UST Golden Notes 2011 - Legal Ethics
UST Golden Notes 2011 - Legal Ethics
UST Golden Notes 2011 - Legal Ethics
L E G A L E T H I C S.
Q: What is legal ethics?
A: It is a branch of moral science which treats of
the duties which an attorney owes to the court,
to his client, to his colleagues in the profession
and to the public as embodied in the Constitution,
Rules of Court, the Code of Professional
Responsibilities, Canons of Professional Ethics,
jurisprudence, moral laws and special laws.
(Justice George Malcolm) (1993, 1996 Bar
Question)
Q: What are the sources of ethical standards in
the Philippine judiciary?
A:
1.
Primary
a. Bar
i. Canons of Professional Ethics
ii. Code of Professional Responsibility
b.
c.
2.
Bench
i. Canons of Judicial Ethics
ii. Code of Judicial Ethics
iii. New Code of Judicial Conduct for
the Philippine Judiciary
Other personnel Code of Conduct
for Court Personnel
Secondary
a. Decisions/resolution of the Supreme
Court
b. Supreme Court Circulars
c. Order/resolution of other courts
d. IBP Issuances
I. PRACTICE OF LAW
A. CONCEPTS
2.
3.
4.
B. QUALIFICATIONS
Q: Who may practice law?
2.
3.
4.
2.
3.
4.
A: DPD-DRO-PEE
1. Define them;
2. Prescribe the qualifications of a candidate
and the subjects of the bar examinations;
3. Decide who will be admitted to practice;
4. Discipline, suspend or disbar any unfit and
unworthy member of the bar;
5. Reinstate any disbarred or indefinitely
suspended attorney;
6. Ordain the integration of the Philippine
Bar;
7. Punish for contempt any person for
unauthorized practice of law;
8. Exercise overall supervision of the legal
profession; and
9. Exercise any other power as may be
necessary to elevate the standards of the
bar and preserve its integrity.
5.
6.
2.
3.
4.
5.
2. NON-LAWYERS IN COURT
a.
b.
c.
2.
3.
10
2.
11
12
Declaratory relief;
Petition for Injunction;
Contempt of court;
Criminal complaint for Estafa against a
person who falsely represented himself to
be an attorney to the damage of a party;
Contempt of Court
Q: What is the nature of the power of contempt?
A: It is exercised on the preservative and not on
the vindictive principle and on corrective rather
than the retaliatory idea of punishment, for
purposes that are impersonal. It is criminal in
nature. The power to punish for contempt is
inherent in all courts. It is essential in the
observance of order in judicial proceedings and to
enforcement of judgment orders and writs.
Q: What are the kinds of contempt?
A:
1.
2.
4.
2.
7.
8.
9.
13
14
3.
8.
4.
5.
6.
7.
1.
A:
1.
2.
2.
15
c.
d.
3.
b.
c.
4.
Prosecute
Not to prosecute
To abandon a prosecution already
started; or
To take a position adverse to the
people of the Philippines in a criminal
case or to that of a government
agency or official, when he believes
that justice will be served by taking a
different stand.
16
17
18
1.
2.
3.
A:
1.
2.
4.
5.
6.
Chapter 2.
The lawyer and the legal profession.
Canons 7-9
7.
8.
3.
4.
9.
Canons 10-13
10. Owes candor, fairness and good faith to
the court
11. Observe and maintain the respect due to
the courts and judicial officers and insist in
similar conduct
12. Duty to assist in the speedy and efficient
administration of justice
13. Rely upon the merits of his cause, refrain
from any impropriety which tends to
influence courts, or give the appearance
of influencing the courts
Chapter 4.
The lawyer and the client.
Canons 14-22
14. Not to refuse his services to the needy;
19
20
CANON 1, CPR
- A LAWYER SHALL UPHOLD THE
CONSTITUTION, OBEY THE LAWS OF THE
LAND, AND PROMOTE RESPECT FOR LAW
AND FOR LEGAL PROCESSES.
2.
3.
4.
21
6.
7.
8.
9.
10.
11.
12.
13.
22
embodied in mans
conscience
and
which guides him to
do good and avoid
evil.
shows
a
moral
indifference to the
opinion of the good
and
respectable
members
of
the
community (Arciga v.
Maniwang, A.M. No.
1608, Aug. 14, 1981).
23
24
2.
3.
4.
5.
6.
25
5.
6.
7.
4.
1.
2.
3.
A:
26
4.
27
28
2.
3.
4.
2.
2.
3.
29
5.
6.
3.
4.
5.
6.
1.
2.
3.
4.
5.
6.
A:
1.
2.
30
Q: What is the sanction in case of noncompliance of the rule on mandatory legal aid
service?
4.
5.
6.
7.
8.
Upon
approval
of
the
NCLAs
recommendation, the IBP Board of
Governors shall declare the erring lawyer
as a member not in good standing.
The notice to the lawyer shall include a
directive to pay P4,000.00 penalty which
shall accrue to the special find for the legal
aid program of the IBP.
The not in good standing declaration
shall be effective for a period of 3 months
from the receipt of the erring lawyer of
the notice from the IBP Board of
Governors.
During the said period, the lawyer cannot
appear in court or any quasi-judicial body
as counsel.
Provided, however, that the not in good
standing status shall subsist even after
the lapse of the 3-month period until and
unless the penalty shall have been paid.
Any lawyer who fails to comply with his
duties under this Rule for at least 3
consecutive shall be the subject of
disciplinary proceedings to be instituted
motu proprio by the Committee on Bar
Discipline.(Sec. 7, B.M. 2012)
3.
4.
5.
2.
31
4.
32
2.
3.
4.
A:
1.
2.
3.
4.
5.
XPN: LEPO-LABAN-PD
1.
Q:
What
solicitation?
activities
constitute
indirect
A:
1.
2.
33
34
A:
1.
2.
3.
4.
Misstatements of fact
Suggestions that the ingenuity or prior
record of a lawyer rather than the justice
of the claim are the principal factors
likely to determine the result
Inclusion of information irrelevant on
selecting a lawyer
Representations concerning the quality
of service, which cannot be measured or
verified. (CPR Annotated, PhilJA)
35
36
A: Yes.
Fiscal Salva should be publicly
reprehended and censured for the uncalled and
wide publicity and sensationalism that he had
given to and allowed in connection with his
investigation, whatever be his motive, which is
considered and found to be contempt of court
(Cruz v Salva, G.R. No. L-12871, July 25, 1959)
CANON 5, CPR
- A LAWYER SHALL KEEP ABREAST OF LEGAL
DEVELOPMENTS, PARTICIPATE IN
CONTINUING LEGAL EDUCATION
PROGRAMS, SUPPORT EFFORTS TO
ACHIEVE HIGH STANDARDS IN LAW
SCHOOLS AS WELL AS IN THE PRACTICAL
TRAINING OF LAW STUDENTS AND ASSIST
IN DISSEMINATING INFORMATION
REGARDING THE LAW AND
JURISPRUDENCE
(2003,2006,2008 Bar Questions).
E.g.:
1.
2.
3.
CANON 6, CPR
-THESE CANONS SHALL APPLY TO LAWYERS
IN GOVERNMENT SERVICES IN THE
DISCHARGE OF THEIR TASKS
(1992,1993,2000,2001,2006 BAR
QUESTIONS).
Note: Canons shall apply to lawyers in government
service in the discharge of their tasks. Lawyers
should be more sensitive in the performance of their
professional obligations as their conduct is subject to
constant scrutiny of the public.
37
2.
3.
4.
38
1.
Congruent-interest
representation
conflicts are unique to
government lawyers
and apply primarily to
former government
lawyers.
(CPR
Annotated, PhilJA)
39
40
3.
4.
Q: Who are the officers of the IBP? How are they
selected?
A: The Integrated Bar shall have a/an:
1.
2.
3.
4.
5.
President
Executive Vice President who shall be
chosen by the Governors immediately
after the latters election either from
among themselves or from other
members of the Integrated Bar, by the
vote of at least five Governors. Each of
the regional members of the Board shall
be ex officio Vice President for the Region
which he represents.
Secretary
Treasurer
Such other officers and employees as may
be required by the Board of Governors, to
be appointed by the President with the
consent of the Board, and to hold office at
the pleasure of the Board or for such term
as it may fix. Said officers and employees
41
b.
c.
42
3.
4.
5.
a.
b.
c.
43
Membership Dues
Note: Every member of the Integrated shall pay such
annual dues as the Board of Governors shall
determine with the approval of the Supreme Court.
A fixed sum equivalent to ten percent (10%) of the
collections from each Chapter shall be set aside as a
Welfare Fund for disabled members of the Chapter
and the compulsory heirs of deceased members
thereof. (Sec. 9,Rule 139-A, RRC)
44
2.
3.
45
46
6.
7.
8.
9.
A: ADA- RECORD
1.
2.
3.
4.
5.
47
2.
3.
4.
5.
6.
48
2.
49
CANON 9, CPR
-A LAWYER SHALL NOT, DIRECTLY OR
INDIRECTLY, ASSIST IN THE UNAUTHORIZED
PRACTICE OF LAW
(1992, 1995, 1997, 2000, Bar Questions)
50
2.
3.
Rationale: If attorneys fees were allowed to nonlawyers, it would leave the public in hopeless
confusion as to whom to consult in case of necessity
and also to leave the bar in a chaotic condition, aside
from the fact that non-lawyers are not amenable to
disciplinary measures.
51
1.
3.
52
2.
4.
6.
7.
8.
9.
53
54
55
56
57
58
considered
as
the
proper
A:
NATURE OF THE
CASE
If administrative in
nature
WHERE TO FILE
It shall be filed with the
Office of the Court
Administrator of the
Supreme Court
If it involves a
Justice
of
the
Supreme
Court
based
on
impeachable
offenses
It must be coursed
through the House of
Representative and the
Senate in accordance
with the rules on
impeachment.
(CPR Annotated, PhilJA)
2.
3.
4.
59
60
3.
61
5.
A:
1.
2.
3.
4.
62
Q: Who is a witness?
A: A human instrumentality through which the
law and its ministers, the judges and lawyers,
endeavor to ascertain the truth and to dispense
justice to the following parties.
Q: What are the guidelines in interviewing a
witness?
A:
1.
2.
3.
4.
5.
the
63
64
2.
3.
4.
5.
b.
3.
4.
5.
65
2.
Highly confidential
a.
b.
3.
Fiduciary
a.
b.
A: He may not be sanctioned by the Supreme
Court. Once a litigation is concluded, the judge
who decided it is subject to the same criticism as
any other public official because his decision
becomes public property and is thrown open to
public consumption. The lawyer enjoys a wide
latitude in commenting or criticizing the judges
decision, provided that such comment or criticism
shall be bona fide and not spill over the bounds of
decency and propriety. (2008 Bar Question)
Rule 13.03, Canon 13, CPR A lawyer shall
not brook or invite interference by another
branch or agency of the government in the
normal course of judicial proceedings.
66
c.
2.
3.
3.
4.
5.
67
4.
5.
A:
GR: A lawyer is not obliged to act as legal
counsel for any person who may wish to
68
3.
2.
2.
3.
4.
69
Gravity of offense;
Difficulty of questions that may arise; and
Experience and ability of appointee.
70
2.
3.
4.
5.
the
judge
do
to
expedite
71
72
a. Confidentiality rule
b. Privilege Communication
Rule 15.02, Canon 15, CPR- A lawyer shall
be bound by the rule on privilege
communication in respect of matters
disclosed to him by a prospective client.
(2008 Bar Question)
Q. How is Rule 15.02 different from Canon 17?
A: Rule 15.02 speaks of the duty of confidentiality
to a prospective client while Canon 17 provides
for the duty of confidentiality to an actual client.
(Funa, 2009)
Q: Are matters disclosed by a prospective client
to a lawyer protected by the rule on privileged
communication?
A: Yes. The foregoing disqualification rule applies
to prospective clients of a lawyer. Matters
disclosed by a prospective client to a lawyer are
protected by the rule on privileged
communication even if the prospective client
does not thereafter retain the lawyer or the latter
declines the employment.
73
requisites
of
privilege
A:
1.
2.
3.
74
1.
2.
A:
1.
2.
3.
4.
5.
6.
duration
of
privilege
2.
75
4.
1.
2.
3.
5.
6.
7.
c. Conflict of Interest
(1991, 1992, 1993, 1994, 1997, 1999, 2000, 2001,
2002, 2003, 2004, 2005, 2006, 2008 Bar
Questions)
Rule 15.01, Canon 15, CPR - A lawyer, in
conferring with a prospective client, shall
ascertain as soon as practicable whether the
matter would involve a conflict with another
client or his own interest, and if so, shall
forthwith inform the prospective client.
b.
c.
76
multiple
a.
or
d.
A v. B
A and B are present clients
2.
C v. D; E v. D
C is the present client and D is not a
present client in the same case but is a
present client in another case
3.
F v. G; H v. G
F is the present client and G was a former
client and the cases are related
4.
I v. J; K v. J
I is the present client and J was a former
client in a case that is unrelated.
5.
L, M, N v. O, P, Q
L, M, N are present clients but L and M
joins O, P, Q (People v. Davis)
A:
1.
2.
3.
4.
5.
77
78
2.
79
80
81
82
3.
4.
5.
6.
7.
8.
1.
2.
a. Fiduciary Relationship
Note: This prohibition is entirely independent of
fraud and such need not be alleged or proven.
Art. 1491 (5) of the NCC applies only if the sale or
assignment of the property takes place during the
pendency of the litigation involving the clients
property. (Ramos v. Ngaseo, A.C. No. 6210, Dec. 9,
2004)
83
4.
5.
84
3.
4.
2.
3.
5.
b. Co-Mingling of Funds
Rule 16.02, Canon 16, CPR - A lawyer shall
keep the funds of each client separate and
apart from his own and those of others kept
by him.
Note: Failure of the lawyer to account all the funds
and property of his client which may come into his
possession would amount to misappropriation which
may subject him to disbarment on the ground of
grave misconduct or a criminal prosecurion for
estafa under Art. 315, par. 1(b) of the RPC.
85
86
d. Borrowing or Lending
87
88
89
b. Negligence
Rule 18.03, Canon 18, CPR - A lawyer shall
not neglect a legal matter entrusted to him
and his negligence in connection therewith
shall render him liable. (1998, 2002 Bar
Questions)
Q: What degree of diligence or vigilance is
expected from a lawyer?
A: The legal profession demands of a lawyer that
degree of vigilance and attention of a good father
of a family (Lapena, 2009) or ordinary pater
familias (Pineda, 2009). He is not required to
exercise extraordinary diligence. (Edquibal v.
Ferrer, Jr., A.C. No. 5687, February 03, 2005)
Note: The attorneys duty to safeguard the clients
interests commences from his retainer until his
effective release from the case or the final
disposition of the whole subject matter of the
litigation. During the period, he is expected to take
such reasonable steps and such ordinary care as his
clients interests may require.
A lawyer who received money to handle a clients
case but rendered no service at all shall be subject to
disciplinary measure. (Dalisay v. Atty. Mauricio, A.C.
No. 5655, April 2005)
90
91
2.
3.
4.
2.
Q: What does a lawyer represent to a client
when he accepts a professional employment of
his services?
A: When a lawyer accepts a case, whether for a
fee or not, his acceptance is an implied
representation that he: CASE
1.
92
3.
4.
A:
1.
A:
1.
2.
2.
3.
Q: What is a compromise?
A: It is a contract whereby the parties, by making
reciprocal concessions, avoid litigation or put an
end to one already commenced. (Art. 2028, NCC)
Q: State the rule with respect to the authority of
an attorney to compromise his clients case.
A:
GR: The attorney has no authority to
compromise his clients case. This is so because
the client, even if represented by counsel,
retains exclusive control over the subject
matter of the litigation. The client can, of
course, authorize his lawyer to compromise his
case, and the settlement made by the lawyer
will bind his client.
XPN: When the lawyer is confronted with an
emergency where prompt and urgent action is
necessary to protect the interest of his client
and there is no opportunity for consultation
with the latter.
a. Duty to Restrain Client from Impropriety
Rule 19.01, Canon 9, CPR A lawyer shall
employ only fair and honest means to attain
the lawful objectives of his client and shall
not present, participate in presenting or
threaten to present, participate in
presenting or threaten to present unfounded
criminal charges to obtain an improper
advantage in any case or proceeding. (1997
Bar Question)
Note: Under this rule, a lawyer should not file or
threaten to file any unfounded or baseless criminal
case or cases against the adversaries of his client
93
94
c. Authority of a Lawyer
Rule 19.03, Canon 19, CPR A lawyer shall
not allow his client to dictate the procedure
in handling the case.
The Code enjoins a lawyer to employ only fair and
honest means to attain the lawful objectives of
his client and warns him not to allow his client to
dictate the procedure in handling the case. In
short, a lawyer is not a gun for hire. (Millare v.
Atty. Montero, A.C. No. 3283, July 13, 1995)
Note: The lawyer, and not the client, is assumed to
have knowledge of laws and rules of procedure. The
procedure in handling a case should therefore fall
within the lawyers control and supervision.
Q: What is appearance?
A: It is the coming into court as a party either as a
plaintiff or as a defendant and asking relief
therefrom.
7. ATTORNEYS FEES
(1990, 1991, 1992, 1994, 1995, 1997, 1998, 2005,
2006, 2007 Bar Question)
CANON 20,CPR
- A LAWYER SHALL CHARGE ONLY FAIR AND
REASONABLE FEES
(1997,1998,2003 Bar Question).
2.
3.
2.
95
f.
g.
h.
i.
j.
2.
96
3.
4.
5.
6.
1.
2.
3.
4.
3.
2.
4.
5.
6.
97
2.
3.
2.
98
2.
5.
6.
7.
8.
9.
10.
11.
12.
13.
99
2.
3.
4.
Rose issued two checks amounting to 51,716.54
in favour of Atty. Jack however despite receipt
of said amounts he failed to file a case in one of
the five cases referred to him; one case was
dismissed due to untimely appeal; and another
case was dismissed but he failed to inform Rose
about it before she left for abroad. Dissatisfied
with the outcome of her cases she demanded
from Atty. Jack the return of all the records she
had entrusted to him however he returned only
two of the five cases. She filed a complaint
charging him with violation of Canon 16 and
16.03 of the Code of Professional Responsibility.
Was there a violation of the said Canon by the
respondent?
5.
6.
Q: What is a retainer?
A: None. From the records of the case, it was
found that four of the cases referred by Rose
were filed but were dismissed or terminated for
causes not attributable to Atty. Jack; and that
there was no probable cause to maintain the suit.
No fault or negligence can be attributed to the
Atty. Jack. Rose still owes payment of acceptance
fee because she only paid 51, 716.54
An acceptance fee is not a contingent fee, but is
an absolute fee arrangement which entitles a
lawyer to get paid for his efforts regardless of the
outcome of the litigation.
Dissatisfaction from the outcome of the cases
would not render void the retainer agreement for
Atty. Jack appears to have represented the
interest of Rose. (Yu v Bondal, A.C. No. 5534,
January 17, 2005)
Note: The expiration of the retainer contract
between the parties during the pendency of the
labor case does not extinguish the respondents right
to attorneys fees. (Uy v. Gonzales, A.C. No. 5280,
Mar. 30, 2004)
100
2.
2.
101
102
CONTINGENT
CONTRACT
CHAMPERTOUS
CONTRACT
Payable in cash
Lawyers do not
undertake to pay all
expenses of
litigation
Valid
103
104
A:
1.
2.
3.
4.
5.
XPN:
1. To prevent imposition
2. To prevent injustice
3. To prevent fraud
Note: A client may enter into a compromise
agreement without the intervention of the lawyer,
but the terms of the agreement should not deprive
the counsel of his compensation for the professional
services he had rendered. If so, the compromise
shall be subjected to said fees. If the client and the
adverse party who assented to the compromise are
found to have intentionally deprived the lawyer of
his fees, the terms of the compromise, insofar as
they prejudice the lawyer, will be set aside, making
both parties accountable to pay the lawyers fees.
But in all cases, it is the client who is bound to pay
his lawyer for his legal representation. (Atty. Gubat
v. NPC, G.R. No. 167415, Feb. 26, 2010)
2.
A:
GR: A lawyer should avoid the filing of any case
against a client for the enforcement of
attorneys fees.
A:
1.
2.
105
4.
5.
6.
2.
2.
3.
106
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)
b.
c.
2.
3.
4.
5.
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)
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.
107
108
2.
3.
4.
109
2.
110
Written application
Written consent of the client
Written consent of the attorney to be
substituted, or in the absence thereof,
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)
111
A:
1.
2.
2.
3.
4.
112
5.
6.
A:
1.
2.
3.
4.
3.
4.
5.
113
A: RALARRO
1.
2.
3.
4.
5.
A: WARCS-DIP
7.
1.
2.
3.
4.
5.
6.
114
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.
8.
115
Q: What is deceit?
A: Deceit is a fraudulent and deceptive
misrepresentation, artifice or device used by one
or more persons to deceive and trick another who
is ignorant of the true facts, to the prejudice and
damage of the party upon which it was imposed.
There must be false representation as a matter of
fact. (e.g. Misappropriation of clients fund)
Note: There is deceit when the act is performed with
deliberate intent (Art. 3, RPC)
Malpractice
1.
2.
Q: What is malpractice?
Deceit
116
3.
A:
1.
2.
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)
Non-professional misconduct
3.
4.
5.
117
6.
7.
6.
7.
8.
9.
4.
5.
118
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.
of
A:
1.
2.
3.
A:
1.
2.
3.
Supreme Court;
IBP through its Commission on Bar
Discipline or authorized investigator; and
Office of the Solicitor General.
the
legal
3.
119
3.
4.
5.
6.
7.
1.
2.
Motu proprio; or
Upon referral by the Supreme Court; or
By a Chapter Board of Officers; or
At the instance of any person, initiate
and prosecute proper charges against
erring attorneys including those in the
government service; Provided, however,
that all charges against Justices of the
Court of Tax Appeals and the
Sandiganbayan, and Judges of the Court
of Tax Appeals and lower courts, even if
lawyers are jointly charged with them,
shall be filed with the Supreme Court;
Provided, further, that charges filed
against Justices and Judges before the
IBP, including those filed prior to their
appointment in the Judiciary, shall
immediately be forwarded to the
Supreme Court for disposition and
adjudication.
2.
120
3.
4.
2.
121
122
Solicitor General,
Any officer of the SC, or
Any judge of a lower court
Notify Respondent
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)
123
1.
2.
3.
Exonerated
Sanction is less
than suspension /
disbarment
(admonition,
reprimand, or fine)
124
Findings of facts
Recommendations
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
b. Defenses
Note: The extent of disciplinary action depends on
the attendance of mitigating or aggravating
circumstances.
2.
3.
4.
125
A:
1.
2.
3.
126
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)
2.
3.
127
5.
6.
3.
4.
1.
2.
3.
4.
5.
6.
128
2.
1.
2.
4.
129
130
A:
1.
2.
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.
2.
3.
4.
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.
C. COMPLIANCE
Q: What constitutes non-compliance of MCLE?
A:
1.
2.
3.
4.
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.
5.
6.
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.
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.
131
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.
132
2.
5.
3.
6.
4.
7.
5.
133
134
3.
4.
5.
2.
3.
4.
135
Acknowledgements
Q: What is an acknowledgement?
1.
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.
2.
3.
136
137
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)
138
Signature Witnessing
JURAT
2.
It is not part of a
pleading but merely
evidences the fact
that the affidavit was
properly made.
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.
1.
That part of an
affidavit in which the
notary public or
officer certifies that
the instrument was
sworn to before him.
Purpose:
Gives the document a
legal character.
3.
2.
3.
4.
A:
1.
2.
3.
4.
5.
2.
3.
139
4.
b.
140
c.
d.
3.
2.
3.
4.
D. NOTARIAL REGISTER
Q: What is a Notarial Register?
141
(Ibid.)
e.
f.
1.
2.
b.
142
A:
a.
SC)
Note: The notary public shall give to each instrument
or document executed, sworn to, or acknowledged
before him a number corresponding to the one in his
register, and shall also state on the instrument or
document the page/s of his register on which the
same is recorded. No blank line shall be left between
entries. (Sec. 2(e), Rule VI, A.M. No. 02-8-13-SC)
2.
143
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.
3.
4.
5.
6.
144
2.
2.
145
3.
4.
5.
6.
7.
2.
3.
8.
146
the
JUDICIAL ETHICS
I. PRELIMINARY
A. CONCEPT
Q: Who is a judge?
A:
1.
147
3.
Independence
Integrity
Impartiality
Propriety
Equality
Competence and Diligence.
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.
148
importance
of
Judicial
2.
3.
4.
149
150
A:
1.
2.
3.
4.
5.
6.
7.
Judges spouse
Son
Daughter
Son-in-law
Daughter-in-law
Other relative by consanguinity or affinity
within the sixth civil degree, or
Person who is a companion or employee
of the judge and who lives in the
judgeshousehold (NCJC of the Philippine
Judiciary-Annotated, February 2007)
151
3.
4.
152
1.
2.
153
154
155
156
2.
3.
157
4.
3.
158
2.
The
judge
served
as
executor,
administrator, guardian, trustee or lawyer
in the case or matter in controversy, or a
former associate of the judge served as
counsel during their association, or the
judge or lawyer was a material witness
therein (Sec. 5(d), Canon 3, NCJC);
159
3.
4.
2.
between
INHIBITION
2.
160
A:
DISQUALIFICATION
There are specific
grounds enumerated
under the rules of court
for disqualification.
1.
2.
161
2.
3.
162
163
Q:
Complainant
Prosecutor
filed
an
administrative complaint against respondent
Sandiganbayan Justices for grave misconduct,
conduct unbecoming a Justice, and conduct
grossly prejudicial to the interest of the service.
Allegedly, during a hearing, Justice Ong uttered
words like We are playing Gods here, we will do
what we want to do, your contempt is already
out, we fined you eighteen thousand pesos, even
if you will appeal, by that time I will be there,
Justice of the Supreme Court. Also, he often
asked lawyers from which law schools they had
graduated, and frequently inquired whether the
law school in which Justice Hernandez had
studied and from which he had graduated was
better than his (Justice Ongs) own alma mater.
The complainant opined that the query was
manifestly intended to emphasize that the San
Beda College of Law, the alma mater of Justice
Ong, and the UP College of Law, that of Justice
Hernandez, were the best law schools. On
another occasion in that hearing in Cebu City,
Justice Hernandez discourteously shouted at
Prosecutor HazelinaTujan-Militante, who was
then observing trial from the gallery and said
You are better than Director Somido? Are you
better than Director Chua? Are you here to
supervise Somido? Your office is wasting funds
for one prosecutor who is doing nothing.
164
165
2.
166
3.
167
Q:
Respondent
Judge
Lelina
was
administratively charged for violation of Section
35, Rule 138 of the Rules of Court and Rule 5.07,
Canon 5 of the Code of Judicial Conduct. He was
then preventively suspended by the Court on
account of an earlier administrative complaint
filed charging him with harassment in
connection with the criminal complaint for Rape
and the complaint for Abduction with Rape and
Slight Illegal Detention. He then filed a Motion
for Early Resolution of the criminal case praying
for a resolution in his favor. Subsequently he
appealed to the Court to grant him the
permission to practice law during the remainder
of his preventive suspension or, if such cannot
be granted, to consider him resigned from the
judiciary. It turned out that before he filed the
above-said Manifestation, Appeal and Omnibus
Motion, Judge Lelina engaged in the private
practice of law. Did the judge commit any
unethical act?
A: Yes. Since Section 35, Rule 138 of the Rules of
Court and Section 11, Canon 4 of the New Code
of Judicial Conduct for the Philippine Judiciary
does not make any distinction in prohibiting
judges from engaging in the private practice of
law while holding judicial office, no distinction
should be made in its application. In the present
case, Judge Lelina having been merely suspended
and not dismissed from the service, he was still
bound under the prohibition. (Binalay v. Lelina Jr,
A.M. No. RTJ-08-2132, July 31, 2009)
Q: In an extrajudicial settlement of the estate of
the late Juan Mayaman, the heirs requested
Judge Maawain, a family friend, to go over the
document prepared by a new lawyer before they
signed it. Judge Maawain agreed and even acted
as an instrumental witness. Did Judge Maawain
engage in the unauthorized practice of law?
Why?
A: No. In the case of de Castro v. Capulong, 118
SCRA 5 (1982), the Supreme Court held that a
judge who merely acted as a witness to a
document and who explained to the party
waiving his rights of redemption over mortgaged
properties the consequences thereof, does not
engage himself in the practice of law. This
appears to be more applicable to the case of
Judge Maawain. He did not give professional
advice in anticipation of litigation. He was just
asked to review a deed of extrajudicial settlement
of estate. He signed merely as an instrumental
168
2.
3.
169
CANON 5,NCJC-EQUALITY
ENSURING EQUALITY OF TREATMENT TO ALL
BEFORE THE COURTS IS ESSENTIAL TO THE
DUE PERFORMANCE OF THE JUDICIAL
OFFICE.
Note: A judge must be able to render substantial
justice and maintain public confidence in the judicial
system, by being aware of the diversity in society.
With that awareness, a judge should not yield to first
impression, reach hasty conclusions or prejudge
matters. (Castillo v. Judge Juan, 62 SCRA 124)
170
171
172
2.
173
174
175
176
177
178
CANON 3, CJC
A JUDGE SHOULD PERFOM OFFICIAL DUTIES
HONESTLY, AND WITH IMPARTIALITY AND
DILIGENCE
ADJUDICATIVE RESPONSIBILITIES
179
ADMINISTRATIVE RESPONSIBILITIES
180
DISQUALIFICATION
Rule 3.12, Canon 3,CJC: A judge should take
no part in a proceeding where the judges
impartiality might reasonably be questioned.
These cases include among others,
proceedings where:
a.
CANON 4, CJC
A JUDGE MAY, WITH DUE REGARD TO
OFFICIAL DUTIES, ENGAGE IN ACTIVITIES TO
IMPROVE THE LAW, THE LEGAL SYSTEM AND
THE ADMINISTRATION OF JUSTICE.
181
CANON 5, CJC
A JUDGE SHOULD REGULATE EXTRAJUDICIAL
ACTIVITIES TO MINIMIZE THE RISK OF
CONFLICT WITH JUDICIAL DUTIES.
(1995, 1997, 1999, 2000, 2002 Bar Question)
c.
d.
3.
182
Reflect adversely
impartiality;
on
the
courts
FINANCIAL DISCLOSURE
Rule 5.08, Canon 5, CJC: A judge shall make
full financial disclosure as required by law.
Q: What is the rule on financial disclosure?
A: A judge shall make full financial disclosure as
required by law. (Rule 5.08)
A:
GR: A judge should not serve as;
1. Executor
2. Administrator
3. Trustee
4. Guardian
5. Other fiduciary
XPN: For the:
1. Estate;
2. Trust; or
3. Person of a member of the immediate
family.
Provided, that such service shall not interfere
with the proper performance of judicial office.
(Rule 5.06)
Q: As a family fiduciary, what should a judge
refrain from doing?
A: As a Family Fiduciary, a judge shall not:
1.
2.
EXTRAJUDICIAL APPOINTMENTS
POLITICAL ACTIVITIES
Rule 5.10, Canon 10, CJC: A judge is entitled
to entertain personal views on political
questions. But to avoid suspicion of political
partisanship, a judge shall not make
political speeches, contribute to party fund,
publicly endorse candidates for political
office or participate in other partisan
political activities.
Note: What is prohibited is partisan political activity.
183
2.
b.
A. IMPEACHMENT
Q: What is the nature of impeachment
proceedings against SC justices?
A: Penal in nature governed by rules on criminal
case.
3.
184
2.
Inefficiency
implies
negligence,
incompetence,
ignorance
and
carelessness. A judge would be
inexcusably negligent if he failed to
observe in the performance of his duties
that
diligence,
prudence
and
circumspection which the law requires in
the rendition of any public service.
185
186
2.
3.
4.
5.
6.
7.
Q: Are the
confidential?
proceedings
against
them
187
188
2.
2.
189
Misfeasance
a. Article 204 Knowingly rendering
unjust judgment.
b. Manifestly Unjust Judgment one
which is so patently against the law,
public order, public policy and good
morals that a person of ordinary
discernment can easily sense its
invalidity and injustice.
2.
3.
2.
3.
4.
2.
2.
3.
4.
1.
1.
190
A:
1.
2.
3.
4.
Note: Before the Court approved this resolution, administrative and disbarment cases against members of the bar who were
likewise members of the court were treated separately. However, pursuant to the new rule, an administrative case against a
judge of a regular court based on grounds which are also grounds for the disciplinary action against members of the Bar shall
be automatically considered as disciplinary proceedings against such judge as a member of the Bar.
Since membership in the bar is an integral qualification for membership in the bench, the moral fitness of a judge also
reflects his moral fitness as a lawyer. A judge who disobeys the basic rules of judicial conduct also violates his oath as a
lawyer. (Samson v. Judge Caballero, A.M. No. RTJ-08-2138 ,Aug. 5, 2009)
191