Legal and Judicial Ethics - Agpalo[1] PDF

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Chapter I INTRODUCTORY §1.01 Preliminary. The law is not a trade nor a craft but a profession.1 Its basic ideal is to render public service and secure justice for those who seek its aid.2 If it has to remain an honorable profession and attain its basic ideal, those enrolled in its ranks should not o...

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Chapter I INTRODUCTORY §1.01 Preliminary. The law is not a trade nor a craft but a profession.1 Its basic ideal is to render public service and secure justice for those who seek its aid.2 If it has to remain an honorable profession and attain its basic ideal, those enrolled in its ranks should not only master its tenets and principles but should also, by their lives, accord continuing fidelity to them.3 This obligation is not an easy task, and its performance is made difficult by the ever-growing pressure of commercialism in all fields of human endeavor as well as by the fact that those tenets and principles have steadily grown through the years from numerous and scattered sources.4 The fulfillment of this obligation requires that professional standards be constantly inculcated among lawyers and that the rules and ethics of the profession be collated into a body of principles and made readily available to every attorney as his “manual of equipment without which he cannot do his part to keep

‘Director of Religious Affairs v. Bayot, 74 Phil. 749 (1944); Ledesma v. Climaco, G.R. No. 12815, June 28, 1974; In re Tagorda, 53 Phil. 37 (1929); People v. Daban, G.R. No. 31429, January 21,1972. 2Mayer

v. State Bar, 2 Call2d 71, 39 2d 206 (1934). v. Limon, 295 SCRA 262,266 (1998), citing Agpalo, Legal Ethics, 1983

3Docena

ed., p. 1. 4The sources of legal ethics are the pertinent provisions of the Rules of Court, related laws, controlling decisions of the Supreme Court, The Code of Professional Responsibility, the Canons of Professional Ethics, applicable doctrines laid down by the court and writings of legal scholars on the subject. The Philippine system of legal ethics was taken from that of the United States (In re Cunanan, 4 Phil. 543 (1954); Mortel v. Aspiras, 100 Phil. 586 (1956). And the Canons of Professional Ethics observed in this jurisdiction are those of the American Bar Association. (In re Tagorda, Phil. 37 [1927]). Accordingly, this research study makes use of selected cases decided by courts in the United States as well as opinions of the Committee on Professional Ethics and Grievances of the American Bar Association, cited hereinafter as A.B.A. Op. No.

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the law on the level of a profession.”5 This study seeks to partly fill up the need for the latter and to generate interest in the former. A lawyer, whether he be a private practitioner or a public prosecutor, forms part of the machinery of justice administered by the courts. Hence, included in this book are chapters XVIII and XIX which discuss in detail judicial conduct and liabilities of judges, respectively; and in order to reflect the same in the title of the book, the title has been changed from Legal Ethics to Legal and Judicial Ethics.

§1.02. Definitions. The term “legal ethics” is the embodiment of all principles of morality and refinement that should govern the conduct of every member of the bar.6 It has also been broadly defined as the “living spirit of the profession, which limits yet uplifts it as a livelihood.”7 Specifically, it refers to that branch of moral science which treats of the duties which an attorney owes to the court, to his client, to his colleagues in the profession and to the public.8 A number of terms are used to describe a member of the legal profession, such as the words lawyer, attorney or attomey-at-law, advocate, barrister, counsel or counselor, proctor and solicitor. While there are theoretical differences among these terms,9 the actual distinctions, which have been practically abolished in the United States,10 do not exist in this jurisdiction. A member of the Philippine bar is commonly known by the term lawyer or attorney or attomey-at-law or counsel, by the Spanish

% Rothman, 12 NJ 528, 97 A2d 621, 39 ALRd 1032 (1953). Mustice Manuel V. Moran’s Foreword to MALCOLM’S LEGAL AND JUDICIAL ETHICS, ix (1949). 7Re Rothman, 12 NJ 528, 97 A2d 621, 39 ALR2d 1032, 1045 (1953), quoting Dean H. Wigmore’s Foreword to CARTER’S THE ETHICS OF THE LEGAL PROFESSION (1915). “MALCOLM, LEGAL AND JUDICIAL ETHICS, 8 (1949). 9The words lawyer, attorney and attomey-at-law are synonymous. A lawyer is one skilled in the law. An advocate is a person learned in the law and duly admitted to practice, who advises a client and pleads for him in court. A barrister is a person entitled to practice as an advocate or counsel in superior courts in England. A counsel or counselor is an advocate or leader, a member of the legal profession. A doctor is an attorney in the admiralty and ecclesiastical courts. A solicitor is a person prosecuting or defending suits in courts of chancery. 7 C.J.S. 702-703. 10Re Paschal, 10 Wall (US) 483,19 L ed 992 (1890).

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word abogado11 or the Filipino word manananggol. The term has a fixed and general signification and refers to that class of persons who by license are officers of the court and who are empowered to appear, prosecute and defend and on whom peculiar duties, responsibilities and liabilities are devolved by law as a consequence.12 A person who is a member of the Philippine Bar and who, by the warrant of another, practices law13 or who acts professionally in legal formalities, negotiations or proceedings, by authority of his client, is an attorney within the meaning of the term.14 A counsel is an adviser, a person professionally engaged in the trial or management of a cause in court; a legal advocate managing a case at law.15 Those who pass the Shari’a Bar are not entitled to be called “Attorneys,” unless they have also been admitted to the Philippine Bar.16 In other words, only those who are admitted to the Philippine Bar can be called “attorneys.” The other terms commonly encountered in the practice of law are counsel de parte, counsel de oficio, attorney of record, of counsel, amicus curiae, bar and bench. A counsel de parte is an attorney retained by a party litigant, usually for a fee, to prosecute or defend his cause in court. The term implies freedom of choice either on the part of the attorney to decline or accept the employment17 or on the part of the litigant to continue or terminate the retainer at any time.18 A counsel de oficio is an attorney appointed by the court to defend an indigent defendant in a criminal action19 or to represent a destitute party in a case.20 The term connotes little or no other choice than the acceptance by the indigent party of whoever is appointed as his counsel21 and, unless excused therefrom by the court, the

uThis term means not only possession of the academic degree of Bachelor of Laws but membership in the bar as well as after due admission thereto, qualifying one for the practice of law. Cui v. Cui, 11 SCRA 755 (1964). I2Cui v. Cui, 11 SCRA 755 (1964). lsRe Bailey. 50 Mont. 365,146 p. 1101. 14National Savings Bank v. Ward, 100 U.S. 195, 25 L ed 621 (1880). 15Villegas v. Legaspi, 113 SCRA 39 (1982). 16Alawi v. Alauya, 268 SCRA 628 (1997). 17Canon 31, Canons of Professional Ethics; Enriquez, Sr. v. Gimenez, 107 Phil. 932 (1960). 18Rustia v. CFI of Batangas, 44 Phil. 62 (1922); Bacaro v. Court of Appeals, 37 SCRA 36 (1971). 19Rule 116, Secs. 3, 4, 5; Rule 122, Sec. 13; Rule 138, Sec. 32, Rules of Court. “Rule 138, Sec. 31, Rules of Court; Cf. In re Filart, 40 Phil. 205 (1919). 21U.S. v. Laranja, 21 Phil. 500 (1912).

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discharge by the designated attorney of the duty to faithfully and conscientiously render effective legal assistance in favor of such party.22 An attorney of record is the attorney whose name, together with his address, is entered in the record of a case as the designated counsel of the party litigant in the case and to whom judicial notices relative thereto are sent.23 A lawyer called “of counsel” is an experienced lawyer, who is usually a retired member of judiciary, employed by law firms as consultant. An amicus curiae is an experienced and impartial attorney invited by the court to appear and help in the disposition of issues submitted to it.24 It implies the friendly intervention of counsel to call the attention of the court to some matters of law or facts which might otherwise escape its notice, and in regard to which it might go wrong.25 The term “bar” refers to the legal profession. The word “bench” means the judiciary.

§1.03. Power to regulate practice of law. The practice of law is a privilege impressed with public interest. The reason for this is that an attorney, who alone enjoys such privilege, owes duties not only to his client but also to the court, to his brethren in the profession and to the public, and takes part in one of the most important functions of the state — the administration of justice.26 He is the first one, either as a government lawyer or as a private practitioner, to sit in judgment on every case, and whether the court will be called upon to act depends upon his decision. He thus sets the judicial machinery in motion and participates in judicial proceedings.27 The interest of the public requires that the function be faithfully discharged and rendered only by those who are qualified, fit and honest and who possess good moral character.28

22Ledesma v. Climaco, 57 SCRA 473 (1974); People v. Estebia, 27 SCRA 106 (1969); People v. Irisuillo, 92 Phil. 1 (1948).

“Rule 7, Sec. 5, Rules of Court; Flores v. Zurbito, 37 Phil. 746 (1918); U.S. v. Borromeo, 20 Phil. 189 (1911); Vivero v. Santos, 98 Phil. 500 (1956); Ramos v. Potenciano, 9 SCRA 587 (1963). “Rule 168, Sec. 36, Rules of Court. “Hamlin v. particular Baptist Meeting House, 69 A 315; Kemp v. Rubin, 64 NYS2d 518. 2eIn re Integration of the Philippine Bar, 49 SCRA 22 (1973); Cf. Ortiga v. Rivera, 37 SCRA 577 (1971). 27Ruckenbrod v. Mullins, 133 2d 325,144 ALR 839 (1943). “/re re Cunanan, 94 Phil. 554 (1954); Phil. Ass’n. of Free Labor Unions v. Binalbagan Isabela Sugar Co., Inc., 8 SCRA 700 (1971); In re Parazo, 82 Phil. 230 (1948).

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Only by proper regulation of the practice of law will the interest of the public be adequately safeguarded. The practice of law is so intimately affected with public interest that it is both a right and a duty of the state to control and regulate it in order to promote the public welfare.29 The Constitution vests this power of control and regulation in the Supreme Court.30 Independently or even in the absence of such constitutional provision, the right to define and regulate the practice of law naturally and logically belongs to the judiciary represented by the high tribunal since the practice of law is inseparably connected with the exercise of its judicial power in the administration of justice.31 The legislature, in the exercise of its police power32 may, however, enact laws regulating the practice of law to protect the public and promote the public welfare.33 But the legislature may not pass a law that will control the Supreme Court in the performance of its function to decide who may enjoy the privilege of practicing law, and any law of that kind is unconstitutional as an invalid exercise of legislative power.34 The power of the Supreme Court to regulate the practice of law includes theauthority todefinethatterm,“prescribe the qualifications of a candidate to and the subjects of the bar examinations,36 decide who will be admitted to practice,37 discipline, suspend or disbar any unfit and unworthy member of the bar,38 reinstate any disbarred

wIn re Integration of the Philippine Bar, 49 SCRA 22 (1973); Ruckenbrod v. Mullins, supra; Re Macy, 196 AC 1095, 14 ALR 848 (1921); In re Edillon, 84 SCRA 554 (1978). “Const. Art. VIII, Sec. 5(5); Const, Art. VIII, Sec. 34 (1935); Omico Mining & Industrial Corp. v. Vallejos, 63 SCRA 285 (1975). 3lIn re Cunanan, supra.; Re Nebraska State Bar Ass’n., 133 Neb. 283,114 ALQ 151 (1937); Tejan v. Cusi; Jr., G.R. No. 28899, May 30,1974; In re Edillon, supra. 32U.S. v. Gomes Jesus, 31 Phil. 218 (1915); In re Edillon, 84 SCRA 554 (1978). 33Under the Art. X, Sec. 5(5) of the 1973 Constitution and Art. VIII, Sec. 34 of the 1935 Constitution, the legislature has the power to repeal, alter or supplement the rules promulgated by the Supreme Court, while the 1997 Constitution is silent on the matter. MIn re Cunanan, 94 Phil. 543 (1954); In re Guarina, 24 Phil. 37 (1913); State Bar Ass’n. v. Connecticut Bank & Trust Co., 140 A2d 865, 69 ALR 2d 394 (1958). 36Phil. Lawyers Ass’n. v. Agrava, 105 Phil. 173 (1959). 36/n re Parazo, 82 Phil. 230 (1948). 37/n re Cunanan, supra. “’Tejan v. Cusi, Jr., 57 SCRA 154 (1974); In re Alamacen, 31 SCRA 562 (1970); In re Edillon, 84 SCRA 554 (1978).

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or indefinitely suspended attorney,39 ordain the integration of the Philippine Bar,40 punish for contempt any person for unauthorized practice of law41 and, in general, exercise overall supervision of the legal profession.42 The Supreme Court can, moreover, exercise any other power as may be necessary to elevate the standards of the bar and preserve its integrity.43 The power to regulate the practice of law is not, however, an arbitrary and despotic power, to be exercised at the pleasure of the court, or from passion, prejudice or personal hostility; but it is the duty of the court to exercise it by a sound and just judicial discretion, whereby the rights and independence of the bar may be as scrupulously guarded and maintained by the court as the rights and dignity of the court itself.44

§1.04. Nature of office of attorney. An attorney is more than a mere agent because he possesses special powers of trust and confidence reposed in him by his client. He is as independent as the judge, and his powers are entirely different from and superior to those of an ordinary agent. In a limited sense, he is a public officer, although he is not an officer in the constitutional or statutory meaning of the term.46 He occupies what may be called a quasi-judicial office46 because he is in fact an officer of the court,47 whose close and intimate relationship with the bench is best described by that phrase. He is, figuratively speaking, a priest of justice.48

39/n re Adriatico, 17 Phil. 324 (1910); Royo v. Oliva, 107 Phil. 313 (1960); Cui v. Cui, 11 SCRA 755, (1964). 40Const. Art. VIII, Sec. 5(5); In re Integration of the Philippine Bar, 49 SCRA 22, (1973); In re Edillon, supra. ■“People v. De Luna, 102 Phil. 968 (1958); U.S. v. Ney & Bosque, 8 Phil. 146 (1907). i2In re Cunanan, supra. 43In re Parazo, supra. i4Ex parte Sacombre, 19 How (US) 9, 15 L ed 565 (1857); Re Nebraska State Bar Ass’n, 275 NW 114 ALR 151 (1937); Konigsberg v. State Bar of California, 353 U.S. 252, 1 L ed 2d 810 (1957); Andres v. Cabrera, 127 SCRA 802 (1984). “National Savings Bank v. Ward, 100 U.S. 195, 25 L ed 621 (1880); Berman v. Coakley, 137 NE 667, 26 ALR 92 (1923). 46Langen v. Borkowski, 206 NW 181, 43 ALR 622 (1925); People v. Sesbrano, 130 SCRA 465(1984). 47Hilado v. David, 84 Phil. 569 (1949). 48Salcedo v. Hernandez, 61 Phil. 724 (1935).

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The title “attorney” is reserved to those who, having obtained the necessary degree in the study of law and successfully taken the bar examinations, have been admitted to the Integrated Bar of the Philippines and remain members thereof of good standing; and it is they only who are authorized to practice law in the Philippines." Membership in the bar is a privilege burdened with conditions, one of the most important of which is mindfulness that a lawyer is an officer of the court.50 An attorney is received in that ancient fellowship for something more than privilege gain.61 He is primarily an officer of the court, a minister in the temple of justice, whose high vocation is to correctly inform the court upon the law and the facts of a case and to assist it in administering impartial justice and arriving at a correct conclusion.62 “Membership in the bar is in the category of a mandate of public service of the highest order. A lawyer is an oath-bound servant of society whose conduct is clearly circumscribed by inflexible norms of law and ethics, and whose primary duty is the advancement of the quest of truth and justice, for which he has sworn to be a fearless crusader.”53 Like the court itself, he is an instrument or agency to advance the ends of justice. His cooperation with the court is due whenever justice will be imperiled if cooperation is withheld.54 He can thus be compelled to render professional services in favor of a destitute party in a case,66 or to do any specific act which is incumbent upon him as an officer of the court to perform.56 As an officer of the court an attorney is subject to the disciplinary authority of the court and to its orders and directives with respect to his relation to the court as well as to his client.57 He is continually

49Alawi v. Alauya, 268 SCRA 628 (1997). Those who pass the Shari’a Bar are not full-pledged members of the Philippine Bar, unless they have also been admitted to the Philippine Bar.

“Valencia v. Cabanting, 196 SCRA 302 (1991); Berenguer v. Carranza, 26 SCRA 673 (1969); Ledesma v. Climaco, (1974), 57 SCRA 473 (1974). “People ex rel. Karlin v. Culkin, 24 NY 465, 60 ALR 851 (1928). 52Pangan v. Ramos, 93 SCRA 87 (1979); Re Macy, 196 1095, 14 ALR 848 (1921). “Justice Fred Ruiz Castro, “Apostasy in the Legal profession,” 64 SCRA 784, 790 (May to June 1975). “People ex rel. Karlin v. Culkin, 284 NY 465, 60 ALR 851 (1928); “Ledesma v. Climaco, 57 SCRA 473 (1974); People v. Estebia, 27 SCRA 106 (1969). “Hilado v. David, 84 Phil. 569 (1949). 6,Hilado v. David, supra.; Berenguer v. Carranza, 26 SCRA 673 (1969).

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accountable to the court for the manner in which he exercises his privilege to practice law. His admission to the bar is upon the implied condition that his continued enjoyment of the privilege conferred is dependent upon his remaining fit and safe to exercise it.68 In his relation with his client, which is characterized by utmost trust and confidence, an attorney is more than an agent and has powers entirely different from and superior to those of an ordinary agent.69 Being a quasi-judicial officer, the court always looks into, and closely scrutinizes his transaction with his client and protects the client from undue disadvantage on account of his situation.60

§1.05. Privileges of attorney. An attorney enjoys a number of privileges by reason of his office and in recognition of the vital role which he plays in the administration of justice. A lawyer has the privilege and right to practice law during good behavior before any judicial, quasi-judicial or administrative tribunal.61 The court, in admitting him to practice, presents him to the public as worthy of its confidence and as a person fit and proper to assume and discharge the responsibilities of an attorney.62 As part of the judicial system, whose role as an advocate and as officer of the court is necessary for the due administration of justice, he has the privilege, as the first one to sit in judgment on every case, to set the judicial machinery in motion.63 On him depends the proper course of judicial direction in the administration of justice. An attorney enjoys the presumption of regularity in the discharge of his duty.64 He is immune, in the performance of his obligation to his client, from liability to a third person insofar as he does not materially depart from his character as a quasi-judicial

“Tejan v. Cusi, Jr., 57 SCRA 154 (1974); In re Gutierrez, 5 SCRA 661 (1962); In re Santiago, 70 Phil. 66 (1940). 69Hope v. Klapperich, 28 NH2d 780,173 ALR 819 (1947). “Hilado v. David, 84 Phil. 569 (1949). 61Phil.

Lawyers Ass’n. v. Agrava, 105 Phil. 173 (1959). re Almacen, (1970), 31 SCRA 562; Ruckenbrod v. Mullins, 133 2d 325,144 ALR 839 (1943). “C an tiller v. Potenciano, 180 SCRA 246 (1989). MIn re De Guzman, 55 SCRA 139 (1974); People v. Mantawar, 80 Phil. 817 (1948); Galvez v. Court of Appeals, 42 SCRA 278 (1971); In re Tionko, 43 Phil. 191 (1922). 62/n