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LEGAL AND JUDICIAL ETHICS

By

Gabriel T. Ingles

I. Introduction

1. The Bench and Bar and the Administration of Justice

a. Interrelationship of the Bench and the Bar

Common goal

The Bench and the Bar share the same goal – the
promotion and dispensation of justice through the Rule of
Law.

The shared primary interest of the bench and the bar


is not self-interest but public good i.e., the efficient,
competent and independent administration of justice.

According to Don Vicente J. Francisco, the Bench and the


Bar have one and the same reason for being; their
duty to uphold the law and to advance justice.

The Bench and the Bar share a common object, the


truth.
b. Specific roles-

The Role of the Bench

The Bench represented by the judge, a term that refers to


function and not to position in the judicial hierarchy, basically,
is a dispenser of justice in accordance with law.

Justice essentially means giving one his/her due.


But there can be no justice without the truth or unless it is
based on truth.

Truth means, the conformity between what one says and what
is.

Thus, to dispense justice the judge must determine the


truth (facts), using the law applicable to a case.

The Role of the Bar

Basic Function of Lawyers


While the Bench is called to determine the truth and dispense
justice, the Bar is called to establish the basis (evidence and
law) of both truth and justice.

The high vocation of an attorney is to inform the court of the


law and facts of the case, and to aid it in doing justice and
arriving at correct conclusions (People vs. Beattle, 137 III,
553.)
In other words, the goal in every case is justice, which is
achieved by searching for the truth using law as a common
tool.

While the Bench and the Bar perform separate and


independent functions, in administering justice, the Bench
cannot exist without the aid of the Bar and vice-versa.

So that, the proper administration of justice, which


means giving the parties their due according to law,
is not possible if not based on the truth. And such
truth cannot be brought forward without the
indispensable assistance of the lawyers.

The Bench cannot exist without the aid of the Bar and vice-
versa. Their mutual cooperation in the administration of
justice is indispensable.

Truth cannot be determined by judges if it is not presented


by lawyers.

An administration of justice that is efficient, competent


and independent mirrors an exemplary Bench and a
competent Bar.

In sum-

The Bench and the Bar:


use one instrument (that is law),
search for one object (that is truth), and
pursue one goal (that is justice).
Justice J.B.L. Reyes masterfully states:
No master but law;
No guide but conscience;
No aim but justice.

c. Canons of Judicial and Legal Ethics

To be real guardians and stewards of justice, the Bench


and the Bar are mandated by the noble end they serve, to
observe the highest principles that promote the dignity of
their office.

To judges and lawyers

– integrity, honesty, and decency should not be mere


choices subject to personal whim and fancy.

d. LAW as PROFESSION

Profession is an occupation requiring extensive education; the


body of persons engaged in such occupation. (Webster’s
dictionary)

Law is a profession because:


a) it is a learned activity;
b) engaged in a more or less full time basis;
c) act is helpful to others in an important way;
d) persons involved organize themselves and
self-regulate; and
e) governance is primarily for the public good
rather than for self.

In sum-

Law is a profession because it serves a public good.

Law, a noble profession-

It is a noble profession because the public good it


serves is the administration of justice thru the rule of
law.

In other words, there is inherent honor in the legal


profession because it is primarily intended to serve
not self but others by assisting in the administration
of justice.

Daniel Webster, an excellent trial lawyer said: “Justice is


the greatest concern of man on earth.”

Paschal Njoku also reminds us that, “We need to


understand that, as advocates of the law, we are the
defenders of the Constitution, the guardians of
liberty, the protectors of rights and the advocates of
just causes.”

The primary interest of a lawyer is not self but a


competent, honest and efficient administration of
justice, a public interest, a public good.

In Yuhico v. Atty. Gutierrez the Court sitting en banc held:


Lawyers are instruments for the administration of justice
and vanguards of our legal system. They are expected
to maintain not only legal proficiency, but also a high
standard of morality, honesty, integrity and fair dealing
so that the people’s faith and confidence in the judicial
system is ensured. They must, at all times,
faithfully perform their duties to society, to the
bar, the courts and to their clients, xxx. They must
conduct themselves in a manner that reflects the values
and norms of the legal profession as embodied in the
Code of Professional Responsibility.

e. A Most Important Quality of a Good Lawyer is


respect for the truth-

To deserve and continue to be deserving of the privilege to


be part of that noble profession, it is not enough that we
have been admitted to the Bar. More importantly, we must,
at all times, have respect for the truth. Of all legal virtues
and qualities of a good lawyer, respect for the truth is the
highest. For without respect for truth there can be no
justice, making the practice of law become
meaningless.

This is the reason why in our codes of ethics and


professional conduct the main premise and predicate is
reverence for the truth.

In fact in our lawyer’s oath, it comes immediately after our


allegiance to the Constitution and the Rule of Law.
LAWYER’S OATH

I ______________ do solemnly swear that I will


maintain allegiance to the Republic of the
Philippines; I will support its Constitution and obey
the laws as well as the legal orders of the duly
constituted authorities therein; I will do no
falsehood, nor consent to the doing of any in court; I
will not wittingly nor willingly promote or sue any
groundless, false or unlawful suit, or give aid nor
consent to the same; I will delay no man for money
or malice, and will conduct myself as a lawyer
according to the best of my knowledge and
discretion, with all good fidelity as well to the court
as to my clients; and I impose upon myself this
voluntary obligation without any mental reservation
or purpose of evasion. So help me God.
Nature of the oath:

a. Not mere facile words draft and hollow but a


sacred trust that must be upheld and kept
inviolable. ( Sebastian v. Calis, A.C. No. 5118
Sept. 9, 1999)
b. The lawyer’s oath is a source of obligations
and violations thereof is a ground of
suspension, disbarment, or other disciplinary
action. (Magdaluyo v. Nace 324 SCRA 384)

In the case of Young v. Batuegas, the Court held:

“A lawyer must be a disciple of truth. He swore upon his


admission to the Bar that he will ‘do no falsehood nor
consent to the doing of any in court’ and he shall conduct
himself as a lawyer according to the best of his knowledge
and discretion with all good fidelity as well to the courts as
to his clients. He should bear in mind that as an officer of
the court his high vocation is to correctly inform the court
upon the law and the facts of the case and to aid it in doing
justice and arriving at a correct conclusion.”

In the Code of Professional Responsibility (for lawyers),


respect for the truth is the first rule of the first canon:

Rule 1.01 – A lawyer shall not engage in unlawful,


dishonest, immoral or deceitful conduct (CPR, Canon 1).

This is translated to truth in the more specific context of the


courtroom, thus:

Rule 10.01 – A lawyer shall not do any falsehood, nor


consent to the doing of any in Court, nor shall he mislead,
or allow the Court to be misled by any artifice.

Rule 10.02 – A lawyer shall not knowingly misquote or


misrepresent the contents of a paper, the language or the
argument of opposing counsel, or the text of a decision of
authority, or knowingly cite as law a provision already
rendered inoperative by repeal or amendment, or assert
as a fact that which has not been proved (CPR, Canon 10).

The aforecited Rule 10.02 is reiterated in Canon 22 of the


Canons of Professional Ethics (CPE) under the sub-heading
“Candor and Fairness:”

It is not candid or fair for the lawyer knowingly to misquote. …


It is unprofessional and dishonorable to deal other than
candidly with the facts in taking the statements of witnesses, in
drawing affidavits and other documents, and in the
presentation of causes (CPE Canon 22).

As synthesized in Canon 32, respect for the truth not only


imposes a duty but also bestows honor on the practitioner and
his profession:

Correspondingly, the lawyer advances the honor of his


profession. . . But above all a lawyer will find his highest
honor in a deserved reputation for fidelity to private trust
and to public duty, as an honest man and as a patriotic and
loyal citizen (CPE Canon 32.)

Respect for the truth is not an option nor an alternative


solution to the moral gaps in the legal system and structure. It
is an imperative and absolute necessity for members of the
Bar.

f. Practice of law defined-

In Cayetano v. Monsod, the Court defines it thus:

“Practice of law means any activity, in or out of


court, which requires the application of law, legal
procedure, knowledge, training and experience.”

“Practice of law” not limited to litigation-

It further explained that practice of law then, is not limited


to advocating for a client’s cause in the context of litigation
by quoting Moran, who in his book Comments on the Rules
of Court, Vol. 3 [1953 ed], pp. 665-666, said:
“Practice of law under modern conditions consists in no
small part of work performed outside of any court and
having no immediate relation to proceedings in court. It
embraces conveyancing, the giving of legal advice on a large
variety of subjects, and the preparation and execution of
legal instruments covering an extensive field of business and
trust relations and other affairs. Although these transactions
may have no direct connection with court proceedings, they
are always subject to become involved in litigation. They
require in many aspects a high degree of legal skill, a wide
experience with men and affairs, and a great capacity for
adaptation to difficult and complex situations. These
customary functions of an attorney or counselor at law bear
an intimate relation to the administration of justice by the
courts xxx. Xxx It is of importance to the welfare that these
manifold customary functions be performed by persons
possessed of adequate learning and skill, of sound moral
character, and acting at all times under heavy trust
obligations to clients which rests upon all attorneys.”

How lawyer-client relationship is established-

This is the reason why in so many rulings of the Court it had


been consistent in declaring that “if a person, in respect
to business affairs or troubles of any kind, consults a
lawyer with a view to obtaining professional advice
or assistance, and the attorney voluntarily permits or
acquiesces with the consultation, then the
professional employment is established”(Ma. Jennifer
Tria-Samonte v. Atty. Epifania “Fanny” Obias, A.C.
No. 4945, October 8, 2013).
In sum, however an attorney practices his/her
profession, the duty is always to assist in the
administration of justice, i.e., to see to it that a client
is afforded what is due him or her based on the law.

6. Basic Characteristics of the Practice of Law

What then are the basic characteristics of the practice of law

1. It is not a money-making venture (Canlas v.


CA 164 SCRA 160). Law practice should not be
used as capital in order to earn profit. The returns it
births are simple rewards for a job well done or
service rendered. (Metrobank v. CA 181 SCRA 377).
This is not to say that financial concerns are not
important to a lawyer. However, while we do not
ignore such concern, priority must be given to some
of the weightier responsibilities and burdens that
attach to our role as lawyers; and

2. It is reserved only to those who are


academically trained in law and possessed of
good moral character not only at the time of his
admission to the Bar but even more so,
thereafter to remain in the practice of
law. (People v. Tuanda 181 SCRA 692,
Melendrez v. Decena 176 SCRA 662)

II. The problem of the legal and judicial profession –

1. Negative public perception.

But while law is truly a noble profession, it is regrettable


how society has come to perceive lawyers negatively.

In the Opinion page of the July 24, 2015 issue of the


Inquirer we can find a comment about lawyers entitled “Law
practice: reduced to a ‘game of one-upmanship’ ”. The
writer writes:

“I have studied legal ethics and it pains me to know that in


the real world of law practice, principles don’t count much. It
is no different from any dog-eat-dog business. It’s a game of
one-upmanship. Esteem is often measured by the kind of
client a lawyer represents: The bigger the crook (with
millions stashed away to buy the “smartest” defense
lawyer), the more “respect” he gets- and the bigger his
bragging rights if he gets him off the hook! That really
sucks!

In the same (Opinion) page of the July 1, 2015 issue of the


same paper another comment can be found titled “Best that
money can buy”. It states in part:

“Already, there is a joke going around about lawyers being


no more virtuous than prostitutes – they will do (or say)
anything for a client if the price is right!

Addressing the IBP, it asks these questions: “Has the IBP


failed miserably to ‘police its ranks? Has it really gone that
bad? Touted as an organization to promote the nobility of
the law profession, the IBP may have instead become a
breeding ground of the world’s oldest profession! In most
cases involving grand larceny or plunder, we are frequently
treated to the droll spectacle of ‘abogados de campanilla’
making fools of themselves by raising defenses that insult
even a non-lawyer’s intelligence! How do they ever find the
gall to say the most stupid things with a straight face? Truly
the sheer magnitude of their client’s thievery, they are “the
best that money can buy.”!

Unfortunately, nothing is new.

Louis XII said, “Lawyers are those who use the law as
shoemakers use leather; rubbing it, pressing it and
stretching it with their teeth, all to the end of making it fit
their purposes.”

Jonathan Swift said: “Lawyers are those whose interest and


abilities lie in perverting, confounding and eluding the law.”

Ambrose Pierce defined a lawyer as “one skilled in the


circumvention of the law.”

President Theodore Roosevelt in trying to persuade his son


to become a lawyer advised him thus: “A man who never
graduated from school might steal from a freight car. But a
man who attends college and graduates as a lawyer might
steal the whole railroad.”

The Public’s Perception of the Bench and the Bar (National


Public Opinion Survey)

In July 1985, the Philippine Bar Association, in coordination


with the Bishops-Business Conference for Human
Development conducted a national opinion survey on the
judiciary and the legal profession, with the support of the Asia
Foundation. The survey was designed to gather the
impressions of the Filipino people on judicial issues.
In December 1993, SWS conducted another national survey,
again with the support of the Asia Foundation, following the
same lines of judicial inquiry.
These are the salient results:

(1) On Perceived Corruption


(a) The Judiciary:
In the 1985 survey, under the scenario where the crime victim
was just an ordinary person and the accused was an important
person, the respondents were asked whether they expected
that the judge could not be bought/bribed. The results
were: 30% agreed and 29% disagreed, for a margin of +1.
The plurality of 40% were undecided.

The 1993 survey formulated a different question but followed


the same line of inquiry. The survey asked, how many judges
could be bought – would it be ‘none’, ‘a few’, ‘many’ or
‘most’? The responses were: 6% said None, 44% said a
Few, 39% said Many, and 10% said Most. Hence, opinion
about the integrity of the judges was divided, similar to the
finding in 1985. However, while as many as 40% were
undecided in 1985, most respondents had already taken sides
by 1993.
Adding the Many and Most responses would sum up the
negative perception on the judges. Adding the None and Few
responses would sum up the positive perceptions. The
negative perceptions were dominant in class ABC (53 points
for negative versus 45 for positive). This did not hold for the
lower classes, where opinions were more evenly divided.

(b) The Legal Profession


The questions focused on impressions regarding the lawyer’s
professionalism and his integrity or the lack of it. The 1993
survey revealed a stagnation in the public’s low evaluation of
the legal profession.

The respondents in both surveys were asked to estimate


the number of lawyers who could be bought or bribed.

In 1985, 8% said None of the lawyers could be bought,


31% said a Few, another 31% said Many, and 26% said
Most. That is 39% of the respondents had the opinion that
none or only a few lawyers were corrupt, while 57% felt
that many or most of them could be bought.

In 1993, 5% said None of the lawyers could be bought,


37% said a Few, 44% said Many, and 14% said Most. This
resulted in a total negative score of 58%, or practically the
same as the 57% of 1985.

(2) Trust
(a) For Judges:
Negative views on the judiciary were manifested in 1993 by
the results on a question asking the respondents how many
judges were trustworthy.

The results were as follows: 2% said None; 53% said a


Few, 37% said Many, and 8% said Most.

Adding the None and Few responses would sum up the distrust
for the judges while the sum of Many and Most responses
would sum up the trust. Net distrust was dominant, and it
became higher, the lower one’s socio-economic class: +7
percentage points for class ABC, +10 for class D, and +11 for
class E.

Clearly, a majority of the respondents answered that none or


only a few judges were trustworthy. At the same time, one
must bear in mind that, in the same survey, only 14% said that
they were aware of a judge actually having received a bribe.
This implies that the negative impression of the majority were
due not to their personal experience of corruption, but to
reports from other sources, including the mass media, which
might not always be accurate.

(b) For Lawyers


In both the 1985 and 1993 surveys, the respondents were
asked to estimate the number of lawyers who were
trustworthy.

In 1985, 5% said None, 50% said a Few, 30% said Many,


and 12% said Most. In all areas, the majority were inclined
to believe that none or only a few lawyers were
trustworthy.

In 1993, 2% said None, 59% said a Few, 31 % said Many,


and 8% said Most. This showed that, as before, most
lawyers were not perceived as trustworthy. The negative
perceptions (Few plus None) tended to dominate the
positive (Many plus Most). The excess of the negative over
the positive rose, the lower the respondent’s class: +9
percentage points for class ABC, +20% for class D, and +39%
for class E.

(3) Competence
(a) For Judges:
As regards the perceived number of judges who were
competent or “good at work”, the 1993 survey found that :
2% said None, 41% said a Few, 47% said Many, and 10%
said Most. In other words, a majority (57%) answered
positively (agreed that many or most judges were good at
work), and a large minority (43%) answered negatively
(“few” or “none”).

Subtracting the negative responses (None plus Few) from the


positive responses (Many Plus Most) would yield a net index of
perceived competence. This was +24 for class ABC, versus +12
for class D, and +15 for class E.

(b) For Lawyers


The 1985 question on whether or not lawyers were
competent (“good at work”) was repeated in 1993.

In 1985, the responses were as follows: 3% for None, 39%


for Few, 40% for Many, and 15% for Most.

In 1993, the responses were as follows: 2% for None, 41%


for Few, 45% for Many, and 12% for Most.

A majority in both surveys answered that Many or Most


lawyers were good in their work. However, it should be noted
that a large minority (43%) answered in the negative.
Therefore lawyers should not feel overly pleased by these
results.

The excess of positive responses (Many plus Most) over


negative responses (Few plus None) rose, the higher the
respondent’s socio-economic class. The difference was +40
points in class ABC, +12 in class D, and +7 in class E.
(4) The SWS 1994-1995 Surveys of Lawyers
These are some relevant results of the 1994 survey of lawyers
in Metro Manila and the 1995 survey of lawyers in Pangasinan,
Cebu and Davao.

(a) Lawyers’ Perception on their Profession and


whether society respects them.
The respondents were asked about the degree of
satisfaction with their work as lawyers.

The survey found 88% in NCR, and 87% in the provinces


who said they were Satisfied, versus 8% in NCR and 9% in
the provinces who were Dissatisfied.

Subtracting the Dissatisfied responses from the Satisfied


responses yields the net satisfaction with professional life. This
net satisfaction is +80 percentage points in NCR and +78 in the
provinces.

To the question:”How much respect do you think people


have for lawyers in general?”,

91% said Much or Moderate Respect. Those who said


Moderate or Much Disrespect were 4% in NCR and 3% in
the provinces. This gives a very high net respect of +88 in
NCR and +89 in the provinces.

(b) Involvement in Legal Aid for the poor


The survey inquired on how often the lawyers handle pro-
bono cases.
The most frequent response is Rarely or Never: 32%/31%.

The other answers obtained are 13% for Very Often or


Regularly, 12% for Often, 21% for Sometimes, and 18%
for Occasionally.

(c) Satisfaction/Dissatisfaction with Judicial


Procedure
Respondents were asked if they agreed or disagreed with
the test statement that the court rules encourage
corruption.

The result was two-thirds or 64%/68% disagree, while


25%/17% agree.

Another test statement was “The modes of discovery are


inadequately used.”

An overwhelming 77% in NCR and 82% in the provinces agree


with this versus 12%/14% disagree.

“The continuous trial system is working.” The majority of 51%


in NCR and 55% in the provinces disagree.

The survey asked about the pace of the courts from the
time the case is filed.

The results were: 2%/1% said Speedy, 28%/42% said


Reasonable, and 69/56% said Too Slow/Much Too Slow.

The survey also asked about the pace of the courts from
the time the case is submitted for decision.
This yields a similar distribution: 2% said Speedy,
33%/43% said Reasonable, and 63%/54% said Too
Slow/Much Too Slow.

How satisfied are lawyers with judicial procedure in the


Philippines?

Here there was a difference between lawyers in NCR and


in the provinces. In NCR 41% were Satisfied or Very
Satisfied, and 57% were Not Satisfied or Not At All
Satisfied, for a negative net satisfaction of -16 points. In
the provinces as a whole, 55% were very
Satisfied/Satisfied and 44% were Not Satisfied/Not At All
Satisfied, for a positive net satisfaction rate of +11 points.

Corruption of Judges

The lawyers were asked, “From your experience, how


would you assess the number of judges who are corrupt?”

The survey found that 31%/20% say Many, 32%/35% say


Some, and 29%/35% respectively say Few.

A margin of perceived corruption can be computed by


subtracting the percentage who say Few or Very Few from the
percentage who say Many or Very Many. The fact that only a
third say that corrupt judges are rare is cause for concern.

The exercise was also done for the respondents’


perceptions on the number of lawyers who they think are
corrupt.

The ratios are 40%/35% saying Very Many/Many, and


17%/20% saying a Few/Very Few. This produces a margin
of +5 percentage points in NCR and +14 in the provinces.
The positive margins reveal that the respondents see
much corruption among lawyers.

“Are you aware of any case when a judge took a bribe?”


Fully 48% of lawyers in the NCR and provinces are aware
of such a case.

“How often do lawyers include bribe money in the fees


they charge their clients?”

This question resulted in the following distribution of


answers: 25%/11% say Very Often/Often, 22% say
Sometimes/Occasionally, and 24%/30% respectively say
Occasionally/Rarely/Never. About a third say they do not
know.

“At what level do you find corruption among judges?”

More than three-fifths see corruption in the RTC


(66%/64%) and in the first level courts (64%/61%). The
other ratios are 28%/32% in the Court of Appeals,
16%/11% in the Sandiganbayan, and even a worrisome
17%/13% in the Supreme Court. Less than a fifth perceive
no judges’ corruption among the said categories.

Two test statements were included in the corruption module.


The first ran, “Corruption begins with the clients.” Opinion
is split with around 46% agreeing, versus 40%
disagreeing.

The second test statement was, “Corruption is a ‘fact of life’


which lawyers have to live with.” In both NCR and the
provinces, while 25% agree, 66%disagree.
(5) The SWS 1995-96 Surveys of Judges.
(a) Professional Satisfaction and respect
The survey found that 92% of the RTC judges and 91% of
the first level court judges are satisfied with their jobs.

How much respect do they think people have for judges in


general?

Among the RTC judges, 94% see either Much or Moderate


respect, while the corresponding percentage for the first
level court judges is 96%.

(b) On Judicial Procedure


The surveys used test statements to elicit opinion on this
subject such as:

“In general lawyers deliberately prolong the case to get


more income from appearance fees.” Most agree with this:
72% of RTCs, 63% of MTCs.

“Lawyers exert enough effort in gathering evidence before


the trial.” In RTCs, 73% disagree with this, while only 23%
agree, for a very large net disagreement of -50 points. Net
disagreement was somewhat less among MTC judges at -
25.

The respondents were asked whether or not they are satisfied


with judicial procedure in the Philippines on the whole. In
RTCs, 78% are Satisfied, versus 22% Dissatisfied, for a net
satisfaction of +56 percentage points. It was even larger for
MTCs at +66.
Pace of the courts

The respondents were asked to rate the usual pace of the


courts from the time the case is filed. In RTCs, a majority of
70% say that the pace is Reasonable, as against 25% who
say its Too Slow. The corresponding figures in MTCs are
73% for Reasonable and 20% for Too Slow.

They were also asked about the usual pace of the courts
from the time the case is submitted for decision. Again the
dominant sentiment is that the pace is reasonable: 82% in
RTCs, 80% in MTCs.

On Corruption
The judges were asked to assess whether the number of
corrupt judicial professionals and personnel were Very
Many, Many, Some, A Few, or Very Few/None.

The percentages saying Very Many and Many for specific


types of personnel, in the RTC/MTC surveys respectively,
are: sheriffs, 32%/37%: lawyers, 19%/21%; clerks of
court, 15%/14%: stenographers, 2%/4%; secretaries, 5%;
and judges, 6%. It is clear that the sheriffs are the most
commonly perceived as corrupt judicial personnel.

How often do lawyers include bribe money in the fees they


charge clients?

Among RTC judges, the responses are 14% for Very Often
or Often, 22% for Sometimes, and 25% for Occasionally,
Rarely or Never. A large 35% Can’t Decide. The pattern of
responses among MTC judges is the same.
“Where among the following courts do you find
corruption?”

Relatively more RTC judges tend to see corruption than


MTC judges. This can be seen from the responses for
RTC/MTC judges, as follows: corruption in the MTCs,
66%/24%; in the RTCs, 61%/55%; in the Court of Appeals,
56%/28%; in the Sandiganbayan, 29%/12 &; in the
Supreme Court, 26%/11%; and None of the Above,
18&/28%.

The survey tested two statements about corruption, one being:

“Corruption begins with the lawyers’ clients.”

In the RTCs, 62% agree that corruption stems from the


clients, as against 18% who disagree, for a net agreement
of +44 percentage points. In the MTCs, the net agreement
is +32.

Another statement was: “Corruption is a ‘fact of life’ which


judges just have to live with”. There is overwhelming
disagreement among the judges on this, at around 85% for
both surveys.

All the foregoing facts are lifted from the book Monitoring the
State of the Judiciary and the Legal Profession published by the
Social Weather Stations in cooperation with the Cordillera
Studies Center, University of the Philippines College Baguio.

25 January 2005
New SWS Study of the Judiciary and the Legal
Profession Sees Some
Improvements, But Also Recurring Problems

Linda Luz Guerrero,


Mahar Mangahas and Marlon Manuel

Survey background

The SWS study was sponsored by The Asia Foundation, with


support from the United States Agency for International
Development, to track changes in the state of the judiciary
and the legal profession after the lapse of 8-9 years.
Linda Luz Guerrero (SWS Vice-President) was the Project
Director, Mahar Mangahas (SWS President) was the Lead
Survey Consultant, and Atty. Marlon Manuel (Executive
Director of SALIGAN, an alternative law group working with
farmers, workers, urban poor, women and local
communities), was the Law Consultant.

Data gathering was done from November 2003 until July


2004. The referendum of judges was done by mail to all
1,460 trial court judges in the Philippines, of whom 889 or
61% responded. The survey of lawyers was done through
face-to-face interviews of 400 lawyers divided equally
among Metro Manila, Baguio City, Cebu City, and Davao
City, and sampled at random.

There have been some improvements, but also recurring


problems, in the judiciary and the legal profession,
compared to 8-9 years ago, according to Social Weather
Stations' new sample survey of 400 lawyers, and new
referendum of 889 trial judges, in the Philippines.

General performance

The new SWS study finds 69% of lawyers satisfied, and only
27% dissatisfied, with the general performance of trial
judges in the Philippines. [Table 1]

Special courts

It also shows that very many lawyers and judges are


satisfied with the competence of judges of Family Courts and
Drug Courts in particular, and that small majorities of them
are satisfied with competence in Intellectual Property
Courts. [Table 2]

Justice for the poor

The proportion of judges asserting that poor people can get


justice under the judicial system is now 75%, compared to
61% in the previous SWS referendum of judges in 1995/96.

However, only one-half of lawyers agree that the poor can


get justice - 53% of those surveyed now, compared to 50%
of those surveyed by SWS in 1994/95.

Judicial procedure

Lawyers presently have very mixed feelings on judicial


procedure in the Philippines, with 49% satisfied and 48%
dissatisfied, which is essentially the same as in 1995, when
48% were satisfied and 51% were dissatisfied. [Table 3]

On the other hand, fully 82% of judges at present,


compared to 80% in 1996, feel satisfied with judicial
procedure.

Pace of court cases

Large majorities of lawyers complain that courts operate too


slowly, but larger majorities of judges say that courts
proceed at a reasonable if not speedy pace, and even blame
lawyers for prolonging cases in order to get more income
from appearance fees.[Tables 5-6]

Predictability of court decisions

Two of every three lawyers, and one of every two (46%)


judges say that court decisions are unpredictable. These
perceptions are unchanged from 8-9 years ago. [Table 7]

Corruption

Corruption remains a major problem. As in 1995, one-fourth


of present lawyers say Many/Very Many judges are corrupt.
However, although half (49%) say they know a case their
own city or province where a judge took a bribe, only 8% of
such lawyers said they reported the bribery, the main excuse
of those keeping silent being that they could not prove
it. [Tables 8-9]

Among the respondent-judges, on the other hand, only 7%


call Many/Very Many judges as corrupt. Judges' perception
of the extent of corruption among court personnel is the
same now as in 1996. What has increased is the proportion
of judges seeing many lawyers as corrupt. [Tables 10-11]

Institutional ratings
Among seven institutions whose performance was rated by
both lawyers and judges, the Supreme Court scored the
highest, while the Philippine National Police scored the
lowest, and very unfavorably. [Tables 12-13]

The Philippine Judicial Academy (PHILJA) got a very high


rating, even higher than the Supreme Court, from judges,
but was not included in the survey of lawyers.

The Philippine Judges Association satisfied most judges (net


+30), but not most lawyers (net -2).

Satisfaction has risen with the Integrated Bar of the


Philippines and the Public Attorneys' Office, but has dropped
with the Court of Appeals. The Prosecution Service and the
PNP continue to be rated negatively, as before.

Job satisfaction

Job satisfaction continues to be high among both judges


(42% Very Satisfied and 51% Satisfied) and lawyers (34%
Very Satisfied and 59% Satisfied).

The SWS 1985 and 1993 National Public Opinion Surveys on


the Legal Profession show the following statistics:

The respondents in both surveys were asked to estimate the


number of lawyers who could be bought or bribed. In 1985,
57% said many or most of them could be bought
while, 39% said that none or only a few were corrupt.
In 1993 or after eight years, there was a total negative score
of 58% or practically the same as the 57% of 1985.

The respondents were also asked to estimate the number of


lawyers who were trustworthy. In 1985 the majority or 55%
were inclined to believe that none or only a few lawyers
were trustworthy, while in 1993 it likewise showed a similar
result, that is, 61% said none or only a few could be trusted.

This is also true in the international level.

In the process of updating his 1996 book The Honest Hour:


The Ethics of Time-Based Billing by Attorneys, William
George Ross determined that lawyers in 2007 are
significantly more likely than a decade ago to pad their bills
with unnecessary hours or bill two clients for the same
time. Almost 55% (up from 40%) of associates and partners
surveyed report performing unnecessary work, and 35% (up
from 23%) say they bill two clients for the same time. The
number of lawyers who believe double billing is ethical also
rose from 35% in 1996 to 48%, and more than two-thirds of
lawyers say they have specific knowledge of bill-padding by
others.

Sandra Lindner, of Transparency International in a report


states:

The perception that lawyers and law firms are involved in


corruption has become relatively widespread. According to a
joint survey by the International Bar Association (IBA), the
Organisation for Economic Cooperation and Development
(OECD) and the UN Office on Drugs and Crime (UNODC), of
642 legal professionals from 95 jurisdictions, roughly half
consider corruption to be an issue in the legal profession
both in their home and neighboring jurisdictions (IBA, OECD,
UNODC 2010).

Incidentally and unfortunately, this pervasive negative public


perception is also true with respect to the judiciary or court
proceedings. I believe that this is due to the fact that some
judges are corrupt. When you couple this with corrupt
practicing lawyers, then you have that undesired result.

2. The cause of the problem.

But why is there a gap between society’s perception and the


inherent nobility of the law profession?

Two interrelated causes of our bad reputation:

According to Justice Tijam in an article entitled “The Ethical


Lawyer” there are two interrelated causes behind our bad
reputation or why lawyers succumb to unethical practice-

“First is the treatment of the legal profession as a


business more than a profession – or when money
becomes the compelling reason. And second, is the
lawyer’s blind loyalty to his client’s cause, wherein
the tendency to manipulate the legal system without
regard to right or wrong becomes second nature”.

The first is illustrated by the anecdote where a son asked his


father saying “ Dad you must not be a good lawyer, why did
it take you ten years to finish your case?” And the father
answered, “Son don’t belittle your father’s ability. I
intentionally finished the case in ten years because it
enabled me to pay for your education.
According to Justice Tijam, “ironically the purpose of the
anecdote is to breed inspiration to the son. However,
underlying in that same story is the toll that the financial
aspect of the profession is taking in the legal system.”

“Another familiar scenario,” he continues, “is the classic


situation in law firms. Once a lawyer becomes partner, he or
she needs to start bringing in clients and the associates are
programmed to do everything they can to keep these clients
‘happy.’xxxxx The need to acquire big accounts and hold on
to high paying clients is insurmountable. Part of the
dishonesty and acrimony that we find troubling in current
practice seems driven by these profit dynamics. Too much
emphasis is put on salaries while compromising other values.
In this scheme of things, it is almost forgotten that law is
first and foremost a profession and not a business.”

“As a consequence,” he further asserts, “lawyers are


tempted to manipulate the legal system without regard to
right or wrong – bringing us to the second pitfall that
lawyers are commonly facing today. Attorneys nowadays
face an intense pressure to serve clients’ short-term
interests, regardless of what it takes, at the expense of
other values. As another one of the lawyer jokes goes, ‘A
good lawyer knows the law. A great lawyer knows the
judge’. Lawyers blindly adhere to their client’s cause as they
have to keep winning cases to achieve or maintain a good
‘reputation’ and in turn attract more clients.”

“The environment in which lawyers have practiced their


profession have become too commercial to a fault. It has
been ruled by a culture of pride over principle, money over
cause.”
This is perhaps the reason why only a few lawyers outside of
the Public Attorney’s Office, involve themselves with legal
aid for the poor. In a 1994-1995 SWS Survey of Lawyers it
inquired how often lawyers handle pro-bono cases and the
most frequent response is rarely or never.

In sum, it is the lack of integrity that brings dishonor,


disrespect and causes damage to the nobility of the
legal profession.

Integrity is defined as the uncompromising


adherence to ethical principles.

3. Formidable challenge and its solution-


The formidableness of the challenge emanates from the
object of the effort – justice.
“The judge and the lawyer should remember, first and
foremost, that in weighing and balancing rights and privileges
they are building together a monument in the Temple of Justice
xxx.”

“This building (of a monument in the Temple of Justice) is


never ending, for the process of justice is never finished. It
reproduces itself generation after generation in ever-changing
forms. In this perspective, the lawyer and the judge are
together, fashioning for tomorrow’s chronicle yesterday’s
experiences in the law; and their daily labors, though seeming
at times tedious, uninteresting, and unimportant, will
ultimately play a part in the vast reaches of the future of all
mankind.”

Bench and bar need the best professionals


For this reason, the Bench and the Bar must be “composed of
the best men of the profession, intent upon bettering the laws
of the country, the procedure in the courts, and exercising a
salutary control over the profession itself” (Hamiter).
To us judges and lawyers – integrity, honesty, and decency
should define our being.
Only when the professional life, not only touches, but actually
subsists on and draws its sustenance from a solid moral base
can the Bench and the Bar set flame to the high torch of justice,.
. . give light to the world. . . and keep that torch burning with
incandescent purity. (Justice Jose B. Laurel)
To be real guardians and stewards of justice, we, the members
of the Bench and the Bar must not only be well learned in law
but must also be true and faithful to the ethics of our
profession.
There is much to improve. And while the Bench and the Bar
need to cooperate in the administration of justice, it will
be tragic if such cooperation is translated into tolerance of
each other’s corruption. As indispensable cooperators in
the administration of justice, we should uphold such no
matter what the cost.
Each must be open to criticism and humble enough to
admit mistakes and strive to correct them and if they
prove to be incorrigible, to purge them.
Section 3, Canon 2 of the New Code of Judicial Conduct for
the Philippine Judiciary states:
“Judges should take or initiate appropriate disciplinary
measures against lawyers x x x for unprofessional conduct
of which the judge may have become aware.”
As regards criticism of judicial officers, the principle of open
justice refers to the public right to scrutinize and criticize
courts and court proceedings. The principle assists in
preventing judicial arbitrariness or idiosyncracy and
maintaining public confidence in the administration of justice.
It has been said that the principle of open justice is just as
fundamental to a democratic society as freedom of speech.
Thus, in the same way that every citizen has the right to
criticize the actuations of public officers, every citizen has the
right to criticize the actions of judicial authorities.
The right to criticize is recognized in concluded litigations
because then the court’s actuations are thrown open to public
consumption and discussion (Strebel v. Figueras, 96 Phil. 321).
It has, in fact been called a duty of a lawyer to criticize. As a
citizen and officer of the court, every lawyer is expected not
only to exercise the right, but also to consider it his duty to
expose the shortcomings abd indiscretions of courts and
judges.
In re Almacen 31 SCRA 562 articulated the rule on the matter:
Courts and judges are not sacrosanct. They should and expect
critical evaluation of their performance. For like the executive
and the legislative branches, the judiciary is rooted in the soil
of democratic society, nourished by the periodic appraisal of
the citizens whom it is expected to serve.
Well-recognized therefore is the right of a lawyer, both as an
officer of the court and as a citizen, to criticize in properly
respectful terms and through legitimate channels the acts of
courts and judges. The reason is that:
“An attorney does not surrender, in assuming the important
place accorded to him in the administration of justice, his right
as a citizen to criticize the decisions of the courts in a fair and
respectful manner, and the independence of the bar, as well as
the judiciary, has always been encouraged by the courts. Xxxx
As stated in State v. Bee Pub. Co. (83 N.W. 204)
“Our decisions and all our official actions are public property,
and the press and the people have the undoubted right to
comment on them, criticize and censure them as they see fit.
Judicial officers, like other public servants, must answer for
their official actions before the chancery of public opinion.”
Criticisms though should be respectful and done in good faith
according the the same case of Almacen.
Finally in A.M. No. 10-10-4-SC - Re: Letter of the UP Law
Faculty Entitled "Restoring Integrity: A Statement by the
University of the Philippines College of Law on the
Allegations of Plagiarism and Misrepresentation in the
Supreme Court", the Court directed the Dean and other
signatories of the Statement to show cause why they should
not be disciplined as members of the Bar for violation of
certain Canons of the Code of Professional Responsibility. After
complying with said order, the Court resolved to admonish the
Dean and warn the members of the faculty reasoning in part
thus:
"It is not contested that respondents herein are, by law and
jurisprudence, guaranteed academic freedom and indisputably,
they are free to determine what they will teach their students
and how they will teach. We must point out that there is
nothing in the Show Cause resolution that dictates upon
respondents the subject matter they can teach and the manner
of instruction. Moreover, it is not inconsistent with the
principle of academic freedom for this Court to subject lawyers
who teach law to disciplinary action for contumacious conduct
and speech, coupled with undue intervention in favor of a
party in a pending case, without observing proper procedure,
even if purportedly done in their capacity as teachers."
The Court further said:
"A novel issue involved in the present controversy, for it has
not been passed upon in any previous case before this Court, is
the question of whether lawyers who are also law professors
can invoke academic freedom as a defense in an administrative
proceeding for intemperate statements tending to pressure the
Court or influence the outcome of a case or degrade the courts.
Applying by analogy the Court's past treatment of the 'free
speech' defense in other bar discipline cases, academic
freedom cannot be successfully invoked by respondents in this
case. The implicit ruling in the jurisprudence discussed above
is that the constitutional right to freedom of expression of
members of the Bar may be circumscribed by their ethical
duties as lawyers to give due respect to the courts and to
uphold the public's faith in the legal profession and the justice
system. To our mind, the reason that freedom of expression
may be so delimited in the case of lawyers applies with greater
force to the academic freedom of the law professors.
It would do well for the Court to remind respondents that, in
view of the broad definition in Cayetano vs. Monsod, lawyers
when they teach law are considered engaged in the practice of
law. Unlike professors in other disciplines and more than
lawyers who do not teach law, respondents are bound by their
oath to uphold the ethical standards of the legal profession.
Thus, their actions as law professors must be measured against
the same canons of professional responsibility applicable to
acts of members of the Bar as the fact of their being law
professors is inextricably entwined with the fact that they are
lawyers."
In dissenting from the majority decision, Associate Justice
Maria Lourdes P. A. Sereno made a very valid argument when
she said, thus:
"In my view of a constitutional democracy, the judiciary is
required to demonstrate moral authority and legitimacy,
not only legality, at all times. It has been said that the rule of
law requires an independent judiciary that fairly, impartially
and promptly applies the law to cases before it. The rule of
law requires a judiciary that is not beholden to any
political power or private interests, whose only loyalty is
to the people and to the Constitution that the people have
ordained as their fundamental governing precept. It
requires integrity, independence and probity of each
individual judge. To be independent, the judiciary must
always remember that it will lose public support and in a
certain sense, its legitimacy, if it does not demonstrate its
integrity in its judicial decisions. It must show a keen nose
for the fundamental importance of upholding right over
wrong.
To maintain a life of intellectual integrity, those of us in
the judiciary must be buffeted by the winds of healthful
criticism. Direct and informed crticism of judicial
decisions strengthens accountability. As Taft is noted for
writing: "nothing tends more to render judges careful in
their decisions and anxiously solicitous to do exact justice
than the consciousness that every act of theirs is to be
subject to the intelligent scrutiny of their fellow men, and
to their candid criticism ... In the case of judges having a life
tenure, indeed, their very independence makes the right freely
to comment on their decisions of greater importance, because
it is the only practical and available instrument in the hands of
a free people to keep such judges alive to the reasonable
demands of those they serve.'

Paragraph 23 of the United Nations Basic Principles on the


Role of Lawyers States:
"Lawyers like other citizens are entitled to freedom of
expression, belief, association and assembly. In particular,
they shall have the right to take part in public discussion
of matters concerning the law, the administration of
justice and the promotion and protection of human rights
and to join or form local, national or international
organizations and attend their meetings, without suffering
professional restrictions by reason of their lawful action
or their membership in a lawful organization...'
xxxThus, faced with the duty of balancing lawyers'
fundamental right to free speech which has now been
expressly recognized in the international arena, against this
Court's desire to preserve its exalted role in society by
discipling for offensive language, this Court must examine
whether it has already encroached into constitutionally-
prohibited interference with the basic rights of individuals.
The realm of public opinion is where the academe,
especially our schools and universities, plays a most
crucial role in ensuring judicial legitimacy. Not by blindly
legitimizing its acts, but by constantly reminding the
judiciary of its presence as a helpful but critical ally. The
academe is not to be an applause machine for the
judiciary; it is to help guide the judiciary by illuminating
new paths for the judiciary to take, by alerting the
judiciary to its inconsistent decisions, and by identifying
gaps in law and jurisprudence.
In this regard, the law school school has a special place.
Phoebe Haddon writes: "the value and preservation of
academic freedom depend on an academic environment
that nurtures, not silences, diverse views. The law school
faculty has a special responsibility to maintain a nurturing
environment for diverse views because of the importance
of the marketplace of ideas in our teaching and the value
we theoretically place on the role of persuasive discourse
in the quest of knowledge. Faculty autonomy takes on
significance because it can protect freedom of inquiry. In a
certain sense, therefore, because the law faculty can
discharge a most meaningful role in keeping the judiciary
honest, there must be a recognition given to the special
role of the law faculty in upholding judicial independence.
The testing ground for integrity in judicial decision-
making is provided in large measure by the legal academe,
when it probes, tests and measures whether judicial
decisions rise up to the definition of just and well-
reasoned decisions as they have been defined by
centuries-old norms of legal reasoning and legal
scholarship. If we have a legal academe that is slothful,
that is not self-disciplined, that covets the closeness to the
powers-that-be which an unprofessional relationship with
the judicial leadership can bring, then this refining role of
the legal academe is lost. The legal academic is the
preserver of the noble standards of legal reasoning and
legal scholarship. It must itself demonstrate strength and
independence and not be punished when doing so.
Those who occupy the most powerful positions in this country
must always be ready to hold themselves accountable to the
people. I believe that the tradition of deference to the judiciary
has limits to its usefulness and these times do not call for the
unbroken observance of such deference as much as they call
for a public demonstration of honesty in all its forms."

Sources:
The Lawyers Review, July 31, 2006, “The Role of the Bench and
the Bar in the Administration of Justice”, by Atty. Leon L. Asa
Monitoring the State of the Judiciary and the Legal Profession,
by Mangahas, la Vina, Rood, Casambre and Arroyo
Philippine Political Law, by Neptali Gonzales
Legal and Judicial Ethics, First Edition 2009 by Atty. Dennis B.
Funa

4. The Importance of Legal Ethics

If we are to be true legal professionals, perhaps together with


Justice Tijam, we should address the following questions:

“How then, do we as members of the bar bring back the honor


and nobility intrinsic to this profession? What can we do as
members of the Philippine Bar to reform the current situation
we are in – where perception of corruption is as sinister as the
occurrence of corruption itself?”

One sure way is, as already said, not only to know and
understand the ethical principles underlying our profession as
lawyers, but also, committing ourselves to them and putting
them into action because legal ethics:

1.) guards against the abuses and ills of the profession


such as dishonesty, deceit, immorality, negligence, slothness,
lack of diligence and the many forms of malpractice of the
members of the bar;

2.) It will raise the standard of the legal profession,


encourage and enhance the respect for the law, assure an
effective and efficient administration of justice, assist in
the keeping and maintenance of law and order in
coordination with the other departments of the
government.

3.) It also provides the basis for the weeding out of the
unfit and the misfit in the legal profession for the
protection of the public. ( Legal and Judicial Ethics, 1994 Ed.
Ernesto Pineda)

Importance of the attributes of humility, mercy and


humaneness-

In an address delivered at the Louisiana State University on


April 30, 1960, Supreme Court Supreme Court Associate
Justice, Joe B. Hamiter said that “neither a judge nor a lawyer
can properly discharge the great responsibilities that are his
unless he displays, in a large measure, humility – that is,
freedom from arrogance.”
Further, he declared that without the attributes of mercy and
humaneness (i.e., being compassionate and caring for others),
“the judge would lack the important ingredients of the perfect
judicial temperament that aid in making workable his relations
with the lawyer and the litigant, while the lawyer lacks not
only the understanding that permits him to appreciate many of
the problems confronting the judiciary, but also the incentive
to stand before the world and be counted as the skillful and
ardent advocate of just causes.”