with rigorous standards of conduct required from lawyers. 3. CONVICTION OF CRIME INVOLVING MORAL TURPITUDE

All crimes of which fraud or deceit is an element or those inherently contrary to rules of right conduct, honesty or morality in civilized community 4. PROMOTING TO VIOLATE OR VIOLATING PENAL LAWS 5. MISCONDUCT IN DISCHARGE OF OFFICIAL DUTIES A lawyer who holds a government office may not be disciplined as a member of the bar for misconduct in the discharge of his duties as a government official. If the misconduct, however, is in violation of the Code of Professional Responsibility or of his oath as a lawyer or is of such a character as to affect his qualifications as a lawyer, he may be subject to disciplinary action such as disbarment (Collantes vs. Renomeron). This rule does not apply to impeachable officials like SC Justices, Members of the Constitutional Commission and Ombudsman because they can be removed only by impeachment. 6. COMMISSION OF FRAUD OR FALSEHOOD 7. MISCONDUCT AS NOTARY PUBLIC By applying for having himself commissioned as notary public, lawyer assumes duties in dual capacity, the non-performance of which be may be a ground for discipline as member of bar. OFFICERS AUTHORIZED TO INVESTIGATE DISBARMENT CASES 1. Supreme Court 2. Integrated Bar of the Philippines (IBP) through its Commission on Bar Discipline or authorized investigators 3. Office of the Solicitor General GRIEVANCE PROCEDURE: DISBARMENT, SUSPENSION, AND DISCIPLINE OF ATTORNEYS (Rule 139-B) Proceedings for the disbarment, suspension and discipline of attorneys may be taken: 1. by the Supreme Court motu proprio, or, 2. by the IBP upon the verified complaint of any person The IBP Board of Governors may initiate and prosecute proper charges against erring attorneys including those in government: 1. motu propio or 2. upon referral by the SC or 3. by a Chapter Board of Officers or at the instance of any person. The complaint must be: 1. verified; 2. state clearly and concisely the facts complained of; 3. supported by affidavits of persons having personal knowledge of the facts therein alleged, or by such documents as may substantiate it; 4. six (6) copies shall be filed with the Secretary of IBP or any of its Chapters. OUTLINE OF DISBARMENT PROCEEDING IN THE IBP (RULE139-B) 1. The case shall be assigned to a National Grievance Investigator where the Board of

2. 3.

4.

5.

6.

Governors shall appoint one from among IBP members of three (3) when special circumstances warrant; If the complaint is meritorious, the respondent shall be served with a copy requiring him to answer within 15 days from service; The respondent shall file an answer containing six (6) copies and shall verify the same; after receipt of the answer or lapse of the period to do so, the Supreme Court ,may, motu propio or at the instance of the IBP Board of Governors, upon recommendation by the Investigator, suspend an attorney from practice, for any of the causes under Rule 138, Sec. 27, during the pendency of the investigation; After joinder of the issues or failure to answer, the respondent shall be given full opportunity to defend himself. But if the respondent fails to appear to defend himself inspite of notice, the investigator may proceed ex parte. The investigation shall be terminated within three (3) months from commencement which period may be extended; The Investigator shall make a report to the Board of Governors within 30 days from termination of the investigation which report shall contain his findings and recommendations together with the evidence; The Board of Governors shall have the power to review the decision of the Investigator. Its decision shall be promulgated within a period not exceeding 30 days from the next meeting of the Board following the submission of the report of the Investigator: a. If the decision is a finding of guilt of the charges, the IBP Board of Governors shall issue a resolution setting forth its findings and recommendations which shall be transmitted to the Supreme Court for final action together with the record; b. If the decision is for exoneration, or if the sanction is less than suspension or dismissal, the Board shall issue a decision exonerating the respondent or imposing a lesser sanction. The resolution exonerating the respondent shall be considered as terminating the case unless upon petition of the complainant or other interested party filed with the Supreme Court within 15 days from notice of the Boards decision.

b.

In case of Fine

Division P10,000 or less En Banc P10,000 or more

In case of both Suspension and Fine en banc if the suspension exceeds 1 year or the fine exceeds P10, 000. In case of 2 or more suspensions service will be successive, not simultaneous

c. d.

Investigating Judge CANNOT dismiss case CASE: The investigating judges authority is only to investigate, make a report and recommendation on the case to be submitted to the SC for final determination. [Graciano vs. Sebastian, 231 SCRA 588] Effect of desistance, withdrawal of complaint or nonappearance of complainant in disbarment proceedings The desistance or the withdrawal of the complainant of the charges against a judge does not deprive the court the authority to proceed to determine the matter. Nor does it necessarily result in the dismissal of the complaint except when, as a consequence of the withdrawal or desistance no evidence is adduced to prove the charges. This rule is founded on the rationale that a disbarment proceeding is neither civil nor criminal but one prosecuted solely for the public interest. What is important is whether the charges against the respondent have been duly proved. (Note: The same principle applies to administrative charges against judges.) Doctrine of RES IPSA LOQUITOR (the thing speaks for itself) CASES: This principle or doctrine applies to both judges and lawyers. Judges had been dismissed from the service without need for a formal investigation because based on the records, the gross misconduct or inefficiency of the judges clearly appears. [Uy vs. Mercado, 154 SCRA 567]. The same principle applies to lawyers. Thus, on the basis of the lawyers comment or answer to a showcause order of SC, it appears that the lawyer has so conducted himself in a manner which exhibits his blatant disrespect to the court, or his want of good moral character or his violation of the attorneys oath, the lawyer may be suspended or disbarred without need of a trial-type proceeding. What counts is that the lawyer has been given the opportunity to give his side. [Prudential Bank vs. Castro 155 SCRA 604] DEFENSES The purpose and nature of disbarment proceedings make the number of defenses available in civil and criminal actions inapplicable in disciplinary proceedings. The Statute of Limitations is not a defense in disciplinary proceedings nor does the fact the circumstance that facts set up as ground for disbarment constitute crime, the prosecution for which in criminal action is barred by prescription, preclude the disbarment proceeding. However, the fact that a considerable length of time has lapsed from the date the misconduct took

PROCEDURE FOR DISBARMENT IN THE SUPREME COURT 1. Upon the initiation of the complaint, the Supreme Court may refer the case for investigation to the Solicitor General, or any officer of the Supreme Court, or judge of a lower court; 2. If referred, the investigator shall proceed with the investigation and make a report to the Supreme Court. Rules in the Imposition of Penalties a. In case of Suspension Division 1 year or less En Banc exceeds 1 year

place to date the complaint for disbarment was filed may indicate ulterior motive on the part of complainant or innocence on the part of respondent. MODIFYING CIRCUMSTANCES Extent of disciplinary action depends on attendance of mitigating or aggravating circumstance. Mitigating Circumstances 1. Good faith 2. Want of intention to commit wrong 3. Lack of material damage to complainant 4. Desistance of complainant 5. Youth and inexperience, etc. Aggravating Circumstances 1. Abuse of authority or of attorneyclient relationship 2. Sexual intercourse with a relative 3. Charge of gross immorality 4. Previous dismissal as member of the bar EFFECT OF EXECUTIVE PARDON If during the pendency of disbarment proceeding the respondent was granted executive pardon, the dismissal of the case on that sole basis will depend on whether the executive pardon is absolute or conditional. If the pardon is absolute, the disbarment case will be dismissed. However, if the executive pardon is conditional, the disbarment case will not be dismissed on the basis thereof. Absolute pardon by President may wipe out conviction as well as offense itself and the grant thereof in favor of a lawyer is a bar to a proceeding for disbarment against him based solely on commission of such offense. The reason is that the respondent lawyer, after the absolute pardon, is as guiltless and innocent as if he never committed the offense at all. If absolute pardon is given to lawyer after being disbarred for conviction of crime, it does not automatically entitle him to reinstatement to the bar. It must be shown by evidence aside from absolute pardon that he is now a person of good moral character and fit and proper person to practice law. In case of a conditional pardon, there will be a remission of unexpired period of sentence. EFFECTS OF DEATH OF LAWYER DURING PENDENCY OF DISCIPLINARY ACTION AGAINST HIM 1. Renders action moot and academic 2. (But) court may still resolve case on the merit in order to clear publicly the name of the lawyer. JUDGMENT DISMISSAL OF CASE In the absence of convincing or clearly preponderant evidence, disbarment case against him should be dismissed. However, the court can still impose conditions despite dismissal of disciplinary action against him, if the facts so warrant and in the event the lawyer fails to comply with such condition, it may suspend or disbar him for disobedience of its order.

SUSPENSION OR DISBARMENT A lawyer who has been suspended or disbarred cannot practice law without being held liable for contempt of court. The suspended lawyer may be disbarred for violation of the suspension order. Such judgment does not prohibit pro se practice (Geeslin vs. Navarro; 185 SCRA). If the lawyer holds a government office which requires membership in the bar as an indispensable qualification, he may be dismissed from said office (Collantes vs. Renomeron; 200 SCRA). REINSTATEMENT The Supreme Court has the exclusive authority to reinstate. This is based on its constitutional prerogative to promulgate rules on the admission of applicants to the practice of law. Petitioner must prove that he is once again fit and proper person to practice law. The following must be taken into consideration: 1. the applicants character and standing prior to disbarment; 2. the nature or character of misconduct for which he is disbarred; 3. his conduct subsequent to disbarment [Cui vs. Cui, 11 SCRA 755]; 4. including his efficient government service [In re Adriatico, 17 Phil 324] 5. the time that has elapsed between disbarment and the application for reinstatement and the circumstances that he has been sufficiently punished and disciplined [Prudential Bank vs. Benjamin Grecia, 192 SCRA 381] 6. applicants appreciation of significance of his dereliction and his assurance that he now possesses the requisite probity and integrity; 7. favorable endorsement of the IBP, pleas of his loved ones [Yap Tan vs. Sabandal, 170 SCRA 207]. The court may require applicant for reinstatement to enroll in and pass the required fourth year review classes in a recognized law school. [Cui vs. Cui, 11 SCRA 755; In re Rusiana, 56 SCRA 240] A previously disbarred lawyer who is given absolute pardon by the President is not automatically reinstated, he must still file a petition for reinstatement with the SC. Condition for Reinstatement A lawyer who has been suspended or disbarred may be reinstated when the SC is convinced that he has already possessed the requisites of probity and integrity necessary to guarantee his worth to practice his profession. EFFECTS OF REINSTATEMENT 1. Recognition of moral rehabilitation and mental fitness to practice law; 2. Lawyer shall be subject to same law, rules and regulations as those applicable to any other lawyer; 3. Lawyer must comply with the conditions imposed on his readmission