Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
4. Copies of the Sworn Statement shall be furnished to the Local Chapter of the IBP and to the Executive Judge of the courts where respondent has pending cases handled by him or her, and/or where he or she has appeared as counsel; The Sworn Statement shall be considered as proof of respondents compliance with the order of suspension; Any finding or report contrary to the statements made by the lawyer under oath shall be a ground for the imposition of a more severe punishment, or disbarment, as may be warranted. resulting from a previous disbarment (Cui v. Cui, G.R. No. L-18727, Aug. 31, 1964); Recognition of moral rehabilitation and mental fitness to practice law; Lawyer shall be subject to same law, rules and regulations as those applicable to any other lawyer; and Lawyer must comply with the conditions imposed on his readmission.
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Q: Is a disbarred lawyer by reason of conviction of a crime automatically reinstated to the practice of law upon being pardoned by the President? A: No. To be reinstated, there is still a need for the filing of an appropriate petition with the Supreme Court. (In re: Rovero, A.M. No. 126, Dec. 29, 1980) Q: What is the effect if during the pendency of a disbarment proceeding, the erring lawyer was granted executive pardon? A: If during the pendency of a 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. 1. 2. Absolute or unconditional pardon - the disbarment case will be dismissed. Conditional pardon - the disbarment case will not be dismissed on the basis thereof.
B. READMISSION TO THE BAR OF LAWYERS WHO HAVE BEEN DISBARRED Q: What must the Supreme Court take into consideration in reinstatement? A: 1. 2. 3. The applicants character and standing prior to the disbarment; The nature and character of the charge for which he was disbarred; His conduct subsequent to the disbarment, and the time that has elapsed between the disbarment and the application for reinstatement; (Prudential Bank v. Benjamin Grecia, A.C. No. 2756, Dec. 18, 1990) His efficient government service; (In re: Adriatico, G.R. No. L-2532, Nov. 17, 1910) Applicants appreciation of the significance of his dereliction and his assurance that he now possesses the requisite probity and integrity; and Favorable endorsement of the IBP and pleas of his loved ones. (Yap Tan v. Sabandal, B.M. No. 144, Feb. 24, 1989)
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Q: X filed proceedings for disbarment against his lawyer, Atty. C, following the latters conviction for estafa for misappropriating funds belonging to his client (X). While the proceedings for disbarment was pending, the President granted absolute pardon in favor of Atty. C. Atty. C, then, moved for the dismissal of the disbarment case. Should the motion be granted? A: An absolute pardon by the President is one that operates to wipe out the conviction as well as the offense itself. The grant thereof to a lawyer is a bar to a proceeding for disbarment against him, if such proceeding is based solely on the fact of such conviction. (In re: Parcasio, A.C. No. 100, Feb. 18, 1976) But where the proceeding to disbar is founded on the professional misconduct involved in the transaction which culminated in his conviction, the effect of the pardon is only to relieve him of the penal consequences of his act and does not operate as a bar to the disbarment proceeding,
Note: Whether or not the applicant shall be reinstated rests on the discretion of the court. (Prudential Bank v. Benjamin Grecia, A.C. No. 2756, Dec. 18, 1990) The court may require applicant for reinstatement to enroll in and pass the required fourth year review classes in a recognized law school. (Cui v. Cui, In Re: Resian A.C. No. 270, Mar. 1974)
Q: What is the effect of reinstatement? A: 1. Reinstatement to the roll of attorneys wipes out the restrictions and disabilities
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LEGAL ETHICS TEAM: ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
C. READMISSION TO THE BAR OF LAWYERS WHO HAVE BEEN REPATRIATED Q: What are the effects of loss and reacquisition of Philippine citizenship? A: The loss of Philippine citizenship ipso jure terminates the privilege to practice law in the Philippines. However, pursuant to R.A. No. 9225 of the Citizenship Retention and Reacquisition Act of 2003, Filipino lawyer who becomes a citizen of another country is deemed never to have lost his Philippine citizenship IF HE REACQUIRES IT IN ACCORDANCE WITH R.A. NO. 9225. Nevertheless, his right to practice law DOES NOT AUTOMATICALLY ACCRUE. He must first secure authority from the Supreme Court upon compliance with the following conditions: 1. 2. 3. The updating and payment in full of annual membership dues in the IBP; Payment of professional tax; Completion of at least 36 credit hours of mandatory continuing legal educations; and Retaking of the lawyers oath
Q: X, a member of the Bar, was charged with and found guilty of estafa, for which he was sentenced to suffer imprisonment and to indemnify the offended party for the amount Involved. Not having taken an appeal from the judgment of conviction, upon finality thereof he was taken into custody to serve sentence. A month after he was incarcerated, he was granted pardon by the Chief Executive on condition that he would not commit another offense during the unserved portion of his prison sentence. Soon after Xs release from custody after being pardoned, the offended party in the criminal case filed a Complaint for Disbarment against X in the Supreme Court. X set up the defense that having been pardoned by the Chief Executive for which reason he was released from imprisonment, he may not be disbarred from the practice of law anymore. Is Xs contention tenable? A: Xs contention is not tenable. He was granted only a conditional pardon. Such conditional pardon merely relieved him of the penal consequences of his act but did not operate as a bar to his disbarment. Such pardon does not reach the offense itself. Hence, it does not constitute a bar to his disbarment. (In re Gutierrez, A.C. No. L-363, July 31, 1962; In re Avancena, A.C. No. 407, August 15, 1967). Furthermore, the acts of X leading to his conviction may be used to show that he does not possess the necessary requirement of good moral character for continued membership in the Bar (In re Valloces, A.C. No. 439, September 30, 1982). (1999 Bar Question)
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Q: Dacanay practiced law until he migrated to Canada to seek medical attention to his ailments. He subsequently applied for Canadian citizenship to avail of Canadas free medical aid program. His application was approved and he became a Canadian citizen. Dacanay later on reacquired his Philippine citizenship by virtue of R.A. 9225. Did Dacanay lose his membership in the Philippine bar when he gave up his Philippine citizenship? Can he automatically practice law upon reacquiring Filipino citizenship? A: The Constitution provides that the practice of all professions in the Philippines shall be limited to Filipino citizens save in cases prescribed by law. Since Filipino citizenship is a requirement for admission to the bar, loss thereof terminates membership in the Philippine bar and, consequently, the privilege to engage in the practice of law. In other words, the loss of Filipino citizenship ipso jure terminates the privilege to practice law in the Philippines. The practice of law is a privilege denied to foreigners. The exception is when Filipino citizenship is lost by reason of naturalization as a citizen of another country but subsequently reacquired pursuant to
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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The retaking of the lawyers oath which will not only remind him of his duties and responsibilities as a lawyer and as an officer of the Court, but also renew his pledge to maintain allegiance to the Republic of the Philippines. (Petition for Leave to Resume Practice of Law of Benjamin Dacanay, B.M. No. 1678, Dec. 17, 2007)
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LEGAL ETHICS TEAM: ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
A: 1. Participatory credit Attending approved education activities like seminars, conventions, symposia, and the like; speaking or lecturing, or assigned as panelist, reactor, or commentator, etc. in approved education activities; teaching in law school or lecturing in bar review classes. Non-participatory Preparing, as author or co-author, written materials (article, book or book review) which contribute to the legal education of the author member, which were not prepared in the ordinary course of his practice or employment; editing a law book, law journal or legal newsletter. C. COMPLIANCE Q: What constitutes non-compliance of MCLE? A: 1. Failure to complete education requirement within the compliance period; Failure to provide attestation of compliance or exemption; Failure to provide satisfactory evidence of compliance (including evidence of exempt status) within the prescribed period; Failure to satisfy the education requirement and furnish evidence of such compliance within 60 days from receipt of non-compliance notice; Failure to pay non-compliance fee within the prescribed period; or Any other act or omission analogous to any of the foregoing or intended to circumvent or evade compliance with the MCLE requirements.
A. PURPOSE Q: What is the purpose of Bar Matter 850 MCLE? A: MCLE is required of members of the IBP to ensure that throughout their career, they keep abreast with law and jurisprudence, maintain the ethics of the profession and enhance the standards of the practice of law. (2003, 2006 Bar Questions) Q: What is the Composition of the Committee on Mandatory Continuing Legal Education? A: 1. Composition: a. Retired Justice of the SC Chairman, nominated by the SC b. IBP National President Vice-Chair c. 3 other members nominated by the Philippine Judicial Academy, UP Law Center and Association of Law Professors, respectively. Members are of proven probity and integrity Compensation as may be determined by the SC. The initial terms of each of the 3 members shall be 5, 4, and 3 years respectively. B. REQUIREMENTS Q: What are the requirements of completion of MCLE? A: Requirements of completion of MCLE: Members of the IBP, unless exempted under Rule 7, shall complete every 3 years at least 36 hours of continuing legal education activities. The 36 hours shall be divided as follows: 1. 2. 3. 4. 5. 6. 7. 6 hours legal ethics 4 hours trial and pretrial skills 5 hours alternative dispute resolution 9 hours updates on substantive and procedural laws and jurisprudence 4 hours legal writing and oral advocacy 2 hours international law and international conventions Remaining 6 hours such other subjects as may be prescribed by the Committee on MCLE. 5. 6.
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Note: Members failing to comply will receive a NonCompliance Notice stating the specific deficiency and will be given 60 days from date of notification to file a response.
D. EXEMPTIONS Q: Who are the persons exempted from the MCLE? A: 1. The President, Vice-President and the Secretaries and Undersecretaries of Executive Departments;
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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E. SANCTIONS Q: What are the consequences of noncompliance? A: A member who fails to comply with the requirements after the 60-day period shall be listed as delinquent member by the IBP Board of Governors upon recommendation of the Committee on MCLE.
Note: The listing as a delinquent member is administrative in nature but shall be made with notice and hearing by the Committee on MCLE. B.M. No. 1922, which took effect on January 1, 2009, requires practicing members of the bar to indicate in all pleadings filed before the courts or quasi-judicial bodies, the number and date of issue of their MCLE Certificate of Compliance or Certificate of Exemption, as may be applicable, for the immediately preceding compliance period. Failure to disclose the required information would cause the dismissal of the case and the expunction of the pleadings from the records.
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LEGAL ETHICS TEAM: ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
A: No. Not every member of the Bar is a notary public because a lawyer requires a commission of appointment to be designated as a notary public.
Note: Notarization is not an empty, meaningless, routinary act. It is invested with substantive public interest, such that only those who are qualified or authorized may act as notaries public. For this reason notaries public must observe with utmost care the basic requirements in the performance of their duties. Otherwise, the confidence of the public in the integrity of this form of conveyance would be undermined. (Vda. De Rosales v. Ramos, A.C. No. 5645, July 2, 2002)
Q: What is the purpose of notarial law (A.M. No. 02-8-13-SC)? A: 1. 2. 3. To promote, serve, and protect public interest; To simplify, clarify, and modernize the rules governing notaries public; and To foster ethical conduct among notaries public. (Sec. 2, Rule I, A.M. No. 02-8-13-SC) A. QUALIFICATIONS OF NOTARY PUBLIC Q: Who is a notary public? A: A person appointed by the court whose duty is to attest to the genuineness of any deed or writing in order to render them available as evidence of facts stated therein and who is authorized by the statute to administer various oaths.
Note: Notary Public" and "Notary" refer to any person commissioned to perform official acts under the rules on Notarial Practice. (Sec. 9, Rule II, A.M. No. 02-8-13-SC)
Q: What are the 2 kinds of duties imposed by law to a notary public? A: 1. 2. Execution of formalities required by law; and Verification of the capacity and identity of the parties as well as the legality of the act executed.
Q: What are the duties of a notary public? A: 1. 2. To keep a notarial register; To make the proper entry or entries in his notarial register touching his notarial acts in the manner required by the law; To send the copy of the entries to the proper clerk of court within the first 10 days of the month next following; To affix to acknowledgments the date of expiration of his commission, as required by law; To forward his notarial register, when filled, to the proper clerk of court; To make report, within reasonable time to the proper judge concerning the performance of his duties, as may be required by such judge; To make the proper notation regarding residence certificates. (Sec. 240, Rev. Adm. Code) (1995 Bar Question)
Q. What must one possess to qualify as a notary public? 3. A: To be eligible for commissioning as notary public, the petitioner must be: 4. 1. 2. 3. A citizen of the Philippines; Over 21 years of age; A resident in the Philippines for at least 1 year and maintains a regular place of work or business in the city or province where the commission is to be issued; A member of the Philippine Bar in good standing with clearances from the Office of the Bar Confidant of the Supreme Court and the Integrated Bar of the Philippines; and Has not been convicted in the first instance of any crime involving moral turpitude. (second par., Sec. 1, Rule III, 2004 Rules on Notarial Practice, A.M. No. 02-8-13-SC) 5. 6.
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GR: Yes. Only those admitted to the practice of law are qualified to be notaries public. XPN: When there are no persons with the necessary qualifications or where there are qualified persons but they refuse appointment.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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LEGAL ETHICS TEAM: ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
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Note: A notary public who charges fee for notarial services shall issue a receipt registered with the Bureau of Internal revenue and keep a journal of notarial fees. He shall enter in the journal all fees charges for services rendered. A notary public shall post in a conspicuous place in his office a complete schedule of chargeable notarial fees. (Sec. 5, Rule V, A. M. 02-813-SC)
B. TERM OF OFFICE OF A NOTARY PUBLIC Q: What is the term of office of a notary public? A: A notary public may perform notarial acts for a period of 2 years commencing the 1st day of January of the year in which the commissioning is made, unless earlier revoked or the notary public has resigned under the Rules on Notarial Practice and the Rules of Court.(Section 11, Rule III,A.M. No. 02-8-13-SC) (1995 Bar Question) Q: Juan dela Cruz was commissioned as a notary public in 2001. His friend asked him to notarize a deed of absolute sale sometime in 2004, to which he agreed free of charge. A complaint for malpractice was filed against him. Is Juan dela Cruz guilty of malpractice? A: Yes. Absent any showing that his notarial commission has been renewed, his act constitutes malpractice because at the time he notarized the document, his notarial commission has already expired. It is not a defense that no payment has been received. The requirement for the issuance
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Note: Every petitioner for a notarial commission shall pay the application fee as prescribed in the Rules of Court. (Sec. 3, Rule III, A.M. No. 02-8-13-SC)
Q: Before the Executive Judge shall conduct a summary hearing on the petition, what requirements must be met?
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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Note:: The Executive Judge shall forthwith issue a commission and a Certificate of Authorization to Purchase a Notarial Seal in favor of the petitioner. (Sec. 4, Rule III, A.M. No. 02-8-13-SC) Note: Any person who has any cause or reason to object to the grant of the petition may file a verified written opposition thereto. The opposition must be received by the Executive Judge before the date of the summary hearing.(Sec. 6, Rule III, A.M. No. 02-813-SC) Note: The commissioning of a notary public shall be in a formal order signed by the Executive Judge. (Sec. 7, Rule III, A.M. No. 02-8-13-SC)
Q: What are the powers of a notary public? A: A notary public is empowered to perform the following notarial acts: JAO-CAS 1. Acknowledgements; 2. Oaths and affirmations; 3. Jurats; 4. Signature witnessings; 5. Copy certifications; and 6. Any other act authorized by these rules (Section 1(a), Rule IV, A.M. No. 02-8-13-SC) Acknowledgements Q: What is an acknowledgement? A: Acknowledgment refers to an act in which an individual on a single occasion: 1. Appears in person before the notary public and presents an integrally complete instrument or document;
Note: A notary public cannot perform a notarial act over a document that has missing pages, or that contains blanks that should be filled-in prior to the notarial act.
Note: Every person commissioned as notary public shall have only one official seal of office.
(Sec. 10, Rule III, A.M. No. 02-8-13-SC)
Q: What must a notary public do when his commission expires? A: A notary public may file a written application with the Executive Judge for the renewal of his commission within 45 days before the expiration thereof. A mark, image or impression of the seal of the notary public shall be attached in the application. (first par., Sec. 13, Rule III, A.M. No.
02-8-13-SC) Note: If a person is applying for a commission for the first time, what he files is a petition and not an application.
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Q: what is the effect of failure of the notary public to file an application for the renewal of his commission? A: Failure to file said application will result in the deletion of the name of the notary public in the register of notaries public. (second par., Sec. 13, Rule III, A.M. No. 02-8-13-SC)
Note: The notary public thus removed from the Register of Notaries Public may only be reinstated therein after he is issued a new commission. (third par., Sec. 13, Rule III, A.M. No. 02-8-13-SC)
Is attested to be personally known to the notary public or identified by the notary public through competent evidence of identity as defined by the Rules on Notarial Practice; and Represents to the notary public that the signature on the instrument or document was voluntarily affixed by him for the purposes stated in the instrument or document, declares that he has executed the instrument or document as his free and voluntary act and deed, and, if he acts in a particular representative capacity, that he has the authority to sign in that capacity. (Sec. 1, Rule II, A.M. 02-8-13-SC)
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LEGAL ETHICS TEAM: ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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Jurats Q: What is a jurat? A: It refers to an act in which an individual on a single occasion: 1. Appears in person before the notary public and presents an instrument or document; 2. Is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by the Rules on Notarial Practice; 3. Signs the instrument or document in the presence of the notary; and 4. Takes an oath or affirmation before the notary public as to such instrument or document. (Sec. 6, Rule II, A.M. 02-8-13SC)
Note: A jurat is not a part of a pleading but merely evidences the fact that the affidavit was properly made. The claim or be.lief of Atty. Dela Rea that the presence of petitioner Gamido was not necessary for the jurat because it is not an acknowledgment is patently baseless. If this had been his belief since he was first commissioned as a notary public, then he has been making a mockery of the legal solemnity of an oath in a jurat. Notaries public and others authorized by law to administer oaths or to take acknowledgments should not take for granted the solemn duties appertaining to their offices. Such duties are dictated by public policy and are impressed with public interest. (Gamido v. Bilibid Prisons Officials, G.R. No. 114829, Mar. 1, 1995)
same person who executed it and acknowledged that the same is his free act and deed. Two-fold purpose: to authorize the deed to be given in evidence without further proof of its execution, and, to entitle it to be recorded. Where used: 1. To authenticate an agreement between two or more persons; or 2. Where the document contains a disposition of property. E.g. The acknowledgement in a deed of lease of land.
Where used: 1. Affidavits; 2. certifications; 3. Whenever the person executing makes a statement of facts or attests to the truth of an event, under oath. E.g. An affidavit subscribed before a notary public or public official authorized for the purpose.
Note: If a document is certified by way of jurat, instead of acknowledgement, the document is a private one. Hence, to be admissible as evidence, the same must be offered and proven in accordance with the Rules on Evidence. Signature Witnessing
Q: What is signature witnessing? A: It refers to a notarial act in which an individual on a single occasion: 1. Appears in person before the notary public and presents an instrument or document; Is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by the Rules on Notarial Practice; and Signs the instrument or document in the presence of the notary public. (Sec. 14, Rule II, A. M. No. 02-8-13-SC)
Q: Distinguish acknowledgement from jurat. A: ACKNOWLEDGMENT Act of one who has executed a deed, in going to some competent officer or court and declaring it to be his act or deed. The notary public or officer taking the acknowledgement shall certify that the person acknowledging the instrument or document is known to him and he is the
JURAT 2. That part of an affidavit in which the notary public or officer certifies that the instrument was sworn to before him. It is not part of a pleading but merely evidences the fact that the affidavit was properly made.
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Q: Is a notary public authorized to certify the affixing of a signature by thumb or other mark on an instrument or document presented for notarization? A: Yes. It is also within the powers of a notary public, provided:
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LEGAL ETHICS TEAM: ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
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Q: How should a notary public notarize a paper instrument or document? A: In notarizing a paper instrument or document, a notary public shall: 1. Sign by hand on the notarial certificate only the name indicated and as appearing on the notary's commission; 2. Not sign using a facsimile stamp or printing device; and 3. Affix his official signature only at the time the notarial act is performed.(Sec. 1, Rule VII, A.M. 02-8-13-SC) Q: What are the effects of notarization?
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Q: Is a notary public authorized to sign on behalf of a person who is physically unable to sign or make a mark on an instrument or document? A: Yes. It likewise falls within the powers of a notary public, provided: 1. The notary public is directed by the person unable to sign or make a mark to sign on his behalf; The signature of the notary public is affixed in the presence of 2 disinterested and unaffected witnesses to the instrument or document; Both witnesses sign their own names; The notary public writes below his signature: Signature affixed by notary in the presence of (names and addresses of person and 2 witnesses), and The notary public notarizes his signature by acknowledgment or jurat. (Sec. 1(c), Rule IV, A.M. 02-8-13-SC) (1995 Bar Question) Copy Certifications Q: What is copy certification? A: It refers to a notarial act in which a notary public: 1. Is presented with an instrument or document that is neither a vital record, a public record, nor publicly recordable; 2. Copies or supervises the copying of the instrument or document; 3. Compares the instrument or document with the copy; and 4. Determines that the copy is accurate and complete. (Sec. 4, Rule II, A.M. 02-8-13-SC)
A: 1. The notary, in effect, proclaims to the world that: a. b. c. d. e. All the parties therein personally appeared before him; They are personally known to him; They are the same persons who executed the instrument; He inquired into the voluntariness of the execution of the instrument; They acknowledge personally before him that they voluntarily and freely executed the same.
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Converts a private document into a public one and renders it admissible in court without further proof of its authenticity. Documents enjoy a presumption of regularity. It constitutes prima facie evidence of the facts which give rise to their execution and of the date of said execution, but not of the truthfulness of the statement.
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Note: The reason for the presumption is that the law assumes that the act which the officer witnessed and certified to or the date written by him are not shown to be false since notaries are public officers. Note: A notarial document is by law entitled to full faith and credit upon its face and, for this reason, notaries public must observe with utmost care the basic requirements in the performance of their duties, lest, the confidence of the public in the integrity of the document will be undermined.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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c. d.
notary public through competent evidence of identity as defined by the Rules on Notarial Practice. (Sec. 2(b)(2), Rule IV, A.M. No. 02-8-13-SC) The document is blank or incomplete; (Sec.6(a) Rule IV, A.M. 02-8-13-SC) An instrument or document is without appropriate notarial certification. (Sec. 6, Rule IV, A.M. 028-13-SC)
Q: What must the notarial certificate contain? A: 1. 2. 3. The name of the notary public as exactly indicated in the commission; The serial number of the commission of the notary public; The words "Notary Public" and the province or city where the notary public is commissioned, the expiration date of the commission, the office address of the notary public; and The roll of attorney's number, the professional tax receipt number and the place and date of issuance thereof, and the IBP membership number. (Sec. 2, Rule VIII, A.M. 02-8-13-SC)
Q: Engineer Cynthia de la Cruz Catalya filed an application for building permit in connection with the renovation of a building situated on a lot owned by her brother Rolando de la Cruz. One of the documents required in the processing of the application was an affidavit to be executed by the lot owner. Since Rolando de la Cruz was a resident abroad, an affidavit was prepared wherein it was made to appear that he was a resident of Leyte; that he was the owner of the lot whereon the building subject of the application for the issuance of a building permit was situated. Atty. Francisco Villamor notarized the purported affidavit. According to him, a Chinese mestizo appeared in his law office one time, requesting that his affidavit be notarized. Said person declared that he was Rolando de la Cruz. Atty. Villamor then asked for the production of his residence certificate, but he said, he did not bother to bring the same along with him anymore as, he has already indicated his serial number, in the jurat portion together with the date of issue and place of issue. Did Atty. Francisco Villamor commit a violation of notarial law? A: Yes. It is the duty of the notarial officer to demand that the document presented to him for notarization should be signed in his presence. By his admission, the affidavit was already signed by the purported affiant at the time it was presented to him for notarization. Atty. Villamor thus failed to heed his duty as a notary public to demand that the document for notarization be signed in his presence. (Traya Jr. v. Villamor, A.C. No. 4595, Feb. 6, 2004) Q: During their lifetime, the Spouses Villanueva acquired several parcels of land. They were survived by their 5 children: Simeona, Susana, Maria, Alfonso, and Florencia. Alfonso executed an Affidavit of Adjudication stating that as the only surviving son and sole heir of the spouses, he was adjudicating to
4.
Note: A notary public shall not: a. execute a certificate containing information known or believed by the notary to be false. b. affix an official signature or seal on a notarial certificate that is incomplete.
Q: What are the limitations to the performance of a notarial act of a notary public? A: A person shall not perform a notarial act if: 1. The person involved as signatory to the instrument or document is: a. Not in the notary's presence personally at the time of the notarization; and (Sec. 2(b)(1), Rule IV, A.M. No. 02-8-13-SC) Not personally known to the notary public or otherwise identified by the
b.
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LEGAL ETHICS TEAM: ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
3.
Is a spouse, common-law partner, ancestor, descendant, or relative by affinity or consanguinity of the principal within the fourth civil degree. (Sec. 3, Rule IV, A.M. No. 02-8-13-SC) (1995 Bar Question)
Note: The function of a notary public is, among others, to guard against any illegal or immoral arrangements. That function would be defeated if the notary public is one of the signatories to the instrument. For then, he would be interested in sustaining the validity thereof as it directly involves himself and the validity of his own act. It would place him in an inconsistent position, and the very purpose of the acknowledgment, which is to minimize fraud, would be thwarted. (Villarin v. Sabate, A.C. No. 3224, Feb. 9, 2000)
Q: When may a notary public refuse to notarize even if the appropriate fee is tendered? A: 1. The notary knows or has good reason to believe that the notarial act or transaction is unlawful or immoral; The signatory shows a demeanor which engenders in the mind of the notary public reasonable doubt as to the former's knowledge of the consequences of the transaction requiring a notarial act; In the notary's judgment, the signatory is not acting of his or her own free will; (Sec. 4, Rule V, A.M. No. 02-8-13-SC) or If the document or instrument to be notarized is considered as an improper document by the Rules on Notarial Practice.
2.
3.
4.
Note: Improper instrument/document is a blank or incomplete instrument or an instrument or document without appropriate notarial certification. (Sec. 6, Rule V, A.M. No. 02-8-13-SC)
Q: When is a notary public disqualified from performing a notarial act? A: When the notary public: 1. Is a party to the instrument or document that is to be notarized; 2. Will receive, as a direct or indirect result, any commission, fee, advantage, right, title, interest, cash, property, or other consideration, except as provided by the Rules on Notarial Practice and by law; or
A: It refers to a permanently bound book with numbered pages containing a chronological record of notarial acts performed by a notary public.(Sec. 5, Rule II, A.M. No. 02-8-13-SC) Q: What is the form of notarial register? A: A notary public shall keep, maintain, protect and provide for lawful inspection as provided in these Rules, a chronological official notarial
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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reasons and circumstances for not completing a notarial act (Sec. 2(b), Rule VI, A.M. No. 02-8-13-SC) c. the circumstances of any request to inspect or copy an entry in the notarial register, including the requester's name, address, signature, thumbmark or other recognized identifier, and evidence of identity. (Sec.2(c),Rule VI, A.M. No. 02-813-SC)
Note: The reasons for refusal to allow inspection or copying of a journal entry shall also be recorded. (Ibid.)
When the instrument or document is a contract, keep an original copy thereof as part of his records and enter in said records a brief description of the substance thereof and shall give to each entry a consecutive number, beginning with number one in each calendar year. (Sec.2(d),Rule VI, A.M. No. 02-8-13-SC) Note: He shall also retain a duplicate original copy for the Clerk of Court.
(Ibid.)
In case of a protest of any draft, bill of exchange or promissory note, make a full and true record of all proceedings in relation thereto and shall note therein whether the demand for the sum of money was made, by whom, when, and where; whether he presented such draft, bill or note; whether notices were given, to whom and in what manner; where the same was made, when and to whom and where directed; and of every other fact touching the same. (Sec. 2(f), Rule VI, A.M. No. 02-8-13-SC) At the end of each week, the notary public shall certify in his notarial register the number of instruments or documents executed, sworn to, acknowledged, or protested before him; or if none, this certificate shall show this fact. (Sec. 2(g), Rule VI, A.M. No. 02-8-13-SC)
f.
Note: A certified copy of each month's entries and a duplicate original copy of any instrument acknowledged before the notary public shall, within the first ten (10) days of the month following, be forwarded to the Clerk of Court and shall be under the responsibility of such officer. If there is no entry to certify for the month, the notary shall forward a statement to this effect in lieu of certified copies
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LEGAL ETHICS TEAM: ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
SC) Q: May a notary public refuse the request of inspection for register of deeds? A: Yes. if the notary public has a reasonable ground to believe that a person has a criminal intent or wrongful motive in requesting information from the notarial register, the notary shall deny access to any entry or entries therein. (Sec. 4(c), Rule VI, A. M. No. 02-8-13-SC) Q: State the rule in case of loss, destruction or damage of notarial register. A: 1. In case the notarial register is stolen, lost, destroyed, damaged, or otherwise rendered unusable or illegible as a record of notarial acts, the notary public shall, within ten (10) days after informing the appropriate law enforcement agency in the case of theft or vandalism, notify the Executive Judge by any means providing a proper receipt or acknowledgment, including registered mail and also provide a copy or number of any pertinent police report. Upon revocation or expiration of a notarial commission, or death of the notary public, the notarial register and notarial records shall immediately be delivered to the office of the Executive Judge. (Sec. 5, Rule VI, A. M. No. 02-8-13-SC)
Q: Who shall sign or affix a thumbmark in the notarial register? A: At the time of notarization, the notary's notarial register shall be signed or a thumb or other mark affixed by each: a. principal; b. credible witness swearing or affirming to the identity of a principal; and c. witness to a signature by thumb or other mark, or to a signing by the notary public on behalf of a person physically unable to sign. Sec. 3,Rule VI, A.M. No. 02-8-13-SC) Q: Can any person inspect an entry in the notarial register? A: Yes, provided: 1. The inspection is made in the notarys presence; 2. During regular business hours 3. The person's identity is personally known to the notary public or proven through competent evidence of identity as defined in these Rules; 4. The person affixes a signature and thumb or other mark or other recognized identifier, in the notarial .register in a separate, dated entry; 5. The person specifies the month, year, type of instrument or document, and name of the principal in the notarial act or acts sought; and 6. The person is shown only the entry or entries specified by him. (Sec.4(a), Rule VI, A.M. No. 02-8-13-SC) Q: May a law enforcement officers examine the notarial register? A: Yes, the notarial register may be examined by a law enforcement officer in the course of an official investigation or by virtue of a court order. (Sec. 4(b), Rule VI, A. M. No. 02-8-13-SC)
Note: The notary public shall supply a certified true copy of the notarial record, or any part thereof, to
2.
E. JURISDICTION OF NOTARY PUBLIC AND PLACE OF NOTARIZATION Q: What is the jurisdiction of a notary public? A: A notary public may perform notarial acts in any place within the territorial jurisdiction of the commissioning court. Q: What is the phrase regular place of work or business of a notary public mean? A: The regular place of work or business refers to a stationary office in the city or province wherein the notary public renders legal and notarial services. (Sec. 11, Rule II, 2004 Rules on Notarial Practice)
Note: Under the Notarial Law, the jurisdiction of a notary public is co-extensive with the province for which he was commissioned; and for the notary
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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Q: What is competent evidence of identity? A: It refers to the identification of an individual based on: 1. At least one current identification document issued by an official agency bearing the photograph and signature of the individual such as but not limited to: a. b. c. Passport, Drivers license, Professional Regulation Commission ID, d. National Bureau of Investigation clearance, e. Police clearance, f. Postal ID, g. Voters ID, h. Barangay Certification, i. Government Service Insurance System e-card, j. Social Security System card, k. Philhealth card, l. Senior Citized card, m. Overseas Workers Welfare Administration (OWWA) ID, n. OFW ID, o. sea mans book, p. alien certificate of registration, q. government office ID, r. certification from the National Council for the Welfare of Disabled Persons (NCWDP), s. Department of Social Welfare Development (DSWD) certification; or 2. The oath or affirmation of one credible witness not privy to the instrument, document or transaction who is personally known to the notary public and who personally knows the individual, or of two credible witnesses neither of whom is privy to the instrument, document or transaction who each personally knows the individual and shows to the notary public documentary identification. (Amendment to Sec. 12 (a), Rule II of the 2004 Rules on Notarial Practice, Feb. 19, 2008).
Q: Can a notary public perform a notarial act outside his jurisdiction and his regular place of work or business? A: GR: A notary public shall not perform a notarial act outside his jurisdiction and his regular place of work or business. XPN: A notarial act may be performed at the request of the parties in the following sites, other than his regular place of work or business, located within his territorial jurisdiction: 1. Public offices, convention halls, and other appropriate public places for the purpose of administering oaths of office; (Sec. 2, Rule IV, A. M. No. 02-813-SC) At the request of the parties, public function areas in hotels and other appropriate places for the signing of the contracts, deeds, and other documents requiring notarization; (Ibid.) Residence of any party of a contract, deed, or other document requiring notarization; (Ibid.) Hospitals and other medical institutions where a party to a contract is confined for treatment; (Ibid.) Any place where for legal reason a party to a contract, deed, or other document requiring notarization may be confined, (Ibid.) and; Such other places as may be dictated because of emergency.(1996 Bar Question)
2.
3.
4.
5.
6.
Note: It is improper for a notary public to notarize documents in sidewalk since it is now required that a notary public should maintain a regular place of work or business within the city or province where he is commissioned. The SC evidently wants to eradicate the practice of fly by night notaries public who notarized documents in improvised offices.
Note: These are in addition to the presentation of the signatories Community Tax Certificate (CTC) as required by Notarial Law (Act 2711). Notaries public are required by the Notarial Law to certify that the party to the instrument has
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LEGAL ETHICS TEAM: ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Q: Atty. Regino Tamabago notarized a last will and testament under which, the decedent supposedly bequeathed his entire estate to his wife, save for a parcel of land which he devised to Vicente Lee, Jr. and Elena Lee, half siblings of Manuel Lee, the complainant. The will was purportedly executed and acknowledged before respondent on June 30, 1965. However, the residence certificate of the testator noted in the acknowledgment of the will was dated January 5, 1962. There is also absence of notation of the residence certificates of the purported witnesses. Did Atty. Regino Tamabago violate any of the duties of a notary public? A: Atty. Tamabago, as notary public, evidently failed in the performance of the elementary duties of his office. There is absence of a notation of the residence certificates of the notarial witnesses in the will in the acknowledgment. Further, the notation of the testators old residence certificate in the same acknowledgment was a clear breach of the law. The Notarial Law then in force required the exhibition of the residence certificate upon notarization of a document or instrument. By having allowed decedent to exhibit an expired residence certificate, Atty. Tamabago failed to comply with the requirements of the old Notarial Law. As much could be said of his failure to demand the exhibition of the residence certificates of notarial witnesses. Defects in the observance of the solemnities prescribed by law render the entire will invalid. (Manuel Lee v. Atty. Regino Tamabago, A.C. No. 5281, Feb. 12, 2008) G. REVOCATION OF COMMISSION AND DISCIPLINARY SANCTIONS Q: Who can revoke a notarial commission? A: The notarial commission may be revoked by 1. The Executive Judge of the RTC who issued the commission on any ground on which an application for commission may be denied (Sec. 1, Rule XI, A.M. No. 02-8-13SC,) or; By the Supreme Court itself in the exercise of its general supervisory powers over lawyer.
Q: Is a community tax certificate still a competent evidence of identity? A: No. A notary public can no longer accept a cedula or a community tax certificate (CTC), the successor document to the residence certificate originally required by the Notarial Law as proof of identity. Such does not even contain a photograph of the person to whom it is issued. Further, CTC may be easily obtained by anyone, without any supporting papers, thereby debasing its value as an identity document.
Note: In the list of grounds for disqualification of persons running for any local elective position under Section 40 of the LGC, nowhere therein does it specify that a defective notarization is a ground for the disqualification of a candidate. Thus, presentation of CTC before the notary public, in compliance with the requirement of presentation of competent evidence of identity, though improper, does not in itself warrant the disqualification of a candidate to run for any elective position. (Amora, Jr. v. Comelec, G.R. No. 192280, January 25, 2011)
Q: Is the presentation of Community Tax Certificate no longer necessary in view of the amendment? A: No. Its presentation is still mandatory pursuant to Local Government Code of the Philippines in order to show payment of taxes. Said law provides: When an individual subject to the community tax acknowledges any document before a notary public, takes the oath of office upon election or appointment to any position in the government service; receives any license, certificate, or permit from any public authority; pays any tax or fee; receives any money from any public fund; transacts other official business; or receives any salary or wage from any person or corporation, it shall be the duty of any person, officer, or corporation with whom such transaction is made or business done or from whom any salary or wage is received to require such individual to exhibit the community tax certificate. (Sec. 163, LGC)
2.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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2.
Obtains, conceals, defaces, or destroys the seal, notarial register, or official records of a notary public; and Solicits, coerces, or in any way influences a notary public to commit official misconduct. (Sec. 1, Rule XII, Rule on Notarial Practice)
3.
3.
4. 5. 6.
7.
8.
Fails to identify a principal on the basis of personal knowledge or competent evidence; 9. Executes a false or incomplete certificate under Section 5, Rule IV; 10. Knowingly performs or fails to perform any other act prohibited or mandated by these Rules; and 11. Commits any other dereliction or act which in the judgment of the Executive Judge constitutes good cause for revocation of commission or imposition of administrative sanction.(Sec. 1, Rule XI, Rule on Notarial Practice) Q: What are punishable acts under the 2004 Rules on Notarial Practice? A: The Executive Judge shall cause prosecution of any person who knowingly: 1. the
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LEGAL ETHICS TEAM: ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
JUDICIAL ETHICS
I. PRELIMINARY
A. CONCEPT Q: What is judicial ethics? A: It is the branch of moral science which treats of the right and proper conduct to be observed by all judges in trying and deciding controversies brought before them for adjudication which conduct must be demonstrative of impartiality, integrity, competence, independence and freedom from improprieties. This freedom from improprieties must be observed in both the public and private life of a judge being the visible representation of the law. Q: Who is a judge? A: Any person exercising judicial power however designated. (New Code of Judicial Conduct) A judge is a public officer who, by virtue of his office, is clothed with judicial authority; A public officer lawfully appointed to decide litigated questions in accordance with law. (People v. Manantan, G.R. No. L-14129, Aug. 30, 1962)
Note: This refers to persons only. There may be a judge without a court.
B. QUALIFICATIONS OF JUSTICES AND JUDGES. Q: What are the qualifications of justices of the Supreme Court or Court of Appeals? A: One must be: 1. A natural-born citizen of the Philippines; 2. At least 40 years of age; 3. A person who has been, for 15 years or more, a judge of a lower court or engaged in the practice of law; and 4. A person of proven competence, integrity, probity and independence. (Sec. 7(2), Art. VIII, 1987 Constitution) Q: What are the qualifications to be a RTC judge? A: One must be: 1. A natural-born citizen of the Philippines; 2. At least 35 years of age; and 3. For at least 10 years engaged in the practice of law in the Philippines or held a public office in the Philippines requiring admission to the practice of law as an indispensable requisite. (1997 Bar Question) Q: What are the qualifications to be an MTC judge? A: One must be: 1. A natural-born citizen of the Philippines; 2. At least 30 years of age; and 3. For at least 5 years, engaged in the practice of law in the Philippines or held a public office in the Philippines requiring admission to the practice of law as an indispensable requisite. Q: What is the proper judicial deportment?
Q: Who is a de jure judge? A: One who exercises the office of a judge as a matter of right, fully vested with all the powers and functions conceded to him under the law. (Luna v. Rodriguez, G.R. No. L-13744, Nov. 29, 1918) Q: Who is a de facto judge? A: An officer who is not fully vested with all the powers and duties conceded to judges but, one who exercises the office of judge under some color of right. He has the reputation of the officer he assumes to be, yet he has some defect in his right to exercise judicial functions at the particular time. (Luna v. Rodriguez, G.R. No. L13744, Nov. 29, 1918)
Note: There cannot be a de facto judge when there is a de jure judge in the actual performance of the
A: 1. Attitude toward counsel He must be courteous especially to the young and inexperienced, should not interrupt in their arguments except to clarify his minds as to their positions, must not be tempted to an unnecessary display of learning or premature judgment, may criticize and
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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3.
II. THE NEW CODE OF JUDICIAL CONDUCT. FOR THE PHILIPPINE JUDICIARY. (A.M. NO. 03-05-01).
Q: What is the proper judicial conduct? A: Judges and justices must conduct themselves as to be beyond reproach and suspicion and be free from appearance of impropriety in their personal behavior not only in the discharge of official duties but also in their everyday lives. Q: What are the two sources of judicial ethics? A: 1. 2. New Code of Judicial Conduct for the Philippine Judiciary (Bangalore Draft); Code of Judicial Conduct
Note: The New Code of Judicial Conduct (NCJC) for the Philippine Judiciary which took effect on June 1, 2004 supersedes the Canons of Judicial Ethics and the Code of Judicial Conduct. Provided, however, that in case of deficiency or absence of specific provisions in this New Code, the Canons of Judicial Ethics and Code of Judicial Conduct shall be applicable in a suppletory character. (2007 Bar Question) This was adopted from the universal declaration of standards for ethical conduct embodied in the Bangalore Draft as revised at the Round Table Conference of Chief Justices at the Hague. Note: The New code contains 6 Canons and 44 Rules.
Q: What are the six (6) canons under the New Code of Judicial Conduct for the Philippine Judiciary? A: 1. 2. 3. 4. 5. 6. Independence Integrity Impartiality Propriety Equality Competence and Diligence.
Note: The purpose of the New Code of Judicial Conduct for the Philippine Judiciary is to update and correlate the code of judicial conduct and canons of judicial ethics adopted for the Philippines, and also to stress the Philippines solidarity with the universal clamor for a universal code of judicial ethics.
CANON 1, NCJC-INDEPENDENCE
JUDICIAL INDEPENDENCE IS A PRE-REQUISITE - INDEPENDENCE TO THE CANON RULE OF 1 LAW AND A FUNDAMENTAL GUARANTEE OF A FAIR TRIAL. A JUDGE SHALL, THEREFORE, UPHOLD AND EXEMPLIFY JUDICIAL INDEPENDENCE IN BOTH ITS INDIVIDUAL AND INSTITUTIONAL ASPECTS.
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LEGAL ETHICS TEAM: ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
A: Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall, therefore, uphold and exemplify judicial independence in both its individual and institutional aspects. (Canon 1, NCJC)
Note: Individual Judicial Independence focuses on each particular case and seeks to insure his or her ability to decide cases with autonomy within the constraints of the law. It is a pre-requisite to the rule of law and a fundamental guarantee of fair trial While Institutional Judicial Independence focuses on the independence of the judiciary as a branch of government and protects judges as a class. (In the Matter of the Allegations Contained in the Columns of Mr. Amado P. Macasaet Published in Malaya dated September 18, 19, 20 and 21, 2007) Note: The treatment of independence as a single Canon is the primary difference between the new Canon 1 and the Canon 1 of the 1989 Code.
Judges must reject pressure by maintaining independence from, but not limited to the following: 1. Independence from public officials the public laid their confidence on the fact that the official is mentally and morally fit to pass upon the merits of their varied intentions. Independence from government as a whole avoid inappropriate connections, as well as any situation that would give rise to the impression of the existence of such inappropriate connections. Independence from family, social, or other relationships Do not sit in litigation where a near relative is a part of or counsel; be independent from judicial colleagues (Sec. 2) and avoid such actions as may reasonably tend to wake the suspicion that his social or business relations constitute an element in determining his judicial course. Independence from public opinion only guide is the mandate of law.
2.
3.
Q. What is the difference between the New Code of Judicial Conduct for the Philippine Judiciary and Code of Judicial Conduct? A. They differ in three ways: New Code of Judicial Conduct for the Code of Judicial Philippine Judiciary Conduct Focuses on the Concerned primarily institutional and with the institutional personal independence of the independence of judiciary. judicial officers Contains eight norms Contained three of conduct that guidelines explaining judges shall follow what judges should do * Canon 1 of the 1989 Code created a weaker mandate. The treatment of independence as a single canon Section 1, Canon 1, NCJC: Judges shall exercise the judicial function independently on the basis of their assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influence, inducement, pressure, threat or interference, direct or indirect, from any quarter or for any reason.
4.
Q: In a civil case submitted for a decision, Judge Corpuz-Macandog acted on it based on a telephone call from a government official telling her to decide the case in favor of the defendant, otherwise she will be removed. The judge explained that she did so under pressure considering that the country was under a revolutionary government at that time. Did the judge commit an act of misconduct? A: Yes. A judge must decide a case based on its merits. For this reason, a judge is expected to be fearless in the pursuit to render justice, to be unafraid to displease any person, interest or power, and to be equipped with a moral fiber strong enough to resist temptation lurking in her office.Here, it is improper for a judge to have decided a case based only on a directive from a government official and not on the judges own ascertainment of facts and applicable law. (Ramirez v. Corpuz-Macandog, A.M. No. R-351RTJ, Sept. 26, 1986)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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Sec. 3, Canon 1, NCJC: Judges shall refrain from influencing in any manner the outcome of litigation or dispute pending before another court or administrative agency. (Principle of Sub-judice)
Note: A judge is prohibited from making public statements in the media regarding a pending case so as not to arouse public opinion for or against a party. (2007 Bar Question) This section affirms that a judges restraint from exerting influence over other judicial or quasijudicial bodies is required for more than just propriety.
Q: Is the influence exerted by a judge required to be successful in order to constitute misconduct? A: No. Any attempt, whether successful or not, to influence the decision-making process of another judge, especially one who is of lower rank and over whom a judge exercises supervisory authority constitutes serious misconduct. Q: Judge Villamor, in his capacity as the executive judge, designated Judge Pitao as the acting MCTC judge of a municipality. Thereafter, Judge Villamor sent a letter through the wife of a certain accused in a criminal case, which had long been pending before the MCTC. The note is to the effect that Judge Pitao should acquit the accused but when Judge Pitao decided otherwise, Judge Villamor directed the former to forward the record to the latters sala. Judge Villamor then acquitted the accused. Did Judge Villamor commit an act of misconduct? A: Yes. A judge should avoid impropriety and the appearance of impropriety in all activities. A judge shall not influence in any manner the outcome of litigation or dispute pending before another court. This is so because such interference does not only subvert the independence of judiciary but also undermines the peoples faith in its integrity and impartiality. Here,Judge Villamors act of sending a note to Judge Pitao for the latter to decide a case in favor of the accused constitutes undue interference (Sabitsana, Jr. v. Villamor, RTJ No. 90- 474, Oct. 4, 1991)
Sec. 2, Canon 1, NCJC: In performing judicial duties, Judges shall be independent from judicial colleagues in respect of decisions which the judge is obliged to make independently. Q: May a judge consult with staff and court officials? A: No. The highest degree of independence is required of judges. He must be independent in
decision-making. However, he can ask colleagues
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LEGAL ETHICS TEAM: ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Q: Chester asked Laarni to handle his claim to a sizeable parcel of land in Quezon City against a well-known property developer on a contingent fee basis. Laarni asked for 15% of the land that may be recovered or 15% of whatever monetary settlement that may be received from the property developer as her only fee contingent upon securing a favorable final judgment or compromise settlement. Chester signed the contingent fee agreement. Assume the property developer settled the case after the case was decided by the Regional Trial Court in favor of Chester for P1 Billion. Chester refused to pay Laarni P150 Million on the ground that it is excessive. Is the refusal justified? Explain. A: The refusal of Chester to pay is unjustified. A contingent fee is impliedly sanctioned by Rule 20.01(f) of the CPR. A much higher compensation is allowed as contingent fees is consideration of the risk that the lawyer will get nothing if the suit fails. In several cases, the Court has indicated that a contingent fee of 30% of the money or property that may be recovered is reasonable. Moreover, although the developer settled the case, it was after the case was decided by the RTC in favor of Chester, which shows that Atty. Laarni has already rendered service to the client. Q: Assume there was no settlement and the case eventually reached the Supreme Court which promulgated a decision in favor of Chester. This time Chester refused to convey to Laarni 15% of the litigated land as stipulated on the ground that the agreement violates Article 1491 of the Civil Code, which prohibits lawyers from acquiring by purchase properties and rights, which are the object of litigation in which they take part by reason of their profession. Is the refusal justified? Explain. A: Chesters refusal is not justified. A contingent fee arrangement is not covered by Art.1491 of the Civil Code, because the transfer or assignment of the property in litigation takes effect only upon finality of a favorable judgment. (Director of Lands v. Ababa, No. L-26096, February 27, 1979);
2.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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CONTINGENT CONTRACT
Payable in cash Lawyers do not undertake to pay all expenses of litigation Valid
CHAMPERTOUS CONTRACT
Payable in kind only Lawyers undertake to pay all expenses of litigation Void
Q: The contract of attorney's fees entered into by Atty. Quintos and his client, Susan, stipulates that if a judgment is rendered in favor of the latter, Atty. Quintos gets 60% of the property recovered as contingent fee. In turn, he will
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LEGAL ETHICS TEAM: ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
has full knowledge and approval thereof. (Sec. 20 (e), Rule 138) d. Attorneys Lien
Note: A lawyer is not entitled to unilaterally appropriate his clients money for himself by the mere fact alone that the client owes him attorneys fees. (Rayos v. Hernandez, GR No. 169079, February 12, 2007)
Q: Define an attorneys retaining lien. A: A retaining lien is the right of an attorney to retain the funds, documents and papers of his client which have lawfully come into his possession and may retain the same until his lawful fees and disbursements have been paid, and may apply such funds to the satisfaction thereof. (1994, 1995, 1996, 1998, 2000 Bar Questions) Q: What are the requisites in order for an attorney to be able to exercise his retaining lien? A: ALU 1. Attorney-client relationship; 2. Lawful possession by the lawyer of the clients funds, documents and papers in his professional capacity; and 3. Unsatisfied claim for attorneys fees or disbursements. Q: Harold secured the services of Atty. Jarencio to collect from various debtors. Accordingly, Atty. Jarencio filed collection cases against the debtors of Harold and in fact obtained favorable judgments in some. Atty. Jarencio demanded from Harold his attorneys fees pursuant to their agreement but Harold refused. When one of the defendants paid his indebtedness of P20,000 through Atty. Jarencio, the latter refused to turn over the money to Harold; instead, Atty. Jarencio applied the amount to his attorneys fees having in mind the provisions of the Civil Code on legal compensation or set-off to justify his act. Was Atty. Jarencio correct in refusing to turn over to his client the amount he collected? Discuss fully. A: No. A lawyer has a retaining lien which entitled him to retain possession of a clients document, money or other property which come into the hands of the attorney professionally, until the general balance due to him for professional services is paid. Under Section 37, Rule 138 of the Rules of Court, the attorney cannot be compelled to surrender the document in his possession
Q: How does Lawyer- Referral System work? A: Under this system, if another counsel is referred to the client, and the latter agrees to take him as collaborating counsel, and there is no express agreement on the payment of attorneys fees, the said counsel will receive attorneys fees in proportion to the work performed and responsibility assumed. The lawyers and the client may agree upon the proportion but in case of disagreement, the court may fix the proportional division of fees. (Lapena, 2009) Rule 20.03 - A lawyer shall not, without the full knowledge and consent of the client, accept any fee, reward, costs, commission, interest, rebate or forwarding allowance or other compensation whatsoever related to his professional employment from anyone other than the client. (1997, 2003 Bar Questions)
Rationale: Intended To secure the fidelity of the lawyer to his clients cause and to prevent a situation in which the receipt of him of a rebate or commission from another with the clients business may interfere with the full discharge of his duty to his client. (Report of the IBP Committee)
XPN: A lawyer may receive compensation from a person other than his client when the latter
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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Note: A charging lien, to be enforceable as a security for the payment of attorneys fees, requires as a condition sine qua non a judgment for money and execution in pursuance of such judgment secured in the main action by the attorney in favor of his client.
Q: The client with whom you have a retainer agreement had not been paying you contrary to your stipulations on legal fees, even as you continue to appear at hearings in his case. A judgment was finally rendered in your clients favor awarding him the real property in litigation as well as a substantial amount in damages. As the counsel who had not been paid, what steps can you take to protect your interests? A: I will cause a charging lien for my fees to be recorded and attached to the judgment insofar as it is for the payment of money in damages. Then, I will have the right to collect my fees out of such judgments and executions issued in pursuance thereof. (1994 Bar Question) Q: What is the difference between a retaining lien and a charging lien? A: RETAINING LIEN CHARGING LIEN As to Nature Passive lien. It cannot Active lien. It can be be actively enforced. enforced by It is a general lien. execution. It is a special lien. As to Basis Lawful possession of Securing of a papers, documents, favorable money property belonging judgment for client. to the client.
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LEGAL ETHICS TEAM: ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Q: Where and how may attorney's fees be claimed by the lawyer? A: 1. In the same case It may be asserted either in the very action in which the services of a lawyer had been rendered or in a separate action. In a separate civil action A petition for attorney's fees may be filed before the judgment in favor of the client is satisfied or the proceeds thereof delivered to the client. The determination as to the propriety of the fees or as to the amount thereof will have to be held in abeyance until the main case from which the lawyer's claim for attorney's fees may arise has become final. Otherwise, the determination of the courts will be premature.
Note: Contracts for employment may either be oral or express.
2.
Q: What are the instances when an independent civil action to recover attorneys fees is necessary? A: 1. Main action is dismissed or nothing is awarded; Court has decided that it has no jurisdiction over the action or has already lost it;
2.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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4.
5.
6.
Q: What are the effects of the nullity of contract on the right to attorneys fees? A: If the nullification is due to: 1. The illegality of its object - the lawyer is precluded from recovering; and
Q: To what compensation is a lawyer entitled to? A: 1. Counsel de parte He is entitled to the reasonable attorneys fees agreed upon, or in the absence thereof, on quantum meruit basis. Counsel de oficio The counsel may not demand from the accused attorneys fees even if he wins the case. He may, however, collect from the government funds, if available based on the amount fixed by the court. Amicus Curae not entitled to attorneys fees.
2.
Q: What is confidence? A: It refers to the information protected by the attorney-client privilege. (Report of IBP Committee) Q: What is secret? A: It refers to other information gained in the professional relationship that the client has requested to be held inviolate or the disclosure of which would be embarrassing or detrimental to the client. (Ibid)
3.
Q: Why is there a need to state the reason for the award of attorneys fees in the text of the courts decision? A: The award of attorneys fees being an exception rather than the general rule, it is necessary for the court to make findings of facts and law that would bring the case within the exception and justify the grant of such award. (Agustin vs. CA, G.R. No. 84751, June 6, 1990)
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LEGAL ETHICS TEAM: ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
b. c.
2. 3. 4. 5.
Q: May a lawyer reveal the confidences or secrets of his client? A: GR: A lawyer shall not reveal the confidences and secrets of his client.
Note: An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorneys secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity. (Sec. 24(b), Rule 130, RRC)
Rule 21.02, Canon 21, CPR - A lawyer shall not, to the disadvantage of his client, use information acquired in the course of employment, nor shall he use the same to his own advantage or that of a third person, unless the client with full knowledge of the circumstances consents thereto. Q: Bun Siong Yao is a majority stockholder of Solar Farms & Livelihood Corporation and Solar Textile Finishing Corporation. Atty. Leonardo Aurelio is also a stockholder and the retained counsel of both the corporation and Bun Siong Yao. The latter purchased several parcels of land using his personal funds but were registered in the name of the corporations upon the advice of Atty. Aurelio. After a disagreement between Atty. Aurelio and Bun Siong Yaos wife, the former demanded the return of his investment in the corporations but when Yao refused to pay, he filed 8 charges for estafa and falsification of commercial documents against Yao and his wife and the other officers of the corporation. Yao alleged that the series of suits is a form of harassment and constitutes an abuse of the confidential information which Atty. Aurelio obtained by virtue of his employment as counsel. Atty. Aurelio however said that he only handled isolated labor cases for the said corporations. Did Atty. Aurelio abuse the confidential information he obtained by virtue of his employment as counsel? A: Yes. The long-established rule is that an attorney is not permitted to disclose communications made to him in his professional
XPN: a. When authorized by his client after acquainting him of the consequences of the disclosure;
Note: There is a waiver of the privilege by the client. The only instance where the waiver of the client alone is insufficient is when the person to be examined with reference to any privileged communication is the attorneys secretary, stenographer or clerk, in respect to which the consent, too, of the attorney is necessary.
b. c.
When required by law; When necessary to collect his fees or to defend himself, his employees or associates by judicial action.
Note: Payment of retainer fee is not essential before an attorney can be required to safeguard a prospective clients secret acquired by the attorney during the course of the consultation with the prospective client, even if the attorney did not accept the employment.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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& Meyer Law Offices. During the meeting, Niko divulged highly private information to Atty. Henry, believing that the lawyer would keep the confidentiality of the information. Subsequently, Niko was shocked when he learned that Atty. Henry had shared the confidential information with his law partner, Atty. Meyer, and their common friend, private practitioner Atty. Canonigo. When confronted, Atty. Henry replied that Niko never signed any confidentiality agreement, and that he shared the information with the two lawyers to secure affirmance of his legal opinion on Nikos problem. Did Atty. Henry violate any rule of ethics? Explain fully. A: Atty. Henry violated Canon No. 21 of the CPR by sharing information obtained from his client Niko with Atty. Canonigo. Canon No. 20 provides that a lawyer shall preserve the confidences or secrets of his client even after the attorney-client relationship is terminated. The fact that Atty. Canonigo is a friend from whom he intended to secure legal opinion on Nikos problem, does not justify such disclosure. He cannot obtain a collaborating counsel without the consent of the client (Rule 18.01, CPR). On the other hand, Atty. Henry did not violate Canon 21 in sharing information with his partner Atty. Meyer. Rule 21.04 of the CPR specifically provides that a lawyer may disclose the affairs of a client of the firm to partners or associates thereof unless prohibited by the client. Atty. Henry was not prohibited from disclosing the affairs of Niko with the members of his law firm. The employment of a member of a firm is generally considered as employment of the firm itself. (Hilado v. David, G.R. No. L-961, Sept. 21, 1949) (2008 Bar Question) Rule 21.05, Canon 21, CPR A lawyer shall adopt such measures as may be required to prevent those whose services are utilized by him, from disclosing or using confidences or secrets of the client. Rule 21.06, Canon 21, CPR A lawyer shall avoid indiscreet conversation about a clients affairs even with members of his family. Rule 21.07, Canon 21, CPR A lawyer shall not reveal that he has been consulted about a particular case except to avoid possible conflict of interest.
Rule 21.04, Canon 21, CPR - A lawyer may disclose the affairs of a client of the firm to partners or associates thereof unless prohibited by the client.
Note: Professional employment of a law firm is equivalent to retainer of members thereof. In a law firm, partners or associates usually consult one another involving their cases and some work as a team. Consequently, it cannot be avoided that some information about the case received from the client may be disclosed to the partners or associates.
Q: In need of legal services, Niko secured an appointment to meet with Atty. Henry of Henry
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LEGAL ETHICS TEAM: ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Q: Does the written consent of the client require approval of the court to be effective? A: The withdrawal in writing of a lawyer as counsel for a party, with the clients written conformity, does not require the approval of the court to be effective, especially if the withdrawal is accompanied by a formal appearance of a new counsel. Q: What are the instances when a lawyer may withdraw his services without the consent of his client? A: FIC MOVIE 1. When the client deliberately Fails to pay the fees for the services or fails to comply with the retainer agreement; 2. When the client pursues an Illegal or immoral course of conduct in connection with the matter he is handling; 3. When the lawyer finds out that he might be appearing for a Conflicting interest; 4. When the Mental or physical condition of the lawyer renders it difficult for him to carry out the employment effectively; 5. Other similar cases; 6. When the client insists that the lawyer pursue conduct in Violation of these canons and rules; 7. When his Inability to work with co-counsel will not promote the best interest of the client; and 8. When the lawyer is Elected or appointed to a public office. (Rule 22.01, CPR) Q: What is the procedure when withdrawal is without clients consent? A: 1. File a petition for withdrawal in court.
2. 3.
4.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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Note: He should present his petition well in advance of the trial of the action to enable the client to secure the services of another lawyer. If the application is filed under circumstances that do not afford a substitute counsel sufficient time to prepare for trial or that work prejudice to the clients cause, the court may deny his application and require him to conduct the trial. A lawyer should not presume that the court will grant his petition for withdrawal. Until his withdrawal shall have been proved, the lawyer remains counsel of record who is expected by his client as well as by the court to do what the interests of his client require.
Q: What are the limitations on clients right to discharge the services of his lawyer? A: When made with justifiable cause, it shall negate the attorneys right to full payment of compensation. 2. The attorney may, in the discretion of the court, intervene in the case to protect his right to fees. 3. A client may not be permitted to abuse his right to discharge his counsel as an excuse to secure repeated extensions of time to file a pleading or to indefinitely avoid a trial. Q: Is notice of discharge necessary? A: It is not necessary between client and attorney. But insofar as the court and the adverse party is concerned, the severance of the relation of attorney and client is not effective until: 1. A notice of discharge by the client or a manifestation clearly indicating that purpose is filed with the court; and 2. A copy thereof served upon the adverse party. Q: What should a lawyer do if no notice of discharge was filed by the client with the court? A: If the client has not filed a notice of discharge, the duty of the attorney, upon being informed by his client that his services have been dispensed with, is to file: 1. 2. A notice of withdrawal with the clients conformity; or An application to retire from the case, he being released from professional responsibility only after his dismissal or withdrawal is made of record. 1.
a. Discharge of the Attorney by the Client (1994,1997,1998 Bar Question) Q: Can a client discharge the services of his lawyer without a cause? A: Yes. A client has the right to discharge his attorney at any time with or without a cause or even against his consent. 1. With just cause lawyer is not necessarily deprived of his right to be paid for his services. He may only be deprived of such right if the cause for his dismissal constitutes in itself a sufficient legal obstacle to recovery. Without just cause a. No express written agreement as to fees- reasonable value of his services up to the date of his dismissal (quantum meruit). b. There is written agreement and the fee stipulated is absolute and reasonable full payment of compensation. c. The fee stipulated is contingent. d. If dismissed before the conclusion of the action- reasonable value of his services (quantum meruit) e. If contingency occurs or client prevents its occurrence full amount.
2.
Note: Lawyer should question his discharge otherwise he will only be allowed to recover on quantum meruit basis. Note: The existence or non-existence of a just cause is important only in determining the right of an attorney to compensation for services rendered.
Q: What are the conditions for substitution of counsel? A: 1. 2. 3. Written application Written consent of the client Written consent of the attorney to be substituted, or in the absence thereof,
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LEGAL ETHICS TEAM: ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
b.
c.
d.
e.
f. g.
Note: In all the a-e cases above, the lawyer must file
a written motion with an express consent of his client and the court shall determine whether he ought to be allowed to retire. Note: He may also retire at any time from an action or special proceeding without the consent of his client, should the court, on notice to the client and attorney, and on hearing, determine that he ought to be allowed to retire. (Sec. 26, Rule 138, RRC)
Q: What is Hot Potato Doctrine? A: It refers to the prohibition from dropping smaller clients (like hot potatoes) in order to pick up more lucrative clients. Q: On the eve of the initial hearing for the reception of evidence for the defense, the defendant and his counsel had a conference where the client directed the lawyer to present as principal defense witnesses 2 persons whose testimonies were personally known to the lawyer to have been perjured. The lawyer informed his client that he refused to go along with the unwarranted course of action proposed
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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Q: When will the liability of a lawyer for breach of fiduciary obligation arise? A: A lawyer may be held liable if he fails in his obligation to make an accounting of funds or property that may come to his possession for a lawyer holds his clients funds or property in trust for his client. Q: What are the effects of lawyers failure to return clients money or property after demand? A: 1. 2. 3. 4. There will be a presumption that the lawyer misappropriated the same; It will give rise to civil liability of the lawyer; Criminal liability Administrative liability.
2.
Q: What is the remedy of the client? A: Recover property from lawyer, together with its fruits, subject to clients returning to his lawyer the purchase price thereof and the legal interests thereon. Q: When is a lawyer not liable for libelous words in the pleadings? A: A lawyer is exempted from liability for slander, libel or for words otherwise defamatory, published in the course of judicial proceedings, provided the statements are connected with, relevant, pertinent and material to the cause in hand or subject of inquiry.
Note: Test of relevancy The matter to which the privilege does not extend must be palpably wanting in relation to the 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 a separate suit.
2. 3. 4.
Note: For nos. 2-4 there should be a showing that: 1. The lawyer had exercised due diligence 2. His client would have succeeded in recovering from adverse party.
Q: When will civil liability arise? A: 1. 2. 3. 4. Client is prejudiced by lawyer's negligence or misconduct; Breach of fiduciary obligation; Civil liability to third persons; Libelous words in pleadings;
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LEGAL ETHICS TEAM: ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
4.
5.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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III. DISCIPLINE OF LAWYERS 5. A. NATURE AND CHARACTERISTICS OF DISCIPLINARY ACTIONS AGAINST LAWYERS Q: What is the rationale of disciplining errant lawyers? A: Practice of law is not a natural or constitutional right, but it is in the nature of a privilege franchise. Hence, the same may be suspended or removed from the lawyer for reasons provided in the rules, law and jurisprudence. Q: What is the purpose of disciplining lawyers? 6. A: To ascertain that a lawyer still possesses those qualifications which are conditions precedent for the continuous practice of law and; to deter others from similar misconduct, to protect the court and the public from the misbehavior of its officers. Q: What is the nature of the power to discipline? A: The power to discipline a lawyer is JUDICIAL in nature and can be exercised only by the courts. It cannot be defeated by the legislative or executive departments.
Note: The power to disbar and to reinstate is an inherently judicial function (Andres v. Cabrera, SBC585, February 29, 1984)
Q: What are the other sanctions and remedies? A: RALARRO 1. 2. 3. 4. 5. Restitution; Assessment of costs; Limitation upon practice; Appointment of a receiver; Requirement that a lawyer take the bar examination or professional responsibility examination; Requirement that a lawyer attend continuing education courses; and Other requirements that the highest court or disciplinary board deems consistent with the purposes of the sanctions.
7.
Q: What are the forms of disciplinary measures? A: WARCS-DIP 1. Warning an act of putting one on his guard against an impending danger, evil, consequence or penalty; Admonition a gentle or friendly reproof, mild rebuke, warning, reminder, or 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 at fault by his superior officer or the body to which he belongs; Censure official reprimand; 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 how long or how short his suspension shall last by proving to court that he is once again fit to resume practice of law. Disbarment it is the act of the Supreme Court of withdrawing from an attorney the right to practice law. The name of the
2.
Q: What are the powers of the Supreme Court with regard to the discipline of errant lawyers? A: WARDSIP 1. Warn; 2. Admonish; 3. Reprimand; 4. Disbar; 5. Suspend a lawyer; [Sec. 27, Rule 138, Revised Rules of Court (RRC)] 6. Interim suspension; and 7. Probation. (IBP Guidelines) Q: What about the Court of Appeals and the Regional Trial Court? A: They are also empowered to: WARSP 1. Warn; 2. Admonish; 3. Reprimand; 4. Suspend an attorney from practice for any of the causes named in Sec 27, Rule 138
3.
4. 5.
6.
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LEGAL ETHICS TEAM: ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Q: What is the nature of the disciplinary actions against lawyers? A: Administrative cases against lawyers belong to a class of their own (sui generis). They are distinct from and may proceed independently of civil and criminal cases (In re Almacen, G.R. No. L-27654
February 18, 1970; Funa, 2009).
Q: What are the main objectives of disbarment and suspension? A: To: 1. Compel the attorney to deal fairly and honestly with his clients; 2. Remove from the profession a person whose misconduct has proved him unfit to be entrusted with the duties and responsibilities belonging to the office of an attorney; 3. Punish the lawyer; 4. Set an example or a warning for the other members of the bar; 5. Safeguard the administration of justice from incompetent and dishonest lawyers; 6. Protect the public.
Note: The purpose and the nature of disbarment proceedings make the number of defenses available in civil and criminal actions inapplicable in disciplinary proceedings.
Q: Is there a prescriptive period for filing administrative complaints against lawyers? A: None. Rule VII, Section 1 of the Rules of Procedure of the CBD-IBP, which provides for a prescriptive period for the filing of administrative
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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Note: Kinds of grounds for the suspension and disbarment of a lawyer consist of those acts of misconduct committed: 1. Prior to admission to the bar- acts of
Malpractice misconduct prior to admission include those that indicate that at the time the lawyer took his oath, he did not possess the required qualifications for membership in the bar. Consequently, the cancellation of his license is justified.
2. After admission to the bar - those which cause loss of moral character on his part or involve violation of his duties to the court, his client, to the legal profession and to the public.
Q: What is malpractice? A: Malpractice refers to any malfeasance or dereliction of duty committed by a lawyer (Tan Tek Beng v. David, Adm. Case No. 1261, December 29 1983; Lapena,Jr., 2009)
Note: Legal malpractice consists of failure of an attorney to use such skill, prudence and diligence as a lawyer 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 v. David, A.C. No. 1261, Dec. 29, 1983)
Note: Disbarment and suspension of a lawyer, being the most severe forms of disciplinary sanction, should be imposed with great caution and only in those cases where the misconduct of the lawyer as an officer of the court and a member of the bar is established by clear, convincing and satisfactory proof. (Vitug v. Rongcal, A.C. No. 6313, Sept. 7, 2006) Disbarment is merited when the action is not the lawyers first ethical infraction of the same nature. (Que v. Revilla, A.C. No. 7054, Dec. 4, 2009)
Grossly Immoral Conduct Q: What is Gross Misconduct? A: Gross Misconduct is any inexcusable, shameful or flagrant unlawful conduct on the part of the person concerned in the administration of justice which is prejudicial to the rights of the parties or to the right determination of a cause, a conduct that is generally motivated by a predetermined, obstinate or intentional purpose. (Yumol Jr. v. Ferrer, Sr., A.C. No. 6585, April 21, 2005)
Q: What is Grossly Immoral Conduct?
Q: Are the grounds for disbarment exclusive? A: No. A lawyer may be removed from office or suspended from the practice of law on grounds other than those specifically provided in the law. The statutory enumeration is not to be taken as a limitation on the general power of SC to suspend or disbar a lawyer. (In Re: Puno, A.C. No. 389, Feb. 28, 1967)
Note: The 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 v. Tuazon, A.C. No. 396, July 31, 1964)
A: Grossly immoral conduct is one that is so corrupt and false as to constitute a criminal act or so unprincipled or disgraceful as to be reprehensible to a high degree. (Vitug v. Rongcal, A.C. No. 6313, Sept. 7, 2006);
Note: Mere intimacy between a lawyer and a woman with no impediment to marry each other, and who voluntarily cohabited and had two children, is neither so corrupt to constitute a criminal act nor so unprincipled as to warrant disbarment or disciplinary action against the man as a member of the bar. (Arciga v. Maniwang, A.C. No. 1608, Aug. 14, 1981)
Deceit
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LEGAL ETHICS TEAM: ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
3.
Non-professional misconduct GR: A lawyer may not be suspended or disbarred for misconduct in his nonprofessional or private capacity. XPN: Where such is so gross as to show him to be morally unfit for office or unworthy of privilege, the court may be justified in suspending or removing him from the Roll of Attorneys. (2005 Bar Question)
Note: The issuance of worthless checks constitutes gross misconduct as its effect transcends the private interests of the parties directly involved in the transaction and touches the interests of the community at large.
Q: what are the specific grounds that may constitute violation of the lawyers oath? A: The specific grounds that would constitute violation of the lawyers oath are: 1. 2. 3. 4. Commission of falsehood Instituting baseless or unfounded complaints Engaging in dilatory actions for an ulterior motive Malpractice or reprehensible conduct in dealing with the court of his client. (Lapena, Jr., 2009)
2.
Gross immorality An act of personal immorality on the part of a lawyer in his private relation with opposite sex may put his character in doubt. But to justify suspension or disbarment, the act must not only be immoral, it must be grossly immoral. (Abaigar v. Paz, A.M. No. 997, Sept. 10, 1979)
Note: Cohabitation per se is not grossly immoral. It depends on circumstances and is not necessary that there be prior conviction for an offense before lawyer may be disciplined for gross immorality. If the evidence is not sufficient to hold a 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.
Corrupt or Willful Appearance as Attorney for a Party to a Case Without Authority to do so (Refer to Sanctions for Practice of Law Without Authority) Q: What are the other statutory grounds for suspension and disbarment of members of the bar? A: Other statutory grounds include: 1. Acquisition of interest in the subject matter of the litigation, either through purchase or assignment; (Art. 1491, New Civil Code) 2. Breach of professional duty, inexcusable negligence, or ignorance, or for the revelation of the clients secrets; (Art. 208, Revised Penal Code)
3.
Conviction of a 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. Promoting to violate or violating penal laws Misconduct in discharge of official duties A lawyer who holds a government office may not be disciplined as a member of the
4.
5.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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6. 7. 8. 9.
Failing to account or misappropriating clients property; Collecting unreasonable fees; Acting without authority; Willfully appearing without being retained.
Q: What are the acts constituting breach of duties to the bar? A: 1. 2. 3. 4. 5. 6. Defaming fellow lawyers; Communicating with adverse party; Soliciting business; Advertising; Cooperating in illegal practice of law; Non-payment of IBP dues.
6. 7.
Note: Sanction: Disciplinary action Note: By applying for having himself commissioned as notary public, a lawyer assumes duties in a dual capacity, the nonperformance of which may be a ground for discipline as a member of the bar.
C. DISBARMENT PROCEEDINGS Q: What are the characteristics of disbarment proceedings? A: 1. Sui Generis a. Neither purely civil nor purely criminal, they do not involve a trial of an action or a suit, but are rather investigations by the Court into the conduct of one of its officers. b. Not a civil action because there is neither plaintiff nor respondent, and involves no private interest. The complainant is not a party and has no interest in the outcome except as all citizens have in the proper administration of justice. There is no redress for private grievance. c. 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 the public may repose confidence in them.
Q: What are the acts constituting breach of duties to court? A: 1. 2. 3. 4. 5. 6. 7. 8. Obstructing justice and abuse of legal process; Misleading the court; Forum shopping; Preferring false charges; Introducing false evidence; Willfully disobeying court orders and disrespecting the court; Using vicious or disrespectful language; Continuing practice after suspension.
Q: What are the acts constituting breach of duties to client? A: 1. 2. 3. Negligence in the performance of his duties; Employment of unlawful means; Deceit or misrepresentation to the prejudice of or as a means to defraud his client; Representing adverse interests and revealing clients secrets; Purchasing clients property in litigation;
4. 5.
Note: A disbarment proceeding may proceed regardless of interest or lack of interest of the complainant (Rayos-Ombac v. Rayos, A.C. No. 2884, January 28, 1998). However, if the complainant refuses to testify and the charges cannot then be substantiated, the court will have no alternative but to dismiss the case. (2000 Bar Question)
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LEGAL ETHICS TEAM: ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Q: What are the purposes of disbarment as a means of disciplining erring lawyers? A: The purposes of disbarment are: 1. To protect the public 2. To protect and preserve profession; and
the
legal
Note: The reason is because it is the court which admits an attorney to the bar and the court requires for such admission the possession of a good moral character. Disbarment is necessary so that respectability of the bar will be maintained. (1991 Bar Question)
3.
To compel the lawyer to comply with his duties and obligations under the CPR.
Q: Who has the burden of proof? A: The burden of proof is upon the complainant and the SC will exercise its disciplinary power only if the complainant establishes his case by the required quantum of proof which is clear, convincing and satisfactory evidence. (Aquino v. Mangaoang, A.C. No. 4934, Mar. 17, 2004)
Note: In the absence of contrary proof, the presumption is that the lawyer is innocent of the charges, and has performed his duty as an officer of the court in accordance with his oath, and the disbarment case should be dismissed. However, the court can still impose conditions despite dismissal of disciplinary action against an erring lawyer, if the facts so warrant. In the event the lawyer fails to comply with such condition, the court may suspend or disbar him for disobedience of its order. 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 however does not prohibit pro se practice. (Geeslin v. Navarro, A.C. No. 2033, May 1990).
2.
3.
Note: The confidentiality of the proceedings is a privilege which may be waived by the lawyer in whom and for the protection of whose personal and professional reputation it is vested, as by presenting the testimony in a disbarment case or using it as impeaching evidence in a civil suit. (Villalon v. IAC, G.R. No. L-73751, Sept. 24, 1986)
a. Procedure for Disbarment BAR MATTER NO. 1960 (May 1, 2000) AMENDMENT OF SECTION 1, RULE 139-B OF THE REVISED RULES OF COURT
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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4.
5.
6.
7.
"Six (6) copies of the verified complaint shall be filed with the Secretary of the IBP or the Secretary of any of its chapters who shall forthwith transmit the same to the IBP Board of Governors for assignment to an investigator. (Sec. 1, third par., Rule 139-B, RRC) Procedural Steps for Disbarment in the IBP: 1. The Board of Governors shall appoint from among the IBP members an investigator or when special circumstances so warrant, a panel of 3 investigators to investigate the complaint; If the complaint is meritorious, the respondent shall be served with a copy
2.
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LEGAL ETHICS TEAM: ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Disbarment Proceedings Before the Supreme Court 1. In proceedings initiated motu proprio by the Supreme Court or in other proceeding when the interest of justice so requires, the Supreme Court may refer the case for investigation to the Solicitor General or to any officer of the Supreme Court or judge of a lower court, in which case the investigation shall proceed in the same manner provided in Sections 6 to 11 of Rule 139-B, RRC, save that the review of the report of investigation shall be conducted directly by the Supreme Court (Sec. 13, Rule 139-B, RRC)
Note: Reference of the Court to the IBP of complaints against lawyers is not mandatory (Zaldivar v. Sandiganbayan, G.R. Nos. 79590707; Zaldivar v. Gonzales, G.R. No. 80578, October 7,1988). Note: Reference of complaints to the IBP is not an exclusive procedure under Rule 139-B, RRC. The Court may conduct disciplinary proceedings without the intervention of the IBP by referring cases for investigation to the Solicitor General or to any officer of the Supreme Court or judge of a lower court. In such case, the report or recommendation of the investigating official shall be reviewed directly by the Supreme Court. (Bautista v. Gonzales, A.M. No. 1626, February 12,1990; Funa, 2009)
3.
4.
2.
Based upon the evidence adduced at the investigation, the Solicitor General or other Investigator designated by the Supreme Court a report containing his findings of fact and recommendations together with the record and all the evidence presented in the investigation for the final action of the Supreme Court. (Sec. 14, Rule 139-B, RRC)
Q: Atty. Narags spouse filed a petition for disbarment because her husband courted one of his students, maintained the said student as a mistress and had children with her. On the other hand, Atty. Narag claimed that his wife was a possessive, jealous woman who abused him and filed the complaint against him out of spite. Atty. Narag, however, failed to refute the testimony given against him. His actions were of public knowledge. Is Atty. Narags disbarment appropriate?
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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LEGAL ETHICS TEAM: ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Supreme Court shall refer the case to an investigator, who may either be: 1. 2. 3. Solicitor General, Any officer of the SC, or Any judge of a lower court
Notify Respondent
RESPONDENTS VERIFIED ANSWER (Must be filed within 15 days from service) INVESTIGATION (Terminate within 3 months)
REPORT TO SUPREME COURT (to be submitted not later than 30 days from investigations termination) REPORT MUST CONTAIN THE INVESTIGATORS: 1. 2. Findings of fact Recommendations SUPREME COURT FOR REVIEW or JUDGMENT
Note: An investigating judge cannot dismiss a 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. (Garciano v. Sebastian, A.M. MTJ-88-160, Mar. 30, 1994)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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IBP Motu Proprio (Committee on Bar Discipline through National Grievance Investigator)
1. 2. 3.
IF MERITORIOUS, RESPONDENTS VERIFIED ANSWER (Must be filed within 15 days from service)
DISMISSAL BY BOARD OF GOVERNORS (should be promulgated within a period not exceeding 30 days from the next meeting of the board following the submittal of the investigators report)
INVESTIGATION (terminate within 3 months) 1. 2. 3. Investigator may issue subpoenas and administer oaths, Provide respondent with opportunity to be heard, May proceed with investigation ex parte should respondent fail to appear.
BOARD OF GOVERNORS FOR REVIEW (issues a Resolution Should be promulgated within a period not exceeding 30 days from the next meeting of the board following the submittal of the Investigators Report.)
REPORT TO BOARD OF GOVERNORS (Submitted not later than 30 days from termination of investigation) containing: Findings of facts Recommendations
ISSUE DECISION IF: Exonerated Sanction is less than suspension / disbarment (admonition, reprimand, or fine)
The case shall be deemed terminated unless upon petition of the complainant or other interested party filed with the Supreme Court within fifteen (15) days from notice of the Board's resolution, the Supreme Court orders otherwise.
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LEGAL ETHICS TEAM: ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
5.
6. 7. 8. 9.
10.
Lack of Intention to slight or offend the Court (Rheem of the Philippines, Inc. v. Ferrer, G.R. No. L-22979, Jan. 27, 1967); Absence of prior disciplinary record; Absence of dishonest or selfish motive; Personal or emotional problems; Timely good faith effort to make restitution or to rectify consequences of misconduct; Full and free disclosure to disciplinary board or cooperative attitude toward the proceedings; Character or reputation; Physical or mental disability or impairment; Delay in disciplinary proceedings; Interim rehabilitation; Imposition of other penalties or sanctions; Remorse; and Remoteness of prior offenses. (IBP Guidelines 9.32)
Note: Disbarment should not be decreed where any punishment less severe such as reprimand, suspension or fine would accomplish the end desired. (Amaya v. Tecson, A.C. No. 5996, Feb. 7, 2005)
Q: What are the aggravating circumstances in disbarment? A: 1. Prior disciplinary offenses; 2. Dishonest or selfish motives; 3. A pattern of misconduct; 4. Multiple offenses; 5. Bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; 6. Submission of false evidence, false statements, or other deceptive practices during the disciplinary process; 7. Refusal to acknowledge wrongful nature of conduct; 8. Vulnerability of victim; 9. Substantial experience in the practice of law; and 10. Indifference to making restitution. (IBP Guidelines 9.22) Q: What are the instances that are neither aggravating nor mitigating? A: 1. 2. Forced or compelled restitution; Agreeing to the clients demand for certain improper behavior or result;
Q: What are the mitigating circumstances in disbarment? A: 1. Good faith in the acquisition of a property of the client subject of litigation (In Re: Ruste, A.M. No. 632, June 27, 1940); Inexperience of the lawyer (Munoz v. People, G.R. No. L-33672, Sept. 28, 1973); Age (Santos v. Tan, A.C. No. 2697, Apr. 19, 1991); Apology (Munoz v. People, G.R. No. L33672, Sept. 28, 1973);
2. 3. 4.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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Q: What are the guidelines to be observed in the matter of the lifting of an order suspending a lawyer from the practice of law? A: 1. Upon the expiration of the period of suspension, respondent shall file a Sworn Statement with the Court, through the Office of the Bar Confidant, stating therein that he or she has desisted from the practice of law and has not appeared in any court during the period of his or her suspension; Copies of the Sworn Statement shall be furnished to the Local Chapter of the IBP and to the Executive Judge of the courts where respondent has pending cases handled by him or her, and/or where he or she has appeared as counsel; and The Sworn Statement shall be considered as proof of respondents compliance with the order of suspension;
2.
3.
D. DISCIPLINE OF FILIPINO LAWYERS PRACTICE IN FOREIGN JURISDICTIONS Q: What is the effect in the Philippines of the disbarment or suspension of a Filipino lawyer in a foreign country? A: If the Filipino lawyer is disbarred or suspended from the practice of law by a competent court or disciplinary agency in a foreign jurisdiction where he has been admitted as an attorney, and a ground therefor includes any of the acts enumerated in Section 27, Rule 138 of the RRC, such disbarment or suspension is a ground for his disbarment or suspension in the Philippines.(Lapena, 2009)
Note: The judgment, resolution or order of the foreign court or disciplinary agency shall be prima facie evidence of the ground for disbarment or suspension. (SC Resolution date 21 February 1992 amending Sec. 27,Rule 138, RRC)
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LEGAL ETHICS TEAM: ADVISER: JUDGE PHILIP A. AGUINALDO & ATTY. MARIAN JOANNE K. CO- PUA SUBJECT HEAD: THEENA C. MARTINEZ; ASST. SUBJECT HEADS: JEANELLE C. LEE; DIVINE C. TEE MEMBERS: MARINETH EASTER AN D. AYOS, MARC ROBY G. DE CHAVEZ, JOANNA PENADA, GRETCHEN C. SY
Q: What is reinstatement? A: It is the restoration in disbarment proceedings to a disbarred lawyer the privilege to practice law.
Note: The power of the Supreme Court to reinstate is based on its constitutional prerogative to promulgate rules on the admission of applicants to the practice of law. (Sec. 5[5], Art. VIII, 1987 Constitution)
Q: What are the conditions in reinstatement? A: The applicant must, like a candidate for admission to the Bar, satisfy the Court that he is a person of good moral character a fit and proper person to practice law. A. READMISSION TO THE BAR OF LAWYERS WHO HAVE BEEN SUSPENDED Q: Raul Gonzales was found guilty of both contempt of court in facie curiae and gross misconduct as an officer of court and member of the bar. For this, he was suspended indefinitely. After more than 4 years from his suspension, Gonzales filed an ex-parte motion to lift his suspension from the practice of law, alleging that he gave free legal aid services by paying lawyers to do the same as he could not personally represent said clients; pursued civic work for the poor; brought honor to the country by delivering a paper in Switzerland; that he has a long record in the service of human rights and the rule of law; his suspension of 51 months has been the longest so far; states his profound regrets for the inconvenience which he has caused to the Court; sincerely reiterates his respect to the institution as he reiterates his oath to conduct himself as a lawyer. May his suspension be lifted? A: Yes. The Gonzales contrition, so noticeably absent in his earlier pleadings, has washed clean the offense of his disrespect. His remorse has soften his arrogance and made up for his misconduct. Gonzales suspension has given him ample time and opportunity to amend his erring ways, rehabilitate himself, and thus, prove himself worthy once again to enjoy the privileges of membership of the Bar. His motion was granted. (Zaldivar v. Gonzales, G.R. Nos. 79690707, April 7, 1993)
2.
3.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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