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Winona Baluyot

CHAPTER VIII: LAWYERS FIDUCIARY OBLIGATIONS takes advantage of the confidence reposed in
him by his client.

CANON 16 - A LAWYER SHALL HOLD IN TRUST ALL MONEYS
A lawyer may not retain the money of one client
to force a settlement of the disputed claim of
AND PROPERTIES OF HIS CLIENT THAT MAY COME INTO HIS
another client against the former. Nor may her
PROFESSION. obtain money from his client through false
pretense or misrepresentation.
Rule 16.01 - A lawyer shall account for all money or property
collected or received for or from the client. REBATES AND COMMISSIONS
Rule 16.02 - A lawyer shall keep the funds of each client
separate and apart from his own and those of others kept by
A lawyer shall not, without the full knowledge and
consent of the client, accept any fee, reward,
him.
costs commission interest, rebate or forwarding
Rule 16.03 - A lawyer shall deliver the funds and property of his allowance or other compensation whatsoever
client when due or upon demand. However, he shall have a lien related to his professional employment from
anyone other than the client.
over the funds and may apply so much thereof as may be
necessary to satisfy his lawful fees and disbursements, giving A lawyer may not claim the attorneys fees in the
notice promptly thereafter to his client. He shall also have a lien concept of damages awarded by the court in
favor of his client except when he and his client
to the same extent on all judgments and executions he has
agreed that whatever amount the court may
secured for his client as provided for in the Rules of Court. award as attorneys fees would form part of his
Rule 16.04 - A lawyer shall not borrow money from his client compensation.
unless the client's interest are fully protected by the nature of A LAWYER SHALL NOT BORROW FROM, NOR LEND
the case or by independent advice. Neither shall a lawyer lend MONEY TO, CLIENT
money to a client except, when in the interest of justice, he has
A lawyer shall not borrow money from his client
to advance necessary expenses in a legal matter he is handling unless the clients interest are fully protected by
for the client. the nature of the case or by independent advice.
Neither shall a lawyer lend money to his client
except, when in the interest of justice, he has to
advance necessary expenses in a legal matter he
A. EFFECTS OF FIDUCIARY RELATIONSHIP is handling for the client.
GENERALLY A lawyer shall not abuse the clients confidence
by delaying payment of money lent to him by his
The relationship of attorney and client is highly
client.
fiduciary and strictly confidential requiring utmost
good faith, loyalty, fidelity and disinterestedness
on the part of the attorney is designed to remove
all such temptations and to prevent everything of B. ACCOUNTING OF CLIENTS FUNDS
that kind from being done for the protection of the
A LAWYER SHALL ACCOUNT FOR CLIENTS FUNDS
client.
A lawyer shall hold in trust all moneys and
DEALINGS WITH CLIENT CLOSELY SCRUTINIZED
properties of his client that may come into his
A fiduciary relationship exist as a matter of law possession.
between attorney and client, which requires all A lawyer shall account for all money or property
dealings growing out of such relationship to be
collected or received for or from the client.
subject to the closest judicial scrutiny.
The highly fiduciary and confidential relationship
A lawyer is not barred from dealing with his client
of attorney and client requires hat the attorney
in business transaction, the same is disfavored
should promptly account for all funds and
and his business dealings must be characterized
property received or held by him for the clients
with utmost honesty and good faith.
benefit.
ABUSE OF CLIENTS CONFIDENCE Money collected by a lawyer in favor of his client
A lawyer should refrain from any action whereby must be immediately turned over to them.
for his personal benefit or gain he abuses or
Winona Baluyot

A LAWYER SHALL NOT COMMINGLE CLIENTS 4. The attorney by himself or through another
FUNDS purchases such property or interest during
the pendency of the litigation.
A lawyer shall keep the funds of each client
separate and apart from his own and those of Where the value of the property in litigation
others kept by him. deeded by a client in favor of his attorney in
payment of the latters fees is greatly more than
A LAWYER SHALL DELIVER FUNDS TO CLIENT, the worth of the attorneys services, the transfer
SUBJECT TO HIS LIEN contravenes the law.
A lawyer shall deliver the funds and property of WHERE RULE INAPPLICABLE
his client when due or upon demand. However,
he shall have lien over the funds and may apply Prohibition does not apply where the property
so much thereof as may be necessary to satisfy purchased by a lawyer was not involved in
his lawful fees and disbursements, giving notice litigation, where the sale took place before it
promptly thereafter to his client. He shall also became involved in the suit, where the attorney at
have a lien to the same extent on all judgments that time of the purchase was not counsel in the
and executions he has secured for his client as case, where the purchaser of the property in
provided for in the rules of court. litigation was a corporation even though the
attorney was an officer thereof, or where the sale
The failure of an attorney to return the clients took place after the termination of the litigation.
money upon demand gives rise to the
presumption that he has misappropriated it for his An attorney may properly bid on behalf of his
own use to the prejudice of and in violation of the client at the auction sale of the clients property in
trust reposed in him by the client. litigation, the restriction not being applicable as
his participation is not for his own benefit.
The provision grants the lawyer lien over the
clients funds in his possession as well as on all EFFECTS OF PROHIBITED PURCHASE
judgments and executions he has secured for his
client, to satisfy his lawful fees and disbursement.
The purchase by an attorney of his clients
property or interest in litigation is a breach of
C. RESTRICTIONS AGAINST BUYING CLIENTS professional ethics. The attorney, in an
PROPERTY appropriate case, may be disciplined for such
misconduct. The transaction being categorically
PURCHASE OF CLIENTS PROPERTY IN LITIGATION prohibited by law is null and void ab initio.
One of the rules protective of the fiduciary relation PURCHASE OF CHOSES IN ACTION
between lawyer and client is the law prohibiting a
lawyer from purchasing, even at a public or The purpose of the legal maxim is to prevent a
judicial auction, either in person or through the lawyer from he temptation to litigate on his own
mediation of another, any property or interest account as a business proposition.
involved in any litigation in which he may take
part by virtue of his profession. An attorney may, however, properly acquire
choses in action not in his professional capacity
The law makes the incapacity of the attorney to but as a legitimate investment.
acquire his clients property in litigation absolute
and permanent.
APPLICATION OF RULE
The rule forbidding an attorney from purchasing
his clients property or interest in litigation
involves four elements:

1. There must be an attorney-client relationship;

2. The property or interest of the client must be


in litigation;

3. The attorney takes part as counsel in the


case; and
Winona Baluyot

CHAPTER IX: LAWYERS DUTY TO PRESERVE cannot be divested by the expiration of the
CLIENTS CONFIDENCE professional relationship or by the death of the
client.
A. PRESERVATION F CLIENTS CONFIDENCE

DUTY O PRESERVE CLIENTS CONFIDENCE,


GENERALLY REASON FOR THE RULE
A lawyer shall preserve the confidence and Unless the client knows that his attorney cannot
secrets of his client even after the attorney-client be compelled to reveal what is told him, he will
relationship is terminated. suppress what he thinks to be unfavorable facts
and the advice which follows ill be useless, if not
misleading; lawsuit will be conducted along
CANON 21 - A LAWYER SHALL PRESERVE THE
improper lines, trial will be full of surprises and
CONFIDENCE AND SECRETS OF HIS CLIENT EVEN much useless litigation may arise.
AFTER THE ATTORNEY-CLIENT RELATION IS
The purpose of the lawyer-client privilege is to
TERMINATED.
encourage a client to make full disclosure to his
attorney and to place unrestricted confidence in
Rule 21.01 - A lawyer shall not reveal the confidences or him in matters affecting his rights or obligations.
secrets of his client except;
(a) When authorized by the client after acquainting him of the The prohibition against disclosure of confidential
consequences of the disclosure;
(b) When required by law; communications is, moreover, designed to
preserve the confidential and trust relation which
(c) When necessary to collect his fees or to defend himself, exist between attorney and client.
his employees or associates or by judicial action.
A LAWYER SHALL NOT USE CLIENTS SECRETS
Rule 21.02 - A lawyer shall not, to the disadvantage of his
client, use information acquired in the course of employment, WITHOUT HIS CONSENT
nor shall he use the same to his own advantage or that of a
third person, unless the client with full knowledge of the
The lawyers duty to preserve the confidence and
circumstances consents thereto. secrets of his client requires that he shall not, to
Rule 21.03 - A lawyer shall not, without the written consent of the advantage of his client, use information
his client, give information from his files to an outside agency acquired in the course of employment, nor shall
he use the same to his own advantage or that of
seeking such information for auditing, statistical, bookkeeping,
a third person, unless the client with full
accounting, data processing, or any similar purpose. knowledge of the circumstances consents
Rule 21.04 - A lawyer may disclose the affairs of a client of the thereto.
firm to partners or associates thereof unless prohibited by the A LAWYER SHALL NOT GIVE INFORMATION FROM
client. HIS FILES
Rule 21.05 - A lawyer shall adopt such measures as may be A lawyer shall not, without the written consent of
required to prevent those whose services are utilized by him, his client, given information from his files to an
from disclosing or using confidences or secrets of the clients. outside agency seeking such information for
Rule 21.06 - A lawyer shall avoid indiscreet conversation auditing statistical, bookkeeping, accounting, data
processing, or any similar purpose.
about a client's affairs even with members of his family.
Rule 21.07 - A lawyer shall not reveal that he has been A LAWYER MAY DISCLOSE AFFAIRS OF CLIENT TO
PARTNERS
consulted about a particular case except to avoid possible
conflict of interest. A lawyer may disclose the affairs of a client of the
firm to partners or associates thereof unless
prohibited by the client.
It is the duty of an attorney to maintain inviolate
the confidence, and at every peril to himself, to A LAWYER SHALL ADOPT MEASURES AGAINST
preserve the secret of his client. DISCLOSURES OF CLIENTS SECRETS

DURATION OF DUTY The clients secrets learned by other


professionals in the performance of their services
The lawyers duty to maintain inviolate his clients to the lawyer or to the latters client and the
confidence is perpetual. It outlast his professional reports of these persons or experts are privilege
employment and continues even after the clients communications.
death for professional confidence once reposed
Winona Baluyot

A LAWYER SHALL AVOID INDISCREET client is aware, discloses the information to


CONVERSATION ABOUT CLIENTS AFFAIRS no third person other than one reasonably
necessary for the transmission of the
A lawyer shall avoid indiscreet conversation about information or accomplishment of the purpose
a clients affair even with members of his family. for which it was given.
A LAWYER SHALL NOT REVEAL HIS HAVING BEEN 3. The legal advice must be sought from the
CONSULTED attorney I his professional capacity.
A lawyer shall not reveal that he has been RELATION OF ATTORNEY AND CLIENT
consulted about a particular case except to avoid
possible conflict of interest. The attorney-client privilege does not attach to
communications made by a client to a person
who is not a lawyer, even if such person
B. SCOPE OF ATTORNEY-CLIENT PRIVILEGE undertakes to perform legal services and is
authorized to appear in the MTC, as his
REQUISITES OF PRIVILEGE appearance therein is in the character of an
agent.
The attorney-client privilege exist where the legal
advice of any kind is sought from an attorney in A communication from a client to lawyer for some
his professional capacity with respect to purpose other than on account of the attorney-
communication relating to that purpose, made in client relation is not privilege.
confidence by the client from disclosure by
CONFIDENTIALITY
himself or by the attorney, unless the protection is
waived. All the elements inherent in the rule must The mere relations of attorney and client does not
concur t make the communication privilege raise a presumption of confidentiality. The client
against disclosure. This is known as evidentiary must intend the communication to be confidential.
privilege.
FORM OR MODE OF COMMUNICATION
Factors essential to establish the existence of an
attorney-client privilege: The attorney-client privilege embraces not only
oral or written statements but actions, signsor
1. Where legal advice of any kind is sought; other means of communication.
2. From a professional legal adviser in his There is no particular mode by which a
capacity as such; confidential communication shall be made by a
3. The communications relating to that purpose; client to his attorney.

4. Made in confidence; PERSONS ENTITLED TO CLAIM PRIVILEGE

5. By the client;
An attorneys agent is also the clients subagent
and is acting as such for the client An expert
6. Are at his instance permanently protected; such as an accountant, a scientist, an engineer or
physician, who has been hired either by a client
7. From disclosure by himself or by the legal or for effective consultation or communication
advisor; between attorney and client, is covered by the
8. Except the protection be waived. privilege and is precluded from testifying as to
any information acquired in the course of his
In fine, the factors are as follows: employment.

1. There exist an attorney-client relationship, or APPLICATION OF RULE


a prospective attorney-client relationship, and
The knowledge or information acquired by a
it is by reason of this relationship that the
client made the communication lawyer in his professional capacity from his client
may either be privilege or not privilege within the
2. The client made the communication in meaning of the evidentiary rule against
confidence. compelling the disclosure of privilege
communications.
Confidential communication refers to
information transmitted by voluntary act of
disclosure between attorney-client n
confidence by means which, so far as the
Winona Baluyot

PRIVILEGE MATTERS EXCEPTIONS TO RULE AGAINST DISCLOSURE OF


CLIENTS SECRETS
The work product of a lawyer, such as his effort,
research and thought, contained in his files is A lawyer shall not reveal the confidences or
privileged. secrets of his clients , except:
A document privileged upon delivery o an 1. When authorized by the client after
attorney retains it privilege character in the hands acquainting him of the consequences of the
of his client. disclosure;
If the identification of a client conveys information 2. When required by law;
which ordinarily would be part of the usual
privilege communication between attorney and 3. When necessary to collect his fees or to
client, the privilege extends to such identification defend himself, his employees or associates
in the absence of such factors as: or by judicial action.

1. The commencement of litigation on behalf of CLIENTS WAIVER OF PRIVILEGE


the client, Since the attorney-client privilege against
2. The identification relating to an employment disclosure of the clients confidence is intended
of a third person, primarily for the clients protection, only the client
as a rule can waive the privilege.
3. The employment of an attorney with respect
to future criminal or fraudulent transactions, The only instance where the waiver of the client
alone is insufficient is when the person to be
4. The prosecution of a lawyer for a criminal examined with reference to any privileged
offense. communication is the attorneys secretary,
stenographer or clerk, in respect to which the
MATTERS NOT PRIVILEGE consent, too of the attorney is necessary.
Any communication between attorney and client In disbarment proceeding a lawyer may not be
which lack any one of the elements that make permitted to invoke the privilege when the client
the attorney-client privilege is not privilege. does not waive it. Nor may a lawyer waive the
privilege as an excuse to justify his disclosure or
The transmission alone of physical object by a
client to his attorney, even if the client intended it use, in favor of a third party, of his clients secrets.
to be confidential, does not creat an attorney- By filing a complaint against his attorney or by
client privilege if non in fact exist. unreasonably refusing to pay him his attorneys
Contracts relating to attorneys fees are fees, a client waives the privilege in favor of his
essentially not privileged. lawyer who may disclose or use so much of his
clients confidences as may be necessary to
A LAWYER SHALL NOT REVEAL CLIENTS protect himself or to collect his fees.
CONFIDENCE
A waiver in part is a waiver in whole for a client
A lawyer shall not reveal the confidences or may not remove the seal of confidentiality as
secrets of his client except when authorized by makes for his advantage and insist that it be
the client after acquainting him of the privileged as to so much as makes to the
consequences of the disclosure; when required disadvantage of his adversary.
by law; and when necessary to collect his fees or
A client who voluntarily delivers a privileged
to defend himself, his employees or associates or
by judicial action. document to a third party or allows the latter to
hear his confidential communication lift the veil of
An opposing counsel in a case, who knows that a its confidentiality and thereby waives the
third person illegally acquired knowledge or protection of the privilege, and neither he nor his
possession of a privileged communication of the attorney can prevent its disclosure, nor can either
other party, may not properly call such third of them refuse to be examined in relation thereto.
persons to testify as to what the latter learned.
DISCLOSURE TO PROTECT ATTORNEYS RIGHTS
The privilege communication of an attorney and a
C. EXCEPTIONS TO RULE ON PRIVILEGE client exist only for lawful or honest purposes.
Winona Baluyot

COMMUNICATION AS TO CRIME CHAPTER X: LAWYERS DUTIES OF FAIR DEALINGS


AND AVOIDING
The privilege communication between attorney
and client may be a shield of defense as to A. FAIRNESS IN DEALINGS WITH CLIENT
crimes already committed.
DUTY TO BE CANDID, FAIR AND LOYAL ALL
The privilege cannot be used as a weapon of DEALINGS WITH CLIENT, GENERALLY
offense to enable a person to carry out a
contemplated crime against society.
CANON 15 - A LAWYER SHALL OBSERVE CANDOR, FAIRNESS
Where an attorney has knowledge of the
AND LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH
whereabouts of his client who jumped bail
pending trial, living elsewhere under an assumed HIS CLIENTS.
name the attorney may be disciplined for failing to
disclose that information to the proper authority. Rule 15.01. - A lawyer, in conferring with a prospective client,
shall ascertain as soon as practicable whether the matter would
COMMUNICATIONS AS TO FRAUD involve a conflict with another client or his own interest, and if so,
shall forthwith inform the prospective client.
Rule 15.02.- A lawyer shall be bound by the rule on privilege
While a communication relating to a fraud already
committed is privileged, a communication seeking communication in respect of matters disclosed to him by a
advice as to the commission of fraud or the prospective client.
establishment of a false claim is an exception to Rule 15.03. - A lawyer shall not represent conflicting interests
the privilege. The existence of an unlawful
purpose prevents the privilege from attaching. except by written consent of all concerned given after a full
disclosure of the facts.
Rule 15.04. - A lawyer may, with the written consent of all
concerned, act as mediator, conciliator or arbitrator in settling
disputes.
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 the case.
Rule 15.06. - A lawyer shall not state or imply that he is able to
influence any public official, tribunal or legislative body.
Rule 15.07. - A lawyer shall impress upon his client compliance
with the laws and the principles of fairness.
Rule 15.08. - A lawyer who is engaged in another profession or
occupation concurrently with the practice of law shall make clear
to his client whether he is acting as a lawyer or in another
capacity.

A LAWYER SHALL ASCERTAIN POSSIBLE CONFLICT


OF INTEREST
It is the duty of a lawyer to disclose and explain to
a prospective client all circumstances of his
relations to the parties and any interest in
connection with the controversy, which in his
honest judgement might influence the client in the
selection of counsel.

DUTY TO DECLINE EMPLOYMENT


A lawyer shall decline professional employment
even though how attractive the fee offered may
be if its acceptance will involve a violation of any
of the rules of the legal professionalism.
Winona Baluyot

A lawyer should not accept employment as an EFFECT OF TERMINATION OF RELATION


advocate in any matter in which he had
intervened while in the government service. The termination of the relation of attorney and
client provides no justification for a lawyer to
A LAWYER SHALL PRESERVE THE SECRETS OF A represent an interest adverse to or in conflict with
PROSPECTIVE CLIENT that of the former client.
The reason for the rule is to make the prospective MATERIALITY OF CONFIDENTIAL INFORMATION
client free to discuss whatever he wishes with the
lawyer without fear that what he tells the lawyer The bare attorney-client relationship with a client
will not be divulged nor used against him, and for precludes an attorney from accepting
the lawyer to be equally free to obtain information professional employment from the clients
from the prospective client. adversary either in the same case or in different
but related action.
A LAWYER MAY ACT AS A MEDIATOR
FOUNDATION OF, AND REASON FOR, THE RULE
A lawyer, with the written consent of all
concerned, to act as mediator, conciliator or The stern rule against representation of
arbitrator in settling dispute. conflicting interest is founded on principles of
public policy and good taste.
The lawyer shall not act as counsel for any of
them, otherwise the rule prohibiting The reason for the prohibition is is found in the
representation for conflict of interest will apply. relation of attorney and client, which is one of
trust and confidence of highest degree.
OPPOSING CLIENTS IN SAME OR RELATED SUITS
B. REPRESENTING CONFLICTING INTEREST
It is improper or a lawyer to appear as counsel for
A LAWYER SHALL NOT REPRESENT CONFLICTING one party against the adverse party who is his
INTEREST client in another totally unrelated action.
There is inconsistency of interest within the NEW CLIENT AGAINST FORMER CLIENT
meaning of the prohibition when, on behalf of one
client, it is the attorney's duty to contend for that
A lawyer is forbidden from representing a
which his duty to another client requires him to subsequent client against a former client only
oppose, or when the possibility of such situation when the subject matter of the present
develops. controversy is related, directly or indirectly, to the
subject matter of the previous litigation in which
The rule against representing conflicting interest he appeared for the former client.
applies even if the conflict pertains to the lawyers
private activity or in the performance in a non- CONFLICTING DUTIES
professional capacity, and his presentation as a A lawyer may not undertake to discharge the
lawyer regarding the same subject matter. conflicting duties any more than may he
A lawyer is forbidden from representing a represent antagonistic interest.
subsequent client against a former client when A lawyer may not, as counsel for a client, attack
the subject matter of the present controversy is the validity of the instrument prepared by him.
related, directly or indirectly, to the subject matter
of the previous litigation in which he appeared for ATTORNEYS INTEREST VERSUS CLIENTS
the former client. INTEREST
The clients confidence once reposed cannot be A lawyer should not put himself in a position
divested by the expiration of the professional where self-interest tempts him to do less than his
employment. best for his client.
A lawyer shall preserve the confidence and RULE APPLICABLE TO LAW FIRM
secrets of his client even after the attorney-client
relationship is terminated. Where a lawyer is disqualified or forbidden from
appearing as counsel in a case because of
conflict of interest, the law firm of which he is a
member as well as any member, associate or
assistant therein is similarly disqualified or
prohibited from so acting.
Winona Baluyot

LIMITATIONS ON GENERAL RULE CHAPTER XI: AUTHORITY OF ATTORNEY


The rule against representation of conflicting A. IN GENERAL
interest I subject to certain limitations.
POWER TO BIND CLIENT, GENERALLY
Where no conflict of interest exist, where the
clients knowingly consent to the dual A lawyer must perform his duties to his client
representation or where no true attorney-client within the scope of his authority. The extent of his
relationship is attendant, the prohibition does not authority is defined by what is expected of him as
apply. provided by law and Rules of Court and/or by the
written authority granted him by his client.
WHERE NO CONFLICT OF INTEREST EXIST
The professional employment of an attorney
A lawyer may properly represent a subsequent confers upon him the general authority to do on
client against a former client in a matter which is behalf of his client such acts as are necessary or
not, in any way, related to the previous incidental to the prosecution or management of
controversy in which he appeared for the former the suit entrusted to him or the accomplishment
client. of its purpose for which he was retained.

WHERE CLIENT KNOWINGLY CONSENT The employment by itself confers upon the
attorney no implied or apparent authority to bind
A lawyer may at a certain stage of the the client on substantial matters.
controversy and before it reaches the court
represent conflicting interest with the express ATTORNEY AS AGENT OF CLIENT
written consent of all parties concerned given
after full disclosure of facts. The relation of attorney and client is in many
respects one of agency, and the general rules of
EFFECTS OF REPRESENTATION OF CONFLICTING ordinary agency apply to such relation.
INTEREST
An attorney representing a client in court is,
The representation by a lawyer of conflicting however, more than an agent and has powers
interest, in the absence of written consent of all different from and superior to those of an ordinary
parties concerned given after a full disclosure of agent, he being an officer of the court with rights,
facts, constitutes professional misconduct which privileges and duties peculiar only to a lawyer.
subjects the lawyer to disciplinary action.
COLLECTION OF CLAIMS
The attorney may also be disqualified from
representing the new client upon petition of his An attorney retained by a creditor to enforce a
former client. claim has the authority to take all steps necessary
to collect it, such as sending a letter of demand
Two questions must, therefore, be asked: Firstly, requiring payment of the obligation within a
dis the attorney change or have the opportunity to specified period or filing the corresponding action
change his previous position as counsel for party in court in the event of the debtors refusal to pay.
n championing the cause of the new client?
Secondly, did the new client suffered prejudice? The clients remedy, in case he has not received
An affirmative answer to both may justify the the amount due him, is not against the obligor
setting aside of the adverse judgement against who has already been discharge from his
the new client. obligation but against his attorney who holds the
money in trust for his benefit.
The attorneys right to be paid for his services
rendered in favor of his former client may be An attorney cannot without special authority,
affected by the representation of conflicting discharge his clients claim for less than the
interest only if the two matters are related and the amount thereof or for the full amount in kind. Nor
former client objected to such representation. can he, without special authority, encash or
endorse a check or draft payable to his client or
deliver the proceeds of claim to a person other
than to his client.

ACCEPTANCE OF SERVICE OF SUMMONS


An attorney has no power to receive or accept on
behalf of his client the service of summons in his
bare professional capacity.
Winona Baluyot
Winona Baluyot

DELEGATION OF AUTHORITY cure any defect in the service of summons upon


him.
An attorney may not without the clients consent,
express or implied, delegate the confidence and Special appearance is one which seeks to
the authority that goes with it to another lawyer. contest solely on the jurisdiction of the court over
the person of the defendant and which seeks no
Client may ratify an unauthorized delegation or relief other than the dismissal of the action
the circumstance of the professional employment exclusively on that ground, and which does not
may furnish sufficient basis to assign e retainer operate as a voluntary submission to the
including the authority implied therefrom. jurisdiction of the court over the person of the
DELEGATION OF LEGAL WORK defendant.

A lawyer may not delegate in the absence of the PRESUMPTION OF AUTHORITY


clients consent is the confidence reposed in him, An attorney is presumed to be properly
as distinguished from the work involved therein. authorized to represent any cause in which he
A lawyer has the implied power to delegate to his appears in all stages of the litigation and no
associate or assistant attorney, under his written authority is required to authorize him to
supervision and responsibility, part or he whole of appear.
legal work required to be performed in the PRESUMPTION DISPUTABLE
prosecution or defense of the clients cause.
The presumption that a attorney is duly
authorized to manage a litigation is a disputable
B. AUTHORITY TO APPEAR one and may be overcome by a clear evidence to
the contrary.
GENERALLY
DISCLOSURE OF AUTHORITY
An attorney may not, without being retained or
authorized by the court, represent another in An attorney is presumed to be duly authorized to
court. represent a party in a case, the presiding judge
may, on motion of either party in a case, the
His authority to appear for a client commences presiding judge may, on motion of either party
only from the time he is retained by the client or and on reasonable ground thereof being shown,
by the latters agent. require him who assumes the right o appear in
the case to produce or prove his authority and to
No written authority from the client is necessary disclose, whenever pertinent to any issue, the
to enable a lawyer to represent him in court. name of the person who employed him.
APPEARANCE EFFECTS OF UNAUTHORIZED APPEARANCE
An appearance means the coming into court as a A party who has not authorized an attorney to
party either as a plaintiff as a defendant and represent him is not bound by the attorneys
asking relief therefrom. appearance in the case nor by the judgement
Appearance as a counsel is a voluntary rendered therein.
submission to the courts jurisdiction by a legal The attorney may be cited for contempt as an
advocate or lawyer professionally engaged to officer of the court who has misbehaved in his
represent and plead the cause of another, such official transactions.
as by actual physical appearance or by filing
pleadings in court. Adverse party who has been force to litigate as a
defendant by the unauthorized action on the part
The orderly conduct of judicial proceedings, of the attorney for the plaintiff may, on that
however, requires that counsel for a party should ground, move for the dismissal of the complaint.
file with the court his written appearance in the
case. An attorney for his personal protection, should
enter into a written retainer or secure from his
GENERAL AND SPECIAL APPEARANCE client a written authority to represent him in court.
General appearance operates as a voluntary
submission to the jurisdiction of the court over the
person of the defendant and takes the place of or
Winona Baluyot
Winona Baluyot

RATIFICATION OF UNAUTHORIZED APPEARANCE which entitles him to intervene in the criminal


action.
The unauthorized appearance of an attorney in a
case may be ratified by the party concerned ENTERING TO STIPULATIONS
either expressly or impliedly.
A lawyer has the general or implied authority to
Ratification retroacts to the date of the attorneys agree or stipulate upon the facts involved in a
first appearance and validates the action taken by litigation even without he prior knowledge or
him. consent of his client.
The principle of implied ratification by silence A stipulation does not require proof. In the
requires the concurrence of 3 requisites namely: absence of any other evidence, the duty of the
court is to render judgement strictly on the basis
1. That the party represented by the attorney is of the stipulation, it may not disregard a fact
of age or competent or if he suffers from any solemnly agreed by counsel as true or decline to
disability, e has a duly appointed guardian or give it its manifest legal effect in adjudicating he
legal representative; rights of the parties.
2. That the party or his guardian, as the case A party may be relieved of the legal effects of the
may be, is aware of the attorneys stipulation made by his attorney only:
representation;
1. When he is allowed to withdraw therefrom
3. That he fails to promptly repudiate the the consent of the other party;
assumed authority.
2. When the court, upon showing of palpable
mistake, permits hm to withdraw from the
C. CONDUCT OF LITIGATION stipulation;

GENERALLY 3. When what the lawyer agreed is that a


witness, if presented in court, would testify
A lawyer has authority to bind the client in all as stated by the adverse attorney.
matters of ordinary judicial procedure.
AGREEMENT AS TO WHAT WITNESS WOULD
An attorney can bind his client on substantial TESTIFY
matter only with the clients express or implied
consent. A lawyer may stipulate only as to facts but not as
to the manner the facts are to be offered.
DETERMINATION OF PROCEDURAL QUESTIONS
COMPROMISE OF CAUSE OF ACTION
A lawyer has been retained to prosecute or
defend an action has the implied authority o A compromise is a contract whereby the parties,
determine what procedural steps to take which, in by making reciprocal concessions, avoid a
litigation or put an end to one already
his judgement, will best serve the interest of his
client. commenced.

MAKING ADMISSION The only elements necessary to a valid


compromise are the reality of the claim and bona
The admission may be express o implied; it may fides of the compromise. In the absence of
be in a pleading or motion or orally in open court. statutory requirement, no particular form of
agreement is essential to its validity.
An implied admission by counsel may take the
form of his failure to deny specifically the material EFFECT OF WANT OF SPECIAL AUTHORITY
allegations of the adverse party or to traverse
under oath the due execution and authenticity of A compromise executed by counsel without
actionable documents or the claim of usury; or his special authority or consent on the part of the
submission of the case for decision upon the client does not bind the latter.
verified complaint and verified answer without the A compromise entered into by the clients
introduction of evidence. attorney without having been authorized to do so
by the client has been invariably described as null
A lawyer as private prosecutor cannot, without
special power, admit that his client, the offended and void ab initio, or unenforceable.
party, suffered no damage arising from the crime
as it deprives his client of that special interest
Winona Baluyot

RATIFICATION OF UNAUTHORIZED COMPROMISE LIMITATIONS ON CLIENTS RIGHT


A client may ratify an unauthorized compromise The clients right to dismiss or settle his action is
entered into by his counsel either expressly or not absolute.
tacitly.
The dismissal or the compromise by the client of
What constitutes a length of time sufficient to his cause may not defeat the attorneys right to a
raise a presumption of ratification depend upon just compensation for his services either for the
the circumstances of each case. It has been held full amount of the agreed fees if the clients action
that the lapse of two years, eight years or ten is in bad faith or for a reasonable sum based on
years from the time the client became aware of quantum meruit if there is no fraud on the part of
the unauthorized compromise made the the client.
presumption attain the stature of moral certainty.
AUTHORITY AFTER JUDGEMENT
A corporate client may ratify an unauthorized
compromise only through its board of directors or The power of an attorney after the rendition of
any of its officers authorized to settle the action. judgement is more restricted.

Ratification by a client of n unauthorized An attorney has the authority to bind his client in
compromise may also be implied from the fact taking an appeal, such step being a procedural
that he receives the benefits of the settlement measure to relieve the client of the effects of a
with knowledge thereof. adverse judgement.

A client may not be permitted to reject a Any lawyer who obtains a favorable judgement
compromise when it suits him or to accept it when for his client has a continuing authority to enforce
it , too, suits him. the judgement.

CONFESSION OF JUDGEMENT After the judgement has become final, an


attorney who has been employed merely for the
A lawyer may not confess judgement against his purpose of the litigation has no authority to alter
client except with the knowledge and at the or modify the judgement in a material particular,
instance of the client. or to actor appear in a proceeding which has
been brought to obtain such alteration or
DISMISSAL OF ACTION OR WITHDRAWAL OF modification, even though the alteration appears
APPEAL to be beneficial to his client.
A lawyer has no authority to dismiss his clients
case with prejudice even if he does not believe
that his client is entitled to prevail in the action. D. MATTERS IMPUTED TO CLIENT
A lawyer requires a special authority before he KNOWLEDGE ACQUIRED BY ATTORNEY
can dismiss his clients cause with prejudice.
The doctrine of imputed knowledge is based on
A lawyer has no implied authority to waive his the assumption that an attorney, who has notice
clients rights to appeal nor to withdraw a pending of matters affecting his client, has communicated
appeal. the same to his principal in the course of
professional dealings.
CLIENTS RIGHT TO DISMISS OR COMPROMISE
ACTION NOTICE TO COUNSEL AS NOTICE TO CLIENT
The right of a lawyer to compensation or services The service of any written notice upon a party
rendered cannot have a higher standing than the who has appeared by attorney or attorneys shall
right of the client o dismiss his cause or settle his be made upon his attorney or one of them, unless
litigation. service upon the party himself is ordered by the
court.
The existence of valid agreement between a
client and his counsel for payment of a large The attorney to whom service of notice is to be
portion of amounts recovered in the litigation in made refers to the counsel of record or one who
the case of success as attorneys fees will not in writing has entered a formal appearance or
prevent the client from unilaterally dismissing or given his name and address as the designated
compromising his action. lawyer for a party in a case.
Winona Baluyot

Where no notice of withdrawal or substitution of MISTAKE OR NEGLIGENCE OF COUNSEL BINDING


counsel is shown, notice to counsel of record is UPON CLIENT
for all purposes notice to the client.
The client is bound by his counsels conduct,
The right to be notified through counsel may be negligence and mistake in handling the case, or
waived either by the attorney or his client. in the management of the litigation and in
procedural technique, and he cannot be heard to
NOTICE TO ONE AS NOTICE TO OTHER COUNSEL; complain that the result might have been different
EXCEPTIONS had his lawyer proceeded differently.
If a party appears by two or more attorneys of The mistake or negligence of counsel may result
record, notice to one attorney is notice to the in a dismissal of his clients action, or appeal, a
others as well as to the client, even though the rendition of n unfavorable judgement against him
lawyer upon whom service is made is only a or a loss of his right to appeal.
deputy of the other.
The following mistakes or negligence have been
The solicitor general is the lawyer of the Republic held to be binding upon the client: (check page
and the officials sued in their official capacities. 360-361)
Notice of legal processes on the deputized The mistake of counsel in the conduct of the
counsel is not binding until the notice is actually proceedings as a result of his ignorance,
received by the solicitor general. inexperience or incompetence does not constitute
a ground for a new trial.
EXCEPTIONS TO RULE THAT NOTICE TO COUNSEL
IS NOTICE TO CLIENT A client who suffers prejudice by reason of his
The rule that notice to counsel is notice to client counsels inexcusable negligence in the
may be relaxed if its strict application might foster discharge of his duty may, however, file an action
dangerous collusion to the detriment of justice. for damages against him. He may also institute a
disbarment proceeding. Both actions can proceed
Service of notice upon the party instead of upon independently of the other.
his attorney is valid if ordered by the court.
EXCEPTIONS TO THE RULE THAT NEGLIGENCE OF
MODE OF SERVICE OF NOTICE COUNSEL BINDS CLIENT
Personal service is made by delivering personally The general that the client is bound by the
copy to e partys counsel, or by leaving it is in his mistake or negligence of his counsel is subject to
office with his clerk or with a person having exceptions.
charged thereof and asking that its receipt be
acknowledge.
The exceptions to the general rule includes cases
where reckless or gross negligence of counsel
Service to the party is made only if the party is deprives the client of the due process law, or
not represented by counsel or if service to the when the application of the rule results in the
party is ordered by the court, for service to the outright deprivation of ones property through
party who is represented by counsel and not to technicality.
the latter is not a valid service.
Illustrative of the rule that where the
Personal service is complete upon actual delivery. incompetence or negligence of counsel has been
held so great as to have deprived the client of
Service by ordinary mail is complete upon the due process and to entitle him to another
expiration of 10 days after mailing, unless the opportunity to prove his claim or defense are the
court otherwise provides. following cases (check pages 367-368).
Service by registered mail is complete upon
actual receipt by the addressee, or after 5 days
from the date he received the first notice of the
postmaster, which date is earlier.

PERSONAL SERVICE PREFERRED; EXPLANATION


REQUIRED
Service and filing of pleadings and other papers
should be done by personal service, and resort to
other modes of service and filing is the exception.
Winona Baluyot

CHAPTER XII: TERMINATION OF ATTORNEYS residence of his executor, administrator, guardian


AUTHORITY AND CHANGE OF COUNSEL or other legal representative.

A. TERMINATION OF COUNSELS AUTHORITY Party refers to a natural and not a juridical


person, such as a duly registered partnership.
GENERALLY Hence, the death of a partner does not
necessarily terminate the attorney-client
The relation of attorney and client may be
terminated by the client, b the lawyer or by the relationship.
court, or by reason of circumstances beyond the A LAWYER SHALL WITHDRAW ONLY FOR GOOD
control of the client or the lawyer. CAUSE
A client has absolute right to discharge his A lawyer may decline to accept a case except
attorney at any time with or without cause or even when designated as counsel de oficio and
against his consent. although his client my dismiss him at any time, he
lacks the unqualified right to withdraw once he
The existence or non-existence of a just cause is
important only in determining the right of an has taken one.
attorney to compensation for services rendered. A lawyer may not withdraw or be permitted to
LIMITATIONS ON CLIENTS RIGHT withdraw as counsel in a case if such withdrawal
will work injustice to a client or frustrate the ends
The discharge of an attorney or his substitution of justice.
by another without justifiable cause shall not
The withdrawal in writing of a lawyer as counsel
negate the attorneys right to full payment of
compensation as agreed in writing r, in the for a party, with the clients written conformity,
absence o a written retainer, to a reasonable does not require the approval of the court to be
amount based on quantum meruit. effective.

NECESSITY OF NOTICE OF DISCHARGE A lawyer may also retire at any time from any
action or proceeding without the consent of his
No formal notice of discharge by the former to the client should the court, on notice to the client and
latter is necessary. the attorney and on hearing, determine that h
ought to be allowed to retire. The application for
Any act of the client indicating an unmistakable withdrawal must be based on a good cause.
purpose to terminate the relation is sufficient.
GROUNDS FOR WITHDRAWAL WITHOUT CLIENTS
Any judicial notice sent to counsel is binding upon CONSENT
the client even though as between them the
professional relation has long terminated. A lawyer may withdraw from the case for a good
cause without the clients consent but with the
EFFECT OF DISCHARGE OF ATTORNEY approval of the court.
The authority of an attorney to represent a client The application for withdrawal must be based on
ceases upon is dismissal by the client and its good cause namely:
recording in the case.
1. When the client pursues an illegal or immoral
DEATH OR INCAPACITY OF CLIENT course of conduct in connection with the
As the relation of attorney and client is personal matter he is handling;
and one of agency, it terminates upon the death 2. When the client insist that the lawyer pursue
of the client. conduct violative of the canons and rules of
professional ethics;
The relation of attorney and client also terminates
upon the incapacity of a client during he 3. When his inability to work with co-counsel will
pendency of the litigation, the reason being that not promote the best interest of the client;
the client loses the legal capacity to contract or
control the subject matter of the action. 4. When the mental or physical condition of the
lawyer renders it difficult for him to carry out
Whenever a party to a pending case dies, the employment effectively;
becomes incapacitated or incompetent, it shall be
the duty of his attorney to inform the court 5. When the client deliberately fails to pay the
promptly of such death, incapacity or fees for the services or fails to comply with
incompetency and to give the name and the retainer agreement;
Winona Baluyot

6. When the lawyer is elected or appointed to B. CHANGE OR SUBSTITUTION OF COUNSEL


public office;
CHANGE OF COUNSEL
7. Other similar case.
A client may change his counsel in a pending
A lawyer is justified in withdrawing from the case case in any of three ways:
if his client insist upon an unjust or immoral
course in the conduct of his case or persist ver 1. He may discharge his attorney at any time
his remonstrance in presenting frivolous with or without cause and thereafter employ
defenses. another lawyer who may then enter his
appearance.
A lawyer may not continue employment when he
discovers that his obligation to preserve the 2. The attorney himself may initiate the move by
clients confidence prevents the performance of withdrawing his appearance either with the
his full duty to his former or to his present client, written consent of his client or with leave of
especially when his legal representation is court on some justifiable ground.
challenged on that ground. 3. Substitution of counsel in the form of an
In criminal proceeding, counsel for the accused application for that purpose.
should not ask to be relieved from his REQUIREMENTS FOR SUBSTITUTION
professional responsibility on mere trivial ground.
Nor may he retire from the action because the A proper substitution of counsel requires:
accused has confessed to him his guilt.
1. A written application for substitution;
PROCEDURE FOR WITHDRAWAL
2. Written consent of the client;
A lawyer who desires to retire from an action
without the written consent of his client must file a 3. Written consent of the attorney to be
petition for withdrawal in court. substituted;

He must serve a copy of his petition upon his 4. There must be filed with the application proof
client and the adverse party at least 3 days of service of notice of the application upon
before the date set for hearing, otherwise the the attorney to be substituted.
court may treat the applications a mere scrap of A verbal substitution of counsel, impliedly granted
paper. by the judge, contravenes the requirements of
DEATH OF ATTORNEY substitution.

A contract of professional employment terminates DEFECTIVE SUBSTITUTION AND EFFECTS THEREOF


upon the death of an attorney. A substitution of counsel which does not comply
The personal representative of the deceased with all of its requirements is defective.
attorney has no right to assign pending cases to A substitution which does not comply with the
another lawyer of his choice as a matter is for the required formalities is ineffective to effect a
client to decide. change of counsel or to terminate his authority.
The death of a partner in a law firm does not EMPLOYMENT OF ADDITIONAL COUNSEL
severe the professional employment between the
law firm and the client and the remaining partners A client has the right to have as many lawyers as
in the law firm continue to assume professional he can afford.
responsibility in the pending litigation. Neither
does the dissolution of a law firm in itself bring Professional courtesy requires that a lawyer who
about that result. has been retained as collaborating counsel in a
case should at least communicate with the
ACCEPTANCE OF INCOMPATIBLE OFFICE counsel of record before entering his appearance.
A lawyer who accepts a public office ceases, by
operation of law, to engage in private law practice
and becomes disqualified from continuing to
represent a client in those cases which the law
prohibits him from doing so or requires his entire
time to be at the disposal of the government.
Winona Baluyot

CHAPTER XIII: COMPENSATION OF ATTORNEY 4. When the lawyer, for justifiable cause, was
not able to finish the case to its conclusion;
A. RIGHT TO ATTORNEYS FEES
5. When the lawyer and the client disregard he
GENERALLY contract for attorneys fees,
There are 2 concepts of attorneys fees. The 6. When the client dismissed his counsel before
ordinary concept refers to the reasonable the termination of the case or the latter
compensation paid to a lawyer by his client for withdrew therefrom for valid reasons.
the legal services he has rendered to the latter.
The other concept is the amount of damages The doctrine of quantum meruit is a device to
which the court may award to be paid by the prevent undue enrichment based on the equitable
losing party to the prevailing party. postulate that it is unjust for a person to retain
benefit without paying for it.
RIGHT TO PROTECTION OF COUNSEL FEES
WHO IS LIABLE FOR ATTORNEYS FEES
The fact that the practice of law is not a business
and the attorney plays a vital role in the A lawyer is entitled to have and receive the just
administration of justice underscores the need to compensation for services rendered at the special
secure him his honorarium lawfully earned as a instance and request of his client and as long as
means to preserve the decorum and he is honestly and in good faith trying to serve
respectability of the legal profession. and represent the interest of his client, the latter
is bound to pay him just fees.
REQUISITES FOR RIGHT TO ACCRUE
Only the client who engaged the services of
The right of a lawyer to a reasonable counsel either personally or through an
compensation for his services requires the authorized agent is liable for the attorneys fees.
existence of an attorney-client relationship and
the rendition by the lawyer of services to the LIABILITY OF PERSONS BENEFITED BY COUNSELS
client. SERVICES
The presence of these requisites is essential to A person who has no knowledge of, or objected
the accrual of the lawyers right to attorneys fees. to, the lawyers representation may not be held
liable for attorneys fees even though such
WRITTEN AGREEMENT representation redounded to his benefit.
A written agreement is not necessary to establish LIABILITY OF ASSIGNEE
a clients obligation to pay attorneys fees.
Since an assignee of all interest pendente lite
The clients obligation to pay attorneys fees usually steps into the shoes f the assignor and
arises from the inanimate contract of facias ut des acquires all the of the latters rights and
(I do and you give) which is based on the obligations in the action, the assignee may be
principle that no one shall unjustly enrich himself held liable or counsel fees from out of the
at the expense of another. proceeds of a favorable judgement.
QUANTUM MERUIT That the obligation gives the assignee the right to
Quantum Meruit means as much as the lawyer intervene in the matter of fixing the amount of
deserves or such amount which his services fees which may be a proper charge against the
merit. judgement rendered in the action.
LIABILITY IN LABOR CASE
Recovery of attorneys fees on the basis of
quantum meruit is authorized: A lawyer who represents a union and its
1. When there is no express contract for members and with whom he has a retainer for
payment of attorneys fees; payment of a fixed percentage of amounts
recovered from the company is entitled to be paid
2. When although there is a formal contract for his fees not only by the union member but by the
attorneys fees, the fees stipulated are found non-union members as well who derive benefits
unconscionable or unreasonable by the court; from his services.

3. When the contract for attorneys fees is void Attorneys fees in labor cases may not be more
due to purely formal defects of execution; than what the law provides and they may not be
Winona Baluyot

checked off from any amount due the employees RESTRICTIONS ON SOME LAWYERS TO CHARGE
without their written consent. FEES

LIABILITY IN DERIVATIVE SUITS A lawyer who is absolutely disqualified from


engaging in the private practice of law by reason
The counsel fees may be properly charged of his government position may neither practice
against corporate funds. law nor, should he do so illegally, charge
But as any stockholder may file a derivative suit attorneys fees for such services.
on behalf of the corporation, any other A local sanggunian member who is a lawyer may
stockholder may intervene and oppose the grant appear as counsel in any administrative
of such fees as a charge against funds of the proceeding involving the local government unit in
corporation. which he is an official, he is prohibited from
LIABILITY IN RECEIVERSHIP PROCEEDINGS collecting any fee for his appearance therein.
RIGHT TO COUNSEL DE OFICIO TO FEES
The assets under receivership may be liable for
the fees of a lawyer employed by a receiver to A court may require a lawyer to render
help him the discharge of his duties. professional services in favor of an indigent
LIABILITY IN TRUSTEESHIP OR GUARDIANSHIP litigant.
PROCEEDINGS The rules of court provide a token compensation
The rule is that a trustee may be indemnified out for an attorney de officio. Subject to the
availability of funds as may be provided by law
of the trust estate for his expenses in rendering
and proving his accounts and for the counsel fees the court may, in its discretion, order an attorney
in connection therewith. employed as counsel de officio to be
compensated in such sum as the court may
LIABILITY IN ESTATE PROCEEDINGS reasonably fix, which shall not be less than 30
pesos in any case nor more than 50 pesos n light
To hold the estate ultimately liable for attorneys felonies; 100 pesos in less grave felonies; 200
fees requires that the person to whom the pesos in grave felonies other than capital
services were rendered was at the time the offenses; and 500 pesos in capital offenses.
executor or administrator and the services ere
rendered to him in that capacity. ATTORNEYS CONDUCT AFFECTING HIS RIGHT TO
FEES
WHO ARE ENTITLED TO OR TO SHARE IN
ATTORNEYS FEES The right of a lawyer to recover from his client a
reasonable compensation for services already
The lawyer who has been engaged by a client is performed may be affected or negated by
the one entitled to have and recover no more misconduct on his part, such as carelessness or
than a reasonable compensation for his services. negligence in the discharge of his duties,
The right of a lawyer to share in the professional misrepresentation or abuse of the clients
fees rest on services performed or on his being, confidence or unfaithfulness in representing his
based on an agreement, a partner of another or clients cause.
in a law firm. WITHDRAWAL OF COUNSEL FROM THE CASE
NON-LAWYER NOT ENTITLED TO FEES The lawyers unceremonious withdrawal from or
abandonment of the action which prejudices the
An attorney shall be entitled to have and recover
client negates his right to compensation for
from his client no more than a reasonable
compensation for his services requires the services rendered in the action.
existence of an attorney-client relationship as a The withdrawal of a counsel who has so far done
condition to the recovery of attorneys fees. his work faithfully in accordance with the
prescribed procedure does not affect his right to
A non-lawyer cannot, therefore, recover
fees for services rendered in the case.
attorneys fees even if there is a law authorizing
him to represent an litigant in court. If the withdrawal is with the clients written
conformity, it is presumed, in the absence of
evidence to the contrary, that he and his client
have mutually agreed to terminate his services
Winona Baluyot

and to compensate him for such services up to CLIENTS COMPROMISE OF ACTION


the date their relationship is terminated.
A client cannot, by entering into a compromise
agreement, deprive his lawyer of his fees in the
absence of a waiver on the part of the lawyer.
REPRESENTATION OF ADVERSE INTERESTS
The simultaneous representation by a lawyer of
the opposing parties to a controversy, in the B. CONTRACT FOR ATTORNEYS FEES
absence of the clients consent to the dual
GENERALLY
representation made after full disclosure of the
facts, negates the lawyers right to receive A contract of professional services may either be
compensation from both of them. oral or in writing. The fee stipulated may be
absolute or contingent; it may be a fixed
The lawyers acceptance of employment from a
percentage of the amount recovered in the action.
new client against a former client in a matter
which is related to the former controversy A written retainer has distinct advantages over an
precludes recovery of fees from the former client oral contract. A written contract generally controls
only if the latter objected to the representation. the amount thereof.
LAWYERS RIGHT UNAFFECTED BY CLIENTS KINDS OF RETAINER: GENERAL AND SPECIAL
CONDUCT
A general retainer is the fee paid to a lawyer to
A client cannot, in the absence of the lawyers secure his future services as general counsel for
fault, consent or waiver, deprive the lawyer of his any ordinary legal problem that may arise in the
just fees already earned. routinary business of the client and referred to
him for legal action. Its purpose is to prevent
ATTORNEYS DISCHARGE BY CLIENT
undue hardship on the part of an attorney
The discharge of a lawyer by his client without a resulting from the rigid observance of the rule
valid cause before the conclusion of the litigation forbidding representation of conflicting interest.
does not negate the lawyers right to recover Special retainer fee is an addition to what the
payment for his services.
client has agreed to pay him for services which
If the fee stipulated in a valid written contract is he has been employed to perform, the fee which
contingent and the lawyer is unlawfully dismissed the client will pay his lawyer for a specific matter.
before the conclusion of the action, he may A special retainer is a fee for a specific case
recover the reasonable value of his services thus handled or special service rendered by the
rendered; but if the contingency occurs or the lawyer.
client prevents its occurrence by dismissing, Counsel fees which are obligations of a client in
settling or waiving his cause, the lawyer may be
favor of his lawyer should be distinguish from
entitled to the full amount agreed in the contract.
attorneys fees I the concept of damages, the
The lawyer should, however, question his latter being part of the damages which the court
discharge entitle him to recover under the may award in favor of the prevailing party.
contract, otherwise he will be allowed recovery
VALIDITY OF CONTRACT
only on a quantum meruit basis.
A contract for professional services becomes the
The discharge of a lawyer for cause does not
necessarily deprive the lawyer of his right to be law between the parties when stipulations therein
are not contrary to law, good morals, good
paid for his services.
customs, public policy or public order.
CLIENTS DISMISSAL OF ACTION
An agreement stipulating an amount which is
A client may dismiss his action even without or more than what a law has authorized is also
against the consent of his counsel. invalid.
If the dismissal of the action is in good faith and is EFFECT OF NULLITY OF CONTRACT
based on an honest belief that the client has no The nullity of professional contract which results
valid cause, the lawyer may recover only the
from the illegality of the object sought to be
reasonable worth of his services, except when
achieved by the performance of the professional
the fee is contingent in which case there will be
services precludes a lawyer from recovering his
no recovery.
fees for such services.
Winona Baluyot

EFFECT OF UNCONSCIONABILITY OF AMOUNT expenses paid by him is against public policy,


especially if the lawyer has agreed to carry on the
Attorney shall be entitled to have and recover action at his expense in consideration of some
from his client no more than a reasonable bargain to have a part of the thing in dispute.
compensation for his services and that a written
contract for services and that a written contract CONSTRUCTION OF PROFESSIONAL CONTRACT
for services shall control the amount to be paid
thereof unless found by the court to be General rule is to adopt such construction as
unconscionable or unreasonable. would be more favorable to the client even if it
would work prejudice to the lawyer.
CONTINGENT FEE CONTRACT
A lawyer who prepares a contract of professional
A contract for a contingent fee is an agreement in services is presumed to have seized up the entire
writing in which the fee, usually a fixed situation before entering into the agreement.
percentage of what may be recovered in the
action, is made to defend a supposed right. Words inserted by a client in his own handwriting
in a contract for attorneys fees are to be taken in
In a contingent fee contract, the lawyer gets paid his favor, the insertion being presumed to have
for his services only if he wins the case for the been made for his benefit.
client unless the client prevents the successful
prosecution or defense of the action, in which
case the lawyer will be entitled to recover on a C. MEASURE OF COMPENSATION
quantum meruit basis or to the full amount as
fixed in a valid agreement if the client acted in AMOUNT FIXED IN VALID CONTRACT
bad faith.
Amount of attorneys fees due is that stipulated In
A continent fee arrangement is a contract the written retainer agreement which is
between a lawyer and a client in which the conclusive as to the amount of the lawyers
lawyers professional fee, usually a fixed compensation.
percentage of what may be recovered in the
action, is made to depend upon the success of AMOUNT BASED ON QUANTUM MERUIT
the litigation. Quantum meruit means as much as a lawyer
A lawyer cannot charge his client a contingent fee deserves.
or a percentage of the amount recovered as his The doctrine of quantum meruit is a device to
fees in the absence of an express agreement to prevent undue enrichment based on the equitable
that effect. postulate that it is unjust for a person to retain
VALIDITY OF CONTINGENT FEE benefit without paying for it.

A contingent fee is not prohibited by law and is The court will fix the amount of attorneys fees on
impliedly sanctioned. Its validity depends, in large quantum meruit basis in any of the following
measure, upon the reasonableness of the amount instances:
fixed as a contingent fee under the circumstances 1. The agreement as to counsel fees is invalid
of the case. for some reason other than the illegality of the
object of performance;
A contingent fee contract is generally valid and 2. The amount stipulated n the contract is
binding, unless it is obtained by fraud, imposition unconscionable;
or suppression of facts, or the fee is so clearly
3. No agreement as to fees exist between the
excessive as to amount to an extortion. parties;
EFFECT OF AGREEMENT TO PAY LITIGATION 4. The client rejects the amount fixed in the
EXPENSES contract as unconscionable and is found to
be so;
Champertry is an agreement by a lawyer to 5. Some act or event has precluded the lawyer
conduct the litigation on his own account to pay from concluding the litigation without fault on
his part; and
the expenses thereof or to save his client
therefrom and to receive as his fee a portion of 6. The client has dismissed his counsel or the
latter has withdrawn from the case for a valid
the proceeds of judgement is obnoxious to the reason.
law.
An agreement between a lawyer and his client
does not provide for reimbursement of litigation
Winona Baluyot

WHERE AGREEMENT IS INVALID (g) The amount involved in the controversy and the
benefits resulting to the client from the service;
The nullity of a professional contract will preclude
the lawyer from recovering his compensation for (h) The contingency or certainty of compensation;
services rendered only if such invalidity proceeds (i) The character of the employment, whether occasional
from the illegality of the object of performance or or established; and
of the service performed.
(j) The professional standing of the lawyer.
If the invalidity of the contract is due to a mere Rule 20.02 - A lawyer shall, in case of referral, with the
formal defect in its execution, the lawyer may consent of the client, be entitled to a division of fees in
recover the reasonable value of his services on proportion to the work performed and responsibility
quantum meruit basis. assumed.
Rule 20.03 - A lawyer shall not, without the full knowledge
WHERE AMOUNT STIPULATED IS
and consent of the client, accept any fee, reward, costs,
UNCONSCIONABLE
commission, interest, rebate or forwarding allowance or
The court will fix counsel fees on quantum meruit other compensation whatsoever related to his
basis whenever the amount thereof as stipulated
between the parties or sought to be recovered by professional employment from anyone other than the
a lawyer for his services is unconscionable. client.
Rule 20.04 - A lawyer shall avoid controversies with
Unconscionable fee is the amount which under
the circumstances surrounding the case, clients concerning his compensation and shall resort to
constitutes an over exaggeration of the worth of judicial action only to prevent imposition, injustice or
the lawyers services. fraud.
WHERE THERE IS NO EXPRESS CONTRACT
WHERE COUNSEL IS PRECLUDED FROM
The court will fix the amount on quantum meruit
basis, since the absence of an express CONCLUDING LITIGATION
agreement as to fees will not deprive a lawyer of A lawyer who, without any fault any fault, is
his right thereto unless he has agreed to render prevented by his client from concluding the
service gratuitously.
litigation may be entitled to recover his fees
WHERE ATTORNEY AND CLIENT DISREGARD merely quantum meruit basis in cases where
CONTRACT there is no written contract f professional
A lawyer presents a claim for more than the services, the lawyer in spite of the existence of a
amount fixed in the contract and the client not written agreement never questioned his
only rejects such claim but also questions the
discharge by the client, or the client dismissed or
reasonableness of the amount fixed therein, both
of them are deemed to have impliedly settled his action with the lawyers acquisence.
disregarded the contract and place themselves in
the position as thought there is no express NATURE OF SERVICES
stipulation as to the attorneys fees. In such a
case, the lawyers compensation will be The value of the lawyers services is in large
determined on quantum meruit basis. measure determined by the nature, quality and
quantity of such services.
FACTORS TAKEN INTO ACCOUNT
A lawyers competence is measured by the
Rule 20.01 - A lawyer shall be guided by the following character of his work.
factors in determining his fees:
(a) the time spent and the extent of the service rendered The time employed is not in itself an appropriate
or required; basis for fixing the amount of compensation.
(b) the novelty and difficulty of the questions involved; However, the length of employment which runs
(c) The importance of the subject matter; for years is significant as the longer the period of
(d) The skill demanded; employment the more work it entails and the
lesser opportunity the lawyer has for other
(e) The probability of losing other employment as a result
profitable retainers.
of acceptance of the proffered case;
(f) The customary charges for similar services and the
schedule of fees of the IBP chapter to which he belongs;
Winona Baluyot

SKILL AND STANDING OF ATTORNEY amount in the test case but on the totality of the
amounts in all the actions dependent upon the
The skill, experience and standing of a lawyer result of the test case.
bear a direct proportion to the amount of
attorneys fees to which he may be entitled for his RESULTS SECURED
services.
The importance to a client of is lawyers services
The ability, skill and competence of a lawyer must depends upon the successful outcome of the
not be measured by his income. litigation.
The lawyers competence and ability must be CAPACITY OF CLIENT TO PAY
judged by the character and quality of his work
and services not only in the field of law but in The financial ability of a client to pay may also be
other fields of public and private endeavors as considered in determining the amount of fees not
well. to enhance the same above what is reasonable
but to ascertain whether or not the client is able to
The skill and standing of the lawyer must be duly pay a fair and just compensation for the services
proved. rendered.

VALUE OF INTEREST INVOLVED STATUTORY LIMITATION AS TO FEES


The bigger the size or the value of the interest or The legislature, in the exercise of its police power,
property involved in a litigation the higher the may by law prescribe the limit of the amount of
attorneys fees is. attorneys fees which a lawyer may charge his
client.
The higher the stakes the more the case is hotly
litigated and the greater the efforts the lawyer Attorneys fees may be charged against the union
exerts. fund in an amount to be agreed upon by the
parties. Any contract, agreement or arrangement
Even in the interest involved is of a considerable of any sort to the contrary shall be null and void.
value but calls for no extra efforts, there will be no
justification for awarding a high compensation for FEES IN CASES OF REFERRAL
the lawyers services.
A lawyer shall, in cases of referral, with the
LOSS OF OPPORTUNITY FOR OTHER EMPLOYMENT consent of his client, be entitled to a division of
fees in proportion to the work performed and
A client should compensate his lawyer for being responsibility assumed.
deprived of the chance to earn legal fees from a
client from others b reason of his employment as A LAWYER SHALL NOT RECEIVE FEE FROM
his counsel. ANOTHER WITHOUT CIENTS CONSENT
A lawyer may lose the opportunity for other The general rule is that a lawyer should receive
employment in two ways, the acceptance of a compensation for his services in a case only from
retainer from a client will preclude a lawyer from his client and not from other person.
appearing for others in cases likely to arise out of
the transaction in view of the prohibition against A corollary of the foregoing rule is the principle
representation of adverse interest. that whatever a lawyer receives from the opposite
party in the service of his client belongs to the
DIFFICULTY OF ISSUES INVOLVED client.
In fixing the attorneys fees, the court takes into A LAWYER SHALL AVOID CONTROVERSIES WITH
account the novelty or difficulty of the questions CLIENTS CONCERNING HIS FEES
involved in the action as well as the demands on
his part on those questions. A lawyer to avoid controversies with clients
concerning his compensation and to resort to
TEST CASE judicial action only to prevent imposition, injustice
or fraud.
Test case is usually litigated with energy and
diligence even if the actual amount is made to Suits to collect fees should be avoided, and only
depend on the favorable outcome of the test where the circumstances imperatively require
case. should a lawyer resort to lawsuit to enforce
payment of his fees.
Fairness and justice require that the lawyers fees
be not limited to a reasonable proportion of the
Winona Baluyot

D. PROCEDURE TO RECOVER FEES REMEDIES IN ESTATE PROCEEDINGS

GENERALLY The procedure for collection of attorney's fees in


an estate proceeding is for the lawyer to ask the
A lawyer may take judicial action to protect his administrator or executor to pay him his fee.
right to fees either in the main action where his
services where rendered or in an independent If the administrator or executor refuses or fails to
civil suit against his client. make payment, the lawyer as either of the two
remedies. He may file an independent civil action
LAWYERS APPLICATION TO PAY HIS FEES against the administrator executor in his personal
A lawyer may apply so much of the clients funds capacity, and should judgement be secured and
that come to his possession as may be necessary the latter pays, the administrator or executor may
to satisfy his fees and disbursements, giving include the amount so paid in his account filed
notice promptly thereafter to his client. with the probate court.
If the administrator or executor dies before the
PETITION AS INCIDENT OF MAIN ACTION
fees of a lawyer could be paid, he may file a claim
A lawyer may enforce his right to fees by filing the against the estate of the deceased administrator
necessary petition as an incident of the main or executor or a petition for the allowance of his
action in which his services were rendered only fees with the probate court.
when something is due the client in the action
from which the fee is to be paid or when the client
Lawyer may enforce his right to fees in the
probate court at any time before the estate
settles or waives his cause in favor of the adverse
party in fraud of the lawyers claim for proceeding is definitely closed.
compensation. The allowance of counsel fees in a estate
Where a judgement has become final without proceedings rest largely in the sound discretion of
requiring payment of attorneys fees, a motion for the probate court which should not be interfered
payment of attorneys fees filed therein is with except for manifest abuse, but it may be
improper and the grant thereof by the court is modified by the appellate court when the fee
allowed is inadequate or excessive.
void, as the court cannot amend its final decision.
The lawyers remedy is to file a separate and COURT JURISDICTION
independent action to recover his fees.
The court having jurisdiction to try he main action
INDEPENDENT CIVIL ACTION in which the lawyer rendered services has also
A lawyer can enforce his right to a reasonable jurisdiction to pass upon he question of fees even
compensation for services rendered in an though the total sum thereof is less than the
jurisdictional amount cognizable by the court, and
independent civil action in cases where:
continues to have that jurisdiction until the
1. He court trying the main action in which the proceeds of the judgement shall have been
lawyers services were rendered dismissed delivered to the client.
the clients action or awarded nothing to the
client; NECESSITY OF HEARING

2. The court that decided the main litigation has


A petition for recovery of attorneys fees, either as
no jurisdiction over the action or has already a separate civil suit or as an incident of the main
action, has to be prosecuted and the allegations
lost it;
therein established as any other money claim.
3. The person liable for attorneys fees s not a
party in the main action; The person who are entitled to or must pay the
attorneys fees have the right to be heard upon
4. The court reserved to the lawyer the right to the question of their property or amount.
file a separate civil suit for the recovery of his
fees;
The burden of proof is upon the lawyer to
establish his allegations.
5. The services for which the lawyer seeks
payment were rendered in connection with a DEFENSES
matter not in litigation; An acton for recovery of attorneys fees is subject
6. The court rendered judgement in the case to the usual defenses applicable to an ordinary
without requiring payment for attorneys fees civil suit such as want of jurisdiction, res judicata,
and the judgement had become final. prescription of action, nullity of the contract for
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professional services, negligence in the discharge Attorneys fees in the concept of damages may
of the lawyers duties, lack of attorney-client be awarded in any of the following circumstance:
relationship, payment or unconscionableness of (check pages 437-442)
the amount claimed.
1. When there is agreement.
EXECUTION
2. When exemplary damages are awarded.
A final award of attorneys fees may be enforced
by the execution. 3. When defendants action or omission
compelled plaintiff to litigate.
The award may be enforced against any property
of the client, including the proceeds of the 4. In criminal cases of malicious prosecution.
judgement secured for the client in the main 5. When the action is clearly unfounded.
action.
6. When defendant acted in gross and evident
E. ATTORNEYS FEES AS DAMAGES bad faith.
TWO CONCEPTS OF ATTORNEYS FEES COMPARED - Mere refusal to pay a valid claim is by
Two concepts: itself insufficient to justify the award of
attorneys fees; that act must, in addition,
1. The award that the court may grant to a be characterized by gross and evident
successful party by way of attorneys fee is bad faith.
an indemnity for damages sustained by him
in prosecuting or defending, through counsel, 7. In actions for support.
his cause in court. 8. In cases of recovery of wages.
2. Attorney's fees which a client pays his 9. In actions or indemnity under workmens
counsel refers to the compensation for the compensation and employees liability laws.
latters services.
- The workmens compensation act
The fee as an item of damages belongs to the expressly authorized the award of
party litigant and not his lawyer. attorneys fees in favor of employees, in
The two concepts of attorneys fees are similar in workmens compensation cases.
other respects. They both require, as a 10. In a separate civil action arising from a crime.
prerequisite to their grant, the intervention of or
the rendition of professional services by a lawyer. 11. When at least double cost are awarded.

FEES AS DAMAGES NOT RECOVERABLE - Double cost are usually awarded in favor
GENERAL RULE of the winning party where the action or
appeal is frivolous.
Attorneys fees in the concept of damages are not
recoverable. - A frivolous action or appeal is one which
presents no justifiable question or is so
An adverse decision does not ipso facto justify readily recognizable as devoid of merit on
their award in favor of the winning party. its face that there is, if any, little prospect
Public policy requires hat no penalty be placed on of succeeding.
the right to litigate. 12. When the court deems it just and equitable.
FEES AS DAMAGES RECOVERABLE EXCEPTION 13. When a special law so authorizes.
TO THE RULE
RIGHT TO PRIVATE COUNSEL A PRECONDITION
Attorneys fees in the concept of damages are not
recoverable admits of several exceptions. To entitle a party to recover attorneys fees as an
item of damages, he must not only show that the
Two instances when attorneys fees as an item of case falls under any of the exceptions that may
damages may be recovered, namely, when there warrant the award thereof; he must have
is a written agreement for payment of such fees employed and, in the case of a public litigant,
in the event of suit and when there s a special law must show his right to employ a private counsel
authorizing their award. as well.
Winona Baluyot

AWARD OF ATTORNEYS FEES DISCRETIONARY B. RETAINING LIEN


It is well settled that the award of attorneys fees DEFINITION
in favor of the prevailing party in a case is
essentially discretionary with the trial court. Retaining lien for the balance of the account due
to the attorney from his client for services
PLEADING AND PRACTICE rendered in all matters which he may have
handled for the client, regardless of their
The claim for attorneys fees in the concept of outcome.
damages and the ground relied upon must be
pleaded. Charging lien is a special lien in a particular case
and presupposes at a favorable judgement has
The claim for attorneys fees must not only be been secured for the client in that case.
alleged; the existence of the factual basis and the
amount thereof must also be proved. NATURE AND ESSENCE OF RETAINING LIEN
A retaining lien is a passive right and cannot be
actively enforced.
CHAPTER XIV: ATTORNEYS LIEN
REQUISITES FOR VALIDITY
A. IN GENERAL
In order that a retaining lien will be valid and
GENERALLY accorded full protection, there must be present
A lawyer who withdraws or is discharge shall, the following requisite:
subject to a retaining lien, immediately turn over 1. Attorney-client relationship,
all papers and property to which the client is
entitled, and shall cooperate with his successor in 2. Lawful possession by the lawyer of the
the orderly transfer of the matter. clients funds, documents and papers in his
professional capacity,
A lawyer shall have a lien over the funds of his
clients and may apply so much thereof as may be 3. Unsatisfied claim for attorneys fees or
necessary to satisfy his lawful fees and disbursements.
disbursements, giving notice promptly thereafter
to his client. PROPERTY TO WHICH LIEN ATTACHES

He shall also have a lien t the same extent on all The general, possessory or retaining lien of an
judgements and executions he has secured for attorney attaches to all property, papers, books,
his client as provided for in the rules of court. documents or securities o the client that lawfully
come to the lawyer professionally or in the
Retaining lien - lien not only upon the funds, course of his professional employment, not
documents and papers of his client which have necessarily in connection with a particular case
lawfully come into his possession until what is but any case or matter handled for the client.
due him has been paid.
WHEN LIEN ATTACHES
Charging lien - lien upon all judgements for the
payment of money and executions issued in The returning lien attaches from the moment the
pursuance of such judgements rendered in the attorney lawfully obtains and retains possession
case wherein his services has been retain by the of the funds, documents and papers of the client.
client. BOND FOR RETURN OF DOCUMENTS
RETAINING AND CHARGING Until the client files such bond or security, the
Retaining lien is the right of an attorney to retain court may not compel the surrender of the
the funds, documents and papers of his client documents and papers without gravely abusing
which have lawfully come into his possession its discretion or authority for the courts duty is to
until his lawful fees and disbursement have been protect and not to destroy the attorneys retaining
paid and to apply such funds to the satisfaction lien.
thereof. EXTINGUISHMENT OF RETAINING LIEN
Charging lien is the right which the attorney has The general or retaining lien is dependent upon
upon all judgements for the payment of money possession and does not attach to anything not
and executions issued in pursuance thereof, in the attorneys possession.
incurred in favor of the client.
Winona Baluyot

It expires when possession lawfully ends, as condition sine qua non a judgement for money
when the lawyer voluntarily parts with the funds, and execution in pursuance of such judgment
documents and papers of his client or offers secured I the main case by the attorney in favor
them in evidence in court. of his client.

SATISFACTION LIEN RECORDAL AND NOTICE OF LIEN


The attorneys general or retaining lien is only a The recordal, to be valid, should be effected while
mere passive right to enforce collection of his the court has jurisdiction over the case and
fees and disbursements. before full satisfaction of the judgement.
The lawyer may lawfully apply the clientss funds Compliance with the requirement of notice is
in satisfaction of his claim for attorneys fees and necessary to make. The lien effective.
disbursements.
TO WHAT CHARGING LIEN ATTACHES
The attorneys charging lien, once duly recorded,
C. CHARGING LIEN attaches to the judgement for the payment of
money and the executions issued in pursuance of
NATURE AND ESSENCE OF CHARGING LIEN such judgement.
A charging lien is an equitable right to have the The lien is restricted to amounts awarded t the
fees and lawful disbursements due a lawyer for client by final judgement and does not comprise
his services in a suit secured to him out of the sums of money which according to the same
judgement for the payment of money and judgement, must be applied to satisfy a legitimate
executions issued in pursuance thereof n the debt of the client.
particular suit.
EFFECTS OF CHARGING LIEN
A client should not be allowed to appropriate the
whole of a judgement in his favor without paying Charging lien that has been duly recorded
the services of his counsel in obtaining or helping partakes of the nature of a collateral security or a
obtain such judgement. lien on a real or personal property.
A charing lien is a special lien. It is a charge upon The lien gives the lawyer the right to collect, in
the thing which is protected in equity. payment of his professional fees and
disbursements, a certain amount from out of the
It is a device invented by law for the protection of judgment or award rendered in favor of his client.
attorneys against the knaveries of their clients by
disabling them from receiving the fruits of The lien survives the death of the client ad need
recoveries without paying for the valuable not therefore be enforces in the proceeding for
services by which the recoveries were obtained. the settlement of the clients estate.
REQUISITES FOR VALIDITY OF CHARGING LIEN The client cannot defeat the attorneys right to the
charging lien by dismissing the case, terminating
A charging lien, to be valid as security for the services of his counsel, waiving his cause or
payment of attorneys fees and lawful interest in favor of the adverse party or
disbursements, requires that the following compromising his action.
requisites concur:
EXTINGUISHMENT OF CHARGING LIEN
1. There must be an attorney-client relationship;
A charging lien which has been recorded before
2. The attorney has rendered services; the case is finally decided is extinguished when
3. A money judgement favorable to the client the client loses the action as the lien may only be
has been secured in the action enforced against a judgement awarded in favor of
the client, the proceeds thereof or executions
4. The attorney has a claim for attorneys fees thereon.
or advances; and
ASSIGNMENT OF CHARGING LIEN
5. A statement of his claim has been duly
Attorneys charging lien may be assigned or
recorded in the case with the notice thereof
served upon the client and adverse party. transferred without the preference thereof being
extinguished except when the assignment carries
A charging lien to be enforceable as security for with it a breach of attorneys duty to preserve his
the payment of attorneys fees requires as a clients confidence inviolate.
Winona Baluyot

SATISFACTION OF JUDGEMENT CIVIL LIABILITY TO THIRD PARTY; NO


COUNTERCLAIM AGAINST HIM
The satisfaction of a judgement in favor of the
client does not by itself extinguish the attorneys The obligation of an attorney to exercise
charging lien. reasonable care and skill in the performance of
the designated service is to the client and not to a
ENFORCEMENT third party; hence, where neither fraud, falsehood
The court which hears the case retains nor collusion exist, he is not liable for want of
jurisdiction over the subject matter thereof until reasonable care and skill at the suit of any one
the judgement rendered therein shall have been between whom and himself the relation of
fully satisfied or, if there be a duly recorded attorney and client does not exist.
charging lien thereon, until the lien is settled. LIBELOUS WORDS IN PLEADINGS; PRIVILEGE
COMMUNICATION
The generally accepted rule is that lawyers are
CHAPTER XV: LIABILITIES OF ATTORNEY
exempted from liability for libel or slander for
A. LIABILITY FOR DAMAGES words otherwise defamatory published in the
course of judicial proceedings, provided that the
DEGREE OF CARE REQUIRED statements are connected with, or relevant,
An attorney upon being retained is understood as pertinent or material to, the cause in hand or the
subject of inquiry.
promising to employ a reasonable degree of care,
skill and diligence as men of the legal profession LIABILITY FOR COST OF SUIT
commonly possess and exercise in matters of
professional employment. Where a lawyer insisted on the clients patently
unmeritorious case or interposed an appeal
All tat is required of a lawyer, in the performance merely to delay litigation or thwart the prompt
of his duties to his client, is to exert that degree of satisfaction of the prevailing partys just and valid
vigilance and attention expected of a good father claim, the court may adjudge the lawyer liable to
of a family or such degree of care and ordinary pay treble costs of suit.
diligence as any member of the bar similarly
situated is expected to exercise.
CIVIL LIABILITY TO CLIENT B. CRIMINAL LIABILITY
A client is bound by the acts, even mistakes, of PREJUDICING CLIENT OR REVEALING HIS SECRETS
his counsel in realm of procedural technique.
A lawyer who, for any malicious breach of
A lawyer is not liable for mere error in judgement. professional duty or inexcusable negligence or
ignorance, shall prejudice his client or reveal any
Liability on the part of a lawyer arises only when of the secrets of the latter learned b him in his
his error or misconduct in the discharge of his professional capacity, may be held criminally
duties is gross or patent. liable therefor.
LIABILITY FOR BREACH OF FIDUCIARY Two acts are penalized: (a) causing prejudice to
OBLIGATIONS client through malicious breach of professional
A lawyer holds his clients funds or property in duty or through inexcusable negligence or
ignorance; (b) revealing the clients secret
trust for the client.
learned in the lawyers professional capacity
The lawyer is under obligation to make an through malicious breach of professional duty or
accounting of such funds that come into his through inexcusable negligence or ignorance.
possession. His failure to return the clients
money or property after demand gives rise to the Malicious implies deliberate intent or or sinister
presumption that he has misappropriated the design on the part of the lawyer.
same to his personal benefit and makes him REPRESENTING ADVERSE INTEREST
civilly liable n favor of the client, apart from his
criminal or administrative responsibility arising A lawyer who has undertaken the defense of a
therefrom. client or has received confidential information
from said client in a case may be held criminally
liable for undertaking the defense of the opposing
Winona Baluyot

party in the same cause without the consent of and an opportunity to the person charge to be
his first client. heard by himself or by a counsel.

INTRODUCING FALSE EVIDENCE ACTS CONSTITUTING CONTEMPT


Any person who shall knowingly introduce in A lawyer may be punished for contempt of
evidence in any judicial proceeding or to the court for:
damage of another or who, with intent to cause
such damage, shall use any false document may 1. Misbehavior as an officer of the court,
be held criminally liable. 2. Disobedience of or unlawful interference
MISAPPROPRIATING CLIENTS FUNDS with the judicial proceedings,

A lawyer who misappropriates his clients funds 3. Obstruction in the administration of


may be held liable for estafa. justice,

4. Misleading the courts or making false


allegations, criticisms, insult or veiled
C. CONTEMPT OF COURT threat against the court,

NATURE AND PURPOSE 5. Aiding in the unauthorized practice of law,


and
The power to punish for contempt or to control,
the furtherance of justice, the conduct of 6. Unlawful retention of clients funds.
ministerial officers of the court, including lawyers
and all other persons in any manner connected MISBEHAVIOR
with a case before it, is inherent in all court. A lawyer who misbehaves in the performance
The power is essential to the observance of order of his official duties or in his official
in judicial proceedings and to the enforcement of transaction may be punished as for contempt.
judgements, orders and writs of courts and DISOBEDIENCE
consequently to the due administration of justice.
The lawyers disobedience of or resistance to
The power to punish for contempt should be an order of the court may constitute contempt
exercised on the preservative and not on the of court.
vindictive principle and on the corrective rather
than the retaliatory idea of punishment. A lawyer may not be punished for contempt In
failing to do something not specified in the
Contempt proceedings are criminal in nature order.
even if the acts complained of are incidents of ivil
actions. PUBLICATION CONCERNING PENDING LITIGATION

KINDS OF CONTEMPT A publication which tends to impede, obstruct,


embarrass r influence the courts in administering
Direct contempt which is punished summarily, justice in a pending suit or proceeding,
consist of misbehavior in the presence of or so constitutes criminal contempt which is summarily
near a court or judge as to interrupt or obstruct punished.
the proceedings before the court or the
administration of justice. No formal charge is There is no contempt here there is no action
necessary and the proceeding is summary in pending s there is no decision which might in any
nature. A punishment for direct contempt by a way be influence by the newspaper publication.
superior court is not appealable, but may be
reviewed only on a petition for certiorari on the PUBLICATION TENDING TO DEGRADE THE COURT;
ground of grave abuse of discretion or lack of DISRESPECTFUL LANGUAGE IN PLEADINGS
jurisdiction on the part of the judge. Contempt exist with or without a pending case as
Indirect or constructive contempt is one what is sought to be protected is the court itself
committed away from the court involving and its dignity.
disobedience of or resistance to a lawful writ, A lawyer who uses in his pleadings words tat
process, order, judgement or command of the tend to degrade the court or bring it into
court, or tending to belittle, degrade, obstruct disrepute commits contempt of court.
interrupt or embarrass the court. The law requires
that there be a charge in writing duly filed in court
Winona Baluyot

Derogatory language of a lawyer in a pleading attempts or induces another to enter into or


filed in a case against a judge before whom the upon such real property, for the purpose of
case is pending is direct contempt. executing the acts of ownership or
possession, or in any manner disturbs the
Use of disrespectful or contemptuous language possession given to the person adjudged to
against a particular judge in pleadings presented be entitled thereto.
in another court or proceeding is indirect, not
direct contempt as it is not tantamount to a 3. Any abuse of or any unlawful interference
misbehavior in the presence of or so near a court with the process or proceedings of a court not
or judge as to interrupt the administration of constituting direct contempt under Section 1
justice. of this rule.

MISLEADING THE COURT OR OBSTRUCTING 4. Any improper conduct ending, directly or


JUSTICE indirectly, to impede, obstruct or degrade the
administration of justice.
Making false allegations in a pleading, offering
false evidence or presenting perjured witness, 5. Assuming to be an attorney or an officer of
misleading the court and obstructing justice court, and acting as such without authority.
constitutes contempt of court.
6. Failure to obey a subpoena duly observed.
UNAUTHORIZED PRACTICE OF LAW
7. The rescue, or attempted rescue, of a person
The practice of law by one who has been or property I the custody of an officer by
disbarred or suspended therefrom constitutes virtue of an order or process of a court held
contempt of court. by him.

BELLIGERENT ATTITUDE There are 2 ways by which indirect contempt


proceedings may be commenced or initiated:
Contempt of court presupposes a contumacious
attitude, a floating or arrogant belligerence, a 1. May only be commenced or initiated by the
defiance of the court. court or the judge. (Par. 1, sec. 4)

UNLAWFUL RETENTION OF CLIENTS FUNDS 2. May be commenced by a party litigant or any


aggrieved person filing a verified petition for
A lawyer who unjustly retains in his hands money the purpose. (Par.2, sec.4)
of his client after it has been demanded may be
punished for contempt as an officer of the court PENALTY
who have misbehaved in his official transactions.
The proper penalty depends upon the kind of
PENALTY FOR DIRECT CONTEMPT; REMEDY contempt committed.
In a direct contempt, no formal charge is The exercise of the power of contempt has a two-
necessary and the proceeding is summary in fold aspect:
nature.
1. The proper punishment of the guilty party for
The person adjudged in direct contempt by any his disrespect to the court or its order; and
court may not appeal but may avail himself of the
remedies of certiorari or prohibition. 2. To compel his performance of some act or
duty required of him by the court which he
CHARGE AND HEARING IN INDIRECT CONTEMPT refuses to perform.
A person guilty of any of the following acts may Contempts are classified as civil or criminal.
be punished for indirect contempt:
Contempt of, or with insult to public authority may
1. Misbehavior of an officer of a court I the aggravate the offense.
performance of his official duties or in his
official transactions. To be appreciated as an aggravating
circumstance, it is essential:
2. Disobedience of or resistance to a lawful wit,
process, order, or judgement of a court, 1. That the crime is committed in the presence
including the act of a person who, after being of a public authority, not a mere agent of the
dispossessed or ejected from any real authorities; and
property by the judgement or process of any
court of competent jurisdiction, enters or
Winona Baluyot

2. That the public authority is engaged in the Administrative cases against lawyers a class of their
exercise of his functions and is not the person own
against whom the crime is committed.
In a criminal case, proof beyond reasonable
The judgement or final order of a court in a case doubt is necessary; in an administrative case for
of indirect contempt may be appealed to the
proper court as in criminal cases. disbarment or suspension, clearly preponderant
evidence is all that is required. Hence, a criminal
prosecution will not constitute a prejudicial
Chapter XVI: SUSPENSION AND DISBARMENT
question even if the same facts and
A. IN GENERAL
circumstances are attendant in the administrative
Generally
proceedings. Laws dealing with double jeopardy
The practice of law is a privilege burdened with
or prescription or with procedure-like verification
conditions
of pleadings and prejudicial questions have no
application to disbursement proceedings.
Authority to discipline.
The Supreme Court as guardian of the legal
Duty to discipline or protect lawyers.
profession has ultimate disciplinary power over The power of the court to discipline lawyers
attorneys. The court of appeals and the regional
should not, however, be exercised in an arbitrary
trial court may likewise exercise disciplinary
and despotic manner. Neither should it be
power over lawyers who appear before them as
exercised at the pleasure of the court or from
counsel for litigants. Can only impose
passion, prejudice or personal hostility, regulate
suspension or a lesser disciplinary sanction after
its disciplinary power by a sound and just
giving the lawyer concerned the opportunity to be
judicial discretion. Disciplinary proceedings
heard on a reasonable notice. It may recommend
confidential in nature until their final
his disbarment. In case the penalty imposed is
determination, pursuant to which the
suspension, the lawyer shall not practice law
unauthorized publication of pending
until further action of the Supreme Court which
administrative charges or the proceedings based
may affirm, revoke or modify it, or cancel his
thereon, constitutes contempt of court, to
name from the roll of attorneys.
safeguard the reputation of the lawyer during the
pendency of the disciplinary action against him.
Purpose of disciplinary proceedings.
A disciplinary action is premised on the
B. Grounds for discipline.
assumption that members of the bar should be
Generally.
competent, honorable and reliable, persons in A lawyer may be disciplined for gross misconduct
whom courts and clients may repose confidence.
or malpractice or unprofessional conduct, gross
The suspension or disbarment of a lawyer is
misconduct as any inexcusable, shameful,
intended to protect the court and the public from
flagrant, or unlawful of justice who is prejudicial
the misbehavior of its officers, safeguard the
to the rights of the parties or to the right
administration of justice from incompetence and
determination of a cause. Malpractice ordinarily
dishonesty of lawyers, and preserve the purity of
refers to any malfeasance or dereliction of duty
the legal profession by removing from its ranks
committed by a lawyer. Gross misconduct,
those who have shown to be unfit and unworthy
malpractice or unprofessional conduct
to remain in it.
constitutes ground for disciplinary action. The
acts of misconduct prior to admission include
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those which indicate that at the time the lawyer The judgment, resolution or order of the foreign
too his oath he did not possess the required court or disciplinary agency shall be prima facie
qualifications for membership in the bar. The evidence of the ground for disbarment or
grounds for suspension or disbarment based on suspension. The inherent power of the court over
acts committed after the lawyers admission to its officers cannot be restricted. Malpractice
the bar are those which cause loss of moral ordinarily refers to any malfeasance or
character on his part or involve violation of his dereliction of duty committed by a lawyer.
duties to the court, to his client to the legal Canon 16. A lawyer shall hold in trust all moneys
profession and to the public. and properties of his client that may come to his
possessions
Enumerated grounds not exclusive Rule 16.01 .A lawyer shall account for all money
The enumerations of the statutory grounds for or properly collected or received for or from the
suspension or disbarment of a lawyer is not client.
exclusive. The reason is that the continuous Rule 16.02. A lawyer shall keep the funds of
possession of good moral character is a each client separate and apart from his own and
condition for the continuous possession of a those of others kept by him.
good moral character is a condition for the The relation between attorney and client is highly
privilege to practice law and if that condition is fiduciary in nature. Being such, it requires utmost
broken by any act of misconduct on the part of good faith, loyalty, fidelity and disinterestedness
the lawyer, the withdrawal of the privilege is on the part of the attorney.
justified. Lawyers who misappropriate the funds entrusted
to them are in gross violation of professional
Misconduct before or incident to admission. ethics and are guilty of betrayal of public
A lawyer may be disbarred for misrepresentation confidence in the legal profession.
of or false pretense relative to the requirements
for admission to practice. A lawyer may be C. Breach of duties to court
suspended or disbarred for conviction of a crime Generally
involving moral turpitude or for gross immorality An attorney is an officer of the court whose
committed before admission, such as living obligations to the court are more significant and
adulterously with a woman or contracting a important than his obligations to his clients.
second marriage while his first marriage remains Obstructing Justice and abuse of legal process
valid and subsisting. Two important requisites A lawyer is not merely a professional but also an
must concur before he may be suspended or officer of the court and, as such, he is called upon
disbarred for misconduct committed before he to share in the task and responsibility of
may be suspended or disbarred for misconduct dispensing justice and resolving disputes in
committed before his admission. The first is that society.
the act impute to him must be so corrupt and Misleading the court
false as to constitute a criminal act or so Candor, fairness and honesty, which should
unprincipled. Foreign judgment I presumed to be characterize the conduct of a lawyer toward the
valid and binding in the country from which it court, require that the lawyer should never
comes, until a contrary showing, on the basis of mislead the court.
a presumption or regularity or proceedings and
the giving of due notice in the foreign forum.
Winona Baluyot

Forum shopping. The term willful conveys the idea of flagrant


A willful violation of the non-forum shopping rule misconduct such as would indicate a disposition
constitutes direct contempt of court and makes on the part of a lawyer as refractory in its
the lawyer liable administratively, such as character as to affect his qualifications and
suspension from practice of law for one year. standing for the further exercise of his office as
Preferring false charges. attorney
To warrant disciplinary action against a lawyer for A lawyer who openly defied the temporary
preferring or prosecuting false charges or restraining order of the court of appeals is guilty
complaints, it must be shown that the charges of violation of his duty to observe and maintain
are false and the lawyer knows them to be so, in the respect due to the court of justice and judicial
spite of which he nevertheless filed them. officers. A courts resolution is not to be
Introducing false evidence. construed as a mere request, nor should it be
A lawyer may be suspended or disbarred for complied with partially, inadequately, or
knowingly presenting or introducing false selectively.
evidence in any proceeding as his act is a The court defined gross misconduct as any
violation of his oath to do no falsehood nor inexcusable, shameful, flagrant, or unlawful
consent to the doing of any in court. conduct on the part of the person concerned in
Blackmail; Violation of Canon 19 the administration of justice which is prejudicial
Blackmail or violation of Canon 19 is a ground for to the rights of the parties or to the right of the
disciplinary action. Blackmail is the extortion of parties or to the right of determination of a
money from a person by threats of accusation or cause.
exposure or opposition in the public prints, Disbarment proceedings are matters of public
obtaining of value from a person as a condition interest and the only basis for the judgment is the
of refraining from making an accusation against proof or failure of proof of the charges. To permit
him, or disclosing some secret calculated to lawyers to resort unscrupulous practices for the
operate to his prejudice. protection of the supposed right of their clients is
A lawyer shall represent his client with zeal within to defeat on of the purposes of the state the
the bounds of the law, reminding legal administration of justice.
practitioners that a lawyers duty is not to his Using vicious or disrespectful language
client but to the administration of justice; to that The use by a lawyer of vicious, intemperate,
end, his clients success is wholly subordinate; abrasive, threatening, or disrespectful language
and his conduct ought to and must always be against the judge constitutes direct contempt as
scrupulously observant of law and ethics. well as a violation of the lawyers oath and a
Willfully disobeying court orders and disrespect to transgression of the Code of professional
court responsibility.
A lawyer should comply with what the court Defamatory words are to be taken in the ordinary
lawfully requires of him. For willfully disobeying a meaning attached to them by impartial
court order, he may not only be cited and observers; lack of intention provides no excuse
punished for contempt but mayalso be discipline from liability.
as an officer of the court, as long as the Respect for the judicial office should always be
procedural requirements of both proceedings observed and enforced. Nor does the fact that
have been complied with. the lawyer apologized to the judge and the latter
Winona Baluyot

expressed satisfaction thereto erase the Representing adverse interests and revealing clients
poisonous effects of the defamatory words used. secrets.
Continuing to practice after suspensions In the absence of written consent on the part of
A lawyer may be disbarred for continuing to the clients concerned, a lawyer may not
practice after his suspension from the practice of represent conflicting interests without being
law. disciplined for such misconduct.
A lawyer who accepts employment as a lawyer
D. Breach of duties to client. from his clients adversary in a case involving
Generally related subject matter is guilty of representing
A lawyer owes his client the duty of entire conflicting interests and has been meted the
devotion to his genuine interest undivided penalty of suspension from practice for two
allegiance, loyalty, fidelity and absolute integrity. years.
Negligence in the performance of duties. A lawyer may also be suspended or disbarred for
The failure to exercise due diligence or the revealing the secrets of his client learned by him
abandonment of the clients cause makes the in the professional capacity.
lawyer unworthy of the trust which the client has Purchasing clients property in litigation
reposed him. Mere negligence or inattention The law prohibits a lawyer from purchasing his
which produces no pecuniary damage to the clients property in litigation.
client may only justify reprimand or censure Failing to account or misappropriating clients
except when the breach of duty to client also property
constitutes a gross violation of obligation to the The special relation which exists between an
court, in which case a severer sanction, such as attorney and his client, one which is highly
suspension from the practice of law, may be fiduciary in its nature and of a very delicate,
warranted. exacting and confidential character, requires the
A member of the legal profession owes his client lawyer promptly account for the money or
entire devotion to his genuine interest, warm zeal property received by him on the clients behalf.
in the maintenance and defense of his rights. A lawyer shall account for all money or property
Ignorance of law of lawyer as ground for collected or received for or from the client and
discipline. warrants sever sanction, such as disbarment.
Reprimand, fine, or suspension may be imposed The lawyers failure upon demand to return to his
against erring lawyers for negligence in the client the funds or property held by him on his
performance of duties to their clients. behalf gives rise to the presumption that he has
Employment of unlawful means appropriated the same for his own use to the
A lawyer shall employ only fair and honest prejudice of an in violation of the trust reposed in
means to attain the lawful objectives of his client him by his client.
and shall not present, participate in presenting, The conversion of the clients property, as a
or threaten to present unfounded charges to ground for disciplinary action, presupposes
obtain improper advantage in any case or fraudulent intent on the part of the lawyer.
proceedings. Collecting unreasonable fees
Deceit or misrepresentations A lawyer may be disciplined for collecting
A lawyer may be suspended or disbarred for exorbitant fees for his professional services,
deceit or misrepresentation to the prejudice of or applying the clients money to pay his
as a means to defraud his client. unreasonable claim for work done without the
Winona Baluyot

clients consent or refusing to return to his client Soliciting business


what he collected as payment for his Solicitation by a lawyer of cases at law for the
unprofessional services which he never purpose of gain, either personally or through paid
rendered. agents or brokers, constitutes malpractice
What amounts to an unreasonably exorbitant fee sufficient to warrant the lawyers reprimand,
depends upon the circumstances of each case. suspension from the practice of law or removal
Acting without authority from office. Malpractice ordinarily refers to any
A lawyer can bind his client without special malfeasance or dereliction of duty committed by
power from the latter only in matters or a lawyer
procedure. Advertising
Willfully appearing without being retained A lawyer may be disciplined for writing letters
A lawyer may not represent a litigant without offering his services to prospective clients,
authority from the latter or from the latters sending circulars to the public concerning his
representative or in the absence thereof, without fields of specialization. Announcing his skills as a
leave of court. lawyer in a newspaper or publication or in
The lawyers appearance for a party without the general, advertising his talents as a merchant
latters authority must be willful, corrupt or advertises his wares.
contumacious in order that he may be held liable Cooperating in illegal practice of law
therefore. A layman or a disbarred or suspended lawyer
many not practice law without being held liable
for contempt of court.
D. Breach of duties to the bar Non-payment of IBP dues
Unethical conduct, generally Membership in the integrated bar of the
A lawyer may be disciplined for gross violation of Philippines is a condition precedent for the
the canons of the legal profession or for practice of law and for maintaining his name in
unprofessional conduct. the roll of attorneys; faith fully pay the
Defaming fellow lawyers membership dues and other special
It is unethical for a lawyer to use improper and assessments.
objectionable language against another lawyer or
to accuse him wantonly and maliciously of a
serious misconduct In the absence of reasonable E. Other grounds for discipline.
cause. Non-professional misconduct, generally
Communicating with adverse party A lawyer may not be suspended or disbarred,
A lawyer should not in any way communicate and the court may not ordinarily assume
upon the subject of controversy with a party jurisdiction to discipline him, for misconduct in his
represented by counsel, much less should he non-professional or private capacity; so gross a
undertake to negotiate or compromise the matter character as to how him to be morally unfit for
with him, but should only deal with his counsel. the office and unworthy of the privilege which his
Encroaching upon business of another license and the law confer on him, the court may
Efforts, direct or indirect, in any way to encroach be justified in suspending or removing him from
upon the professional employment of another the office of attorney.
lawyer, may render the lawyer disciplinarily liable
for unethical conduct.
Winona Baluyot

Gross immorality When lawyers are convicted of frustrated


Immoral conduct is that conduct which is as homicide, the attending circumstances not the
willful, flagrant, or shameless as to show mere fact of their conviction would demonstrate
indifference to the opinion of good and their fitness to remain in the legal profession.
responsible members of the community. Promoting to violate or violating penal laws
Lawyers must maintain a high standard of legal A lawyer may be suspended or disbarred for
proficiency, as well as morality including honesty, promoting an organization designed to violate or
integrity and fair dealing. evade the law against crime with knowledge of
Lawyers must ensure the faith and confidence of its object, accepting an offer to sell prohibited
the public that justice is administered with dignity drugs, engineering a plan to defraud others or
and civility. assisting a client in carrying out a dishonest
A lawyer is expected at all times to uphold the scheme or advising him to do something in
integrity and dignity of the legal profession by violation of law, good morals or public policy.
faithfully performing his duties to society, the bar, Misconduct in the discharge of duties as a public
to the courts and the clients. officer
The court may disbar or suspend a lawyer for A lawyer shall not engage in unlawful, dishonest,
misconduct, whether in his professional or immoral or deceitful conduct and merits his
private capacity, which shows him to be wanting suspension form the practice of law for one year.
in moral character, in honesty, probity and good The rule that malfeasance or misconduct by a
demeanor, thus proving unworthy to continue as government official in the discharge of his official
an officer of the court. duties, which constitutes of a violation of his oath
As officers of the court, lawyers must not only in as a lawyer or of the code of professional
face be of good moral character but must also be responsibility, will subject him to disciplinary
seen to be of good moral character and leading action, such as disbarment, does not
lives in accordance with the highest moral apply to impeachable official during his
standards of the community. incumbency would in effect be to remove him
The power to disbar or suspend ought always to from office by other than impeachment and thus
be exercise on the preservative and not on the to circumvent and run afoul of the constitutional
vindictive principle, with great caution and only mandate
for the most weighty reasons and only on clear Commission of fraud or falsehood
cases of misconduct which seriously affect A lawyer may be suspended or disbarred for
the standing and character of the lawyer as an committing fraud, deceit or falsehood in his
officer of the court and member of the bar. private dealings.
Conviction of crime involving moral turpitude A lawyer who notarized a deed which he knew
Moral turpitude means anything which is done the same was a falsified document and the
contrary to justice, honesty, modesty or good person who singed was made to appear ad
morals, or to any act of vileness, baseness or having appeared before him, so as to defraud
depravity in the private and social duties that a another person, was guilty of falsification which
man owes his fellowmen or t society, contrary to justified his disbarment. A lawyer who notarized a
the accepted rule of right and duty between man document at a time when he had no commission
and man. or when his commission as notary public had
No moral qualification for bar membership is expired is guilty of falsehood, meriting his
more important than truthfulness.
Winona Baluyot

suspension from the practice of law for three professional reputation of attorneys from
years. baseless charges of disgruntled, vindictive and
Misconduct as notary public irresponsible persons or clients by prohibiting the
A notary public exercises duties which call for publication of such charges pending their final
carefulness and faithfulness. resolution.
A lawyer may also be disciplined for notarizing a Who and how instituted
document in the absence of the affiant or for not proceedings for the disbarment, suspension, or
disclosing on its face the fact that the person discipline of attorneys may be taken by the
who singed it is an authorized agent. Supreme Court motu proprio, or by the
Respondent must accept the consequences of integrated bar of the Philippines or upon verified
his professional indiscretion. complaint of any person.
All charges against Justices of the Court of
Chapter XVII: Procedure for discipline and Appeals and the Sandiganbayan, and judges of
reinstatement the Court of tax appeals and lower courts, even if
A. Investigation of charges lawyers are jointly charged with them, shall lower
Nature of proceedings courts, even If lawyers are jointly charged with
A proceeding for suspension or disbarment is not them, shall be filed with the supreme court.
in any sense a civil action where the complainant The right to institute a disbarment proceeding is
is a plaintiff and the respondent lawyer is a not confined to clients nor is it necessary that is
defendant. It involves no private interest. The the person complaining suffered injury from the
complainant or person who called the attention of alleged wrong.
the court to the attorneys misconduct is in no Since the court is vested exclusively with the
sense a party and has generally no interest in its power to exclude unworthy person from the
outcome except as all good citizens may have in practice of law, it cannot abdicate such
the proper administration of justice. It affords no constitutional duty in the same manner that it
redress for private grievance. cannot unilaterally renounce jurisdiction legally
A disciplinary action is in reality an investigation conferred upon it.
by the court into the misconduct of its officer or Action on, and investigation of, complaint
an examination in this character In administrative complaints for disbarment or
Desistance or withdrawal of the disbarment case suspension against lawyers, the complainant
does not exonerate respondent. must specify in the affidavit-complaint the alleged
A proceeding for suspension or disbarment is not secrets or confidential information disclosed or
in any sense a civil action where the complainant will be disclosed in the professional
is a plaintiff and the respondent lawyer is a employment.
defendant. This means that there should be no ex parte
A complaint for disbarment or suspension is investigation. The procedures outlined by the
imprescriptible. rules are meant to ensure that the innocents are
Proceedings are confidential spared from wrongful condemnation and that
A disciplinary proceeding against an attorney is a only the guilty are meted their just due.
confidential in nature until its final determination. Complaints for disbarment, a formal investigation
It is to enable the court to make its investigation is a mandatory requirement which may not be
free from any extraneous influence or dispensed with except for valid and compelling
interference. It is to protect the personal and reasons.
Winona Baluyot

Report of investigator and decision by board of resolution of a criminal case before the court act
on a complaint against a lawyer, as it may
governors
emasculate the disciplinary power of the court.
The IBP board shall promulgate its decision
Besides, it is not sound judicial policy to await
within a period not exceeding thirty days from the
the final resolution of a criminal case before a
next meeting of the board following the
submission of the investigation report. If the complaint against a lawyer may be acted upon;

decision is for exoneration of the respondent or otherwise, this court will be rendered helpless
from applying the rules on admission to and
the dismissal of the complaint, or the imposition
continuing membership in the legal profession
of disciplinary sanction of less than suspension
during the whole period that the criminal case is
or disbarment, such as admonition or reprimand,
the Boards decision becomes final unless upon pending final dispoistion when the objectives of

petition of the complainant or other interested the two proceedings are vastly disparate.
Executive pardon
party filed with the supreme court within fifteen
An absolute pardon by the President is one that
days from notice of the boards resolution, the
operates to wipe out the conviction as well as the
Supreme Court orders otherwise
The complainant may file a petition for review offesne itself, and the grant thereof in favor of a

with the supreme court within fifteen days from lawyer is ab ar to a proceeding for disbarment
against him based solely on the commission of
receipt of the ruling of the IBP board exonerating
such offense. An absolutepardon subsequently
the respondent or dismissing the complaint, or
granted to a lawyer who had previously been
the imposing disciplinary sanction of less than
suspension or disbarment, such as admonition or disbarred for conviction of a crime does not

reprimand, otherwise the ruling becomes final. automatically entitle him to reinstatement to the
bar.
Res ipsa loquitur
Where the facts of record sufficiently provide the Desistance of complainant
The desistance of complainant or his withdrawal
basis for the determination of a lawyers
administrative liability, he may be disciplined or of the charges against a lawyer does not deprive

disbarred by the Supreme Court without further the court of the authority to proceed to determine
the matter.
inquiry or investigation into the matter under the
Desistance or withdrawal of the disbarment case
principle of res ipsa loquitur
does not exonerate respondent; disciplinary
Defenses generelly
A respondent lawyer may avail of only such proceedings involve no private interest and

defenses are consistent with truth and good faith. afford no redress for private grievance.
Privilege communications
He must meet the issue and overcome the
Lawyer may properly plead the doctrine of
evidence against him. He must show proof that
absolute privilege as a defense. The rule is that
he still maintains that degree of morality and
integrity which at all times is expected of him. statements which relevant, perinent and material
A prescriptive period for the filing of to the cause, made in the course of judicial
proceedings, are absolutely privileged, which
administrative complaints
insulates the lawyer from liability therefor.
against lawyers, should be struck down as void
Presumption; burden of proof; evidence required
and of no legal effect for being ultra vires.
The burden of proof rests upon the complainant
His conviction is not necessary to hold the lawyer
administratively liable because the two to overcome the presumption; clear, convincing
proceedings and their objectives are different
and satisfactory proof.
and it is not sound public policy to await the final
Winona Baluyot

In disciplinary proceedings agaisnt members of competent, honorable and reliable, men in whom
the bar, only clear preponderance of evidence is courts and clients may repose confidence
required to establish liability. should be taken into account by the court in the
The failure of the lawyer to answer the exercise of its discplinary power.
administrative complaint does not amount to an The court must consider that the primary
admission of the allegations therein made. The purposes of disciplinary proceedings are to
complainant still hast to prove the charge. protect the public; to foster public confidence in
Modifying circumstances the bar; to preserve the integrity of the
The extent of disciplinary sanction which the profession; and to deter other lawyers from
court may impose against an erring lawyer may similar misconduct.
depend upon the attendance of mitigating or The determination of whether an attorney should
aggravating circumstances. be disbarred or merely suspended fo ra period
The circumstances that may be considered in involved the exercise of sound judicial discretion,
mitigation of the offesnse committed by a lawyer taking int oaccount the circumstances of each
include good faith, want of intention to commit a case.
wrong, lack of material damage to the The suspension from the practive of law is
complaining witness, desistance of complainant, correctional in nature.
youth and inexperience in the bar, error in Fine is a sort of a warning that the lawyer should
judgement, honest and efficient service in be more careful in the discharge of his duties.
various government positions. Censure or reprimand is usually meted out for an
Matters in aggravation of the offesne include isolated act of misconduct of a lessser nature. It
abuse of authority or of the attorney client is also imposed for some minor infraction of the
relationships, having sexual interourse with the lawyers duty to the court or the clint. Admonition
lawyers relative, making the institituion of is a gentle and friendly reproof, a mild rebuke, a
marriage a mockery, in a charge of gross warning.
immorality. Effects of susupension or disbarment
Judgement A judgement of suspension or disbarment is self-
The supreme court decides the disciplinary executory. Cannot practice law without being
action on the basis of the evidence adduced held liable for contempt of court.
during the investigation conducted for the The disbarment of a lawyer who hold a
purpose. government office which requires membership in
Dismissal of case the bar as an indispensable qualification will
In the absence of convincing or clearly justify his dismissal from such office.
preonderant evidence, the disbarment case A judgement of suspension or disbarment is
against the respondent should be dismissed. always subject to change or modicfication by the
Disciplinary sanctions; basic considerations court, regardless of the perio that has lapsed.
The question as to what disciplinary sanction Reinstatement
should be imposed against a lawyer found guilty The supreme court has the exclusive authority to
of misconduct requires consideration of a reinstate a disbarred or indefinitely suspended
number of factors. The primary purpose of lawyer to the office of attorney-at-law.
disciplinary proceedings- to protect the Constitutional prerogative to issue rules and
administration of justice by requireing that hose regulations concerning the admission to the
who exercise this important fucntion shall be practice of law.
Winona Baluyot

Judgement does not become final not Effect of reinstatement


withstanding the lapse of several years from its The reinstatement of a disbarred or indefinitely
promulgation as it may be reopened or suspended lwyer to the office of attorney-at-law is
reconsidered by the supreme court upon proper a recognition of his moral rehabilitation and
petition and satisfactory evidence. mental fitness to practice law.
Matters taken into account
In a petition for reinstatement, the petitioner must
allege and prove that he is of such good moral
character acquired through positive efforts,
honorable dealings and moral reformation as to
be a fit and proper person to practice law, and
posesses such metnal qualitifacation as to
enable him to disscharge his duties properly.
The quantum of evidence necessaru for
reinstatement is the same as that for admission
to the bar, ecept that the court, when the
circumstances so warrant, may require an
applicant to present additional prrof of his
qualifications.
The court will take into consideration the
applicants character and standing prior to the
disbarment, the nature and character of the
misconduct for which he was disbarred, his
conduct subsequent to disbarment, time htat has
elasped between disbarmetnt and the application
for reinstatemtn and the circumstance that he
has been sifficiently punished and discplined.
Applicants appreciation of the significance of his
dereliction and his assurance that he now
possess the requisite probity and integrity
necessary to guarantee that he is worthy to be
restored to the practice of law; as well as the
favorable endorsement of the IBP as well as the
local government officials and citizens of his
community and the pleas of his loved ones.
An absolute pardon extended to a lawyer after
his disbarement will not automatically entitle him
to reinstatement. He should still show, by
evidence aside from the absolute pardon, that he
is now a person of good moral character and a fit
and proper person to practice law.
The court, in reinstating a lawyer, may impose
certain conditions on his re-admission.