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ANNOTATION
A LAWYER IS NOT EXPECTED
TO KNOW ALL THE LAW
By
LOHEL A. MARTIREZ
1.Introduction p. 50.
1.Scope and Related Matters, p 51.
(a)Scope, p. 61.
(b)Related Matters, p. 51.
2.Rules of Court Provisions, p. 63.
1.Section 27, Rule 138, p. 53.
2.License to practice; practice of law, p. 65.
3.Donation Mortis Causa, p. 66.
1.Civil Code Provisions, p. 56.
2.Useful pointers, p. 66.
4.Notarial Public, p. 57.
1.Duties, p. 57.

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1. Introduction
This is not the first time where a lawyer was
administratively charged in court for professional
incompetence. Others were charged with malpractice,
dishonesty and all sorts of accusations found in the books.
But lawyers should take stock; must believe in the
wisdom and in the fairness of our courts of justice; should
work intelligently hard to protect the rights of the citizenry,
uphold the dignity of human rights; attune their thinking

with the times ever vigilant, progressive and expanding.

A lawyer should harness his talents to the fulfillment of
national goals, unceasingly contributing towards the
establishment of a free, orderly society. Their mastery of
the law and their professional conduct are enough
guarantees that this country shall not go astray even in the
midst of difficulties both international and domestic. That
is why we need lawyers good lawyers, honest, studious.
Lawyers are necessary in a free society. They are the
standard bearers of the law.
When lawyers commit mistakes, honest mistakes at
that, they should not be punished just like the ordinary
criminals, muchless subjected to administrative charges
that are unfounded. Who does not commit mistakes? Even
courts commit mistakes. Lawyers are not robots, they have
minds of their own, yet they are not expected to know all
the laws, because it is IMPOSSIBLE.
The case under Annotation entitled ARSENIO V.
MENDOZA, Petitioner, versus ARSENIO MERCADO,
Respondent, Administrative Case No. 1484, promulgated
June 19, 1980, charged the respondent with professional
incompetence for having ratified a deed of donation
mortis causa which was not in the form of a will.
As the Supreme Court aptly put it, One has only to read
the decided cases on the controversial issue of when a
donation should be regarded as inter vivos and when mortis
causa in order to know that some lawyers are excusably
unfamiliar with the rule that the donation mortis causa
has ceased to be an in51

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dependent legal concept in the Civil Code and that it
should have the form of a last will and testament.
It will then be interesting to know, even by way of
reminders the responsibilities of a lawyer, what the Rules
of Court says about lawyers, some reminders on donations
mortis causa, including the Civil Code provisions
appertaining thereto, including some salient features of the
job of notaries public.
1.Scope and Related Matters
(a)Scope

What a Lawyer is, and his functions, his responsibilities,

his relations with his clients and with the courts have been
the subject of exhaustive dissertations both within the legal
circles and outside. Yet, all those commentaries involving
at times, the life of a lawyer centered on one common
theme: That they are men of law. That they should lead and
live a life under the law; not above the law. That they
should act with justice at all times.
Lawyers in the Government Service, or in private
enterprises regardless of position, notaries public,
professors of law, judges or just an ordinary employee or
entrepreneur, a salesman, a businessman or a practicing
lawyer are bound by the same Oath and are covered by the
same canons of professional ethics. They all belong to a
world-wide brotherhood of upright men and women.
(b)Related Matters
(a)Annotation:Lawyers Are No Angels, (83 SCRA
742);
Annotation:The Lawyers Responsibilities In The
Presentation of Pleadings, (87 SCRA 74);
Annotation:The Decorum of a legal practitioner,
(93 SCRA 103).
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(b)The attorneys roll or register is the official record

containing the names and signatures of those who are
authorized to practice law. A lawyer is not authorized to
use a name other than the one inscribed in the Roll of
Attorneys in his practice of law.
The official oath obliges the attorney solemnly to swear
that he will do no falsehood. As an officer in the temple of
justice, an attorney has irrefragable obligations of
truthfulness, candor and frankness. (Pangan vs. Ramos,
93 SCRA 87)
(c)The Court has held that in disbarment proceedings,
the burden of proof rests upon the complainant and the
charge against the lawyer must be established by
convincing proof. (Go vs. Candoy, 21 SCRA 439)
(d)The record must disclose as free from doubt a case
which compels the exercise by this Court of its disciplinary
powers. The corrupt character of the act done must be

clearly demonstrated. Moreover, considering the serious

consequences of the disbarment or suspension of a member
of the Bar, We have consistently held that clearly
preponderant evidence is necessary to justify the
imposition of either penalty. (De Guzman vs. Tadeo, 68
Phil. 554; Lim vs. Antonio, 41 SCRA 44)
(e)This Court likewise held that where there is no
proof that respondent lawyer was guilty of any unethical
conduct, harassment and malpractice, the disbarment case
against him should be dismissed. (Ricafort vs. Baltazar, 20
SCRA 418)
(f)The power of the Court to disbar a lawyer should be
exercised with caution because of its serious consequences.
(In re MacDougall, 3 Phil. 70) See also, Abaigar vs. Paz, 93
SCRA 91).
(g)The standard of personal and professional integrity
which should be applied to persons admitted to practice
law is not satisfied by such conduct as merely enables them
to escape the penalties of criminal law. Good moral
character includes at least common honesty. (Royong vs.
Oblena, 7 SCRA 859)
(h)The purpose of disbarment proceedings is to
safeguard the administration of justice by protecting the
court and the
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public from the misconduct of officers of the court. (Siervo
vs. Infanta, 73 SCRA 35).
2. Rules of Court Provisions
The entitlement to the practice of law, the requirements
to be met, admission to the bar, and the disbarment or
suspension of attorneys are clearly provided for in the
Rules of Court. Such that, Any person heretofore duly
admitted as a member of the bar, or hereafter admitted as
such in accordance with the provisions of this rule, and who
is in good and regular standing is entitled to practice law.
(Section 1, Rule 138) And that, Proceedings for the
removal or suspension of attorneys may be taken by the
Supreme Court on its own motion or upon the complaint
under oath of another in writing. The complaint shall set
out distinctly, clearly, and concisely the facts complained of,

supported by affidavits, if any, of persons having personal

knowledge of the facts therein alleged and shall be
accompanied with copies of such documents as may
substantiate said facts. (Section 1, Rule 139)
It is mandated that the rules must be strictly followed
and that lawyers must live up to their Oath a part of which
is to delay no man for money or malice, and will conduct
myself as a lawyer according to the best of my knowledge
and discretion with all good fidelity as well to the courts as
to my clients.
1.Section 27, Rule 138
SEC.27.Attorneys removed or suspended by Supreme
Court on 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 involving moral
turpitude, or for any violation of the oath which he is
required to take before admission to practice, or for a wilful
disobedience of any lawful order of a superior court, or for
corruptly or wilfully appearing as an attorney for a party to
a case without authority so to do. The
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practice of soliciting cases at law for the purpose of gain,

either personally or through paid agents or brokers,
constitutes malpractice.
Per Moran: Power to remove or suspend.It is well
settled that a court authorized to admit an attorney has
inherent jurisdiction to suspend or disbar him for sufficient
cause, and that such jurisdiction does not necessarily
depend on any express constitutional provision or statutory
enactment. The disbarment of an attorney is not intended
as a punishment, but is rather intended to protect the
administration of justice by requiring that those who
exercise this important function shall be competent,
honorable, and reliable; men in whom courts and clients
may repose confidence. Stated in a varying phraseology,
disbarment leads us to two leading objects, namely: (1) to
compel the attorney to deal fairly and honestly with his
client; and (2) to remove from the profession a person

whose misconduct has proved him unfit to be entrusted

with the duties and responsibilities belonging to the office
of an attorney. These objects should be borne in mind in the
exercise of the power of disbarment, and it should be
exercised with that caution which the serious consequences
of the action involve and only for the most weighty reasons.
Grounds for disbarment: The above section enumerates
the grounds for disbarment, but this statutory enumeration
is not to be taken as a limitation of the general power of the
courts in this respect. A member of the bar may be removed
or suspended from his office as a lawyer for grounds other
than those enumerated by these rules, because, as stated
above, the power of the courts to exclude unfit and
unworthy members of the profession is inherent; it is a
necessary incident to the proper administration of justice;
and it may be exercised without any special statutory
authority, and in all proper cases, unless positively
prohibited by statute. Accordingly a member of the bar may
be removed or suspended from his office as lawyer for
grounds other than those enumerated by this provision.
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Moral turpitude, defined.Moral turpitude as used in
this section, includes any act done contrary to justice,
honesty, modesty, or good morals.
2.License to practice: practice of law
Per Moran, Who may practice law? Any person licensed
as member of the bar in accordance with the statutory
requirements and who is in good regular standing, is
entitled to practice law. Under this rule, the function of the
court is to admit only properly qualified persons to the
practice of law, and to prevent practice by unauthorized
persons; and the primary object of this limitation upon
admission to the bar is to protect citizens from becoming
unconscious victims of dishonesty or incompetence. And a
license to practice law is a guaranty that, as far as the
court is advised, the licensee is fit and proper to assume
the responsibilities of an attorney, to enjoy and safekeep
confidence of others, and to aid and assist in the care and
management of their legal business and affairs.
The practice of law is not an absolute right to be granted

every one who demands it, but is a privilege to be extended

to, or withheld from him, in the exercise of a sound judicial
discretion. The standards of the legal profession are not
satisfied by conduct which merely enables one to escape the
penalties of the criminal law. It would be a disgrace to the
judiciary to receive one whose integrity is questionable as
an officer of the court, to clothe him with all the prestige of
its confidence, and then to permit him to hold himself out
as a duly authorized member of the bar.
Practice of law under modern conditions consists in no
small part of work performed outside of any court and
having no immediate relation to proceedings in court. It
embraces conveyancing, the giving of legal advice on a
large variety of subjects, and the preparation and execution
of legal instruments covering an extensive field of business
and trust relations and others affairs. Although these
transactions may have no direct connection with court
proceedings, they are always subject to become involved in
litigation. They require in many aspects a
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high degree of legal skill, a wide experience with men and

affairs, and great capacity for adaptation to difficult and
complex situations. These customary functions of an
attorney or counselor at law bear an intimate relation to
the administration of justice by the court. No valid
distinction, so far as concerns the questions set forth in the
order, can be drawn between that part of the work of the
lawyer which involves appearance in court and that part
which involves advice and drafting of instruments in his
office. It is of importance to the welfare of the public that
these manifold customary functions be performed by
persons possessed of adequate learning and skill, of sound
moral character, and acting at all times under the heavy
trust obligations of clients which rests upon all attorneys.
3.Donation Mortis Causa
1.Civil Code Provisions
Art.725.Donation is an act of liberality whereby a
person disposes gratuitously of a thing or right in favor of
another, who accepts it.
Art.728.Donations which are to take effect upon the

death of the donor partake of the nature of testamentary

provisions, and shall be governed by the rules established
in the Title on Succession.
Art.734.The donation is perfected from the moment
the donor knows of the acceptance by the donee.
Art.735.All persons who may contract and dispose of
their property may make a donation.
2.Useful Pointers
(a)The principal characteristics of a donation mortis
causa, which distinguish it essentially from a donation
inter vivos, are that in the former it is the donors death
that determines the acquisition of, or the right to, the
property, and that
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it is revocable at the will of the donor. (Zapanta vs.
Posadas, Jr., 52 Phil. 557)
(b)A donation mortis causa is that which becomes
effective upon the death of the donor. (Guzman vs. Ibea, 39
O.G. No. 76, p. 1835)
(c)When the law (sec. 1540, Adm. Code) says all
gifts, it doubtless refers to gifts inter vivos and not mortis
causa. Both the letter and the spirit of the law leave no
room for any other construction. Such, clearly, is the tenor
of the language, which refers to donations that took effect
before the donors death, and not to mortis causa donations,
which can only be made with the formalities of a will, and
can only take effect after the donors death. (Tuason and
Tuason vs. Posadas, 54 Phil. 289)
(d)Donations which are to become effective upon the
death of the donor partake of the nature of disposals of
property by will and shall be governed by the rules
established for testamentary successions. Accordingly, said
donations can only be made with the formalities of a will.
(Cario vs. Abaya, 40 O.G. (8th S), No. 12, p. 19)
4.Notaries Public
1.Duties
(See Annotation: The Notarial Act by Atty. R. Pompeyo
J. Cabrillas, 87 SCRA 324)
As Atty. Cabrillas pointed out in his annotation,
Generally, a notary public affixes his signature and seal on

two types of documents, the distinguishing factor

separating one from the other is the certification of the
notary public. In the first, a jurat is made at the last part
of the document; in the second, an acknowledgement.
There are other documents where the notary public is
required to do more, e.g., receiving proof, in writing
relating to commerce or navigation, such as bills of sale,
bottomries, mortgages and hypothecations; acting as
majestrate, in the writing of affidavits or depositions; and
to make declarations and certify the truth thereof under
his seal
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of office, concerning all matters done by him by virtue of

his office.
Our Supreme Court citing Chief Justice Abbott in the
case under Annotation, no attorney is bound to know all
the law; God forbid that it should be imagined that an
attorney or a counsel or even a judge, is bound to know all
the law. Law is older than man, even older than the
Universe, hence, this writer believes as mentioned earlier
that to know all the laws is an impossibility!
o0o

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