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LEGAL ETHICS (Agpalo) Atty.

Vicente Maxino 2nd Semester AY 2019-2020

LEGAL ETHICS
Is a branch of moral science which treats of the duties which an attorney PRACTICE OF LAW
owes to the court, to his clients, to his colleagues in the profession and to the
public
- Is a profession, not a trade nor a craft
- Primary purpose is the administration of justice
Atty V. Maxino:
Legal ethics means good manners and right conduct of the lawyer, towards his/her
- Basic ideal is to render public service and secure justice for those
relations to: society, court, client, colleagues who seek its aid
Terms used to describe a member of the legal profession:
- Lawyers should lead a good life
- Collecting fees is not the basic ideal or primary purpose (only
- Lawyer
- Attorney or Attorney-at-law incidental)
- Advocate
- Barrister
- Counsel or Counselor NOTE: Those who pass the Shari’a Bar are not entitled to be called
- Proctor
- Solicitor “Attorneys”, unless they have also been admitted to the Philippine
Bar
Other terms commonly encountered in the practice of law:
Supreme Court
Counsel de parte

- an attorney retained by a party litigant, usually for a fee, to prosecute or defend - was vested by the Constitution the power to regulate the
his cause in court practice of law.
- [the term] implies freedom of choice either on the part of the attorney to decline
- Has the power over the lawyers (promote or suspend)
or accept the employment or on the part of the litigant to continue or terminate
the retainer at any time
Legislature
Counsel de oficio
- In the exercise of its police power may enact laws regulating
- An attorney appointed by the court to defend an indigent defendant in a criminal
action or to represent a destitute party in a case
the practice of law to protect the public and promote the
- [the term] connotes little or no other choice than the acceptance by the indigent public welfare
party of whoever is appointed as his counsel and, unless excused therefrom by the - Cannot pass laws that will control the Supreme Court in the
court, the discharge by the designated attorney of the duty to faithfully and
conscientiously render effective legal assistance in favor of such party performance of its function to decide who may enjoy the
privilege of practicing law, and any law of that kind is
Bar – refers to the legal profession
unconstitutional as an invalid exercise of legislative power
Bench – means judiciary

Amicus Curiae – an experienced and impartial attorney invited to the court to appear and Atty V. Maxino:
help in the disposition of issues submitted to it Congress may pass laws relative to the admission to the Bar (although
never done); cannot deprive SC’s power over regulation of lawyers
NOTE:
All terms refer to that class of persons who by license are officers of the court and who are empowered to
appear, prosecute and defend and whom peculiar duties, responsibilities and liabilities are devolved by law as
a consequence
LEGAL ETHICS (Agpalo) Atty. Vicente Maxino 2nd Semester AY 2019-2020

Nature of office of Attorney government the duties of which require knowledge of law, or a
second grade civil service eligibility for any other government
Atty V. Maxino position which does not prescribe proficiency in law as a
qualification
 An officer of the court (once admitted to the Philippine Bar) 5. Lawyer with good standing is looked up to as a leader in the
 Is he a public officer? Yes, to some extent community, and a model citizen
 Agent of his client (but not an ordinary agent)

Public Officer – in a limited sense; not an officer in the constitutional Duties of Office
or statutory meaning of the term
 Allegiance to the country
Officer of the court – occupies what may be called a “quasi-judicial  Must be fair, honest, and honorable (employ means
office”; as an officer of the court, and attorney is subject to the consistent with truth and honor, never to mislead the judge
disciplinary authority of the court and to its orders and directives or any judicial officer by a false statement of fact or law
with respect to his relation to the court as well as to his client  Lawyers must defend their clients with all defenses available
Minister in the temple of justice – whose high vocation is to under the law (must be within the bounds of law)
correctly inform the court upon the law and the facts of a case and [the lawyer has the privilege, as the first one to sit in
to assist it in administering impartial justice and arriving at a correct judgment on every case, to set the judicial machinery in
conclusion motion – to file case or not – accused, even if guilty, still has
constitutional rights to be protected]
Agent to his client – characterized by utmost trust and confidence;
has powers entirely different from and superior to those of an Classification of Duties
ordinary agent -classification results from the 3-fold capacity in which an
Privileges of Attorney attorney operates, namely, as a faithful assistant of the court in
search of a just solution to disputes; as a trusted agent of his client
1. Right to practice law and; as a self-employed businessman
2. Right as an officer of the court
 Public Duty – consists of his obligations to obey the law, aid
3. Right to enjoy presumption of regularity in the
performance/discharge of his duty (immunity from suit, absolute in the administration of justice or cooperate with it whenever
privileged communication, provided, statements are not libelous, justice would otherwise be imperiled
but pertinent and relevant to the subject of judicial inquiry or  Private Duty – refers to his obligation to faithfully, honestly
case) and conscientiously represent the interest of his client
4. Passing of Bar exam is equivalent to a first grade civil service  Personal Duty – his obligation that he owes to himself
eligibility for any position in the classified service in the
LEGAL ETHICS (Agpalo) Atty. Vicente Maxino 2nd Semester AY 2019-2020

NOTE: An Attorney’s oath requires him to be absolutely honest Primary Characteristics which distinguish the legal
even though his client’s interest may seem to demand a contrary profession from business:
course. Accordingly, where his duties to his client conflict with
 A duty of public service of which the
those which he owes to the court and the public, the former must
emolument is a by-product, and in which one
yield to the latter. His obligations to his client, in turn, take
may attain the highest eminence without
precedence over his duties to himself.
making much money
Practice of law a profession  A relation as an officer of the court to the
administration of justice involving thorough
 Practice of law is a profession, a form of public trust, the sincerity, integrity, and reliability
performance of which is entrusted only to those who are  A relation to clients in the highest degree
qualified and who possess good moral character fiduciary
 The legal profession is a profession and not a trade  A relation to colleagues characterized by
 Basic ideal of the profession is to: render public service and candor, fairness, and willingness to resort to
secure justice for those who seek its aid current business methods of advertisement
 Not a business, using bargain counter methods to reap large and encroachment upon other’s practice, on
profits for those who conduct it dealing directly with their clients
 Expressive of 3-ideals: Organization, Learning, and Public
service
 Gaining of a livelihood is only a secondary consideration
 Basic premise: membership in the bar is a privilege burdened NOTE:
with conditions and carries with it the responsibility to live The law prohibits a business or commercial partnership or juridical
up to its exacting standards and honored traditions entity to engage in the practice of law, the reason being that a
 In fixing his fees, an attorney should never forget that “the commercial partnership or juridical entity, by the very nature of the
profession is a branch of the administration of justice and not practice of law, cannot possess nor comply with the qualifications and
a mere money-making trade” requirements of a lawyer.

As a law partnership is a non-legal entity, it cannot, by itself, sue or


be sued.
LEGAL ETHICS (Agpalo) Atty. Vicente Maxino 2nd Semester AY 2019-2020

Necessity of Representation by Counsel from arraignment to promulgation of judgment and in


appeals to the appellate courts
- The law profession came into being as a result of that - Custodial investigation is the questioning by the law
procedural development of the court, which created the enforcement officers of a suspect taken into custody or
necessity for the attorney and made him an essential part of otherwise deprived of his freedom of action in a significant
the judicial machinery way
- Court cannot compel a litigant to prosecute or defend his - No custodial investigation can be conducted unless it be in
cause personally the presence of counsel engaged by the person arrested or
- Litigant is ordinarily not versed in the law and its intricacies appointed by the court upon petition either of the detainee
- Court, can only adjudicate a controversy between litigants in himself or by one on his behalf
accordance with the law and the facts as presented by the - Any confession or any document signed admitting the crime,
parties pursuant to well established rules of procedure and without having been assisted by his lawyer is inadmissible in
evidence evidence
- Rights to counsel of an accused in criminal cases is
Need for, and Right to, Counsel immutable, and has never been considered subject to waiver
- Right to counsel in civil cases exists forcefully as in criminal
- A party litigant needs the assistance of counsel in all cases, especially where as a consequence life, liberty or
proceedings, administrative, civil or criminal property is subject to restraint or in danger of loss
- Even lawyers who are parties in case, need the guiding hand
counsel Consequences of Denial of Right to Counsel
- Skill is drafting pleadings is vastly different from skill needed When Appearance by Counsel not Obligatory
in the courtroom - The right to appear by counsel does not make the method of
- Preparing pleadings can be done at leisure with the luxury of appearance obligatory in all judicial proceedings
consultation, either books or people - In the MTC, a party may conduct his litigation in person or
- Trial work demands more, it requires the ability to think fast with the aid of an agent or friend appointed by him for that
on one’s feet and the psychologist’s feel for the witness’ purpose or with the aid of an attorney
mood and motive - In the RTC and Appellate Courts (CA), a party in a civil suit
- Need for assistance of counsel is felt more in criminal may either conduct litigation personally or by attorney
proceedings - In administrative proceedings, the right to counsel is not
- The court grants him counsel from custodial interrogation to indispensable to due process
preliminary investigation or detention pending trial, and - There is nothing in the Constitution that says that a party in
a non-criminal proceeding is entitled to be represented by
LEGAL ETHICS (Agpalo) Atty. Vicente Maxino 2nd Semester AY 2019-2020

counsel and that without such assistance of lawyers, he shall


not be bound by such proceedings
- Assistance of lawyers, while desirable, is not indispensable

NOTE:
The rule that appearance by counsel is not obligatoy
applies only to civil and administrative cases

Canons of Professional Responsibility

Code of Professional Responsibility

- Promulgated by the Supreme Court on June 21, 1988


- Consists of 22 Canons and 77 Rules, divided into 4-categories:
The Law and Society; The Lawyer and the Legal Profession;
The Lawyer and the Courts; The Lawyer and the Clients
- The Code establishes norms of conduct and ethical standards
for all lawyers, including those in the government service, to
observe in their professional, official and private capacities
- The Code is binding to all lawyers
- Failure to live up to any of its provisions is a ground for
disciplinary action
LEGAL ETHICS (Agpalo) Atty. Vicente Maxino 2nd Semester AY 2019-2020

CHAPTER 2: Admission to Practice Only by exercising that primary authority will the high tribunal be able
to elevate and maintain the standard of the legal profession, properly
Admission to practice is a judicial function administer justice and help keep the people’s faith and confidence in
 Power to admit applicants to the practice of law is judicial in the court and in the bar.
nature and involves the exercise of judicial discretion
 Traditionally exercised by the Supreme Court as an inherent
part of its judicial power NOTE:
Judicial Function  The authority of the Supreme Court over the legal profession
- Involves the determination of rights and obligations with is a constituent element of its judicial power.
reference to transactions that are past or to conditions that  Authority may not be separated in parts and exercised in part
exist at the time of the exercise of judicial power by the legislature or the executive departments without
undermining the judicial power.
Requisites to the admission to the bar  Any act of the legislative or executive in matters concerning
admission to the practice of law, suspension, disbarment or
 Previously established rules and principle (by Constitutional
reinstatement of an attorney, constitutes an invalid exercise
mandate, is the primary responsibility of the SC
of their power.
 Concrete facts, whether past or present, affecting
determinate individuals (brought about by the applicant for
Legislative Power to Repeal, Alter or Supplement
admission to the bar)
 A decision as to whether the facts are governed by rules and The 1987 Constitution not only retains in the Supreme Court the
principles (involves judicial adjudication which is essentially a primary responsibility for the admission to the practice of law,
function of the court) but it also vests in the high tribunal the jurisdiction to
promulgate, alter or repeal rules of procedure, including those
An Attorney plays an indispensable role in the administration of
enacted by the legislature
justice and participates in judicial proceedings on behalf of the
litigant. Legislature, in the exercise of police power, may regulate the
practice of law – may enact laws with respect to the first requisite
Court’s Primary Authority to Decide: for the admission to the bar: The legislature may pass a law
prescribing additional qualifications for candidates for admission
A. Who may be admitted to the Bar as one of its officers
B. What are the causes for disciplinary action against him to practice or filling up deficiencies in the requirements to the
C. Whether he should be disciplined, suspended, disbarred or bar, provided, it’s not applied retroactively, as to entitle a person
reinstated not otherwise qualified
LEGAL ETHICS (Agpalo) Atty. Vicente Maxino 2nd Semester AY 2019-2020

Executive power in relation to practice B. WHAT CONSTITUTES PRACTICE OF LAW


The Chief Executive cannot, by executive order, admit a person to the
practice of law nor can he, by treaty with another country, modify the
rules concerning the admission to the bar. Practice of law, generally

Prescribing standards for law schools Practice of law

The CHEd, under existing laws, exercises regulatory power over - Embraces any activity, in or out of court, which requires the
private law schools – certifies as to the satisfactory completion of the application of law, legal principle, practice on procedure and
prescribed courses of law study by an applicant for admission to the calls for legal knowledge, training and experience
bar examination; assumes responsibility for the quality of instruction - Involves the carrying on of the calling of an attorney, usually
and training required of an applicant for membership in the bar. for gain, acting in a representative capacity and rendering
service to another
CHEd – acts as an agency or in aid of the Supreme Court in the - Not limited to the conduct of cases in court
exercise of the SC’s primary authority to determine who may be - includes legal advice and counseling, and the preparation of
admitted to the practice, since that primary authority by legal instruments and contracts by which legal rights are
constitutional mandate, rests and remains exclusively with the high secured, which may or may not be pending in court
tribunal.

3 Principal Types of Professional Activities


SC’s incidental powers include:
- legal advice and instructions to clients to inform them
 The fixing of minimum standards of instruction of their rights and obligations
for all law schools to observe - preparations for clients of documents requiring
 The setting up of the necessary administrative knowledge of legal principles not possessed by
machinery to determine compliance therewith ordinary layman
 By way of sanction, the refusal to admit to the - appearance for clients before public tribunals which
bar examinations law graduates from any law possess power and authority to determine rights of
school failing to meet those standards life, liberty and property according to law, in order to
assist in the proper interpretation and enforcement of
law
LEGAL ETHICS (Agpalo) Atty. Vicente Maxino 2nd Semester AY 2019-2020

Characteristics of term “Practice of law” evidence to establish certain facts, constitutes a practice of
law
- implies customarily or habitually holding oneself out to the
 Includes the appearance before the Philippines Patent
public, as a lawyer, for compensation as a source of livelihood Office in representation of an applicant for registration of
or in consideration of his service trademark, trade name or service mark, of an inventor for
- Private practice is more than an isolated appearance for it the issuance of letters patent or of an oppositor for the
consists of frequent or customary actions, a succession of enforcement of his rights involved therein
 The rendering of professional services in advocating or
acts of the same kind; contemplates a succession of acts of
resisting claims before administrative agencies, such as
the same nature habitually or customarily holding one’s self NLRC, Bureau of Customs and BIR
to the public as a lawyer  The representation before a legislative body regarding a
- Isolated appearance proposed legislation or ordinance

Representation before the court NOTE:


The fact that the service is rendered before a quasi-
- Rendering of services to a person, natural or juridical, in a judicial or administrative agency and not before the court is
court of justice on any matter pending through its various immaterial to the question as to whether the service, and not
stages and in accordance with the established rules of the place where it is performed, is the decisive factor
procedure determinative of that question
- Includes the appearance before the court, preparation and
filing of a pleading, motion, memorandum or brief incident
to an action or proceeding in court, the conduct of the Activity outside of court
litigation, such as the determination of the procedural steps - Practice of law consists in no small part of work performed
to be taken, the examination of witnesses or presentation of outside of court
evidence or exhibits, and the management and control of the - It embraces the giving of legal advice on a large variety of
proceedings in court subjects, conveyancing and the preparation and execution of
legal instruments covering an extensive field of business and
Representation before other agencies trust relations and other affairs
- Requires high degree of legal skill, a wide experience with
- Generally, the appearance before any quasi-judicial, men and affairs and great capacity for adaptation to difficult
administrative or legislative agency, which calls for the and complex situations
interpretation and application of laws and presentation of
LEGAL ETHICS (Agpalo) Atty. Vicente Maxino 2nd Semester AY 2019-2020

 after admission, must remain in good and regular standing,


Criteria in the practice of law which is a continuing requirement for the practice of law
-must remain a member of the IBP
1. Habituality – habitual exercise, customary
-regularly pay all the IBP membership dues and other
2. Compensation
lawful assessments as well as the annual privilege tax
3. Application of law, legal principle, or
- faithfully observe the rules and ethics of the legal
procedure (calls for legal knowledge, training
profession
and experience)
-be continually subject to judicial disciplinary control
4. Attorney-client relationship (presupposes the
existence of lawyer-client relationship)

NOTE:

The rigid requirements and conditions are designed to admit to its


C. WHO MAY PRACTICE LAW ranks only those who are adequately prepared, mentally and morally
to discharge the duties of an attorney and to exclude those who
cannot live up to its exacting standards
Person entitled to practice law
To protect the public, the court, the client and the bar from
Any person who has been duly licensed as a member of the bar incompetence and dishonesty of those who re unfit to become
in accordance with the statutory requirements and who is in members of the legal profession
good and regular standing
Only those who are competent, honorable and reliable may practice
 must be admitted to the bar law, and every lawyer must pursue only the highest standards in the
-requirements involves the following: practice of his calling.
A. furnishing satisfactory proof of educational, moral, and
other qualification;
B. passing the bar examinations;
Right and privilege to practice
C. taking the lawyer’s oath before the SC itself;
- The practice of law is not a natural, property or constitutional
D. and signing the roll of attorneys and receiving from the
right but a mere privilege
clerk of court of the SC a certificate of the license to practice
- It is not a right to be granted to anyone who demands it but
a privilege to be extended or withheld in the exercise of a
sound judicial discretion
LEGAL ETHICS (Agpalo) Atty. Vicente Maxino 2nd Semester AY 2019-2020

- In a nature of a franchise conferred only for merit which must


be earned by hard study, learning and good conduct
- A privilege accorded only to those who measure up to certain
rigid standards of mental and moral fitness
- WHILE practice of law is a privilege, a lawyer cannot be
prevented from practicing law except for valid reasons
- Lawyer holds office during good behavior and can only be
deprived of it for misconduct ascertained and declared by
judgment of the SC after opportunity to be heard has been
afforded him
- The state cannot exclude an attorney from the practice of law
in a manner or for reasons that contravene the due process
or equal protection clause of the Constitution
- PRACTICE of LAW is in the nature of a right, which cannot be
lightly or capriciously restricted or taken away from him

Practice without examination

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