PROBLEM AREAS IN LEGAL ETHICS

Submitted to:
Atty. Annabelle B. Caazares-Mindalano
College of Law
Mindanao State University-Iligan Extension
Iligan City

In partial fulfilment of
the requirements for the course
Problem Areas In Legal Ethics
Bachelors of Law

Submitted by:

Ahmad U. Abduljalil
May 2017

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Introduction

The code of professional responsibility are a set of rules governing the ethical
conduct of attorneys in the practice of the law. It covers such topics as conflicts of
interest, honesty with clients, confidentiality, and conduct toward other attorneys and the
courts. First developed and pushed by the American Bar Association the code has been
adopted by most states.

It is becoming more and more apparent that our profession has seen a steady
decline by casting aside established traditions and canons of professional ethics that
evolved over centuries. When we speak of the decline in "ethical" standards, we should
not use the term 'ethics' to mean only compliance with the Ten Commandments or other
standards of common, basic morality because a lawyer can adhere to all these
requirements but still fail to meet the standards and requirement of a true legal
profession. When we speak about legal ethics, the late Chief Justice of the Philippine
Supreme Court, Manuel V. Moran, defined the term legal ethics as the embodiment of
all principles of morality and refinement that should govern the conduct of every member
of the bar. It is that branch of moral science of which treats of the duties which an
attorney owes to the court, to his client, to his colleagues in the profession and to the
public. (Malcolm, Legal and Judicial Ethics as cited in Agpalo 2009, p. 2)

Legal Ethics, as traditionally taught in law schools in the Philippines, is embodied

in the Code of Professional Responsibility. But what happens when these particular rules
of conduct become the primary source of a lawyers dilemma. Constantly, there are
situations that will bring to fore the lawyers moral judgment as to the bounds of what he
may or may not do. This may in turn, clash with the lawyers set of values and personal
beliefs so that even if the law may allow their some elbow room, he may not be
comfortable with using that space.

This paper aims to explain two (2) specific prevalent problems which may
confront lawyers and judges in the exercise of the profession. As such, it likewise would
like to enlighten what rules lawyers adhere to in order to be truthful and ethical in their
practice without sacrificing their profession. It should be borne in mind, however, that
every dilemma that a lawyer finds himself in should be considered in the light of the
factual milieu of each case. Thus the Code is purely a general guide that addresses
issues that center on the lawyer and his interaction with his client, the courts, and society
as a whole.

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 Disbarment and Suspension

The purpose of attorney discipline is to protect the public and the administration
of justice from attorneys who have not discharged their professional duties to clients, the
public, the legal system, and the legal profession. Actual punishment of a lawyer can take
several forms, depending on the particular circumstances, including the severity of the
offense. Punishment follows basic progression in severity ranging from a fine, a
suspension for designated time by the Court, or worst disbarment. The following are
specific grounds for suspension or disbarment of a lawyer:

a. Deceit;
b. Malpractice;
c. Grossly immoral conduct
d. Conviction of a crime involving moral turpitude;
e. Violation of oath of office;
f. Willful disobedience of any lawful order of a superior court
g. Corrupt or willful appearance as an attorney for a party to a case without
authority to do so. (Sec. 27, Rule 138, RRC)

Kinds of grounds for the suspension and disbarment of a lawyer consist of those
acts of misconduct committed either, from:

1. Prior to admission to the bar- acts of 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.

It is however widely accepted that 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

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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)

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 Supreme Court to suspend or
disbar a lawyer. (In Re: Puno, A.C. No. 389, Feb. 28, 1967)

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)

Unauthorized Practice of Law

The qualifications to be a lawyer is personal and the bar is an exclusive group of

professionals who possess the requisite classifications and for whom defined functions
are reserved. To delegate the functions would violate the rationale behind reserving
defined functions exclusively for those who are admitted to the bar.

The rationale of law in reserving defined functions to those who are admitted to
the bar is to protect the public, the court, the client and the bar from the incompetence or
dishonesty of those unlicensed to practice law and not subject to the disciplinary control
of the court.

Although the authority of a lawyer to represent a client cannot be delegated to an

unqualified person, it does not follow however that the retained lawyer is automatically
authorized to make such delegation to a qualified person because a client-lawyer
relationship is personal. (CPR Annotated, PhilJA)

In the case of Donna Marie S. Aguirre, vs. Edwin L. Rana, the Court ruled that a
lawyer was engaged in the practice of law when he appeared in the proceedings before
the MBE and filed various pleadings, without license to do so. Respondent called himself
counsel knowing fully well that he was not a member of the Bar. Having held himself out

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as counsel knowing that he had no authority to practice law, respondent has shown moral
unfitness to be a member of the Philippine Bar. The Supreme Court stated the following
ratio:

The practice of law is not limited to the conduct of cases or litigation in

court; it embraces the preparation of pleadings and other papers incident to
actions and special proceedings, the management of such actions and proceedings
on behalf of clients before judges and courts, and in addition, conveyancing. In
general, all advice to clients, and all action taken for them in matters connected
with the law, incorporation services, assessment and condemnation services
contemplating an appearance before a judicial body, the foreclosure of a
mortgage, enforcement of a creditor's claim in bankruptcy and insolvency
proceedings, and conducting proceedings in attachment, and in matters of estate
and guardianship have been held to constitute law practice, as do the preparation
and drafting of legal instruments, where the work done involves the determination
by the trained legal mind of the legal effect of facts and conditions. (5 Am. Jur. p.
262, 263). (Italics supplied) x x x

In Cayetano v. Monsod, the Court held that practice of law means any
activity, in or out of court, which requires the application of law, legal procedure,
knowledge, training and experience. To engage in the practice of law is to perform
acts which are usually performed by members of the legal profession. Generally,
to practice law is to render any kind of service which requires the use of legal
knowledge or skill.

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The right to practice law is not a natural or constitutional right but is a

privilege. It is limited to persons of good moral character with special
qualifications duly ascertained and certified. The exercise of this privilege
presupposes possession of integrity, legal knowledge, educational attainment, and
even public trust[4] since a lawyer is an officer of the court. A bar candidate does
not acquire the right to practice law simply by passing the bar examinations. The
practice of law is a privilege that can be withheld even from one who has passed
the bar examinations, if the person seeking admission had practiced law without a
license.

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 The regulation of the practice of law is unquestionably strict. In Beltran,
Jr. v. Abad, a candidate passed the bar examinations but had not taken his oath and
signed the Roll of Attorneys. He was held in contempt of court for practicing law
even before his admission to the Bar. Under Section 3 (e) of Rule 71 of the Rules
of Court, a person who engages in the unauthorized practice of law is liable for
indirect contempt of court

Truly speaking, before one is admitted to the Philippine Bar, he must possess the
requisite moral integrity for membership in the legal profession. Possession of moral
integrity is of greater importance than possession of legal learning. The practice of law is
a privilege bestowed only on the morally fit. A bar candidate who is morally unfit cannot
practice law even if he passes the bar examinations.

There are cases however when even a non-lawyer may appear before the Court
and practice law. Students for example may appear before the court. Thus, the Supreme
Court, ruling in the case of Ferdinand a. Cruz vs. Alberto Mina, et al stated, THAT:

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RULE 138-A
LAW STUDENT PRACTICE RULE

Section 1. Conditions for Student Practice. A law student who has

successfully completed his 3rd year of the regular four-year prescribed law
curriculum and is enrolled in a recognized law school's clinical legal education
program approved by the Supreme Court, may appear without compensation in
any civil, criminal or administrative case before any trial court, tribunal, board or
officer, to represent indigent clients accepted by the legal clinic of the law school.

Sec. 2. Appearance. The appearance of the law student authorized by this

rule, shall be under the direct supervision and control of a member of the
Integrated Bar of the Philippines duly accredited by the law school. Any and all
pleadings, motions, briefs, memoranda or other papers to be filed, must be signed
by the supervising attorney for and in behalf of the legal clinic.

However, in Resolution6 dated June 10, 1997 in Bar Matter No. 730, the
Court En Banc clarified:

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 The rule, however, is different if the law student appears before an inferior
court, where the issues and procedure are relatively simple. In inferior courts, a
law student may appear in his personal capacity without the supervision of a
lawyer. Section 34, Rule 138 provides:

Sec. 34. By whom litigation is conducted. - In the court of a justice of the

peace, a party may conduct his litigation in person, with the aid of an agent or
friend appointed by him for that purpose, or with the aid of an attorney. In any
other court, a party may conduct his litigation personally or by aid of an attorney,
and his appearance must be either personal or by a duly authorized member of the
bar.

Thus, a law student may appear before an inferior court as an agent or

friend of a party without the supervision of a member of the bar.7 (Emphasis
supplied)

The phrase "In the court of a justice of the peace" in Bar Matter No. 730 is
subsequently changed to "In the court of a municipality" as it now appears in
Section 34 of Rule 138, thus:8

SEC. 34. By whom litigation is conducted. In the Court of a

municipality a party may conduct his litigation in person, with the aid of an agent
or friend appointed by him for that purpose, or with the aid of an attorney. In any
other court, a party may conduct his litigation personally or by aid of an attorney
and his appearance must be either personal or by a duly authorized member of the
bar. (Emphasis supplied)

The Court in summary ruled that a law student may appear before an inferior
court as an agent or friend of a party without the supervision of a member of the bar.

Delinquency in the Payment of IBP Membership Fee

It was mentioned a while ago that 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 Supreme Court to suspend or disbar a lawyer. (In Re: Puno, A.C. No. 389, Feb. 28,
1967)

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 It has always been emphasized by the Supreme Court in various cases that the
practice of law is not a property right but a mere privilege, and as such must bow to the
inherent regulatory power of the Court to exact compliance with the lawyers public
responsibilities. It must be borne in mind that membership in the bar is a privilege
burdened with conditions, one of which is the payment of membership dues. Failure to
abide by any of them entails the loss of such privilege if the gravity thereof warrants such
drastic move. ( In re: Letter of Atty. Cecilio Y. Arevalo, Jr., Requesting Exemption From
Payment of IBP Dues).

In the case In re: Letter of Atty. Cecilio Y. Arevalo, Jr., Requesting Exemption
From Payment of IBP Dues), the Court stated that an Integrated Bar is a State-organized
Bar, to which every lawyer must belong, as distinguished from bar association organized
by individual lawyers themselves, membership in which is voluntary. Integration of the
Bar is essentially a process by which every member of the Bar is afforded an opportunity
to do his shares in carrying out the objectives of the Bar as well as obliged to bear his
portion of its responsibilities. Organized by or under the direction of the State, an
Integrated Bar is an official national body of which all lawyers are required to be
members. They are, therefore, subject to all the rules prescribed for the governance of the
Bar, including the requirement of payment of a reasonable annual fee for the effective
discharge of the purposes of the Bar, and adherence to a code of professional ethics or
professional responsibility, breach of which constitutes sufficient reason for investigation
by the Bar and, upon proper cause appearing, a recommendation for discipline or
disbarment of the offending member.

The integration of the Philippine Bar means the official unification of the entire
lawyer population. This requires membership and financial support of every attorney as
condition sine qua non to the practice of law and the retention of his name in the Roll of
Attorneys of the Supreme Court.

Bar integration does not compel the lawyer to associate with anyone. He is free to
attend or not to attend the meetings of his Integrated Bar Chapter or vote or refuse to vote
in its elections as he chooses. The only compulsion to which he is subjected is the
payment of his annual dues. The Supreme Court, in order to foster the States legitimate
interest in elevating the quality of professional legal services, may require that the cost of
improving the profession in this fashion be shared by the subjects and beneficiaries of the
regulatory program the lawyers.

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 Moreover, there is nothing in the Constitution that prohibits the Court, under its
constitutional power and duty to promulgate rules concerning the admission to the
practice of law and in the integration of the Philippine Bar - which power required
members of a privileged class, such as lawyers are, to pay a reasonable fee toward
defraying the expenses of regulation of the profession to which they belong. It is quite
apparent that the fee is, indeed, imposed as a regulatory measure, designed to raise funds
for carrying out the noble objectives and purposes of integration.

The rationale for prescribing dues has been explained in the Integration of the
Philippine Bar, thus:

For the court to prescribe dues to be paid by the members does not mean
that the Court is attempting to levy a tax.

A membership fee in the Bar association is an exaction for regulation,

while tax purpose of a tax is a revenue. If the judiciary has inherent power to
regulate the Bar, it follows that as an incident to regulation, it may impose a
membership fee for that purpose. It would not be possible to put on an integrated
Bar program without means to defray the expenses. The doctrine of implied
powers necessarily carries with it the power to impose such exaction.

The only limitation upon the States power to regulate the privilege of law
is that the regulation does not impose an unconstitutional burden. The public
interest promoted by the integration of the Bar far outweighs the slight
inconvenience to a member resulting from his required payment of the annual
dues.

As such, payment of dues is a necessary consequence of membership in the IBP,

of which no one is exempt. This means that the compulsory nature of payment of dues
subsists for as long as ones membership in the IBP remains regardless of the lack of
practice of, or the type of practice, the member is engaged in.

In the case of In the Matter of the IBP Membership Dues Delinquency of Atty.
Marcial A. Edilion, where the The IBP Board of Governors recommended to the Court
the removal of the name of the respondent Marcial A. Edillon from its Roll of Attorneys
for stubborn refusal to pay his membership dues assailing the provisions of the Rule of
Court 139-A and the provisions of par. 2, Section 24, Article III, of the IBP By-Laws

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pertaining to the organization of IBP, payment of membership fee and suspension for
failure to pay the same.

Edillon contends that the stated provisions constitute an invasion of his

constitutional rights in the sense that he is being compelled as a pre-condition to maintain
his status as a lawyer in good standing, to be a member of the IBP and to pay the
corresponding dues, and that as a consequence of this compelled financial support of the
said organization to which he is admitted personally antagonistic, he is being deprived of
the rights to liberty and properly guaranteed to him by the Constitution. Hence, the
respondent concludes the above provisions of the Court Rule and of the IBP By-Laws are
void and of no legal force and effect. The Supreme Court has the following words:

An "Integrated Bar" is a State-organized Bar, to which every lawyer must

belong, as distinguished from bar associations organized by individual lawyers
themselves, membership in which is voluntary. Integration of the Bar is
essentially a process by which every member of the Bar is afforded an opportunity
to do his share in carrying out the objectives of the Bar as well as obliged to bear
his portion of its responsibilities. Organized by or under the direction of the State,
an integrated Bar is an official national body of which all lawyers are required to
be members. They are, therefore, subject to all the rules prescribed for the
governance of the Bar, including the requirement of payment of a reasonable
annual fee for the effective discharge of the purposes of the Bar, and adherence to
a code of professional ethics or professional responsibility breach of which
constitutes sufficient reason for investigation by the Bar and, upon proper cause
appearing, a recommendation for discipline or disbarment of the offending
member.

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The State, in order to promote the general welfare, may interfere with and
regulate personal liberty, property and occupations. Persons and property may be
subjected to restraints and burdens in order to secure the general prosperity and
welfare of the State (U.S. vs. Gomez Jesus, 31 Phil 218), for, as the Latin maxim
goes, "Salus populi est supreme lex." The public welfare is the supreme law. To
this fundamental principle of government the rights of individuals are
subordinated. Liberty is a blessing without which life is a misery, but liberty
should not be made to prevail over authority because then society win fall into
anarchy (Calalang vs. Williams, 70 Phil. 726). It is an undoubted power of the

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 State to restrain some individuals from all freedom, and all individuals from some
freedom.

Thus, when the respondent Edillon entered upon the legal profession, his
practice of law and his exercise of the said profession, which affect the society at
large, were (and are) subject to the power of the body politic to require him to
conform to such regulations as might be established by the proper authorities for
the common good, even to the extent of interfering with some of his liberties. If
he did not wish to submit himself to such reasonable interference and regulation,
he should not have clothed the public with an interest in his concerns.

Such compulsion is justified as an exercise of the police power of the

State. The right to practice law before the courts of this country should be and is a
matter subject to regulation and inquiry. And if the power to impose the fee as a
regulatory measure is recognize then a penalty designed to enforce its payment is
not void as unreasonable as arbitrary. Furthermore, the Court has jurisdiction over
matters of admission, suspension, disbarment, and reinstatement of lawyers and
their regulation as part of its inherent judicial functions and responsibilities thus
the court may compel all members of the Integrated Bar to pay their annual dues.

It was therefore in the unanimous sense of the Court that the respondent Marcial
A. Edillon should be as he is hereby disbarred, and his name is hereby ordered stricken
from the Roll of Attorneys of the Court.

In another case entitled Soliman m. Santos, vs. Atty. Francisco R. Llamas, a

lawyer by the name Atty. Francisco R. Llamas was also suspended from the practice of
law for one (1) year, or until he has paid his IBP dues, whichever is later. The IBP stated
that respondent can engage in the practice of law only by paying his dues, and it does not
matter that his practice is "limited."

Solicitation of Legal Business

As in the USA, unethical solicitation of clients and cases by Filipino lawyers is

punished by the Philippine Supreme Court, pursuant to Rule 138 of the Rules of Court
and the Code of Professional Responsibility.

Based on the very fresh Philippine Supreme Court decision in the case of Pedro L.
Linsangan vs. Atty. Nicomedes Tolentino, the Philippine Supreme Court continues to

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adhere to the established doctrine which prohibits any form and kind of lawyer
advertising in the Philippines on the theory that a lawyers best advertisement is a well-
merited reputation for professional capacity and fidelity to trust based on his character
and conduct. In the Philippines, Filipino lawyers are only allowed to announce their
services by publication in reputable law lists or use of simple professional cards.
Professional calling cards may only contain the following details:
a. lawyers name;
b. name of the law firm with which he is connected;
c. address;
d. telephone number; and
e. special branch of law practiced.

According to the Supreme Court Canons of the CPR are rules of conduct all
lawyers must adhere to, including the manner by which a lawyers services are to be
made known. Thus, Canon 3 of the CPR provides:

CANON 3 A LAWYER IN MAKING KNOWN HIS LEGAL

SERVICES SHALL USE ONLY TRUE, HONEST, FAIR, DIGNIFIED AND
OBJECTIVE INFORMATION OR STATEMENT OF FACTS.

Time and time again, lawyers are reminded that the practice of law is a profession
and not a business; lawyers should not advertise their talents as merchants advertise their
wares. To allow a lawyer to advertise his talent or skill is to commercialize the practice of
law, degrade the profession in the publics estimation and impair its ability to efficiently
render that high character of service to which every member of the bar is called.

Rule 2.03 of the CPR provides:

RULE 2.03. A LAWYER SHALL NOT DO OR PERMIT TO BE DONE

ANY ACT DESIGNED PRIMARILY TO SOLICIT LEGAL BUSINESS.

Lawyers are prohibited from soliciting cases for the purpose of gain, either
personally or through paid agents or brokers. Such actuation constitutes malpractice, a
ground for disbarment.

Rule 2.03 should be read in connection with Rule 1.03 of the CPR which
provides:

RULE 1.03. A LAWYER SHALL NOT, FOR ANY CORRUPT

MOTIVE OR INTEREST, ENCOURAGE ANY SUIT OR PROCEEDING OR
DELAY ANY MANS CAUSE.

This rule proscribes ambulance chasing (the solicitation of almost any kind of
legal business by an attorney, personally or through an agent in order to gain
employment) as a measure to protect the community from barratry and champerty.

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 As previously mentioned, any act of solicitation constitutes malpractice which
calls for the exercise of the Courts disciplinary powers. Violation of anti-solicitation
statutes warrants serious sanctions for initiating contact with a prospective client for the
purpose of obtaining employment. Thus, in this jurisdiction, we adhere to the rule to
protect the public from the Machiavellian machinations of unscrupulous lawyers and to
uphold the nobility of the legal profession.

I personally feel that since time has continuously changed, the Supreme Court has
to adapt and introduce a new approach and rules to advertisements and solicitations.
Since there are already number of innovations introduced by technological advancements
that are readily available to the public, the high Court has to liberalize its anti-lawyer
advertising rule and to open the door to the possibility of allowing a rather ethical,
truthful, accurate and dignified lawyer advertising, thus, giving due respect to the
lawyers' freedom of commercial speech guaranteed by the constitution and giving the
consumers and prospective clients a fair opportunity to access accurate information about
the Bar, the pricing of its legal services, and other law market information. We must
modernize our way of looking at things.

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