Legal Ethics and Practical Exercises

I. IntroductionA. Definition of Terms

1. Lawyer – a member of the Philippine bar; counsel or attorney-at-law; class of persons who by license are officers of the court and who are empowered to appear, prosecute and defend and on whom peculiar duties, responsibilities and liabilities are devolved b law as consequence. (Cui v. Cui)

2. Practice of Law – see Ulep v. Legal Clinic3. Legal Ethics – is the embodiment of al principles of

morality and refinement that should govern the conduct of every member of the bar; living spirit of the profession, which limits yet uplifts it as a livelihood; 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.

4. Counsel de Parte – is an attorney retained by a party litigant, usually for a fee, to prosecute or defend his court in court. Implies freedom of choice either on the part of the litigant to continue or terminate the retainer at any time.

5. Counsel de oficio – is an attorney appointed by the court to defend an indigent defendant in a criminal action or to represent a destitute party in a case.

6. Amicus Curiae – is an experienced and impartial attorney invited by the court to appear and help in the disposition of issues submitted to it. It implies the friendly intervention of counsel to call the attention of the court to some matters of law or acts which might otherwise escape its notice, and in regard to which it might go wrong.

7. Bench – means the judiciary.8. Bar – refers to the legal profession.

B. Power to regulate Practice of Law- The Constitution vests this power of control and regulation in the

SC. - Even in the absence of such constitutional provision, the right to

define and regulate the practice of naturally and logically belongs to the judiciary represented by the high tribunal since the practice of law is inseparably connected with the exercise of its judicial power in the administration of justice.

- Power of the SC to regulate the practice of law includes:1. Authority to define the practice of law;2. Prescribe the qualifications of a candidate to and the subjects of

the bar examination;3. Decide who will be admitted to practice4. Discipline, suspend, or disbar any unfit and unworthy member of

the bar;5. Reinstate any disbarred or indefinitely suspended attorney;6. Ordain the integration of the Philippine Bar;7. Punish for contempt any person for unauthorized practice of law;8. In general, exercise overall supervision of the legal profession.

C. Nature of Office of Attorney- A lawyer occupies what may be called a quasi-judicial office

because he is in fact an officer of the court, whose close and intimate relationship with the bench is best described by hat phrase.

- Membership in the bar is a privilege burdened with conditions, one of the most important of which is mindfulness that a lawyer is an officer of the court.

- He is primarily an officer of the court, a minister in the temple of justice, whose high vocation is to correctly inform the court upon the law and the facts of a case and to assist it in administering impartial justice and arriving at a correct conclusion.

- A lawyer is an oath-bound servant of society whose conduct is clearly circumscribed by inflexible norms of law and ethics, and whose primary duty is the advancement of the quest of truth and justice, for which he has sworn to be a fearless crusader.

D. Privileges of Attorney- A lawyer has the privilege and right to practice law during good

behaviour before any judicial, quasi-judicial or administrative tribunal.

- An attorney enjoys the presumption of regularity in the discharge of his duty.

- He can speak freely and courageously in the course of judicial proceedings without the risk of incurring a criminal prosecution or an action for damages.

- He has the right to protest, in a respectful language, any unwarranted treatment of a witness or any unjustified delay in the administration of justice.

- He is allowed great latitude of pertinent comment in the furtherance of the causes he upholds.

- The makes his passing the bar examination equivalent to a first-grade civil service eligibility for any position in the classified service in the government the duties of which require knowledge of law, or a second grade civil service eligibility for any other government position which does not prescribe proficiency in law as a qualification.

E. Duties of Office- It is his duty to maintain allegiance to the RP and to support the

Constitution and obey the law;- To observe and maintain the respect due the courts of justice and

judicial officers;- To counsel or maintain such actions or proceedings only as he

believes to be honestly debatable under the law;- To employ, for the purpose of maintaining the causes confided in

him, such means only as are consistent with truth and honor, and never lead the judge or any judicial officer by an artifice or false statement of fact or law.

- He is 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, for any corrupt motive or interest.

- Never to reject, for any consideration personal to himself, the cause of the defenseless or the oppressed

- In the defense of a person accused of a crime, by all fair and honourable 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.

F. Practice of Law, A profession- The practice of law is a profession, a form of public trust, and the

performance of which is entrusted only to those who are qualified and who possess good moral character.

- Both lawyers and laymen must recognize and realize that the legal profession is a profession and not a trade, and that the basic ideal of that profession is to render public service and secure justice for those who seek its aid.

- The law as profession proceeds from basic premise that membership in the bar is a privilege burdened with conditions and carries with it the responsibility to live up to its exacting standards and honoured traditions.

- The Code of Professional Responsibility, particularly the ethical rule against advertising or solicitation of professional employment, rests on the fundamental postulate that practice of law is a profession.

G. When Appearance by counsel not obligatory

- In Municipal trial court, a party may conduct his litigation in person or with the aid of an agent or friend appointed by him for that purpose or with the aid of an attorney.

- In the Regional Trial Court and Appellate Courts, a party in a civil suit may either conduct his litigation personally or by attorney unless the party is a juridical person, in which case it may appear only by attorney.

- In administrative proceedings, the right to counsel is not indispensable to due process.

- The rule that appearance by counsel is not obligatory applies only in civil and administrative cases. The rule does not apply in criminal cases involving grave and less grave offenses, where an accused must be represented by counsel de parte or counsel de oficio and in which his right to counsel is not waivable.

CASES:

Alawi v. Aluya:

As regards Alauya’s use of the title of “Attorney”, this Court has already had occasion to declare that persons who pass the Shari’a Bar are not full-fledged members of the Philippine Bar, hence may only practice law before Shari’s courts. While one who has been admitted to the Shari’a Bar, and one who has been admitted to the Philippine Bar, may both be considered “counsellors”, in the sense that they give counsel or advice in a professional capacity, only the latter is an “attorney.” The title of “attorney” is reserved to those who, having obtained the necessary degree in the study of law and successfully taken the Bar Examinations, have been admitted to the Integrated Bar of the Philippines and remain members thereof in good standing; and it is they only who are authorized to practice law in this jurisdiction.

In Re Almacen:

Well-recognized is the right of a lawyer, both as an officer of the court and as citizen, to criticize in properly respectful terms and through legitimate channels the acts of courts and judges.

As a citizen and as officer of the court, a lawyer is expected not only to exercise the right, but also to consider it is duty to avail of such right. No law may abridge this right. Nor is he “professionally answerable for a scrutiny into the official conduct of the judges, which would not expose him to legal animadversion as a citizen. Atty. Almacen is suspended from the practice of law until further orders.

In Re Cunanan:

That the portion of art. 1 of R.A. 972 referring to the examinations of 1946 to 1952 and all of art. 2 of the said law are unconstitutional and therefore void and w/o force and effect.

The part of ART 1 that refers to the examinations subsequent to the approval of the law (1953- 1955) is valid and shall continue in force. (those petitions by the candidates who failed the bar from 1946 to 1952 are denied, and all the candidates who in the examination of 1953 obtained a GEN Ave. of 71.5% w/o getting a grade of below 50% in any subject are considered as having passed whether they have filed petitions for admissions or not.)

Ulep v. Legal Clinic, Inc.:

Practice of law means any activity, in or out of court, which requires the application of law, legal procedures, knowledge, training and experience. To engage in the practice of law is to perform those acts which are characteristics of the profession. Generally, to practice of law is to give advice or render any kind of service that involves legal knowledge or skill. The practice of law is not limited to the conduct of cases in court. It includes legal advice

and counsel, and the preparation of legal instruments and contracts by which legal rights are secured, although such matter may or may not be pending in a court.

Cayetano v. Monsod:

Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. “to engage in the practice of law is to perform those acts which are characteristics of the profession”. Generally, to practice of law is to give notice or render any kind of service requires the use in any degree of legal knowledge or skill. Xxx interpreted in the light of the various definitions of the term “practice of law”, particularly the modern concept of law practice, and taking into consideration the liberal construction intended by the framers of the Constitution, Atty. Monsod’s past work experience as a lawyer-economist, a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both the rich and the poor-verily more than satisfy the constitutional requirement- that he has been engaged in the practice of law for at least ten years.

Valencia v. Cabanting:

Membership in the Bar is a privilege burdened with conditions. By far, the most important of them is mindfulness that a lawyer is an officer of the court. This Court may suspend or disbar a lawyer whose acts show his unfitness to continue as a member of the Bar. Disbarment, therefore, is not meant as punishment depriving him of a source of livelihood but is rather intended to protect the administration of justice by requiring that those who exercise this function should be competent, honourable and reliable in order that courts and the public may rightly repose confidence in

them, Atty. Antiniw failed to live up to the high standards of the law profession.

In Re Integration of the Bar:

The Court is of the view that it may integrate the Philippine Bar in the exercise of its power, under Article VIII, Sec. 13 of the Constitution, “to promulgate rules concerning pleading, practice, and procedure in all courts and the admission to the practice of law.”

Freedom of speech: Integration does not make a lawyer a member of any group of which he is not already a member. He became a member of the Bar when he passed the Bar examinations. All that integration actually does is to provide an official national organization for the well-defined but unorganized and incohesive group of which every lawyer is already a member.

Regulatory Fee: A membership fee in the Integrated Bar is an exaction for regulation, while the purpose of a tax is revenue. If the Court has inherent power to regulate the Bar, it follows that as an incident to regulation, it may impose a membership fee for that purpose.

Freedom of Speech: Since a State may constitutionally condition the right to practice law upon membership in the Integrated Bar, it is difficult to understand why it should become unconstitutional for the Bar to use the member’s dues to fulfil the very purposes for which it was established.