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LEGALETHICS

CHAPTER 1 INTRODUCTORY
Preliminary
Legal Ethics
1. Branch of moral science which
treats of the duties which an
attorney owes to the court, to his
client, to his colleagues in the
profession and to the public.
2. It is the embodiment of all
principles
of
morality
and
refinement that should govern
the conduct of every member of
the bar
The law is not a trade nor a craft but a
profession.
Its basic ideal is to render public service
and secure justice to those who seek its
aid.
Those enrolled in its ranks should not
only master its tenets and principles but
also accord continuing fidelity to them.
Obligation not an easy task due to
commercialism in all fields of human
endeavor.
To fulfill obligation:
1. Professional
standards
be
constantly
inculcated
among
lawyers.
2. Manual of equipment
rules and
ethics
of the
profession
collated, readily available to
every attorney.

Sources of Legal Ethics:


1. The 1987 Constitution.
2. Applicable Jurisprudence.
3. Code
of
Professional
Responsibility.
4. New Civil Code.
5. Rules of Court.
6. Revised Penal Code.
7. Local Government Code.

PRIMARY CHARACTERISTICS WHICH


DISTINGUISH
THE
LEGAL
PROFESSION
FROM BUSINESS
1. A duty of public service.
2. A relation, as an officer of
the court, to the
administration
of
justice
involving thorough sincerity, integrity
and reliability.
3. A relation to clients with the highest
degree of fiduciary
4. A relation to the colleagues at the
bar characterized by candor, fairness
and unwillingness to resort to
current
business
methods
of
advertising and encroachment on
their practice, or dealing directly
with their clients.
Definitions
LEGAL ETHICS
o Body of all principles of morality
and refinement
that
should
govern the conduct of every
member of the bar.
o Living spirit of the profession.
o Branch of moral science which
treats of duties which an attorney
owes to the court, to his client, to
his colleagues, and to the public.
Terms used to describe a member of
the legal profession:
o Lawyer, Attorney, or Attorney-AtLaw.
o Advocate, Barrister, Counsel or
Counselor.
o Proctor, Solicitor.
o Spanish: Abogado.
o Filipino: Manananggol.
The term refers to that class of persons
who by license are officers of the court
empowered to appear, prosecute, and
defend.
A person who is a member of the
Philippine Bar who, by warrant of
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LEGALETHICS

another,
practices
law,
or
acts
professionally in legal formalities.
Those who passed the Sharia Bar not
entitled to be called Attorneys unless
admitted to the Philippine Bar.
Counsel de parte:
o An attorney retained by a party
litigant, usually for a fee, to
prosecute or defend his cause in
court.
o Implies freedom of choice either
on the attorney or the litigant.
Counsel de oficio:
o Attorney appointed by the court.
o To defend an indigent defendant
in a criminal action.
o To represent a destitute party.
Attorney of record:
o Attorney whose name, together
with his address, is entered in the
record of the case as the
designated counsel of the party
litigant.
o To whom judicial notices are
sent.
A lawyer of
counsel is an
experienced lawyer, who is usually a
retired member of judiciary employed
by law firms as consultant.
Amicus Curiae is:
o An experienced and impartial
attorney invited by the court to
appear and help in the disposition
of issues submitted to it.
o It implies friendly intervention of
counsel to call the attention of
the court to some matters of law
or facts which might otherwise
escape its notice and in regard to
which it might go wrong.
o Appears in court not to represent
any particular party but only to
assist the court.
Amicus Curiae par excellence bar
associations who appear in court as
amici curiae or friends of the court. Acts

merely as a consultant to guide the


court in a doubtful question or issue
pending before it.
Bar refers to the legal profession.
Bench refers to the judiciary.
Client one who engages the services
of a lawyer for legal advice or for
purposes of prosecuting or defending a
suit in behalf and usually for a fee.
Lawyer this is the general term for a
person trained in the
law and
authorized to advice and represent
others in legal matters
Attorneys-At-Law that class of
persons who are licensed officers of the
courts empowered to appear, prosecute
and defend, and upon whom peculiar
duties, responsibilities and liabilities are
developed by law as a consequence.
Attorney in fact- simply an agent
whose authority is strictly limited by the
instrument
appointing
him.
His
authority is provided in a special power
of attorney or general power of
attorney or letter of attorney. He is not
necessarily a lawyer.
Bar Association an association of
members of the legal profession like the
IBP where membership is integrated or
compulsory.
House Counsel one who acts as
attorney for business though carried as
an employee of that business and not
as an independent lawyer.
Lead Counsel the counsel on either
side of a litigated action who is charged
with the principal management and
direction
of
a
partys
case,
as
distinguished from his juniors or
subordinates.
Practicing Lawyer one engaged in
the practice of law who by license are
officers of the court and who are
empowered to appear, prosecute and
defend a clients cause.
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LEGALETHICS

Pro Se - an appearance by a lawyer in


his own behalf.
Trial Lawyer one who personally
handles cases in court, administrative
agencies of boards which mean
engaging in actual trial work, either for
the prosecution or for the defense of
cases of clients.

Power to regulate practice of law


The Constitution [Art. VIII, Sec. 5(5)]
vests this power of control and
regulation in the Supreme Court. The
constitutional
power
to
admit
candidates to the legal profession is a
judicial function and involves
the
exercise of discretion.
Const art. XII, sec. 14.
o The practice of all professions in
the Philippines shall be limited to
Filipino citizens, save in cases
prescribed by law.
The SC acts through a Bar Examination
Committee in the exercise of its judicial
function to admit candidates to the
legal profession. Thus, the Committee is
composed of a member of the Court
who acts as Chairman and 8 members
of the bar who acts as examiners in the
8 bar subjects with one subject
assigned to each.
Practice of law is impressed with public
interest.
o Attorney takes part in one of the
most important functions of the
State The Administration of
Justice.
o Duty of the State to control and
regulate the practice of law to
promote public welfare.
Practice of law is inseparably connected
with the exercise of its judicial power in
the administration of justice.
LEGISLATURES EXERCISE OF POLICE
POWER may enact laws regulating the
practice of law but may not pass a law

that will control the Supreme Court on


its function to decide who may enjoy
the privilege of practicing law. Could be
considered unconstitutional.
SC POWER TO REGULATE PRACTICE OF
LAW includes:
1. Authority to define that term.
2. Prescribe
qualifications of
a
candidate and the subjects of the
bar exams.
3. Decide who will be admitted to
the practice.
4. Discipline, suspend, or disbar any
unfit or unworthy member of the
bar.
5. Reinstate any disbarred attorney.
6. Ordain the integration of the
Philippine bar.
7. Punish for contempt any person
for unauthorized practice of law.
8. Exercise overall supervision of the
legal profession.
9. Exercise any other power as may
be necessary to elevate the
standards of the bar and preserve
its identity.
Power to regulate the practice of law is
not an arbitrary or despotic power to be
exercised at the pleasure of the court.
It is the duty of the court to exercise it
by a sound and just judicial discretion.

Nature of office of attorney


An attorney is more than a mere agent
because he possesses special powers of
trust and confidence reposed in him by
his client.
Independent as the judge.
In a limited sense, a public officer,
although not in the constitutional or
statutory meaning of the term.
Occupies a quasi-judicial office because
he is in fact an officer of the court.
The title Attorney is reserved to those
who has:
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LEGALETHICS

1. obtained the necessary degree in


the study of law;
2. successfully taken the bar exams;
3. admitted to the IBP;
4. remain members thereof in good
standing;
5. been authorized to practice law in
the Philippines.
Membership in the bar is in the
category of a mandate of public service
of the highest order.
Lawyers are oath-bound servants of
society whose conduct are clearly
circumscribed by the inflexible norms of
law and ethics.
Primary duty is to the advancement of
the quest of truth and justice.

Privileges of an attorney
1. Privilege and right to practice law
during good behavior before any
judicial, quasi-judicial, or administrative
tribunal.
2. Attorneys enjoy the presumption of
regularity in the discharge of his duty.
(His statements, if relevant or material
to the case, are absolutely privileged
regardless of their defamatory tenor.
He can speak freely and courageously
in proceedings without the risk of
criminal prosecution.)
3. Other privileges inherent in his status
as quasi-judicial officer:
a. Passing the bar is equivalent to
First-grade Civil Service eligibility
for any position in the classified
service of the government, the
duties
of
which
require
knowledge of law.
b. Second-grade eligibility for any
other government position not
requiring proficiency in the law.
4. The court, in admitting him to practice,
presents him to the public as worthy of
its confidence and as a person fit and

proper to assume and discharge the


responsibilities of an attorney.
5. Has the privilege to set the judicial
machinery in motion.

He can stand up for his right or the


right of his client even in the face of a
hostile court.
He has the right to protest, in respectful
language, any unwarranted treatment
of a witness or any unjustified delay.
The rights and privileges which they
enjoy as officers of the court are
necessary for the proper administration
of justice as for the protection of
attorney and his client.
There can be no strong bar without
courageous and fearless attorneys.
As a man of law, his is necessarily a
leader in the community, looked up to
as a model citizen.
Integrity, ability, and learning often
makes him qualified to administer the
Executive
Departments
or
the
Legislative bodies.

Duties of Attorneys (Rule 138, Sec 20)


MEMORIZE!
It is the duty of an attorney:
1. To maintain allegiance to the
Republic of the Philippines and to
support the Constitution and obey
the laws of the Philippines;
2. To observe and maintain the respect
due to the courts of justice and
judicial officers;
3. To counsel or maintain such actions
or proceedings only as appear to him
to be just, and such defenses only as
he believes to be honestly debatable
under the law;
4. To employ, for the purpose of
maintaining the causes confided to
him, such means only as are
consistent with truth and honor, and
never seek to mislead the judge or
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LEGALETHICS

5.

6.

7.

8.

9.

any judicial officer by an artifice or


false statement of fact or law;
To maintain inviolate the confidence,
and at every peril to himself, to
preserve the secrets of his client,
and to accept no compensation in
connection with his client's business
except from him or with his
knowledge and approval;
To
abstain from all
offensive
personality and to advance no fact
prejudicial to the honor or reputation
of a party or witness, unless
required by the justice of the cause
with which he is charged;
Not
to
encourage
either
the
commencement or the continuance
of an action or proceeding, or delay
any man's cause, from any corrupt
motive or interest;
Never
to
reject,
for
any
consideration personal to himself,
the cause of the defenseless or
oppressed;
In the defense of a person accused
of crime, by all fair and honorable
means, regardless of his personal
opinion as to the guilt of the
accused, to present every defense
that the law permits, to the end that
no person may be deprived of life or
liberty, but by due process of law.

FOUR-FOLD

DUTIES OF

truthfulness, avoid encroachment in the


business of other lawyers, uphold the
honor of the profession.
3. Duties to the COURT respect or
defend
against
criticisms,
uphold
authority and dignity, obey order and
processes, assist in the administration
of justice.
4. Duties to the CLIENT entire
devotion to clients interest.
Public versus private and personal
duties
PUBLIC DUTY:
o Obey the law.
o Aid in the administration of
justice.
o Cooperate whenever justice is
imperiled.
PRIVATE DUTY:
o Faithfully,
honestly,
and
conscientiously
represent
the
interest of his client.
PERSONAL DUTY, the obligation he
owes to himself.

LAWYER

1. Duties to SOCIETY should not


violate his responsibility to society,
exemplar for righteousness, ready to
render legal aid, foster social reforms,
guardian of due process, aware of
special role in the solution of special
problems and be always ready to lend
assistance in the study and solution of
social problems.
2. Duties to the LEGAL PROFESSION
candor,
fairness,
courtesy
and

Such classification of public and


personal results from the three-fold
capacity in which attorneys operate:
o As a Faithful Assistant of the
court in search of just solution to
disputes (Public Duty).
o As a Trusted Agent of his client
(Private Duty).
o As a Self-employed Businessman
(Personal Duty).
Rules and ethics demand that an
attorney subordinate his personal and
private duties to those which he owes
to the court and to the public.
Where his duties to his client conflict
with those he owes to the court and the
public, the former must yield to the
latter.
His obligations to his client take
precedence over his duties to himself.
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LEGALETHICS

Practice of law as a profession


The practice of law is a profession, a
form of public trust, the performance of
which is entrusted only to those who
are qualified to possess good moral
character.
The legal profession is not a trade.
To render public service and secure
justice to those who seek its aid.
It is not a business, using bargain
counter methods to reap large profits.
The gaining of livelihood is not a
profession,
but
a
secondary
consideration.
The Code of Professional Responsibility,
particularly the ethical rule against
advertising
or
solicitation
of
professional employment, rests on the
fundamental postulate that the practice
of law is a profession.
Profession
A calling
requiring
specialized
knowledge
and
often
requiring long academic preparation.
In fixing fees, remember that the
profession
is
a branch
of
the
administration of justice and not a mere
money-making
trade.
Law advocacy is not capital that yields
profits.
A calling, unlike mercantile pursuits
which enjoy a greater deal of freedom
from
government
interference,
is
impressed with public interest.
Attorney is also entitled to protection
from the court against any attempt by
his client to escape payment of his just
fees.
Client is also protected against exaction
by his counsel of excessive fees.

Primary
Characteristics
distinguishing the Legal Profession
from Business:
1. A
duty
of
public
service,
emolument is a by-product.

2. A relation as officer of the court


to the administration of justice
involving
thorough
sincerity,
integrity, and reliability.
3. Relation to the client in the
highest degree fiduciary.
4. Relation to colleagues at the bar
characterized by candor, fairness,
and unwillingness to resort to
current business methods of
advertising and encroachment on
their practice, or dealing with
their clients.
These characteristics make it a noble
profession and the privilege to practice
it is bestowed only upon individuals who
are
competent
intellectually,
academically, and morally.
A partnership in the practice of law is a
mere relationship or association for
such particular purpose. It is not a legal
entity. It is not a partnership formed for
the purpose of carrying on a trade or
business or of holding property.
Even if registered with the SEC, any
lawyer
practicing
under
a
law
partnership is considered a solo
practitioner who is the taxpayer and not
the law partnership.
Law prohibits a business or commercial
partnership or juridical entity to engage
in the practice of law since such cannot
possess
nor
comply
with
the
qualifications and requirements of a
lawyer.

Necessity of representation by counsel


Employment of a person acquainted
with the rules becomes a necessity both
to the litigant and to the court.
Litigant is not ordinarily versed in the
law and its intricacies.
A court can adjudicate only in
accordance with the law and the facts
presented pursuant to well-established
rules of procedure and evidence.
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LEGALETHICS

A person unlearned in the law can


neither aid litigants nor the court in that
regard.
Only a lawyer can properly and
effectively extend such assistance.
The law profession came into being as a
result of that procedural development
of the court, which created the
necessity for the attorney and made
him an essential part of the judicial
machinery.
The right of a litigant to counsel is a
recognition of the necessity that a
litigant appear by counsel.
There can be no fair hearing unless a
litigant is represented by counsel.
A court cannot compel a litigant to
prosecute
or
defend
his
cause
personally if he chose to appear by
counsel, nor can it assign a counsel de
oficio for an accused and require said
counsel to proceed with the trial when
the accused has previously manifested
his desire to secure the services of a
counsel de parte.
SC subjects the lawyer to disciplinary
action and administrative liability for his
failure to properly attend to the interest
of his client.

Need for, and right to, counsel


Party litigant needs the assistance of
counsel
in
al
proceedings,
administrative, civil, or criminal.
Not being a lawyer, he is ignorant of
the substantive and procedural laws
which are applied to resolve disputes.
Even if he is a lawyer, his personal or
emotional involvement may adversely
affect his handling of the case. Thus,
even lawyers who are parties in a case
need the guiding hand of counsel.
The need of a person for the assistance
of counsel is felt more urgently in
criminal than in any other proceeding.

In custodial investigations, any person


under such for the commission of an
offense shall have the right to be
informed of his right to remain silent
and
to
have
competent
and
independent counsel preferably of his
choice and any confession in violation of
such shall be inadmissible in evidence
against him.

Consequences of denial of right to


counsel
The denial of such right, which may
either be the absence of assistance of
counsel or the inadequate and grossly
negligent representation may have
adverse results.
1. Admission
of
guilt
without
counsel, inadmissible in evidence.
2. Representation
of a
person
claiming
to
be
a
lawyer,
conviction shall be set aside and
a new trial undertaken.
3. Judgment of conviction even if
final and executor may still be
recalled.
4. Gross ignorance of law and
procedure by counsel gives the
accused
another
chance
to
present his evidence.
5. Litigation may be reopened if the
incompetence,
ignorance,
or
inexperience of counsel is so
great and error committed is so
serious
that
the
client
is
prejudiced and denied his day in
court.
When appearance by counsel not
obligatory
In the Municipal Trial Court, a party
may conduct his litigation in person or
with the aid of an agent or friend
appointed by him or with an aid of an
attorney.
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LEGALETHICS

In Regional Trial Court and Appellate


Courts, a party to a civil suit may either
conduct his litigation personally or by
attorney unless the party is a juridical
person.
In Administrative Proceedings, right to
counsel is not indispensable to due
process. If a respondent had chosen to
represent himself without
counsel
cannot later claim denial of due
process.
Nothing in the Constitution that says
that a party in a non-criminal
proceeding is entitled to be represented
by counsel.
The rule applies only in Civil and
Administrative cases. It does not apply
in cases involving grave and less grave
offenses where the accused must be
represented by counsel and such right
is not waivable.

Canons of professional responsibility


A lawyer is answerable not only to his
client but also to the court of which he
is an officer.
He should do nothing which may tend
to lessen the public confidence in the
fidelity, honesty, and integrity of the
legal profession.
Professional standards serve as the
lawyers chart and compass to resolve
difficult questions of duty and help
minimize ethical delinquencies.
In 1917, the Philippine Bar Association,
realizing that something more than the
Oath and Duties of a Lawyer was
needed to attain the full measure of
public respect, adopted as its own
Canons 1 to 32 of the Canons of
Profession Ethics of the American Bar
Association.
In 1946, it again adopted as its own,
Canons 33 to 47.
Their enforcement by the courts and
observance by lawyers is indicative of a

due appreciation of their responsibilities


to the courts, to the clients, to the bar,
and to the public
Supreme Court applied some of the
Canons
in
case
of
professional
misconduct.
The Integrated Bar of the Philippines
adopted in 1980 a proposed Code of
Professional Responsibility submitted to
the Supreme Court for approval.
In
1988,
the
Supreme
Court
promulgated the Code of Professional
Responsibility.
The Code consists of 22 Canons and 77
Rules, divided into 4 Chapters:
1. The Law and Society.
2. The Lawyer and the Legal
Profession.
3. The Lawyer and the Courts.
4. The Lawyer and the Clients.
The Code establishes the norms of
conduct and ethical standards for all
lawyers.
Failure to live up to any of its provisions
is ground for disciplinary action.
Faithful observance requires a thorough
understanding of the Code.