V. Atty. Busmente, A.C. No. 7269 (2011)
V. Atty. Busmente, A.C. No. 7269 (2011)
V. Atty. Busmente, A.C. No. 7269 (2011)
Requirements “before admission to the bar” or for continuous is entitled to practice law.
“practice of law”, etc.
Passing the bar exam is not enough
What is practice of law? • A bar candidate does not acquire the right to practice law simply
• The Court ruled that the term “practice of law” implies customarily by passing the bar examinations. The practice of law is a
or habitually holding oneself out to the public as a lawyer for privilege that can be withheld even from one who has passed the
compensation as a source of livelihood or in consideration of his bar examinations, if the person seeking admission had practiced
services. The Court further ruled that holding one’s self out as a law without a license.
lawyer may be shown by acts indicative of that purpose, such as • True, respondent here passed the 2000 Bar Examinations and took
identifying oneself as attorney, appearing in court in the lawyer’s oath. However, it is the signing in the Roll of
representation of a client, or associating oneself as a partner of Attorneys that finally makes one a full-fledged lawyer. The fact
a law office for the general practice of law. - Atty. Noe-Lacsaman that respondent passed the bar examinations is immaterial. Passing
v. Atty. Busmente, A.C. No. 7269 [2011] the bar is not the only qualification to become an attorn ey-at-law.
• Any activity, in and out of court, that requires the application of Respondent should know that two essential requisites for becoming
law, legal procedure, knowledge, training and experience. a lawyer still had to be performed, namely: his lawyer’s oath to be
Moreover, we ruled that to engage in the practice of law is to administered by this Court and his signature in the Roll of
perform those acts which are characteristics of the profession; Attorneys. – Aguirre v. Rana, B. M. No. 1036. June 10, 2003
to practice law is to give notice or render any kind of service,
which device or service requires the use in any degree of legal Signing of the Lawyer’s Oath is not equivalent to “taking the
knowledge or skill. - Query of Atty. Silverio-Buffe, A.M. No. 08-6- oath”
352-RTC [2009] • Respondent Abad should know that the circumstances which he
• The practice of law is not limited to the conduct of cases or has narrated do not constitute his admission to the Philippine Bar
litigation in court; it embraces the preparation of pleadings and and the right to practice law thereafter. He should know that two
other papers incident to actions and special proceedings, the essential requisites for becoming a lawyer still had to be
management of such actions and proceedings on behalf of clients performed, namely: his lawyer's oath to be administered by this
Court and his signature in the Roll of Attorneys. (Rule 138, Secs.
before judges and courts, and in addition, conveyancing.
17 and 19, Rules of Court.) - Re: Elmo Abad, A. M. No. 139
• In general, all advice to clients, and all action taken for them in
matters connected with the law xxx. - Aguirre v. Rana, B. M. No. [1983]
1036. June 10, 2003
Whether or not a lawyer is entitled to exemption from payment of
Who may practice law? his IBP dues during the time that he was inactive in the practice
• Section 1, Rule 138 of the Rules of Court provides: of law
Who may practice law. – Any person heretofore duly admitted as a • Thus, payment of dues is a necessary consequence of
member of the bar, or thereafter admitted as such in accordance with membership in the IBP, of which no one is exempt. This means
that the compulsory nature of payment of dues subsists for as long Petition to sign in the Roll of Attorneys, Medado, B.M. No. 2540
as one’s membership in the IBP remains regardless of the lack [2013]
of practice of, or the type of practice, the member is engaged
in. Examples of unauthorized practice of law
• There is nothing in the law or rules which allows exemption from • In the cases where we found a party liable for the unauthorized
payment of membership dues. At most, as correctly observed by practice of law, the party was guilty of some overt act like:
the IBP, he could have informed the Secretary of the Integrated 1. signing court pleadings on behalf of his client;
Bar of his intention to stay abroad before he left. In such case, his 2. appearing before court hearings as an attorney;
membership in the IBP could have been terminated and his 3. manifesting before the court that he will practice law despite
obligation to pay dues could have been discontinued. - Letter of being previously denied admission to the bar; or
4. deliberately attempting to practice law and
Atty. Cecilio Y. Arevalo Jr. B.M. 1370 May 9, 2005
5. holding out himself as an attorney through circulars with full
knowledge that he is not licensed to do so.
Is IBP membership fee a form of tax?
- Normatan & Pagayokan v. Balajadia, G.R. No. 169517 2006
• For the court to prescribe dues to be paid by the members does not
mean that the Court is attempting to levy a tax. Pre-law requirements
• A membership fee in the Bar association is an exaction for • Rule 138 Sec. 6. Pre-Law. - No applicant for admission to the bar
regulation, while tax purpose of a tax is a revenue. If the examination shall be admitted unless he presents a certificate that
judiciary has inherent power to regulate the Bar, it follows that as he has satisfied the Secretary of Education that, before he began
an incident to regulation, it may impose a membership fee for that the study of law, he had pursued and satisfactorily completed in
purpose. It would not be possible to put on an integrated Bar an authorized and recognized university or college, requiring
program without means to defray the expenses. The doctrine of for admission thereto the completion of a four-year high school
implied powers necessarily carries with it the power to impose
course, the course of study prescribed therein for a bachelor's
such exaction. - Letter of Atty. Cecilio Y. Arevalo Jr. B.M. 1370
degree in arts or sciences with any of the following subjects as
May 9, 2005
major or field of concentration: political science, logic, english,
spanish, history and economics.
There is no provision under the CPR which prohibits the
unauthorized practice of law
Violation of Rule 138 section 6
• CANON 9 - A lawyer shall not, directly or indirectly, assist in the
• “[b]y utilizing the school records of his cousin and name-sake,
unauthorized practice of law. Juan M. Publico when, in actual fact, petitioner had not completed
• While a reading of Canon 9 appears to merely prohibit lawyers Grade VI of his elementary schooling, much less, First and Second
from assisting in the unauthorized practice of law, the Year High School.”
unauthorized practice of law by the lawyer himself is
subsumed under this provision, because at the heart of Canon 9 • For all the foregoing, we find and so hold that respondent falsified
is the lawyer's duty to prevent the unauthorized practice of law. - his school records, by making it appear that he had finished or
completed Grade VI elementary and First and Second Year
high school, when in truth and in fact he had not, thereby violating disbarment the act complained of must not only be immoral, but
the provisions of Sections 5 and 6, Rule 127 of the Rules of grossly immoral. - Figueroa v. Barranco, Jr. SBC Case No. 519
Court, which require completion by a bar examinee or candidate of 1997
the prescribed courses in elementary, high, pre-law and law school,
prior to his admission to the practice of law. - In re: Juan Good moral character v. Rehabilitation
Publico,Petition for Reinstatement in the Roll of Attorneys • When an applicant for admission to the bar has committed first-
February 20, 1981 degree murder, a crime that demonstrates an extreme lack of
good moral character, he must make an extraordinary showing of
Applicant should be ready to present evidence of good moral present good moral character to establish that he or she is qualified
character to be admitted to the practice of law xxx.
• When applicants seek admission to the bar, they have placed their • To show rehabilitation, [one] must show that he has accepted
character at issue. Therefore, the applicant bears the burden of responsibility for his criminal conduct.
producing information proving good moral character. - Mitchell • Rehabilitation is a necessary, but not sufficient, ingredient of good
Simon , Nick Smith and Nicole Negowetti moral character of bar applicant who had been convicted of a
serious felony; applicant must establish his current good moral
Grossly immoral act character, independent of and in addition to, evidence of
• A grossly immoral act is one that is so corrupt and false as to rehabilitation. - In re: James Joseph Hamm 123 P.3d 652 [2005]
constitute a criminal act or so unprincipled or disgraceful as to be
reprehensible to a high degree. It is a willful, flagrant, or shameless Rehabilitation is not enough
act which shows a moral indifference to the opinion of respectable Even assuming that [one] has established rehabilitation, showing
members of the community. - Figueroa v. Barranco, Jr. SBC Case rehabilitation from criminal conduct does not, in itself, establish
No. 519 1997 good moral character.
Rehabilitation is a necessary, but not sufficient, ingredient of good
Is breach of promise to marry gross immorality? moral character. An applicant must establish his current good
Respondent was prevented from taking the lawyer’s oath in 1971 moral character, independent of and in addition to, evidence of
because of the charges of gross immorality made by rehabilitation.
complainant. To recapitulate, respondent bore an illegitimate child Even assuming that he has established rehabilitation, showing
with his sweetheart, Patricia Figueroa, who also claims that he did rehabilitation from criminal conduct does not, in itself,
not fulfill his promise to marry her after he passes the bar establish good moral character. - In re: James Joseph Hamm 123
examinations. P.3d 652 [2005]
We find that these facts do not constitute gross immorality
warranting the permanent exclusion of respondent from the legal What is an “upright character” ?
profession. His engaging in premarital sexual relations with • 'Upright character' is something more than an absence of bad
complainant and promises to marry suggests a doubtful moral character. It means that he [an applicant for admission] must have
conducted himself as a man of upright character ordinarily would,
character on his part but the same does not constitute grossly
should, or does. Such character expresses itself not in negatives
immoral conduct. The Court has held that to justify suspension or
nor in following the line of least resistance, but quite often in the What is the effect of non-payment of IBP dues?
will to do the unpleasant thing if it is right, and the resolve not to • Rule 139-A, Section 10 which provides that "default in the
do the pleasant thing if it is wrong. - In re: James Joseph Hamm payment of annual dues for six months shall warrant suspension
123 P.3d 652 [2005] of membership in the Integrated Bar, and default in such payment
for one year shall be a ground for the removal of the name of the
Past and Present moral character delinquent member from the Roll of Attorneys.” - Santos, Jr. V.
• We also agree with Hamm that, under the Rule applicable to Atty. Llamas A.C No. 4749 [2000]
Hamm's application, our concern must be with the applicant's
present moral character. In Greenberg, we explained that "it is
[the applicant's] moral character as of now with which we are
concerned." xxx Past misconduct, however, is not irrelevant. Misrepresenting to the public and the courts that he had paid his
Rather, this Court must determine what past bad acts reveal about IBP dues
an applicant's current character. - In re: James Joseph Hamm 123 By indicating "IBP-Rizal 259060" in his pleadings and thereby
P.3d 652 [2005] misrepresenting to the public and the courts that he had paid
his IBP dues to the Rizal Chapter, respondent is guilty of violating
Effect of prior criminal conviction the Code of Professional Responsibility which provides:
• “Although a prior conviction is not conclusive of a lack of Rule 1.01 - A lawyer shall not engage in unlawful, dishonest,
present good moral character, ... it adds to his burden of immoral or deceitful conduct.
establishing present good character by requiring convincing CANON 7 - A LAWYER SHALL AT ALL TIMES UPHOLD
proof of his full and complete rehabilitation.” In re: James Joseph THE INTEGRITY AND DIGNITY OF THE LEGAL
Hamm 123 P.3d 652 [2005] PROFESSION, AND SUPPORT THE ACTIVITIES OF THE
INTEGRATED BAR.
Can a lawyer-detainee practice law? CANON 10 - A LAWYER OWES CANDOR, FAIRNESS AND
• As a matter of law, when a person indicted for an offense is GOOD FAITH TO THE COURT.
arrested, he is deemed placed under the custody of the law. He is Rule 10.01 - A lawyer shall not do any falsehood, nor consent to
placed in actual restraint of liberty in jail so that he may be bound the doing of any court; nor shall he mislead or allow the court to be
to answer for the commission of the offense. He must be detained misled by any artifice. - Santos, Jr. V. Atty. Llamas A.C No. 4749
in jail during the pendency of the case against him, unless he is [2000]
authorized by the court to be released on bail or on recognizance.
Let it be stressed that all prisoners whether under preventive Is a “senior citizen” lawyer exempted from payment of ITR also
detention or serving final sentence can not practice their exempted from payment of IBP dues?
profession nor engage in any business or occupation, or hold • While it is true that R.A. No. 7432, §4 grants senior citizens
office, elective or appointive, while in detention. This is a "exemption from the payment of individual income taxes:
necessary consequence of arrest and detention. – PP v. Hon. provided, that their annual taxable income does not exceed the
Maceda and Javellana G.R. No. 89591-96 January 24, 2000 poverty level as determined by the National Economic and
Development Authority (NEDA) for that year," the exemption
does not include payment of membership or association dues. - prescribed by law. Since Filipino citizenship is a requirement for
Santos, Jr. V. Atty. Llamas A.C No. 4749 [2000] admission to the bar, loss thereof terminates membership in the
Philippine bar and, consequently, the privilege to engage in the
Intent is necessary to be guilty of unauthorized practice of law practice of law. In other words, the loss of Filipino citizenship ipso
• In several cases, we have ruled that the unauthorized practice of jure terminates the privilege to practice law in the Philippines. The
law by assuming to be an attorney and acting as such without practice of law is a privilege denied to foreigners. - Petition for
authority constitutes indirect contempt which is punishable by leave to resume practice of law,Dacanay B.M. No. 1678 December
fine or imprisonment or both. The liability for the unauthorized 17, 2007
practice of law under Section 3(e), Rule 71 of the Rules of Court is
in the nature of criminal contempt and the acts are punished Effect of reacquisition of Filipino citizenship
because they are an affront to the dignity and authority of the • A Filipino lawyer who becomes a citizen of another country and
later re-acquires his Philippine citizenship under R.A. No. 9225,
court, and obstruct the orderly administration of justice. In
remains to be a member of the Philippine Bar. – Petition to
determining liability for criminal contempt, well-settled is the rule
reacquire the privilege to practice law in the Philippines,
that intent is a necessary element, and no one can be punished
Muneses, B.M. 2112 [2012]
unless the evidence makes it clear that he intended to commit
it. - Normatan & Pagayokan v. Balajadia, G.R. No. 169517 2006 Requirements before one can resume practice of law after
reacquiring Filipino citizenship
• Before a lawyer who reacquires Filipino citizenship pursuant to
Does giving up Philippine citizenship automatically result into lost
RA 9225 can resume his law practice, he must first secure from
of membership in the Philippine bar? this Court the authority to do so, conditioned on:
• The Constitution provides that the practice of all professions in the a) the updating and payment in full of the annual membership dues
Philippines shall be limited to Filipino citizens save in cases in the IBP;
prescribed by law. Since Filipino citizenship is a requirement for b) the payment of professional tax;
admission to the bar, loss thereof terminates membership in the c) the completion of at least 36 credit hours of mandatory
Philippine bar and, consequently, the privilege to engage in the continuing legal education; this is specially significant to refresh
practice of law. In other words, the loss of Filipino citizenship the applicant/petitioner’s knowledge of Philippine laws and update
ipso jure terminates the privilege to practice law in the him of legal developments and
Philippines. The practice of law is a privilege denied to foreigners. d) the retaking of the lawyer’s oath which will not only remind him
- Petition for leave to resume practice of law,Dacanay B.M. No. of his duties and responsibilities as a lawyer and as an officer of
1678 December 17, 2007 the Court, but also renew his pledge to maintain allegiance to the
Republic of the Philippines. – Petition for leave to resume practice
May a lawyer who has lost his Filipino citizenship still practice law of law, Dacanay B.M. No. 1678 December 17, 2007
in the Philippines?
• The Constitution provides that the practice of all professions in the What is the purpose for requiring the retaking of Lawyer’s Oath?
Philippines shall be limited to Filipino citizens save in cases
• The retaking of the lawyer’s oath which will not only remind qualifications; passing the bar examinations; taking the lawyer’s
him of his duties and responsibilities as a lawyer and as an officer oath and signing the roll of attorneys and receiving from the clerk
of the Court, but also renew his pledge to maintain allegiance to of court of this Court a certificate of the license to practice. -
the Republic of the Philippines. Petition for leave to resume practice of law,Dacanay B.M. No.
1678 December 17, 2007
Citizenship requirement in order to practice law in the Philippines
• Constitution Art. 12 Section 14. xxx. The practice of all Can a successful examinee take his oath before any person allowed
professions in the Philippines shall be limited to Filipino citizens, by law to administer an oath?
save in cases prescribed by law. • Rule 138 Sec. 17. Admission and oath of successful applicants. -
An applicant who has passed the required examination, or has been
Requirements for all applicants for admission to the bar otherwise found to be entitled to admission to the bar, shall take
• Section 2, Rule 138 (Attorneys and Admission to Bar) of the Rules and subscribe before the Supreme Court the corresponding oath
of Court: of office.
Requirements for all applicants for admission to the bar. – • Inasmuch as the oath as lawyer is a prerequisite to the practice of
Every applicant for admission as a member of the bar must be law and may be taken only, before the Supreme Court, by those
a citizen of the Philippines, at least twenty-one years of age, authorized by the latter to engage in such practice xxx. – PP v. De
of good moral character, and a resident of the Philippines; Luna, et. al. G.R. Nos. L-10236-48. January 31, 1958
and must produce before the Supreme Court satisfactory
evidence of good moral character, and that no charges Section 2. Section 41 of the Administrative Code of 1987 is hereby
against him, involving moral turpitude, have been filed or are amended to read as follows
pending in any court in the Philippines. Sec. 41. Officers Authorized to Administer Oath. - The following
officers have general authority to administer oaths:
Continuing requirements to practice law • President;
• The second requisite for the practice of law ― membership in • Vice-President;
good standing ― is a continuing requirement. This means • Members and Secretaries of both Houses of the Congress;
continued membership and, concomitantly, payment of annual • Members of the Judiciary;
membership dues in the IBP; payment of the annual professional • Secretaries of Departments;
tax; compliance with the mandatory continuing legal education • provincial governors and lieutenant-governors;
requirement; faithful observance of the rules and ethics of the legal • city mayors;
profession and being continually subject to judicial disciplinary • municipal mayors;
control. -Petition for leave to resume practice of law,Dacanay • bureau directors;
B.M. No. 1678 December 17, 2007 • regional directors;
• clerks of courts;
Phases of admission to the bar • registrars of deeds;
• other civilian officers in the public service of the government
• Moreover, admission to the bar involves various phases such as
of the Philippines whose appointments are vested in the
furnishing satisfactory proof of educational, moral and other
President and are subject to confirmation by the Commission • Rule 138 Sec. 18. Certificate. - The Supreme Court shall thereupon
on Appointments; admit the applicant as a member of the bar for all the courts of the
• all other constitutional officers; Philippines, and shall direct an order to be entered to that effect
• and notaries public." upon its records, and that a certificate of such record be given to
him by the clerk of court, which certificate shall be his authority
Duties of Attorneys to practice.
• Rule 138 section 20 - It is the duty of an attorney:
(a) To maintain allegiance to the Republic of the Philippines and to Failure to sign in the Roll of Attorneys
support the Constitution and obey the laws of the Philippines; • Petitioner did not sign in the Roll of Attorneys for 32 years. What
(b) To observe and maintain the respect due to the courts of justice and he had signed at the entrance of the PICC was probably just an
judicial officers; attendance record.
(c) To counsel or maintain such actions or proceedings only as appear • As Medado is not yet a full-fledged lawyer, we cannot suspend
to him to be just, and such defenses only as he believes to be honestly him from the practice of law. However, we see it fit to impose
debatable under the law; upon him a penalty akin to suspension by allowing him to sign in
(d) To employ, for the purpose of maintaining the causes confided to the Roll of Attorneys one ( 1) year after receipt of this Resolution.
him, such means only as are consistent with truth and honor, and never For his transgression of the prohibition against the unauthorized
seek to mislead the judge or any judicial officer by an artifice or false practice of law, we likewise see it fit to fine him in the amount of
statement of fact or law; P32,000. – Petition to sign in the Roll of Attorneys, Medado, B.M.
(e) To maintain inviolate the confidence, and at every peril to himself, No. 2540 [2013]
to preserve the secrets of his client, and to accept no compensation in
connection with his client's business except from him or with his Certificate of Membership & Certificate of Membership in Good
knowledge and approval; Standing in IBP
(f) To abstain from all offensive personality and to advance no fact
• Certificate of Membership in the Integrated Bar of the
prejudicial to the honor or reputation of a party or witness, unless
Philippines as well as a Certificate of Membership in Good
required by the justice of the cause with which he is charged;
(g) Not to encourage either the commencement or the continuance of Standing with the Quezon City Chapter of the Integrated Bar of
an action or proceeding, or delay any man's cause, from any corrupt the Philippines do not constitute his admission to the Philippine
motive or interest; Bar and the right to practice law thereafter. - Re: Elmo Abad,
(h) Never to reject, for any consideration personal to himself, the cause A. M. No. 139 [1983]
of the defenseless or oppressed;
(i) In the defense of a person accused of crime, by all fair and Requirements after flunking the bar 3 times
honorable means, regardless of his personal opinion as to the guilt of • Sec. 16. Failing candidates to take review course. - Candidates
the accused, to present every defense that the law permits, to the end who have failed the bar examinations for three times shall be
that no person may be deprived of life or liberty, but by due process of disqualified from taking another examination unless they show to
law. the satisfaction of the court that they have enrolled in and passed
regular fourth year review classes as well as attended a pre-bar
What is a lawyer’s proof of authority to practice of law? review course in a recognized law school.
• His disinclination to use the title of "counselor" does not warrant
• Enrollment and completion of pre-bar review course is an his use of the title of attorney. - Alawi v. Alauya, A.M. SDC-97-2-
additional requirement under Rule 138 of the Rules of Court for P. February 24, 1997
those who failed the bar examinations for three (3) or more times. -
In re: Purisima, B.M. Nos. 979 and 986 [2002] Prohibited acts of an examinee
• Rule 138 Sec. 12. Committee of examiners. - Examinations shall
The professors of the individual review subjects attended by the be conducted by a committee of bar examiners to be appointed by
candidates under this rule shall certify under oath that the candidates the Supreme Court. This committee shall be composed of a Justice
have regularly attended classes and passed the subjects under the same of the Supreme Court, who shall act as chairman, and who shall be
conditions as ordinary students and the ratings obtained by them in the designated by the court to serve for one year, and eight members of
particular subject. the bar of the Philippines, who shall hold office for a period of one
year. The names of the members of this committee shall be
Authority to appear in behalf of a client published in each volume of the official reports.
• Rule 138 Sec. 13. Disciplinary measures. - No candidate shall
• Sec. 21. Authority of attorney to appear. - An attorney is endeavor to influence any member of the committee, and
presumed to be properly authorized to represent any cause in during examination the candidates shall not communicate with
which he appears, and no written “power of attorney” is each other nor shall they give or receive any assistance. The
required to authorize him to appear in court for his client, but candidate who violates this provision, or any other provision of
the presiding judge may, on motion of either party and on this rule, shall be barred from the examination, and the same to
reasonable grounds therefor being shown, require any attorney count as a failure against him, and further disciplinary action,
who assumes the right to appear in a case to produce or prove including permanent disqualification, may be taken in the
the authority under which he appears, and to disclose, discretion of the court.
whenever pertinent to any issue, the name of the person who
Can an “indefinite suspension” from the practice of law prohibit a
employed him, and may thereupon make such order as justice
lawyer from filing a citizen or taxpayer suit?
requires. An attorney wilfully appearing in court for a person
• Petitioner Alan F. Paguia (petitioner), as citizen and taxpayer,
without being employed, unless by leave of the court, may be
filed this original action for the writ of certiorari to invalidate
punished for contempt as an officer of the court who has
President Gloria MacapagalArroyo’s nomination of respondent
misbehaved in his official transactions.
former Chief Justice Hilario G. Davide, Jr. (respondent Davide) as
Permanent Representative to the United Nations (UN) for violation
A “Counselor” is not an “Attorney” of Section 23 of Republic Act No. 7157 (RA 7157), the Philippine
• The title of "attorney" is reserved to those who, having obtained Foreign Service Act of 1991.
the necessary degree in the study of law and successfully taken the • In their separate Comments, respondent Davide, the Office of the
Bar Examinations, have been admitted to the Integrated Bar of the President, and the Secretary of Foreign Affairs (respondents) raise
Philippines and remain members thereof in good standing; and it is threshold issues against the petition. First, they question
they only who are authorized to practice law in this jurisdiction.
petitioner’s standing to bring this suit because of his indefinite filed, must be signed by the supervising attorney for and in
suspension from the practice of law. behalf of the legal clinic.
• An incapacity to bring legal actions peculiar to petitioner also • The phrase "direct supervision and control" requires no less
obtains. Petitioner’s suspension from the practice of law bars him than the physical presence of the supervising lawyer during the
from performing “any activity, in or out of court, which requires hearing.
the application of law, legal procedure, knowledge, training and
experience.” Certainly, preparing a petition raising carefully • Sec. 3. Privileged communications. — The Rules safeguarding
crafted arguments on equal protection grounds and employing privileged communications between attorney and client shall
highly legalistic rules of statutory construction to parse Section apply to similar communications made to or received by the
23 of RA 7157 falls within the proscribed conduct. - Paguia v. law student, acting for the legal clinic.
Office of the President, G.R. No. 176278 [2010]
• Sec. 4. Standards of conduct and supervision. — The law
CHAPTER 2
student shall comply with the standards of professional
Law Student Rule
conduct governing members of the Bar. Failure of an attorney
RULE 138-A
to provide adequate supervision of student practice may be a
LAW STUDENT PRACTICE RULE
ground for disciplinary action.
SC Circular No. 19, prom. Dec. 19, 1986
Rule 138 (RRC) Sec. 34
• SECTION 1. Conditions for Student Practice. — A law student
• Rule 138 (RRC) Sec. 34. By whom litigation conducted. - In the
who has successfully completed his 3rd year of the regular
court of a justice of the peace a party may conduct his
four-year prescribed law curriculum and is enrolled in a
litigation in person, with the aid of an agent or friend
recognized law school's clinical legal education program
appointed by him for that purpose, or with the aid of an
approved by the Supreme Court, may appear without
attorney.
compensation in any civil, criminal or administrative case
before any trial court, tribunal, board or officer, to present any
In any other court, a party may conduct his litigation personally
indigent clients accepted by the legal clinic of the law school.
or by aid of an attorney, and his appearance must be either
personal or by a duly authorized member of the bar.
• Sec. 2. Appearance. — The appearance of the law student
authorized by this rule, shall be under the direct supervision
Rule 138 section 34 does not apply in cases before the RTC
and control of a member of the Integrated Bar of the
• The Rules are clear. In municipal courts, the litigant may be
Philippines duly accredited by the law school. Any and all
assisted by a friend, agent, or an attorney. However, in cases
pleadings, motions, briefs, memoranda or other papers to be
before the regional trial court, the litigant must be aided by a
duly authorized member of the bar. The rule invoked by the
Torcinos applies only to cases filed with the regional trial court
and not to cases before a municipal court. - Bulacan v. Torcino, BAR MATTER NO.730, June 13, 1997
G.R. No. L-44388 January 30, 1985 • For the guidance of the bench and bar, we hold that a law student
• But for the protection of the parties and in the interest of justice, appearing before the Regional Trial Court under Rule 138-A
the requirement for appearances in regional trial courts and should at all times be accompanied by a supervising lawyer.
higher courts is more stringent. – Bulacan v. Torcino, G.R. No.
L-44388 January 30, 1985 Law student can appear without supervision of a lawyer
• The rule, however, is different if the law student appears before an
inferior court, where the issues and procedure are relatively
Reconciling the 2 rules simple. In inferior courts, a law student may appear in his personal
• There is really no problem as to the application of Section 34 of capacity without the supervision of a lawyer.
Rule 138 and Rule 138-A. In the former, the appearance of a non- • Thus, a law student may appear before an inferior court as an
lawyer, as an agent or friend of a party litigant, is expressly agent or friend of a party without the supervision of a member
allowed, while the latter rule provides for conditions when a law of the bar.
student, not as an agent or a friend of a party litigant, may appear
before the courts. - Cruz v. Mina GR no. 154207 April 27, 2007
Caution when one act as his own attorney
• This provision means that in a litigation, parties may personally do
The phrase“In the court of a justice of the peace”means:
everything during its progress -- from its commencement to its
• The phrase “In the court of a justice of the peace” in Bar Matter
termination. When they, however, act as their own attorneys, they
No. 730 is subsequently changed to “In the court of a
are restricted to the same rules of evidence and procedure as
municipality” as it now appears in Section 34 of Rule 138, thus:
those qualified to practice law; otherwise, ignorance would be
• SEC. 34. By whom litigation is conducted. — In the Court of a
unjustifiably rewarded. Individuals have long been permitted to
municipality a party may conduct his litigation in person, with the
manage, prosecute and defend their own actions; and when they
aid of an agent or friend appointed by him for that purpose, or with
do so, they are not considered to be in the practice of law. "One
the aid of an attorney. In any other court, a party may conduct his
does not practice law by acting for himself any more than he
litigation personally or by aid of an attorney and his appearance
practices medicine by rendering first aid to himself.“ – Maderada
must be either personal or by a duly authorized member of the bar.
v. Judge Mediodea, A.M. No. MTJ-02-1459. October 14, 2003
- Cruz v. Mina GR no. 154207 April 27, 2007
Appearing as his own attorney is not “practice of law”
The term "Municipal Trial Courts" as used in these Rules shall
• Clearly, in appearing for herself, complainant was not customarily
include:
or habitually holding herself out to the public as a lawyer.
1. Metropolitan Trial Courts,
Neither was she demanding payment for such services. Hence, she
2. Municipal Trial Courts in Cities,
cannot be said to be in the practice of law. - Maderada v. Judge
3. Municipal Trial Courts, and
4. Municipal Circuit Trial Courts. Mediodea, A.M. No. MTJ-02-1459. October 14, 2003
- Cruz v. Mina GR no. 154207 April 27, 2007
• The law allows persons who are not lawyers by profession to strictly construed because public policy demands that legal work
litigate their own case in court. The right of complainant to should be entrusted only to those who possess tested qualifications,
litigate her case personally cannot be taken away from her. - are sworn to observe the rules and ethics of the legal profession
Maderada v. Judge Mediodea, A.M. No. MTJ-02-1459. October and subject to judicial disciplinary control. - BAR MATTER NO.
14, 2003 730 June 13, 1997
UNAUTHORIZED PRACTICE OF LAW Appearance of a law student in inferior courts does not require
• CANON 9 - A LAWYER SHALL NOT, DIRECTLY OR supervision of lawyer
INDIRECTLY, ASSIST IN THE UNAUTHORIZED • For relatively simple litigation before municipal courts, the Rules
PRACTICE OF LAW. still allow a more educated or capable person in behalf of a
• Rule 9.01 - A lawyer shall not delegate to any unqualified litigant who cannot get a lawyer. - Bulacan v. Torcino, G.R. No. L-
person the performance of any task which by law may only be 44388 January 30, 1985
performed by a member of the bar in good standing. • The rule, however, is different if the law student appears before
an inferior court, where the issues and procedure are relatively
Threefold rationale behind the Law Student Practice Rule simple. In inferior courts, a law student may appear in his
• 1. to ensure that there will be no miscarriage of justice as a personal capacity without the supervision of a lawyer. - BAR
result of incompetence or inexperience of law students, who, not MATTER NO. 730 June 13, 1997
having as yet passed the test of professional competence, are • A law student may appear before an inferior court as an agent or
presumably not fully equipped to act a counsels on their own; friend of a party without the supervision of a member of the
• 2. to provide a mechanism by which the accredited law school bar. - BAR MATTER NO. 730 June 13, 1997
clinic may be able to protect itself from any potential vicarious
liability arising from some culpable action by their law students; The respondent alleges that the complaint is irregular as it was
and signed not by the plaintiff but by one who was not a member of the
• 3. to ensure consistency with the fundamental principle that no bar and who designated himself merely as "Friend counsel for the
person is allowed to practice a particular profession without Plaintiff." The appellants argue that the municipal court did not
possessing the qualifications, particularly a license, as required by acquire jurisdiction over the case.
law.
• They invoke Section 5, Rule 7 which states that [SEC. 5. Signature
Presiding judge has no discretion and address] [e]very pleading of a party represented by an attorney
• The matter of allowing a law student to appear before the court shall be signed by at least one attorney of record in his
unaccompanied by a supervising lawyer cannot be left to the individual name, whose address shall be stated. A party who is not
discretion of the presiding judge. The rule clearly states that the represented by an attorney shall sign his pleading and state his
appearance of the law student shall be under the direct control address.
and supervision of a member of the Integrated Bar of the
Philippines duly accredited by law schools. The rule must be • DECIDE.
The petitioner, describing himself as a third year law student,
Held: justifies his appearance as private prosecutor on the bases of
• Under the facts of this case, however, the applicable provision is Section 34 of Rule 138 of the Rules of Court.
Section 34, Rule 138 of the Rules of Court which states: The petitioner furthermore avers that his appearance was with the
• SEC. 34. By whom litigation is conducted. In the Court of a prior conformity of the public prosecutor and a written authority
municipality a party may conduct his litigation in person with the of Mariano Cruz appointing him to be his agent in the prosecution
aid of an agent or friend appointed by him for that purpose, or of the said criminal case.
with the aid of an attorney. In any other court, a party may conduct The MeTC denied permission for petitioner to appear as private
his litigation personally or by aid of an attorney and his appearance
prosecutor on the ground that Circular No. 19 (1997) governing
must be either personal or by a duly authorized member of the bar.
limited law student practice in conjunction with Rule 138-A of
- Bulacan v. Torcino, G.R. No. L-44388 January 30, 1985
the Rules of Court (Law Student Practice Rule) should take
Supervising lawyer should be the one to sign the pleadings precedence over the ruling of the Court laid down in
Cantimbuhan (1983).
Rule 7 (RRC) Section 3. Signature and address. — Every
pleading must be signed by the party or counsel representing
him, stating in either case his address which should not be a post Held:
office box. • Petitioner expressly anchored his appearance on Section 34 of Rule
138. The court a quo must have been confused by the fact that
Signing amounts to certification of lawyer petitioner referred to himself as a law student in his entry of
appearance. Rule 138-A should not have been used by the
Rule 7 (RRC) Section 3. xxx The signature of counsel constitutes a
courts a quo in denying permission to act as private prosecutor
certificate by him that he has read the pleading; that to the best of
against petitioner for the simple reason that Rule 138-A is not the
his knowledge, information, and belief there is good ground to
basis for the petitioner’s appearance.
support it; and that it is not interposed for delay.
• Section 34, Rule 138 is clear that appearance before the inferior
courts by a non-lawyer is allowed, irrespective of whether or not
Effect of unsigned pleadings
he is a law student. As succinctly clarified in Bar Matter No. 730,
Rule 7 (RRC) Section 3. An unsigned pleading produces no legal
by virtue of Section 34, Rule 138, a law student may appear, as
effect. However, the court may, in its discretion, allow such
an agent or a friend of a party litigant, without the supervision
deficiency to be remedied if it shall appear that the same was due
of a lawyer before inferior courts. - Cruz v. Mina GR no. 154207
to mere inadvertence and not intended for delay. Counsel who
April 27, 2007
deliberately files an unsigned pleading,xxx, shall be subject to
appropriate disciplinary action. Fiscal’s role when there is a private prosecutor
• The permission of the fiscal is not necessary for one to enter his
Can a third year law student appear as private prosecutor in a
appearance as private prosecutor. In the first place, the law does
criminal case and within the jurisdiction of the inferior court?
not impose this condition. What the fiscal can do, if he wants to
handle the case personally is to disallow the private prosecutor's
participation, whether he be a lawyer or not, in the trial of the • Rule 2.02 - In such cases, even if the lawyer does not accept a
case. On the other hand, if the fiscal desires the active participation case, he shall not refuse to render legal advice to the person
of the private prosecutor, he can just manifest to the court that the concerned if only to the extent necessary to safeguard the latter's
private prosecutor, with its approval, will conduct the prosecution rights.
of the case under his supervision and control. – Cantimbuhan v.
Hon. Cruz, Jr., G.R. No. L-51813-14 November 29, 1983 • Rule 2.03 - A lawyer shall not do or permit to be done any act
designed primarily to solicit legal business.
• Rule 2.04 - A lawyer shall not charge rates lower than those
customarily prescribed unless the circumstances so warrant.
Sections 4 and 15, Rule 110 of the Rules of Court
• SEC. 4. Who must prosecute criminal actions. — All criminal CANON 3 - A LAWYER IN MAKING KNOWN HIS LEGAL
SERVICES SHALL USE ONLY TRUE, HONEST, FAIR,
actions either commenced by complaint or by information shall
DIGNIFIED AND OBJECTIVE INFORMATION OR STATEMENT
be prosecuted under the direction and control of the fiscal.
OF FACTS.
• xxx xxx xxx
• SEC. 15. Intervention of the offended party in criminal action. • Rule 3.01 - A lawyer shall not use or permit the use of any false,
— Unless the offended party has waived the civil action or fraudulent, misleading, deceptive, undignified, self-laudatory or
expressly reserved the right to institute it separately from the unfair statement or claim regarding his qualifications or legal
criminal action, and subject to the provisions of section 4 services.
hereof, he may intervene, personally or by attorney, in the • Rule 3.02 - In the choice of a firm name, no false, misleading or
prosecution of the offense. assumed name shall be used. The continued use of the name of a
deceased partner is permissible provided that the firm indicates in
all its communications that said partner is deceased.
CHAPTER 3
Solicitation of legal services • Rule 3.03 - Where a partner accepts public office, he shall
withdraw from the firm and his name shall be dropped from the
Code of Professional Responsibility firm name unless the law allows him to practice law currently.
• CANON 2 - A LAWYER SHALL MAKE HIS LEGAL
• Rule 3.04 - A lawyer shall not pay or give anything of value to
SERVICES AVAILABLE IN AN EFFICIENT AND
representatives of the mass media in anticipation of, or in return for
CONVENIENT MANNER COMPATIBLE WITH THE
publicity to attract legal business.
INDEPENDENCE, INTEGRITY AND EFFECTIVENESS OF
THE PROFESSION. Rule 138
• Rule 2.01 - A lawyer shall not reject, except for valid reasons, the • Sec. 27. Attorneys removed or suspended by Supreme Court on
cause of the defenseless or the oppressed. what grounds. - A member of the bar may be removed or
suspended from his office as attorney by the Supreme Court for
any deceit, malpractice, or other gross misconduct in such office,
grossly immoral conduct, or by reason of his conviction of a crime 1. A duty of public service, of which the emolument is a by-
involving moral turpitude, or for any violation of the oath which he product, and in which one may attain the highest eminence
is required to take before admission to practice, or for a wilfull without making much money;
disobedience of any lawful order of a superior court, or for 2. A relation as an “officer of the court” to the administration of
corruptly or wilfully appearing as an attorney for a party to a case justice involving thorough sincerity, integrity and reliability;
without authority so to do. The practice of soliciting cases at law 3. A relation to clients in the highest degree of fiduciary;
for the purpose of gain, either personally or through paid 4. A relation to colleagues at the bar characterized by candor,
agents or brokers, constitutes malpractice. fairness, and unwillingness to resort to current business
methods of advertising and encroachment on their practice, or
Rule 2.03 should be read in connection with Rule 1.03 of the CPR dealing directly with their clients.
- Atty. Khan Jr. v. Atty. Simbillo, A.C. No. 5299, August 19,
• Rule 2.03 - A lawyer shall not do or permit to be done any act 2003
designed primarily to solicit legal business.
General rule
• RULE 1.03. A LAWYER SHALL NOT, FOR ANY CORRUPT • Hence, lawyers are prohibited from soliciting cases for the purpose
MOTIVE OR INTEREST, ENCOURAGE ANY SUIT OR of gain, either personally or through paid agents or brokers.
PROCEEDING OR DELAY ANY MAN’S CAUSE. Such actuation constitutes malpractice, a ground for disbarment. -
Linsangan v. Atty. Tolentino, A.C. No. 6672, September 4, 2009
• This rule proscribes “ambulance chasing” (the solicitation of
• “Solicitation or obtaining of professional employment by any
almost any kind of legal business by an attorney, personally or
means of communication." - Geffen v. Moss, 53 Cal.App.3d 215,
through an agent in order to gain employment) as a measure to
125 Cal.Rptr. 687 [1975]
protect the community from barratry and champerty. -
Linsangan v. Atty. Tolentino, A.C. No. 6672, September 4, 2009 Solicitation or Ambulance chasing
• We need not labor the point that solicitation or ambulance
Do not “pirate” a client
• CANON 8 - A LAWYER SHALL CONDUCT HIMSELF WITH chasing, so-called, either directly or indirectly through the services
COURTESY, FAIRNESS AND CANDOR TOWARDS HIS of runners or others, is conduct which is reprehensible and
PROFESSIONAL COLLEAGUES, AND SHALL AVOID inimicable to the traditions and best interests of the legal
HARASSING TACTICS AGAINST OPPOSING COUNSEL. profession. Not only does it provoke derision and disrespect in the
• Rule 8.02 - A lawyer shall not, directly or indirectly, encroach eyes of the public, but it is an overreaching of the other members
upon the professional employment of another lawyer, however, it of the profession who adhere to the standards fixed by canons of
is the right of any lawyer, without fear or favor, to give proper ethics and the dictates of good conscience. To permit such
advice and assistance to those seeking relief against unfaithful or conduct to continue undeterred could only result in unsavory
neglectful counsel. competitions and consequences materially detrimental to the
dignity and honor of the legal profession as a whole. - In re
The following elements distinguish the legal profession from a
Krasner 204 N.E.2d 10 (1965)
business:
Ambulance chasing • Common barratry consisting of frequently stirring up suits and
• This rule proscribes “ambulance chasing” (the solicitation of quarrels between individuals.
almost any kind of legal business by an attorney, personally or
through an agent in order to gain employment) as a measure to Only way to announce legal service
protect the community from barratry and champerty. - Linsangan • For this reason, lawyers are only allowed to announce their
v. Atty. Tolentino, A.C. No. 6672, September 4, 2009 services by publication in reputable law lists or use of simple
professional cards. - Linsangan v. Atty. Tolentino, A.C. No. 6672,
Champertous contract September 4, 2009
• Champerty n. an agreement between the party suing in a lawsuit • Nonetheless, the solicitation of legal business is not altogether
(plaintiff) and another person, usually an attorney, who agrees to proscribed. However, for solicitation to be proper, it must be
finance and carry the lawsuit in return for a percentage of the compatible with the dignity of the legal profession. If it is made
recovery (money won and paid.) In Common Law this was illegal in a modest and decorous manner, it would bring no injury to the
on the theory that it encouraged lawsuits. lawyer and to the bar. - Atty. Khan Jr. v. Atty. Simbillo, A.C. No.
5299, August 19, 2003
Contingent fee is valid
• For this reason, lawyers are only allowed to announce their
• Contingent fee contracts are permitted in this jurisdiction because
services by publication in reputable law lists or use of simple
they redound to the benefit of the poor client and the lawyer
professional cards.Linsangan v. Atty. Tolentino, A.C. No. 6672,
"especially in cases where the client has meritorious cause of
September 4, 2009
action, but no means with which to pay for legal services unless
he can, with the sanction of law, make a contract for a contingent • Professional calling cards may only contain the following details:
fee to be paid out of the proceeds of litigation. Oftentimes, the
contingent fee arrangement is the only means by which the poor 1. lawyer’s name;
clients can have their rights vindicated and upheld." 2. name of the law firm with which he is connected;
• As long as the lawyer does not exert undue influence on his 3. address;
client, that no fraud is committed or imposition applied, or that 4. telephone number and
the compensation is clearly not excessive as to amount to 5. special branch of law practiced.
extortion, a contract for contingent fee is valid and enforceable. – - Linsangan v. Atty. Tolentino, A.C. No. 6672, September 4,
Fabillo v. IAC G.R. No. L-68838 March 11, 1991 2009
Acceptance fee Brief biographical and informative data
• An acceptance fee is not a contingent fee, but is an absolute fee • Such data must not be misleading and may include only the
arrangement which entitles a lawyer to get paid for his efforts following:
regardless of the outcome of the litigation. - Yu v. Bondal, A.C. No. 1. a statement of the lawyer’s name and the names of his
5534, January 17, 2005 professional associates;
• Touters - someone who advertises for customers in an especially 2. addresses, telephone numbers, cable addresses;
brazen way. 3. branches of law practiced;
4. date and place of birth and admission to the bar; objectionable. - Atty. Khan Jr. v. Atty. Simbillo, A.C. No. 5299,
5. schools attended with dates of graduation, degrees and other August 19, 2003
educational distinctions;
6. public or quasi-public offices; Telephone directory
7. posts of honor; • He may likewise have his name listed in a telephone directory but
8. legal authorships; not under a designation of special branch of law. - Atty. Khan
9. legal teaching positions; Jr. v. Atty. Simbillo, A.C. No. 5299, August 19, 2003
10. membership and offices in bar associations and committees
thereof, in legal and scientific societies and legal fraternities; Whether or not the firm of Velasquez, Rodriguez, Respicio,
11. the fact of listings in other reputable law lists; Ramos, Nidea, and Prado may call itself “A law Firm Of St.
12. the names and addresses of references; and, Thomas More and Associate Members”
13. with their written consent, the names of clients regularly • We agree with the OBC. Rule 3.02 is clear. No name not
represented. belonging to any of the partners or associates may be used in
- Atty. Khan Jr. v. Atty. Simbillo, A.C. No. 5299, August 19, the firm name for any purpose. In one case, we have ruled that
2003 the use of the firm name of a foreign law firm is unethical
Acceptable law list publication because that firm is not authorized to practice law in this
• The law list must be a reputable law list published primarily for jurisdiction. In this case, “The Law Firm of St. Thomas More and
that purpose; it cannot be a mere supplemental feature of a paper, Associate Members” is not a law firm in this jurisdiction or even in
magazine, trade journal or periodical which is published any other jurisdiction. A “St. Thomas More and Associates” or
principally for other purposes. For that reason, a lawyer may not STMA is in fact the socio-political ministry or the couples for
properly publish his brief biographical and informative data in a Christ, a Christian family-renewal community. - PP v. Gonzalez,
daily paper, magazine, trade journal or society program. Nor may a Jr., G.R. No. 139542 June 10, 2003
lawyer permit his name to be published in a law list the conduct, • To appellate to the name of the lawyers “The Law Firm of St.
management, or contents of which are calculated or likely to Thomas More and Associate Members” indeed appears
deceive or injure the public or the bar, or to lower dignity or misleading. It implies that St. Thomas More is a Law Firm
standing of the profession. - Atty. Khan Jr. v. Atty. Simbillo, A.C. when in fact it is not it would also convey to the public the
No. 5299, August 19, 2003 impression that the lawyers are members of the law firm which
does not exist. To the public, it would seem that the purpose or
Acceptable publication intention of adding “The Law Firm of St. Thomas More and
• The use of an ordinary simple professional card is also permitted. Associates Members” is to bask in the name of a Saint, although
The card may contain only a statement of his name, the name of that may not really, be the purpose or intention of the lawyers. The
the law firm which he is connected with, address, telephone appellation only tends to confuse the public and in a way
number and special branch of law practiced. The publication of a demean both the saints and the legal profession whose members
simple announcement of the opening of a law firm or of must depend on their own name and record and merit and not on
changes in the partnership, associates, firm name or office the name/glory of other persons living or dead. – PP v. Gonzalez,
address, being for the convenience of the profession, is not Jr., G.R. No. 139542 June 10, 2003
Philippine Daily Inquirer, which reads:
- Atty. Khan Jr. v. Atty. Simbillo, A.C. No. 5299, August 19, 2003
• Thus, the use of simple signs stating the name or names of the
lawyers, the office and residence address and fields of practice, as
well as advertisement in legal periodicals bearing the same brief
data, are permissible. Even the use of calling cards is now
acceptable. Publication in reputable law lists, in a manner
consistent with the standards of conduct imposed by the canon, of
brief biographical and informative data is likewise allowable. -
Atty. Khan Jr. v. Atty. Simbillo, A.C. No. 5299, August 19, 2003
• Note: this does not mean that an associate who met a client once or Trust Account Monies
twice and has prepared discovery requests has had “significant • Clients that have given the firm an advance fee or advance cost
personal contacts” – the standard is that if the client were asked deposit take the money with them (less earned fees and costs), if
“which lawyer(s) at the firm represents you?” the lawyers they go with the departing lawyer. While simple in theory,
mentioned would be those that have had“significant personal application sometimes can be problematic.
contacts.” • The“old” firm should write a check, consistent with the written
instructions of the client, to either the client or to the trust account
Ethical obligations of departing lawyers for the departed lawyer’s new firm.
Fee Divisions In General • And remember that the client file is client property, so you cannot
• In contingent fee cases where some or much of the work was charge the client for the cost of downloading everything to
performed at the existing firm, but the case is going with the disks….
departing lawyer, the firm and lawyer must agree how the
contingent fee will be apportioned among them, based upon their Phones
respective contributions to the case (i.e., quantum meruit) or based • It is ethically inappropriate to have the receptionist tell callers
upon terms in the partnership agreement. who are looking for a lawyer who recently left the firm “we don’t
But can a departing lawyer keep all of a contingent fee case that know where he is.” That game is not professional and not
came into acceptable.
the old firm but ultimately settled when the lawyer was at a new • Assure that all staff are instructed to provide the departed lawyer’s
firm? phone number and mailing address.
• Also, assign a partner to answer any client inquiries.
• Probably not, according to several cases.
• Moreover, mail should be forwarded to the departed lawyer.
• A lawyer may be entitled to only his partnership portion of the fees
earned on a case, even if he performed most of the work after the
Partners and Associates Leaving Must Abide By Fiduciary Duties
dissolution of the firm.
• Nevertheless, some courts will find that when a lawyer leaves a to
firm and takes a case with him, he may be entitled to the quantum Firm
meruit value of the work he performed. • It is worth noting again that lawyers who are leaving a firm have
certain fiduciary duties to the firm to not interfere with the
Client’s interests not be prejudiced when the attorney/client contracts that the firm has with existing clients, to not use firm
relationship is terminated resources to set up their new firm, and to not attempt to steal
• Do not hold client files hostage, even if the client that is leaving away associates and staff while the lawyers are still working for
with the lawyer owes the current firm money. the firm. - Lynda C. Shely
• Model Rule 1.16(d) requires that the client’s interests not be
prejudiced when the attorney/client relationship is terminated. A lawyer whose spouse is associated with a firm representing an
Have the client or a runner from the departed lawyer’s new firm opposing party
sign for the file, if it is going to the new firm. • [T]he lawyer should advise the client of all circumstances that
• Also, it is appropriate to request in a litigation matter that the might cause one to question the undivided loyalty of the law firm
departed lawyer file a substitution of counsel or at least notification and let the client make the decision as to its employment. If the
of address change with the court, to assure that the old firm is still client prefers not to employ a law firm containing a lawyer whose
not listed as counsel of record. spouse is associated with a firm representing an opposing party,
that decision should be respected.
Client’s file = paper and electronic documents
• When a client asks for their file, you must give them both the
paper and the electronic documents – including emails.
WON the firm of “Velasquez, Rodriguez, Respicio, Ramos, Nidea, stenographer, or clerk be examined, without the consent of the
and Prado”may call itself “A law Firm Of St. Thomas More and client and his employer, concerning any fact the knowledge of
Associate Members”. which has been acquired in such capacity;
• It implies that St. Thomas More is a Law Firm when in fact it is
not it would also convey to the public the impression that the Canon 21 – A lawyer shall preserve the confidence and secrets of his
lawyers are members of the law firm which does not exist. To the client even after the
public, it would seem that the purpose or intention of adding “The attorney-client relation is terminated
Law Firm of St. Thomas More and Associates Members” is to bask • Rule 21.01 - A lawyer shall not reveal the confidences or secrets of
in the name of a Saint, although that may not really, be the purpose his client except;
or intention of the lawyers. The appellation only tends to confuse (a) When authorized by the client after acquainting him of the
the public and in a way demean both the saints and the legal consequences of the disclosure;
profession whose members must depend on their own name and (b) When required by law;
record and merit and not on the name/glory of other persons living (c) When necessary to collect his fees or to defend himself,
or dead. - PP v. Gonzalez, Jr., G.R. No. 139542 June 10, 2003 his employees or associates or by judicial action.
• Rule 21.02 - A lawyer shall not, to the disadvantage of his client,
Duties When Switching Firms use information acquired in the course of employment, nor shall he
• Duties of Lawyers Interviewing With Other Firms use the same to his own advantage or that of a third person,
• Screening an “Infected” Lateral Hire unless the client with full knowledge of the circumstances
• Death of a Lawyer consents thereto.
• Rule 21.03 - A lawyer shall not, without the written consent of
CHAPTER 6 his client, give information from his files to an outside agency
Confidentiality & privilege communications between lawyers and seeking such information for auditing, statistical, bookkeeping,
clients accounting, data processing, or any similar purpose.
• Rule 21.04 - A lawyer may disclose the affairs of a client of the
CANON 15 - A lawyer shall observe candor, fairness and loyalty firm to partners or associates thereof unless prohibited by the
in all his dealings and transactions with his clients client.
• Rule 15.02. - A lawyer shall be bound by the rule on privilege • Rule 21.05 - A lawyer shall adopt such measures as may be
required to prevent those whose services are utilized by him, from
communication in respect of matters disclosed to him by a
disclosing or using confidences or secrets of the clients.
prospective client.
• Rule 21.06 - A lawyer shall avoid indiscreet conversation about a
• Rule 130 Sec. 24.Disqualification by reason of privileged
client's affairs even with members of his family.
communication. — The following persons cannot testify as to
• Rule 21.07 - A lawyer shall not reveal that he has been consulted
matters learned in confidence:
about a particular case except to avoid possible conflict of interest.
(b) 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, Rule 138 of the Rules of Court
professional employment, nor can an attorney's secretary,
• Sec. 20. It is the duty of an attorney: (e) to maintain inviolate the
confidence, and at every peril to himself, to preserve the secrets Why lawyer-client relationships requires confidentiality
of his client, and to accept no compensation in connection with his • Considerations favoring confidentially in lawyer-client
client's business except from him or with his knowledge and relationships are many and serve several constitutional and policy
approval. concerns. In the constitutional sphere, the privilege gives flesh to
one of the most sacrosanct rights available to the accused, the right
• Canon 17. A lawyer owes fidelity to the cause of his client and he to counsel. If a client were made to choose between legal
shall be mindful of the trust and confidence reposed in him. representation without effective communication and disclosure and
legal representation with all his secrets revealed then he might be
Revised Penal Code compelled, in some instances, to either opt to stay away from the
• Art. 209. Betrayal of trust by an attorney or solicitor. — Revelation judicial system or to lose the right to counsel. If the price of
of secrets. — In addition to the proper administrative action, disclosure is too high, or if it amounts to self incrimination, then
xxx shall be imposed upon any attorney-at-law or solicitor the flow of information would be curtailed thereby rendering the
( procurador judicial) who, by any malicious breach of professional right practically nugatory. The threat this represents against
duty or of inexcusable negligence or ignorance, shall prejudice his another sacrosanct individual right, the right to be presumed
client, or reveal any of the secrets of the latter learned by him in innocent is at once self-evident. - Regala et. al. v.
his professional capacity. Sandiganbayan, G. R. No. 105938 [1996]
• The same penalty shall be imposed upon an attorney-at-law or
solicitor (procurador judicial) who, having undertaken the Extent of Confidentiality Rule
defense of a client or having received confidential information • The confidentiality rule, for example, applies not only to matters
from said client in a case, shall undertake the defense of the communicated in confidence by the client but also to all
opposing party in the same case, without the consent of his first information relating to the representation, whatever its source. A
client. lawyer may not disclose such information except as authorized or
required by the Rules of Professional Conduct or other law.
Confidentiality is not the same as the attorney-client privilege
• The lawyer’s duty of confidentiality (an ethical duty) is not the Lawyer’s duty to keep the confidentiality
same as the client’s right to assert the attorney client privilege (a • An effective lawyer-client relationship is largely dependent upon
rule of evidence). the degree of confidence which exists between lawyer and
• The attorney/client privilege extends only to communications client which in turn requires a situation which encourages a
between lawyers and clients relating to legal services and which dynamic and fruitful exchange and flow of information. It
the client reasonably believes is confidential. necessarily follows that in order to attain effective representation,
• Any disclosure may waive the attorney/client privilege as to other the lawyer must invoke the privilege not as a matter of option but
otherwise protected matters; not so with the duty of confidentiality. as a matter of duty and professional responsibility. - Regala et.
• The privilege applies only to limiting testimony in a legal al. v. Sandiganbayan, G. R. No. 105938 [1996]
proceeding. The duty of confidentiality limits voluntary
disclosures anywhere.
Duty of lawyer when receiving a material not intended for him
• A lawyer who receives on an unauthorized basis materials of an Exceptions
adverse party that she knows to be privileged or confidential 1) Client identity is privileged where a strong probability exists that
should, upon recognizing the privileged or confidential nature of revealing the client's name would implicate that client in the very
the materials, either refrain from reviewing such materials or activity for which he sought the lawyer's advice.
review them only to the extent required to determine how 2) Where disclosure would open the client to civil liability; his identity
appropriately to proceed; is privileged.
3) Where the government's lawyers have no case against an attorney's
• She should notify her adversary's lawyer that she has such client unless, by revealing the client's name, the said name would
materials and should either follow instructions of the adversary's furnish the only link that would form the chain of testimony necessary
lawyer with respect to the disposition of the materials, or refrain to convict an individual of a crime, the client's name is privileged. -
from using the materials until a definitive resolution of the proper Regala et. al. v. Sandiganbayan, G. R. No. 105938 [1996]
disposition of the materials is obtained from a court. - ABA
Comm. on Ethics and Prof'l Responsibility, Formal Op. 382 • Summarizing these exceptions, information relating to the identity
(1994). of a client may fall within the ambit of the privilege when the
client's name itself has an independent significance, such that
General Rule on client’s identity disclosure would then reveal client confidences. - Regala et. al.
• As a matter of public policy, a client's identity should not be v. Sandiganbayan, G. R. No. 105938 [1996]
shrouded in mystery. Under this premise, the general rule in our
jurisdiction as well as in the United States is that a lawyer may not
invoke the privilege and refuse to divulge the name or identity of Communication to commit crime or fraud not privileged
this client. - Regala et. al. v. Sandiganbayan, G. R. No. 105938 • "The reason of the principle which holds such communications not
[1996] to be privileged is that it is not within the professional character
of a lawyer to give advice upon such subjects, and that it is no
Reasons advanced for the general rule part of the profession of an attorney or counselor at law to be
• First, the court has a right to know that the client whose privileged advising persons as to how they may commit crimes or frauds,
information is sought to be protected is flesh and blood. or how they may escape the consequences of contemplated
• Second, the privilege begins to exist only after the attorney- crimes and frauds.
client relationship has been established. The attorney-client • The relation of attorney and client cannot exist for the purpose of
privilege does not attach until there is a client. counsel in concocting crimes.
• Third, the privilege generally pertains to the subject matter of • The protection which the law affords to communications between
the relationship. attorney and client has reference to those which are legitimately
• Finally, due process considerations require that the opposing and properly within the scope of a lawful employment, and does
party should, as a general rule, know his adversary. "A party not extend to communications made in contemplation of a
suing or sued is entitled to know who his opponent is." He cannot crime, or perpetration of a fraud. -Dissenting opinion, Regala et.
be obliged to grope in the dark against unknown forces. al. v. Sandiganbayan, G. R. No. 105938 [1996]
Secrets or confidential communications must be obtained in a
• It does not extend to those made in contemplation of a crime or lawyer-client relationship
perpetration of a fraud. If the unlawful purpose is avowed, as in • The alleged "secrets" of complainant were not specified by him in
this case, the complainant’s alleged intention to bribe government his affidavit-complaint. Whatever facts alleged by respondent
officials in relation to his case, the communication is not covered against complainant were not obtained by respondent in his
by the privilege as the client does not consult the lawyer professional capacity but as a redemptioner of a property
professionally. It is not within the profession of a lawyer to originally owned by his deceased son and therefore, when
advise a client as to how he may commit a crime as a lawyer is respondent filed the complaint for estafa against herein
not a gun for hire. Thus, the attorney-client privilege does not complainant, which necessarily involved alleging facts that would
attach, there being no professional employment in the strict sense. - constitute estafa, respondent was not, in any way, violating Canon
Genato v. Atty. Silapan, A.C. No. 4078. July 14, 2003 21. xxx To hold otherwise would be precluding any lawyer from
instituting a case against anyone to protect his personal or
Cause of client defense is not absolute proprietary interests. – Uy v. Atty. Gonzales, A.C. No. 5280, March
• Whatever the contours of the line between traditional lawyering 30, 2004
and criminal conduct, they must inevitably be drawn case-by-case. • It must be stressed, however, that the privilege against disclosure
We refuse to accept the notion that lawyers may do anything, of confidential communications or information is limited only to
including violating the law, to zealously advocate their clients' communications which are legitimately and properly within
interests and then avoid criminal prosecution by claiming that the scope of a lawful employment of a lawyer. - Genato v. Atty.
they were "just doing their job." - United States v. Cueto (7th Silapan, A.C. No. 4078. July 14, 2003
Cir. 1998) 151 F.3d 620, 634
Starting point of duty of confidentiality
Permanent nature of duty to keep confidentiality • The moment complainant approached the then receptive
• The duty to maintain inviolate the client’s confidences and respondent to seek legal advice, a veritable lawyer-client
secrets is not temporary but permanent. It is in effect perpetual relationship evolved between the two. Such relationship imposes
for "it outlasts the lawyer’s employment" (Canon 37, Code of upon the lawyer certain restrictions circumscribed by the ethics of
Professional Responsibility) which means even after the the profession. Among the burdens of the relationship is that which
relationship has been terminated, the duty to preserve the client’s enjoins the lawyer, respondent in this instance, to keep inviolate
confidences and secrets remains effective. confidential information acquired or revealed during legal
• This obligation to preserve the confidences and secrets of a client consultations. - Hadjula v. Atty. Madianda, A.C. No. 6711 [2007]
arises at the inception of their relationship. The protection given to • This duty of confidentiality also extends to prospective clients
the client is perpetual and does not cease with the termination even though an attorney-client relationship is never established.
of the litigation, nor is it affected by the party’s ceasing to employ
the attorney and retaining another, or by any other change of Not a defense to justify breaching the duty of confidentiality
relation between them. It even survives the death of the client. – 1. Lawyer not inclined to handle the client's case after consultation.
Genato v. Atty. Silapan, A.C. No. 4078. July 14, 2003 2. no formal professional engagement follows the consultation.
3. no contract whatsoever was executed by the parties to memorialize The principle of client-lawyer confidentiality is given effect by
the relationship. related bodies of law
- Hadjula v. Atty. Madianda, A.C. No. 6711 [2007] 1. the attorney-client privilege,
2. the work product doctrine and
The essential factors to establish the existence of the attorney- 3. the rule of confidentiality established in professional ethics.
client privilege communication
(1) Where legal advice of any kind is sought • The attorney-client privilege and work-product doctrine apply in
(2) from a professional legal adviser in his capacity as such, judicial and other proceedings in which a lawyer may be called
(3) the communications relating to that purpose, as a witness or otherwise required to produce evidence concerning
(4) made in confidence a client.
(5) by the client, • The rule of client-lawyer confidentiality applies in situations other
(6) are at his instance permanently protected
than those where evidence is sought from the lawyer through
(7) from disclosure by himself or by the legal advisor,
compulsion of law.
(8) except the protection be waived.
- Hadjula v. Atty. Madianda, A.C. No. 6711 [2007]
Confidentiality does not extend to partners and associates
Characteristics of the Attorney-Client Privilege • Lawyers in a firm may, in the course of the firm's practice, disclose
1. A-C privilege where legal advice is professionally sought from an to each other information relating to a client of the firm, unless the
attorney. client has instructed that particular information be confined to
2. The client must intend the above communication to be confidential. specified lawyers.
3. A-C privilege embraces all forms of communication and action. • Rule 21.04 - A lawyer may disclose the affairs of a client of the
4. As a general rule, AC privilege also extends to the attorney’s firm to partners or associates thereof unless prohibited by the
secretary, stenographer, clerk or agent with reference to any fact client.
required in such capacity.
5. The above duty is perpetual and is absolutely privileged from Protection from third party
disclosure. • This prohibition also applies to disclosures by a lawyer that do not
in themselves reveal protected information but could reasonably
Attorney-Client Privilege cannot be invoked lead to the discovery of such information by a third person.
1. There is consent or waiver or client.
2. Such is required by law. Disclosure of the Client's Identity and Whereabouts
3. Such is made to protect the lawyer’s rights (i.e. to collect his fees or • The general rule is that a client's identity and whereabouts are not
associates or by judicial action). covered by the attorney-client privilege, as opposed to the
4. When such communication are made in contemplation of a crime or ethical duty of confidentiality.
the perpetuation of a fraud.
• However, exceptions have been made if disclosure would
implicate the client in the criminal activity for which legal advice
was sought or "if the net effect of the disclosure would be to reveal
the nature of a client communication." - Charles McCormick, As a rule a lawyer should challenge an order to disclose
McCormick on Evidence § 90 (5th ed. 1999) information about client
• In sum, the attorney-client privilege ordinarily will not cover the
• Lawyer must testify about identity of client who paid with information sought by a subpoena directed to a lawyer. Yet even
counterfeit $100 bill. when faced with a subpoena seeking fee information or a client's
• Client's name not considered confidential unless "intertwined" with identity, the lawyer should generally assert the attorney-client
confidential information or last link tying client to crime. - Alexiou privilege and obtain a court ruling rather than make his own
v. United States), 39 F.3d 973 (9th Cir. 1994)
determination whether the information is privileged. The existence
• Client identity is privileged in exceptional cases when disclosure
of exceptions to the general rule holding that fee and client identity
would provide "last link" in chain of evidence leading to
are not privileged, as well as the lawyer's ethical duty to oppose
conclusion that client committed crime, and would reveal
confidential communication between lawyer and client; disclosure of information learned during a client's
• Client who accused divorce lawyer of improper sexual advances representation, make it advisable to follow this course of action.
may not obtain client list in discovery. - Brett v. Berkowitz, 706
A.2d 509 (Del. 1998) • A lawyer faced with a subpoena for information about a client
must resist the subpoena if the lawyer's testimony or the
• Lawyer for client sought in hit-and-run accident may withhold document production would violate either the attorney-client
client's identity when disclosure would implicate client in privilege or the ethical duty of confidentiality and the client
criminal activity for which legal advice sought. - Dietz v. Doe, 935 does not consent to the disclosure. - In re Grand Jury Witness,
P.2d 611 (Wash. 1997) 695 F2d 359 (CA 9 1982); In re Grand Jury Subpoena (U.S.), 831
F2d 225 (CA 11 1987
Certain instances where a court order is not involved, courts have • A lawyer who receives a subpoena to testify about a client may file
held the client's whereabouts protected a motion to quash asserting the attorney-client privilege, along
• Lawyer may not be compelled to disclose address of defendant with any other possible grounds for refusing to comply.
father in child custody proceeding when he specifically requested • A subpoena duces tecum issued to a lawyer that makes no
that lawyer not reveal the home address and telephone number of attempt whatsoever to confine its scope to relevant, non-
the father and the name and address of the school the children were privileged matters is unenforceable and must be quashed. - U.S. v.
attending; information that the client requests be kept Horn, 976 F2d 1314 (CA9 1992)
confidential is protected unless protection permits a fraud or
crime or clearly frustrates the administration of justice. - Brennan Representing a fugitive
v. Brennan, 422 A2d 510 (Pa SuperCt 1980) • Assuming the client is indeed properly characterized as a fugitive,
• Domestic relations case where confidentiality of address was defense counsel must take into account the boundaries of
necessary for client safety. - Waldman v. Waldman,358 NE2d 521 permissible advocacy. It bears noting that any physical act
(1976) intended to harbor or conceal a fugitive so as to prevent his
discovery or arrest arguably could constitute a separate criminal
violation.
• A lawyer “is free to continue to give legal advice to [a fugitive] proven that it belongs to the appellant attorney and that in it he
client and to represent him before the authorities, as long as [the keeps the records and documents of his clients, to do so would be
lawyer] does nothing to aid the client to escape trial. in violation of his right as such attorney, since it would be
tantamount to compelling him to disclose or divulge facts or things
Client is under conditions of bail belonging to his clients, which should be kept secret, unless she is
• “Where a client is under conditions of bail and defies a lawful authorized by them to make such disclosure, it being a duty
court order to appear, his 'whereabouts' are not unqualifiedly imposed by law upon an attorney to strictly preserve the secrets or
protected by the attorney-client privilege, and the attorney may communications made to him. - PP v. Sy Juco, G.R. No. L-41957
be compelled to disclose information of the client's whereabouts." - August 28, 1937
Commonwealth v. Maguigan,511 A2d 1327 (Pa SupCt 1986)
• Lawyer who learned from client's wife that client had left with CHAPTER 7
suitcase for "parts unknown" had firm factual basis for believing Conflict of interest in a regular lawyer-client relationship
client jumped bond and did not intend to appear for trial, thus had
duty to advise court to avoid assisting in criminal act. - U.S. v. COI is everywhere
DelCarpio-Cotrina,733 FSupp 95 (DC SFla 1990) • Conflicts of interest are not the exclusive headache of large,
urban, multi-office law firms. Conflicts of interest arise within and
• An attorney representing an individual who has violated the affect law practices of every size, geographical location and
terms of bail and fled the jurisdiction arguably has an even discipline. The number of clients, adverse parties, and interested
greater obligation as an officer of the court to seek the prompt non-parties with whom attorneys become involved throughout
return of the client in compliance with a judicial release order. their careers is truly staggering and invariably underestimated.
• An attorney “may not assist the [fugitive] client in any way that
the lawyer knows will further an illegal or fraudulent Extreme case of Conflict of Interest
purpose.” Association of the Bar of the City of New York Formal • The most obvious conflicts of interest are those in which the
Opinion 1999-02 lawyer's personal interests clash with those of the client.
• Where an attorney believes, but does not know, conduct to be
illegal or fraudulent, the attorney may act on behalf of the fugitive Rule on Conflicting Interests
client, but “only after assuring him or herself that there is • It is generally the rule based on sound public policy that attorney
reasonable support for an argument that the client’s intended use cannot represent diverse interest. It is highly improper to represent
of the fruits of the representation will not further a criminal both sides of an issue.
scheme or act. - Association of the Bar of the City of New York
Formal Opinion 1999-02 Competitor Conflicts
• Courts have found that a competitor conflict is present when the
Can the metal filing cabinet containing the records and documents lawyer attempts to represent two competitors on a material
of clients be subject of a search warrant? aspect of their competition.
• It is clear that the court could not and can not order the opening of
the art metal filing cabinet in question because, it having been Whose interest?
• It is, of course, a hornbook proposition that it is the client, and not the matter in detail until a preliminary conflict of interest check
the lawyer, that defines the client's interests and instructs the can be performed.
lawyer about them. • As the adjective suggests, preliminary conflict of interest checks
should ideally be performed before the prospective client
Degree of involvement divulges additional confidential information which may conflict
• The greater the involvement in the client's affairs the greater the the attorney out of current or future representations.
danger that confidences (where such exist) will be revealed. • Rule 15.01. - A lawyer, in conferring with a prospective client,
shall ascertain as soon as practicable whether the matter would
“Closed file” conflicts involve a conflict with another client or his own interest, and if so,
• Involve representation adverse to a former client in the same or shall forthwith inform the prospective client.
substantially related matters.
CANON 21 - A lawyer shall preserve the confidence and secrets of
Absolute prohibition from representation his client even after the attorney-client relation is terminated
• Hornilla case provides an absolute prohibition from representation • Rule 21.02 - A lawyer shall not, to the disadvantage of his client,
with respect to opposing parties in the same case. use information acquired in the course of employment, nor
• In other words, a lawyer cannot change his representation from one shall he use the same to his own advantage or that of a third
party to the latter's opponent in the same case, as in this case. –
person, unless the client with full knowledge of the circumstances
Tulio v. Atty. Buhangin, A.C. No. 7110, April 20, 2016
consents thereto.
• Rule 21.07 - A lawyer shall not reveal that he has been
Doctrine of “imputed knowledge”
consulted about a particular case except to avoid possible
• Doctrine of imputed knowledge is based on the assumption that an
conflict of interest.
attorney, who has notice of matter affecting his client, has
communicated the same to his principal in the course of
General Rule in a law firm
professional dealings. The doctrine applies regardless of whether
• Rule 21.04 - A lawyer may disclose the affairs of a client of the
or not the lawyer actually communicated to the client what he
firm to partners or associates thereof unless prohibited by the
learned in his professional capacity, the attorney and his client
client.
being one judicial person.
• Knowledge of one member of a law firm will be imputed by
• An information obtained from a client by a member or assistant of
inference to all members of that firm; free flow of information
a law firm is information imparted to the firm. This is not a
within the partnership.
mere fiction or an arbitrary rule; for such member or assistant, as
in our case, not only acts in the name and interest of the firm, but
his information, by the nature of his connection with the firm is
Preliminary conflict of interest check available to his associates or employers. – Hilado v. David, et.
• Whenever a prospective client seeking legal assistance contacts an Al., G.R. No. L-961, September 21, 1949
attorney, the attorney should politely but firmly decline to discuss
CANON 15 - A lawyer shall observe candor, fairness and loyalty or invite suspicion of unfaithfulness or double-dealing in the
in all his dealings and transactions with his clients performance thereof, and also whether he will be called upon in
• Rule 15.01. - A lawyer, in conferring with a prospective client, his new relation to use against his first client any knowledge
shall ascertain as soon as practicable whether the matter would acquire in the previous employment.
involve a conflict with another client or his own interest, and if so,
shall forthwith inform the prospective client. • The first part of the rule refers to cases in which the opposing
• Rule 15.03. - A lawyer shall not represent conflicting interests parties are present clients either in the same action or in a totally
except by written consent of all concerned given after a full unrelated case; the second part pertains to those in which the
disclosure of the facts. adverse party against whom the attorney appears is his former
• Rule 15.04. - A lawyer may, with the written consent of all client in a matter which is related, directly or indirectly, to the
concerned, act as mediator, conciliator or arbitrator in settling present controversy. - Atty. Jalandoni v. Atty. Villarosa, AC 5303,
disputes. June 15, 2006
• Rule 15.05. - A lawyer when advising his client, shall give a
candid and honest opinion on the merits and probable results of the
client's case, neither overstating nor understating the prospects of Counsel of corporation cannot represent members of board of
the case. directors
• After due deliberation on the wisdom of this doctrine, we are
• Rule 15.08. - A lawyer who is engaged in another profession or sufficiently convinced that a lawyer engaged as counsel for a
occupation concurrently with the practice of law shall make clear corporation cannot represent members of the same corporation’s
to his client whether he is acting as a lawyer or in another capacity. board of directors in a derivative suit brought against them. To do
so would be tantamount to representing conflicting interests, which
Confidentiality of information is not relevant in COI is prohibited by the Code of Professional Responsibility.(Hornilla
• The rule on conflict of interests covers not only cases in which v. Atty. Salunat, A.C. No. 5804, July 1, 2003)
confidential communications have been confided but also those in
which no confidence has been bestowed or will be used. - Atty. Degree of adverse interest, intention or motive are not material
Jalandoni v. Atty. Villarosa, AC 5303, June 15, 2006 • An attorney owes to his client undivided allegiance. After being
retained and receiving the confidences of the client, he cannot,
Unqualified opposing interest of new and former clients without the free and intelligent consent of his client, act both for
• The rule prohibits a lawyer from representing new clients whose his client and for one whose interest is adverse to, or conflicting
interests oppose those of a former client in any manner, whether with that of his client in the same general matter…. The
or not they are parties in the same action or in totally unrelated prohibition stands even if the adverse interest is very slight;
cases. - Atty. Jalandoni v. Atty. Villarosa, AC 5303, June 15, 2006 neither is it material that the intention and motive of the attorney
may have been honest- Lim Jr. v. Atty. Villarosa, A.C. No. 5303,
• Another test of the inconsistency of interests is whether the June 15, 2006
acceptance of a new relation will prevent an attorney from the full
discharge of his duty of undivided fidelity and loyalty to his client As to who initiate engagement is immaterial
• To negate any culpability, respondent explained that he did not president of the union was duty bound to protect and advance
offer his legal services to accused Avila and Ilo but it was the two the interest of union members and the bargaining unit above
accused who sought his assistance in executing their extrajudicial his own. This obligation was jeopardized when his personal
confessions. Nonetheless, he acceded to their request to act as interest as one of the dismissed employees of UST complicated the
counsel after apprising them of their constitutional rights and after negotiation process and eventually resulted in the lopsided
being convinced that the accused were under no compulsion to compromise agreement that rightly or wrongly brought money to
give their confession. - Perez v. Atty. Dela Torre, AC 6160, March him and the other dismissed union officers and directors,
30, 2006 seemingly or otherwise at the expense of the faculty members. -
Dr. Gamilla et. al. v. Atty. Mariño Jr., A.C. No. 4763, March 20,
Retained counsel of either party cannot act as mediator without 2003
consent
• Even respondent’s alleged effort to settle the existing controversy Client of law firm is the client of every partners and associates
among the family members was improper because the written • Respondent further argued that it was his brother who represented
consent of all concerned was still required. A lawyer who acts Gonzales in the civil case and not him, thus, there could be no
as such in settling a dispute cannot represent any of the parties conflict of interests. We do not agree. As respondent admitted, it
to it. - Lim Jr. v. Atty. Villarosa, A.C. No. 5303, June 15, 2006 was their law firm which represented Gonzales in the civil case.
• Rule 15.04. - A lawyer may, with the written consent of all Such being the case, the rule against representing conflicting
concerned, act as mediator, conciliator or arbitrator in settling interests applies. - Gonzales v. Atty. Cabucana, A.C. No. 6836,
disputes. January 23, 2006
Good faith is not a defense • The third test is whether a lawyer will be called upon in his new
• Indeed, the prohibition against representation of conflicting relation to use against the first client any knowledge acquired in
interests applies although the attorney’s intentions were honest and the previous employment (use of prior knowledge obtained).
he acted in good faith. - Atty. Catalan v. Atty. Silvosa A.C. No. • Representing conflicting interests would occur only where the
7360 [2012] attorney’s new engagement would require her to use against a
former client any confidential information gained from the
Consent ineffective previous professional relation.
• A lawyer may not properly represent conflicting interests even • The prohibition did not cover a situation where the subject matter
though the parties concerned agree to the dual representation of the present engagement was totally unrelated to the previous
where: engagement of the attorney.
1. the conflict is between the attorney’s interest and that of a • - Seares, Jr. v. Atty. Gonzales-Alzate, Adm. Case No. 9058
client, or November 14, 2012
2. between a private client’s interests and that of the
government or any of its instrumentalities. • Remember: The test to determine whether there is a conflict of
3. between an accused and counsel. interest in the representation is PROBABILITY, not certainty of
• Section 12. (Article III of the Constitution) conflict.
(1) Any person under investigation for the commission of an • It is of no moment that the lawyer would not be called upon to
offense shall have the right to be informed of his right to remain contend for one client that which the lawyer has to oppose for the
silent and to have competent and independent counsel other client, or that there would be no occasion to use the
preferably of his own choice. If the person cannot afford the confidential information acquired from one to the disadvantage of
services of counsel, he must be provided with one. These rights the other as the two actions are wholly unrelated. It is enough
cannot be waived except in writing and in the presence of counsel.
that the opposing parties in one case, one of whom would lose
the suit, are present clients and the nature or conditions of the
Three tests to determine conflicting interests
lawyer’s respective retainers with each of them would affect the
• The first is when, on behalf of one client, it is the attorney’s duty to performance of the duty of undivided fidelity to both clients. -
contest for that which his duty to another client requires him to Quiambao v. Atty. Bamba, Adm. Case No. 6708 August 25, 2005
oppose or when this possibility of such situation will develop
(conflicting duties).
Effects of Representing Adverse Interests
1. Disqualification as counsel of new client on petition of former
• The second test is whether the acceptance of the new relation will
client.
prevent a lawyer from the full discharge of his duty of undivided
2. Where such is unknown to, becomes prejudicial interests of the
fidelity and loyalty to his client or will invite suspicion of
new client, a judgment against such may, on that ground be set aside.
3. A lawyer can be held administratively liable through • We do not sustain respondent’s theory that since the ejectment case
disciplinary action and may be held criminally liable for betrayal of and the replevin case are unrelated cases fraught with different
trust. issues, parties, and subject matters, the prohibition is
4. The attorney’s right to fees may be defeated if found to be inapplicable. His representation of opposing clients in both
related to such conflict and such was objected to by the former client, cases, though unrelated, obviously constitutes conflict of
or if there was a concealment and prejudice by reason of the attorney’s interest or, at the least, invites suspicion of double-dealing. -
previous professional relationship with the opposite party. Quiambao v. Atty. Bamba, Adm. Case No. 6708 August 25, 2005
What are the types of conflict of interest? Does the lawyer have to be the counsel-of-record for the other
1. Concurrent or multiple or simultaneous representation: party to violate this provision?
» A lawyer represents clients whose objectives are adverse to each • To be guilty of representing conflicting interests, a counsel-of-
other, no matter how slight or remote these are record of one party need not also be counsel-of-record of the
» Take note of this minimal degree adverse party. He does not have to publicly hold himself as the
» Ex. A CPA-lawyer being part of a firm that represents the estate counsel of the adverse party, nor make his efforts to advance the
and being part of the accountancy firm that represents the adverse party’s conflicting interests of record although these
creditors. The conflict need not arise from two legal circumstances are the most obvious and satisfactory proof of the
relationships. charge. It is enough that the counsel of one party had a hand in
2. Sequential or successive representation: the preparation of the pleading of the other party, claiming
» Representation of present client who may have an interest adverse adverse and conflicting interests with that of his original client. To
to prior client. require that he also be counsel-of-record of the adverse party
would punish only the most obvious form of deceit and reward,
• Successive representation - when a lawyer or law firm seeks to with impunity, the highest form of disloyalty. – Artezuela v. Atty.
represent a client whose interests are adverse to a former client Maderazo, A.C. No. 4354. April 22, 2002
without the former client's consent. The rule against simultaneous
representation is based principally on the duty of undivided Only instance when a lawyer can represent conflicting interest
loyalty. • A lawyer cannot represent conflicting interests except by written
consent of all concerned given after a full disclosure of the facts.
• Unlike simultaneous representation, successive representation is – Santos Ventura Hocorma Foundation, Inc. v. Atty. Funk, A.C.
not prima facie improper. The duty to preserve client No. 9094 August 15, 2012
confidences is the primary ethical consideration implicated by
successive representation. Limit of full disclosure
• Successive representation implicates both the duty of loyalty and • A lawyer is forbidden from representing a subsequent client
the preservation of the attorney-client relationship. against a former client when the subject matter of the present
controversy is related, directly or indirectly, to the subject matter
Suspicion of Double-dealing even if the case is unrelated of the previous litigation in which he appeared for the former
client. Conversely, he may properly act as counsel for a new client,
with full disclosure to the latter, against a former client in a matter confidence that his client placed on him in the light of their
wholly unrelated to that of the previous employment, there relationship. It would simply be impossible for the lawyer to
being in that instance no conflict of interests. identify and erase such entrusted knowledge with faultless
• Where, however, the subject matter of the present suit between the precision or lock the same into an iron box when suing the former
lawyer’s new client and his former client is in some way client on behalf of a new one. - Santos Ventura Hocorma
connected with that of the former client’s action, the lawyer Foundation, Inc. v. Atty. Funk, A.C. No. 9094 August 15, 2012
may have to contend for his new client that which he previously
opposed as counsel for the former client or to use against the latter Good faith and honest intention is not a defense
information confided to him as his counsel. - Pormento, Sr. v. Atty. • That the representation of conflicting interest is in good faith and
Pontevedra, A.C. No. 5128. March 31, 2005 with honest intention on the part of the lawyer does not make the
prohibition inoperative. - Quiambao v. Atty. Bamba, Adm. Case
Purpose and intention is immaterial No. 6708 August 25, 2005
• Respondent contends that he handled the defense of the accused in • Although there are instances where lawyers cannot decline
the subject criminal case for humanitarian reasons and with the representation, they cannot be made to labor under conflict of
honest belief that there exists no conflict of interests. However, interest between a present client and a prospective one. –
the rule is settled that the prohibition against representation of Quiambao v. Atty. Bamba, Adm. Case No. 6708 August 25, 2005
conflicting interests applies although the attorney’s intentions and
motives were honest and he acted in good faith. Moreover, the The prohibition against conflict of interest rests on five rationales,
fact that the conflict of interests is remote or merely probable does rendered as follows:
not make the prohibition inoperative. - Pormento, Sr. v. Atty. • x x x. First, the law seeks to assure clients that their lawyers will
Pontevedra, A.C. No. 5128. March 31, 2005 represent them with undivided loyalty. A client is entitled to be
represented by a lawyer whom the client can trust. Instilling such
Termination of A-C relations is not a justification confidence is an objective important in itself. x x x.
• Respondent also asserts that when he accepted employment in • Second, the prohibition against conflicts of interest seeks to
Criminal Case No. 3159, the attorney-client relations between him enhance the effectiveness of legal representation. To the extent that
and complainant in Civil Case No. 1648 had already been a conflict of interest undermines the independence of the lawyer’s
terminated. This defense does not hold water because the professional judgment or inhibits a lawyer from working with
termination of the relation of attorney and client provides no appropriate vigor in the client’s behalf, the client’s expectation of
justification for a lawyer to represent an interest adverse to or effective representation x x x could be compromised. - Samson v.
in conflict with that of the former client. – Pormento, Sr. v. Atty. Atty. Era, A.C. No. 6664 July 16, 2013
Pontevedra, A.C. No. 5128. March 31, 2005 • Third, a client has a legal right to have the lawyer safeguard the
client’s confidential information xxx. Preventing use of
Acquired knowledge of former client’s doings is indelible confidential client information against the interests of the client,
• The reason for this is that a lawyer acquires knowledge of his either to benefit the lawyer’s personal interest, in aid of some other
client, or to foster an assumed public purpose is facilitated through
former client's doings, whether documented or not, that he would
conflicts rules that reduce the opportunity for such abuse.
ordinarily not have acquired were it not for the trust and
• Fourth, conflicts rules help ensure that lawyers will not exploit • Where both husband and wife are lawyers but they are not
clients, such as by inducing a client to make a gift to the lawyer practicing in association with one another, may they or their firms
xxx. represent differing interests?
• Finally, some conflict-of-interest rules protect interests of the legal • Some firms apparently have been reluctant to employ one spouse-
system in obtaining adequate presentations to tribunals. In the lawyer where that person's husband or wife is, or may soon be,
absence of such rules, for example, a lawyer might appear on both practicing with another firm in the same city or area.
sides of the litigation, complicating the process of taking proof and • Some law firms are concerned whether a law firm is disqualified,
compromise adversary argumentation x x x. - Samson v. Atty. Era, by reason of its employment of one spouse, to represent a client
A.C. No. 6664 July 16, 2013 opposing an interest represented by another law firm that employs
the husband or wife of the inquiring firm's associate.
Informed consent must be written
• A client's implied consent is insufficient to waive a potential • It is not necessarily improper for husband-and-wife lawyers who
conflict of interest. are practicing in different offices or firms to represent differing
• Rule 15.03. - A lawyer shall not represent conflicting interests interests. No disciplinary rule expressly requires a lawyer to
except by written consent of all concerned given after a full decline employment if a husband, wife, son, daughter, brother,
disclosure of the facts. father, or other close relative represents the opposing party in
• While the respondent may assert that the complainant expressly negotiation or litigation.
consented to his continued representation in the ejectment case, the • Likewise, it is not necessarily improper for a law firm having a
respondent failed to show that he fully disclosed the facts to both married partner or associate to represent clients whose interests are
his clients and he failed to present any written consent of the opposed to those of other clients represented by another law firm
with which the married lawyer's spouse is associated as a lawyer.
complainant and AIB as required under Rule 15.03, Canon 15 of
the Code of Professional Responsibility. - Quiambao v. Atty.
• Married partners who are lawyers must guard carefully at all times
Bamba, Adm. Case No. 6708 August 25, 2005
against inadvertent violations of their professional responsibilities
arising by reason of the marital relationship.
COI remains after termination of attorney-client relationship
• The disqualification of married or related lawyers who oppose one
• The termination of the attorney-client relationship does not justify
another professionally is not generally imputed to other lawyers in
a lawyer to represent an interest adverse to or in conflict with that
the related lawyer's law offices.
of the former client. The spirit behind this rule is that the client’s
• Such personal disqualification is not imputed to the spouses' firms
confidence once given should not be stripped by the mere
unless the lawyers have a personal interest in the outcome of the
expiration of the professional employment. Even after the
case.
severance of the relation, a lawyer should not do anything that will
injuriously affect his former client in any matter in which the
Special circumstances that highlight the concern
lawyer previously represented the client. – Samson v. Atty. Era,
A.C. No. 6664 July 16, 2013 1. whether the fee of either firm is contingent,
2. whether the disputed matter is one of negotiation or
litigation, and whether the married lawyer in question will or
Current observations husband and wife lawyers in legal practice
will not actually be working on the particular matter.
3. Another variation of the problem is the situation in which a • A lawyer is romantically involved with the opposing party’s
governmental agency, such as a district attorney or an attorney, or sexually involved with a client, the lawyer’s loyalty or
attorney general, is the employer of either the husband or the judgment can be impaired.
wife, and the spouse is associated with a law firm in the same • Lawyers who are dating and also representing adversaries in
community. litigation should disclose their relationship if it is sufficiently close
that their clients might have questions about the lawyers' ability to
Concerns about husband & wife lawyers represent them zealously.
• Yet it also must be recognized that the relationship of husband • Lawyers who are otherwise personally close should do likewise.
and wife is so close that the possibility of an inadvertent breach of • The lawyer had enjoyed an "intimate physical relationship" with
the secretary and talked with her "about significant aspects of the
a confidence or the unavoidable receipt of information concerning
case," for which he was disqualified.
the client by the spouse other than the one who represents the
• A lawyer is prohibited from having sex with a client unless a
client (for example, information contained in a telephoned message
consensual sexual relationship existed prior to the start of
left for the lawyer at home) is substantial. Because of the closeness
professional representation.
of the husband-and-wife relationship, a lawyer who is married to
a lawyer must be particularly careful. Duty to protect only matters acquired during the lawyer-client
relationship
Recommendations
• The intent of the law is to impose upon the lawyer the duty to
• Married partners who are lawyers must guard carefully at all times
protect the client’s interests only on matters that he previously
against inadvertent violations of their professional responsibilities
handled for the former client and not for matters that arose after
arising by reason of the marital relationship.
the lawyer-client relationship has terminated. – Palm v. Atty.
Lawyer Relatives Iledan, Jr. A.C. No. 8242 [2009]
• Ethical precepts admonish lawyers related by blood or marriage to
CHAPTER 8
avoid adversarial representations without the informed consent of
the parties. “Conflict of interest” of Corporate Lawyers
• Lawyers related by blood or marriage have long been permitted to CPR provisions
represent adversarial interests provided that a reasonable effort is Rule 15.03. - A lawyer shall not represent conflicting interests
made to anticipate and expose potential conflicts to clients before except by written consent of all concerned given after a full
obtaining their consent to representation. disclosure of the facts.
• Faced with client consent, courts have consistently required an Canon 21. A lawyer shall preserve the confidence and secrets of
actual conflict of interest rather than simply the fact of adversarial his client even after the attorney-client relationship is terminated.
lawyer relatives before ordering disqualification.
Corporate counsel and possibility of COI
Personal Relationships Members of the Board of Directors
Employees of the corporation
General public
Counsel’s private interest From February 2003 to November 2003, respondent served as
Comtech’s retained corporate counsel for the amount of P6,000
Duty of attorney to a corporate client per month as retainer fee.
“[a]n attorney for a corporate client owes his duty [of loyalty] ot From September to October 2003, complainant personally met
the corporate entity rather than a particular officer, director, or with respondent to review corporate matters, including potential
shareholder.” ABC Trans Natl Transport, Inc. v. Aeronautics amendments to the corporate by-laws.
Forwarders, Inc, 413 NE.2d 1299, 1310 1980 In a meeting held on 1 October 2003, respondent suggested that
“[a] corporate attorney represents the corporation, not the Comtech amend its corporate by-laws to allow participation
individual directors or officers.” Heim v. Signcraft Screenprint during board meetings, through teleconference, of members of
Inc, No 01C50014, 2001 WL 1018228 2001 the Board of Directors who were outside the Philippines.
“[t]he attorney for a corporation, even a closely held one, does not Comtech decided to terminate its retainer agreement with
have a specific fiduciary duty toward the individual respondent effective November 2003.
shareholders.” Kopka v. Kamensky and Rubenstein, 821 NE.2d On 24 March 2004, Comtech’s new counsel sent a demand letter to
719, 727 (2004) Soledad [a former officer and director of Comtech, who resigned
and who was suspected of releasing unauthorized disbursements of
He should resolve all doubts against the propriety of the corporate funds] to return or account for the amount of P90,466.10
representation. – Cannon v. U.S. Acoustics Corp. 398 F.Supp. 209 representing her unauthorized disbursements when she was the
(1975) Corporate Treasurer of Comtech.
On 22 April 2004, Comtech received Soledad’s reply, signed by
respondent.
Can a lawyer engaged by a corporation defend members of the In July 2004, due to Soledad’s failure to comply with Comtech's
board of the same corporation in a derivative suit? written demands, Comtech filed a complaint for Estafa against
We are sufficiently convinced that a lawyer engaged as counsel for Soledad before the Makati Prosecutor’s Office. In the proceedings
a corporation cannot represent members of the same corporation’s before the City Prosecution Office of Makati, respondent
board of directors in a derivative suit brought against them. To do appeared as Soledad’s counsel.
so would be tantamount to representing conflicting interests, which In his Answer, respondent alleged that in January 2002, Soledad
is prohibited by the Code of Professional Responsibility. consulted him on process and procedure in acquiring property.
Furthermore, this restriction on dual representation should not be In April 2002, Soledad again consulted him about the legal
waivable by consent in the usual way; the corporation should be requirements of putting up a domestic corporation. In February
presumptively incapable of giving valid consent. – Hornilla v. 2003, Soledad engaged his services as consultant for Comtech.
Atty. Salunat, A.C. No. 5804. July 1, 2003 Respondent alleged that from February to October 2003, neither
Soledad nor Palm consulted him on confidential or privileged
Palm v. Atty. Iledan, Jr. A.C. No. 8242 [2009] matter concerning the operations of the corporation.
Complainant is the President of Comtech, a corporation engaged in Respondent further alleged that he had no access to any record of
the business of computer software development. Comtech.
Respondent admitted that during the months of September and
October 2003, complainant met with him regarding the
procedure in amending the corporate by-laws to allow board We find no conflict of interest when respondent represented
members outside the Philippines to participate in board meetings. Soledad in a case filed by Comtech. The case where respondent
Respondent alleged that there was no conflict of interest when he represents Soledad is an Estafa case filed by Comtech against its
represented Soledad in the case for Estafa filed by Comtech. He former officer. There was nothing in the records that would
alleged that Soledad was already a client before he became a show that respondent used against Comtech any confidential
consultant for Comtech. He alleged that the criminal case was information acquired while he was still Comtech’s retained
not related to or connected with the limited procedural queries counsel.
he handled with Comtech. Further, respondent made the representation after the
In addition, although the information about the necessity to amend termination of his retainer agreement with Comtech. A
the corporate by-laws may have been given to respondent, it could lawyer’s immutable duty to a former client does not cover
not be considered a confidential information. transactions that occurred beyond the lawyer’s employment with
Further, whenever any amendment or adoption of new by-laws is the client.
made, copies of the amendments or the new by-laws are filed with The intent of the law is to impose upon the lawyer the duty to
the Securities and Exchange Commission (SEC) and attached to protect the client’s interests only on matters that he previously
the original articles of incorporation and by-laws. The documents handled for the former client and not for matters that arose after
are public records and could not be considered confidential. the lawyer-client relationship has terminated.
We agree with the IBP that in the course of complainant’s
consultations, respondent obtained the information about the Santos Ventura Hocorma Foundation, Inc. v. Atty. Funk, A.C. No.
need to amend the corporate by-laws to allow board members 9094 August 15, 2012
outside the Philippines to participate in board meetings It alleged that Atty. Funk used to work as corporate secretary,
through teleconferencing. Respondent himself admitted this in counsel, chief executive officer, and trustee of the Santos Ventura
his Answer. Hocorma foundation from 1983 to 1985. He also served as its
It is settled that the mere relation of attorney and client does not counsel in several criminal and civil cases.
raise a presumption of confidentiality. The client must intend the Hocorma Foundation further alleged that on November 25, 2006
communication to be confidential. Since the proposed Atty. Funk filed an action for quieting of title and damages against
amendments must be approved by at least a majority of the Hocorma Foundation on behalf of Mabalacat Institute, Inc.
stockholders, and copies of the amended by-laws must be filed (Mabalacat Institute). Atty. Funk did so, according to the
with the SEC, the information could not have been intended to foundation, using information that he acquired while serving as
be confidential. Thus, the disclosure made by respondent its counsel xxx.
during the stockholders’ meeting could not be considered a Here, it is undeniable that Atty. Funk was formerly the legal
violation of his client’s secrets and confidence within the counsel of Hocorma Foundation. Years after terminating his
contemplation of Canon 21 of the Code of Professional relationship with the foundation, he filed a complaint against it
Responsibility.
on behalf of another client, the Mabalacat Institute, without the docketed as OMB Case No. 0-97-0695, for unlawful spending and
foundation's written consent. the undervalued sale of real property of the PPSTA.
Here, the evidence shows that Hocorma Foundation availed Respondent entered his appearance as counsel for the PPSTA
itself of the legal services of Atty. Funk in connection with, Board members in the said cases.
among others, the transfer of one of the properties subject of the Complainants contend that respondent was guilty of conflict of
several suits that the lawyer subsequently filed against the interest because he was engaged by the PPSTA, of which
foundation. Indeed, Atty. Funk collected attorney's fees from complainants were members, and was being paid out of its
the foundation for such services. corporate funds where complainants have contributed. Despite
An attorney may not, without being guilty of professional being told by PPSTA members of the said conflict of interest,
misconduct, act as counsel for a person whose interest conflicts respondent refused to withdraw his appearance in the said
cases.
with that of his present or former client. This rule is so absolute
Respondent admits that the ASSA Law Firm, of which he is the
that good faith and honest intention on the erring lawyer's part
does not make it inoperative. Managing Partner, was the retained counsel of PPSTA. Yet, he
appeared as counsel of record for the respondent Board of
The reason for this is that a lawyer acquires knowledge of his
Directors in the said case. Clearly, respondent was guilty of
former client's doings, whether documented or not, that he
conflict of interest when he represented the parties against
would ordinarily not have acquired were it not for the trust
whom his other client, the PPSTA, filed suit.
and confidence that his client placed on him in the light of their
relationship.
What is a “derivative suit”?
Where corporate directors have committed a breach of trust either
It would simply be impossible for the lawyer to identify and erase
such entrusted ledge with faultless precision or lock the same into by their frauds, ultra vires acts, or negligence, and the corporation
an iron box when suing the former client on behalf of a new one. is unable or unwilling to institute suit to remedy the wrong, a
stockholder may sue on behalf of himself and other
Hornilla v. Atty. Salunat A.C. No. 5804, July 1, 2003 stockholders and for the benefit of the corporation, to bring
They alleged that respondent is a member of the ASSA Law and about a redress of the wrong done directly to the corporation and
Associates, which was the retained counsel of the Philippine indirectly to the stockholders.
Public School Teachers Association (PPSTA). Respondent’s This is what is known as a derivative suit, and settled is the
brother, Aurelio S. Salunat, was a member of the PPSTA Board doctrine that in a derivative suit, the corporation is the real party in
which approved respondent’s engagement as retained counsel of interest while the stockholder filing suit for the corporation’s
PPSTA. behalf is only nominal party. The corporation should be included
Complainants, who are members of the PPSTA, filed an intra- as a party in the suit.
corporate case against its members of the Board of Directors
for the terms 1992-1995 and 1995-1997 before the Securities and A lawyer engaged as counsel for a corporation cannot represent
Exchange Commission. which was docketed as SEC Case No. 05- members of the same corporation’s board of directors in a
97-5657, and a complaint before the Office of the Ombudsman, derivative suit brought against them. To do so would be
tantamount to representing conflicting interests, which is Particularly, the Spouses Santiago and Florita Torroba filed by her
prohibited by the Code of Professional Responsibility. on 29 December 2000 before the Metropolitan Trial Court (MeTC)
The interest of the corporate client is paramount and should of Parañaque City.
not be influenced by any interest of the individual corporate About six months after she resigned as AIB president, or on 14
officials. June 2001, the respondent filed on behalf of AIB a complaint for
replevin and damages against her before the MeTC of Quezon
Corporation cannot “consent” to a representation of a lawyer with City for the purpose of recovering from her the car of AIB
COI assigned to her as a service vehicle. This he did without
The cases and ethics opinions differ on whether there must be withdrawing as counsel of record in the ejectment case, which
separate representation from the outset or merely from the time the was then still pending.
corporation seeks to take an active role. Furthermore, this We do not sustain respondent’s theory that since the ejectment case
restriction on dual representation should not be waivable by and the replevin case are unrelated cases fraught with different
consent in the usual way; the corporation should be issues, parties, and subject matters, the prohibition is inapplicable.
presumptively incapable of giving valid consent. His representation of opposing clients in both cases, though
Outside counsel must thus be retained to represent one of the unrelated, obviously constitutes conflict of interest or, at the least,
defendants. invites suspicion of double-dealing.
Rule 15.03. - A lawyer shall not represent conflicting interests While the respondent may assert that the complainant expressly
except by written consent of all concerned given after a full consented to his continued representation in the ejectment case, the
disclosure of the facts. respondent failed to show that he fully disclosed the facts to
both his clients and he failed to present any written consent of
Quiambao v. Atty. Nestor Bamba A. C. No. 6708 August 25, 2005 the complainant and AIB as required under Rule 15.03, Canon 15
Complainant Felicitas S. Quiambao charges respondent Atty. of the Code of Professional Responsibility.
Nestor A. Bamba with violation of the Code of Professional Neither can we accept respondent’s plea that he was duty-bound to
Responsibility for representing conflicting interests when the handle all the cases referred to him by AIB, including the
latter filed a case against her while he was at that time personal cases of its officers which had no connection to its
representing her in another case, and for committing other acts corporate affairs. That the representation of conflicting interest is
of disloyalty and double-dealing. in good faith and with honest intention on the part of the lawyer
The complainant was the president and managing director of does not make the prohibition inoperative.
Allied Investigation Bureau, Inc. (AIB), a family-owned
corporation engaged in providing security and investigation Extent or degree of prohibition on representing COI
services. She avers that she procured the legal services of the It must be noted that the proscription against representation of
respondent not only for the corporate affairs of AIB but also for conflicting interests finds application where the conflicting
her personal case. interests arise with respect to the same general matter however
slight the adverse interest may be.
It applies even if the conflict pertains to the lawyer’s private interest of SBHI since the latter was the real owner of the land
activity or in the performance of a function in a non- in controversy.
professional capacity. Respondent claims that there was no attorney-client relationship
between her and complainant. The claim has no merit. It was
Business transactions between an attorney and his client are complainant who retained respondent to form a corporation.
disfavored and discouraged by the policy of the law. She appeared as counsel in behalf of complainant.
The present situation shows a clear case of conflict of interest of
De Guzman v. Atty. L. De Dios, A.C. No. 4943 January 26, 2001 the respondent.
In 1995, complainant engaged the services of respondent as
counsel in order to form a corporation.
On January 10, 1996, with the assistance of Atty. De Dios,
complainant registered Suzuki Beach Hotel, Inc. (SBHI) with the
Securities and Exchange Commission.
On December 15, 1997, the corporation required complainant to
pay her unpaid subscribed shares of stock amounting to two
million two hundred and thirty five thousand pesos
(P2,235,000.00) or 22,350 shares, on or before December 30,
1997.
Complainant soon learned that her shares had been acquired by
Ramon del Rosario, one of the incorporators of SBHI. The sale
ousted complainant from the corporation completely. While
respondent rose to be president of the corporation,
complainant lost all her life's savings invested therein.
Complainant alleged that she relied on the advice of Atty. de Dios
and believed that as the majority stockholder, Atty. de Dios would
help her with the management of the corporation.
Complainant pointed out that respondent appeared as her
counsel and signed pleadings in a case where complainant was
one of the parties. Respondent, however, explained that she only
appeared because the property involved belonged to SBHI.
Respondent alleged that complainant misunderstood the role of
respondent as legal counsel of Suzuki Beach Hotel, Inc.
Respondent manifested that her appearance as counsel for
complainant Diana de Guzman was to protect the rights and