Requirements “before admission to the bar” or for
continuous “practice of law”, etc.
What is practice of law?
The Court ruled that the term “practice of law” implies
customarily or habitually holding oneself out to the public as a
lawyer for compensation as a source of livelihood or in
consideration of his services. The Court further ruled that
holding one’s self out as a lawyer may be shown by acts
indicative of that purpose, such as identifying oneself as
attorney, appearing in court in representation of a client, or
associating oneself as a partner of a law office for the general
practice of law. - Atty. Noe-Lacsaman v. Atty. Busmente, A.C.
No. 7269 [2011]
Any activity, in and out of court, that requires the application of
law, legal procedure, knowledge, training and experience.
Moreover, we ruled that to engage in the practice of law is to
perform those acts which are characteristics of the
profession; to practice law is to give notice or render any kind
of service, which device or service requires the use in any
degree of legal knowledge or skill. - Query of Atty. Silverio-
Buffe, A.M. No. 08-6-352-RTC [2009]
The practice of law is not limited to the conduct of cases or
litigation in court; it embraces the preparation of pleadings
and other papers incident to actions and special proceedings,
the management of such actions and proceedings on behalf of
clients before judges and courts, and in addition, conveyancing.
In general, all advice to clients, and all action taken for them in
matters connected with the law xxx. - Aguirre v. Rana, B. M.
No. 1036. June 10, 2003
Who may practice law?
Section 1, Rule 138 of the Rules of Court provides:
Who may practice law. – Any person heretofore duly admitted as
a member of the bar, or thereafter admitted as such in
accordance with the provisions of this Rule, and who is in good
and regular standing, is entitled to practice law.
Passing the bar exam is not enough
A bar candidate does not acquire the right to practice law
simply by passing the bar examinations. The practice of law is
a privilege that can be withheld even from one who has passed
the bar examinations, if the person seeking admission had
practiced law without a license.
True, respondent here passed the 2000 Bar Examinations and
took the lawyer’s oath. However, it is the signing in the Roll of
Attorneys that finally makes one a full-fledged lawyer. The
fact that respondent passed the bar examinations is immaterial.
Passing the bar is not the only qualification to become an
attorney-at-law. Respondent should know that two essential
requisites for becoming a lawyer still had to be performed,
namely: his lawyer’s oath to be administered by this Court and
his signature in the Roll of Attorneys. – Aguirre v. Rana, B. M.
No. 1036. June 10, 2003
Signing of the Lawyer’s Oath is not equivalent to “taking the
oath”
Respondent Abad should know that the circumstances which he
has narrated do not constitute his admission to the Philippine
Bar and the right to practice law thereafter. He should know
that two essential requisites for becoming a lawyer still had to
be performed, namely: his lawyer's oath to be administered by
this Court and his signature in the Roll of Attorneys. (Rule 138,
Secs. 17 and 19, Rules of Court.) - Re: Elmo Abad, A. M. No. 139
[1983]
1|P R O B L E M A R E A S I N L E G A L E T H I C S
Whether or not a lawyer is entitled to exemption from
payment of his IBP dues during the time that he was inactive
in the practice of law
Thus, payment of dues is a necessary consequence of
membership in the IBP, of which no one is exempt. This means
that the compulsory nature of payment of dues subsists for as
long as one’s membership in the IBP remains regardless of the
lack of practice of, or the type of practice, the member is
engaged in.
There is nothing in the law or rules which allows exemption
from payment of membership dues. At most, as correctly
observed by the IBP, he could have informed the Secretary of
the Integrated Bar of his intention to stay abroad before he left.
In such case, his membership in the IBP could have been
terminated and his obligation to pay dues could have been
discontinued. - Letter of Atty. Cecilio Y. Arevalo Jr. B.M. 1370
May 9, 2005
Is IBP membership fee a form of tax?
For the court to prescribe dues to be paid by the members does
not mean that the Court is attempting to levy a tax.
A membership fee in the Bar association is an exaction for
regulation, while tax purpose of a tax is a revenue. If the
judiciary has inherent power to regulate the Bar, it follows that
as an incident to regulation, it may impose a membership fee
for that purpose. It would not be possible to put on an
integrated Bar program without means to defray the expenses.
The doctrine of implied powers necessarily carries with it the
power to impose such exaction. - Letter of Atty. Cecilio Y.
Arevalo Jr. B.M. 1370 May 9, 2005
There is no provision under the CPR which prohibits the
unauthorized practice of law
CANON 9 - A lawyer shall not, directly or indirectly, assist in the
unauthorized practice of law.
While a reading of Canon 9 appears to merely prohibit lawyers
from assisting in the unauthorized practice of law, the
unauthorized practice of law by the lawyer himself is
subsumed under this provision, because at the heart of Canon
9 is the lawyer's duty to prevent the unauthorized practice of
law. - Petition to sign in the Roll of Attorneys, Medado, B.M.
No. 2540 [2013]
Examples of unauthorized practice of law
In the cases where we found a party liable for the unauthorized
practice of law, the party was guilty of some overt act like:
1. signing court pleadings on behalf of his client;
2. appearing before court hearings as an attorney;
3. manifesting before the court that he will practice law
despite being previously denied admission to the bar; or
4. deliberately attempting to practice law and
5. holding out himself as an attorney through circulars with full
knowledge that he is not licensed to do so.
- Normatan & Pagayokan v. Balajadia, G.R. No. 169517 2006
Pre-law requirements
Rule 138 Sec. 6. Pre-Law. - No applicant for admission to the bar
examination shall be admitted unless he presents a certificate
that he has satisfied the Secretary of Education that, before he
began the study of law, he had pursued and satisfactorily
completed in an authorized and recognized university or
college, requiring for admission thereto the completion of a
four-year high school course, the course of study prescribed
therein for a bachelor's degree in arts or sciences with any of
the following subjects as major or field of concentration:
political science, logic, english, spanish, history and economics.
Violation of Rule 138 section 6
“[b]y utilizing the school records of his cousin and name-sake,
Juan M. Publico when, in actual fact, petitioner had not
completed Grade VI of his elementary schooling, much less, First
and Second Year High School.”
For all the foregoing, we find and so hold that respondent
falsified his school records, by making it appear that he had
finished or completed Grade VI elementary and First and
Second Year high school, when in truth and in fact he had not,
thereby violating the provisions of Sections 5 and 6, Rule 127
of the Rules of Court, which require completion by a bar
examinee or candidate of the prescribed courses in elementary,
high, pre-law and law school, prior to his admission to the
practice of law. - In re: Juan Publico,Petition for Reinstatement
in the Roll of Attorneys February 20, 1981
Applicant should be ready to present evidence of good moral
character
When applicants seek admission to the bar, they have placed
their character at issue. Therefore, the applicant bears the
burden of producing information proving good moral character.
- Mitchell Simon , Nick Smith and Nicole Negowetti
Grossly immoral act
A grossly immoral act is one that is so corrupt and false as to
constitute a criminal act or so unprincipled or disgraceful as to
be reprehensible to a high degree.  It is a willful, flagrant, or
shameless act which shows a moral indifference to the opinion
of respectable members of the community. - Figueroa v.
Barranco, Jr. SBC Case No. 519 1997
Is breach of promise to marry gross immorality?
• Respondent was prevented from taking the lawyer’s oath in
1971 because of the charges of gross immorality made by
complainant.    To recapitulate, respondent bore an
illegitimate child with his sweetheart, Patricia Figueroa,
who also claims that he did not fulfill his promise to
marry her after he passes the bar examinations.
• We find that these facts do not constitute gross immorality
warranting the permanent exclusion of respondent from
the legal profession.    His engaging in premarital sexual
relations with complainant and promises to marry
suggests a doubtful moral character on his part but the
same does not constitute grossly immoral conduct.    The
Court has held that to justify suspension or disbarment the
act complained of must not only be immoral, but grossly
immoral. -  Figueroa v. Barranco, Jr. SBC Case No. 519 1997
Good moral character v. Rehabilitation
When an applicant for admission to the bar has committed first-
degree murder, a crime that demonstrates an extreme lack of
good moral character, he must make an extraordinary showing
of present good moral character to establish that he or she is
qualified to be admitted to the practice of law xxx.
To show rehabilitation, [one] must show that he has accepted
responsibility for his criminal conduct.
Rehabilitation is a necessary, but not sufficient, ingredient of
good moral character of bar applicant who had been convicted
of a serious felony; applicant must establish his current good
moral character, independent of and in addition to, evidence
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of rehabilitation. - In re: James Joseph Hamm 123 P.3d 652
[2005]
Rehabilitation is not enough
• Even assuming that [one] has established rehabilitation,
showing rehabilitation from criminal conduct does not, in
itself, establish good moral character.
• Rehabilitation is a necessary, but not sufficient, ingredient
of good moral character. An applicant must establish his
current good moral character, independent of and in
addition to, evidence of rehabilitation.
• Even assuming that he has established rehabilitation,
showing rehabilitation from criminal conduct does not, in
itself, establish good moral character. - In re: James Joseph
Hamm 123 P.3d 652 [2005]
What is an“upright character”?
'Upright character' is something more than an absence of bad
character. It means that he [an applicant for admission] must
have conducted himself as a man of upright character ordinarily
would, should, or does. Such character expresses itself not in
negatives nor in following the line of least resistance, but quite
often in the will to do the unpleasant thing if it is right, and the
resolve not to do the pleasant thing if it is wrong. - In re: James
Joseph Hamm 123 P.3d 652 [2005]
Past and Present moral character
We also agree with Hamm that, under the Rule applicable to
Hamm's application, our concern must be with the applicant's
present moral character. In Greenberg, we explained that "it is
[the applicant's] moral character as of now with which we are
concerned." xxx Past misconduct, however, is not irrelevant.
Rather, this Court must determine what past bad acts reveal
about an applicant's current character. - In re: James Joseph
Hamm 123 P.3d 652 [2005]
Effect of prior criminal conviction
“Although a prior conviction is not conclusive of a lack of
present good moral character, ... it adds to his burden of
establishing present good character by requiring convincing
proof of his full and complete rehabilitation.”- In re: James
Joseph Hamm 123 P.3d 652 [2005]
Is poverty of litigant a justification to engage in illegal
practice of law?
The defense of respondent that "his participation (sic) for
defendants' cause was gratuitous as they could not engage the
services of counsel by reason of poverty and the absence of
one in the locality" cannot, even if true, carry the day for him,
- Zeta v. Malinao, A.M. No. P-220, December 20, 1978
Can a lawyer-detainee practice law?
As a matter of law, when a person indicted for an offense is
arrested, he is deemed placed under the custody of the law. He
is placed in actual restraint of liberty in jail so that he may be
bound to answer for the commission of the offense. He must be
detained in jail during the pendency of the case against him,
unless he is authorized by the court to be released on bail or on
recognizance. Let it be stressed that all prisoners whether
under preventive detention or serving final sentence can not
practice their profession nor engage in any business or
occupation, or hold office, elective or appointive, while in
detention. This is a necessary consequence of arrest and
detention. – PP v. Hon. Maceda and Javellana G.R. No.
89591-96; January 24, 2000
What is the effect of non-payment of IBP dues?
Rule 139-A, Section 10 which provides that "default in the
payment of annual dues for six months shall warrant
suspension of membership in the Integrated Bar, and default in
such payment for one year shall be a ground for the removal of
the name of the delinquent member from the Roll of
Attorneys.“ - Santos, Jr. V. Atty. Llamas A.C No. 4749 [2000]
Misrepresenting to the public and the courts that he had paid
his IBP dues
• By indicating "IBP-Rizal 259060" in his pleadings and
thereby misrepresenting to the public and the courts that
he had paid his IBP dues to the Rizal Chapter, respondent
is guilty of violating the Code of Professional Responsibility
which provides:
• Rule 1.01 - A lawyer shall not engage in unlawful,
dishonest, immoral or deceitful conduct.
• CANON 7 - A LAWYER SHALL AT ALL TIMES UPHOLD THE
INTEGRITY AND DIGNITY OF THE LEGAL PROFESSION, AND
SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR.
• CANON 10 - A LAWYER OWES CANDOR, FAIRNESS AND GOOD
FAITH TO THE COURT.
• Rule 10.01 - A lawyer shall not do any falsehood, nor
consent to the doing of any court; nor shall he mislead or
allow the court to be misled by any artifice. - Santos, Jr. V.
Atty. Llamas A.C No. 4749 [2000]
Is a “senior citizen” lawyer exempted from payment of ITR
also exempted from payment of IBP dues?
While it is true that R.A. No. 7432, §4 grants senior citizens
"exemption from the payment of individual income taxes:
provided, that their annual taxable income does not exceed the
poverty level as determined by the National Economic and
Development Authority (NEDA) for that year," the exemption
does not include payment of membership or association dues.
- Santos, Jr. V. Atty. Llamas A.C No. 4749 [2000]
Intent is necessary to be guilty of unauthorized practice of
law
In several cases, we have ruled that the unauthorized practice
of law by assuming to be an attorney and acting as such
without authority constitutes indirect contempt which is
punishable by fine or imprisonment or both. The liability for the
unauthorized practice of law under Section 3(e), Rule 71 of the
Rules of Court is in the nature of criminal contempt and the
acts are punished because they are an affront to the dignity and
authority of the court, and obstruct the orderly administration
of justice. In determining liability for criminal contempt, well-
settled is the rule that intent is a necessary element, and no
one can be punished unless the evidence makes it clear that
he intended to commit it. - Normatan & Pagayokan v.
Balajadia, G.R. No. 169517 2006
Does giving up Philippine citizenship automatically result into
lost of membership in the Philippine bar?
The Constitution provides that the practice of all professions in
the Philippines shall be limited to Filipino citizens save in cases
prescribed by law. Since Filipino citizenship is a requirement for
admission to the bar, loss thereof terminates membership in
the Philippine bar and, consequently, the privilege to engage in
the practice of law. In other words, the loss of Filipino
citizenship ipso jure terminates the privilege to practice law
in the Philippines. The practice of law is a privilege denied to
foreigners. - Petition for leave to resume practice of
law,Dacanay B.M. No. 1678 December 17, 2007
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May a lawyer who has lost his Filipino citizenship still practice
law in the Philippines?
The Constitution provides that the practice of all professions in
the Philippines shall be limited to Filipino citizens save in cases
prescribed by law. Since Filipino citizenship is a requirement for
admission to the bar, loss thereof terminates membership in the
Philippine bar and, consequently, the privilege to engage in the
practice of law. In other words, the loss of Filipino citizenship
ipso jure terminates the privilege to practice law in the
Philippines. The practice of law is a privilege denied to
foreigners. - Petition for leave to resume practice of
law,Dacanay B.M. No. 1678 December 17, 2007
Effect of reacquisition of Filipino citizenship
A Filipino lawyer who becomes a citizen of another country and
later re-acquires his Philippine citizenship under R.A. No. 9225,
remains to be a member of the Philippine Bar. – Petition to
reacquire the privilege to practice law in the Philippines,
Muneses, B.M. 2112 [2012]
Requirements before one can resume practice of law after
reacquiring Filipino citizenship
Before a lawyer who reacquires Filipino citizenship pursuant to
RA 9225 can resume his law practice, he must first secure from
this Court the authority to do so, conditioned on:
(a) the updating and payment in full of the annual membership
dues in the IBP;
(b) the payment of professional tax;
(c) the completion of at least 36 credit hours of mandatory
continuing legal education; this is specially significant to
refresh the applicant/petitioner’s knowledge of Philippine laws
and update him of legal developments and
(d) the retaking of the lawyer’s oath which will not only remind
him of his duties and responsibilities as a lawyer and as an
officer of the Court, but also renew his pledge to maintain
allegiance to the Republic of the Philippines. – Petition for leave
to resume practice of law, Dacanay B.M. No. 1678 December 17,
2007
What is the purpose for requiring the retaking of Lawyer’s
Oath?
The retaking of the lawyer’s oath which will not only remind
him of his duties and responsibilities as a lawyer and as an
officer of the Court, but also renew his pledge to maintain
allegiance to the Republic of the Philippines.
Citizenship requirement in order to practice law in the
Philippines
Constitution Art. 12 Section 14. xxx. The practice of all
professions in the Philippines shall be limited to Filipino citizens,
save in cases prescribed by law.
Requirements for all applicants for admission to the bar
Section 2, Rule 138 (Attorneys and Admission to Bar) of the Rules
of Court:
Requirements for all applicants for admission to the bar. –
Every applicant for admission as a member of the bar must be a
citizen of the Philippines, at least twenty-one years of age, of
good moral character, and a resident of the Philippines; and
must produce before the Supreme Court satisfactory evidence
of good moral character, and that no charges against him,
involving moral turpitude, have been filed or are pending in
any court in the Philippines.
Continuing requirements to practice law
The second requisite for the practice of law ― membership in
good standing ― is a continuing requirement. This means
continued membership and, concomitantly, payment of annual
membership dues in the IBP; payment of the annual professional
tax; compliance with the mandatory continuing legal education
requirement; faithful observance of the rules and ethics of the
legal profession and being continually subject to judicial
disciplinary control. -Petition for leave to resume practice of
law,Dacanay B.M. No. 1678 December 17, 2007
Phases of admission to the bar
Moreover, admission to the bar involves various phases such as
furnishing satisfactory proof of educational, moral and other
qualifications; passing the bar examinations; taking the lawyer’s
oath and signing the roll of attorneys and receiving from the
clerk of court of this Court a certificate of the license to
practice. - Petition for leave to resume practice of law,Dacanay
B.M. No. 1678 December 17, 2007
Can a successful examinee take his oath before any person
allowed by law to administer an oath?
Rule 138 Sec. 17. Admission and oath of successful applicants. -
An applicant who has passed the required examination, or has
been otherwise found to be entitled to admission to the bar,
shall take and subscribe before the Supreme Court the
corresponding oath of office.
Inasmuch as the oath as lawyer is a prerequisite to the practice
of law and may be taken only, before the Supreme Court, by
those authorized by the latter to engage in such practice xxx. –
PP v. De Luna, et. al. G.R. Nos. L-10236-48. January 31, 1958
Section 2. Section 41 of the Administrative Code of 1987 is
hereby amended to read as follows
Sec. 41. Officers Authorized to Administer Oath. - The following
officers have general authority to administer oaths:
President;
Vice-President;
Members and Secretaries of both Houses of the Congress;
Members of the Judiciary;
Secretaries of Departments;
provincial governors and lieutenant-governors;
city mayors;
municipal mayors;
bureau directors;
regional directors;
clerks of courts;
registrars of deeds;
other civilian officers in the public service of the government of
the Philippines whose appointments are vested in the President
and are subject to confirmation by the Commission on
Appointments;
all other constitutional officers;
and notaries public."
Duties of Attorneys
Rule 138 section 20 - It is the duty of an attorney:
(a) To maintain allegiance to the Republic of the Philippines and
to support the Constitution and obey the laws of the Philippines;
(b) To observe and maintain the respect due to the courts of
justice and judicial officers;
(c) To counsel or maintain such actions or proceedings only as
appear to him to be just, and such defenses only as he believes
to be honestly debatable under the law;
(d) To employ, for the purpose of maintaining the causes
confided to him, such means only as are consistent with truth
and honor, and never seek to mislead the judge or any judicial
officer by an artifice or false statement of fact or law;
(e) To maintain inviolate the confidence, and at every peril to
himself, to preserve the secrets of his client, and to accept no
4|P R O B L E M A R E A S I N L E G A L E T H I C S
compensation in connection with his client's business except
from him or with his knowledge and approval;
(f) To abstain from all offensive personality and to advance no
fact prejudicial to the honor or reputation of a party or witness,
unless required by the justice of the cause with which he is
charged;
(g) Not to encourage either the commencement or the
continuance of an action or proceeding, or delay any man's
cause, from any corrupt motive or interest;
(h) Never to reject, for any consideration personal to himself,
the cause of the defenseless or oppressed;
(i) In the defense of a person accused of crime, by all fair and
honorable means, regardless of his personal opinion as to the
guilt of the accused, to present every defense that the law
permits, to the end that no person may be deprived of life or
liberty, but by due process of law.
What is a lawyer’s proof of authority to practice of law?
Rule 138 Sec. 18. Certificate. - The Supreme Court shall
thereupon admit the applicant as a member of the bar for all
the courts of the Philippines, and shall direct an order to be
entered to that effect upon its records, and that a certificate of
such record be given to him by the clerk of court, which
certificate shall be his authority to practice.
Failure to sign in the Roll of Attorneys
Petitioner did not sign in the Roll of Attorneys for 32 years. What
he had signed at the entrance of the PICC was probably just an
attendance record.
As Medado is not yet a full-fledged lawyer, we cannot suspend
him from the practice of law. However, we see it fit to impose
upon him a penalty akin to suspension by allowing him to sign
in the Roll of Attorneys one ( 1) year after receipt of this
Resolution. For his transgression of the prohibition against the
unauthorized practice of law, we likewise see it fit to fine him in
the amount of P32,000. – Petition to sign in the Roll of
Attorneys, Medado, B.M. No. 2540 [2013]
Certificate of Membership & Certificate of Membership in
Good Standing in IBP
Certificate of Membership in the Integrated Bar of the
Philippines as well as a Certificate of Membership in Good
Standing with the Quezon City Chapter of the Integrated Bar of
the Philippines do not constitute his admission to the
Philippine Bar and the right to practice law thereafter. - Re:
Elmo Abad, A. M. No. 139 [1983]
Requirements after flunking the bar 3 times
Sec. 16. Failing candidates to take review course. - Candidates
who have failed the bar examinations for three times shall be
disqualified from taking another examination unless they show
to the satisfaction of the court that they have enrolled in and
passed regular fourth year review classes as well as attended
a pre-bar review course in a recognized law school.
The professors of the individual review subjects attended by
the candidates under this rule shall certify under oath that the
candidates have regularly attended classes and passed the
subjects under the same conditions as ordinary students and the
ratings obtained by them in the particular subject.
Authority to appear in behalf of a client
Sec. 21. Authority of attorney to appear. - An attorney is
presumed to be properly authorized to represent any cause in
which he appears, and no written “power of attorney” is
required to authorize him to appear in court for his client,
but the presiding judge may, on motion of either party and on
reasonable grounds therefor being shown, require any attorney
who assumes the right to appear in a case to produce or
prove the authority under which he appears, and to disclose,
whenever pertinent to any issue, the name of the person who
employed him, and may thereupon make such order as justice
requires. An attorney wilfully appearing in court for a person
without being employed, unless by leave of the court, may be
punished for contempt as an officer of the court who has
misbehaved in his official transactions.
A “Counselor” is not an “Attorney”
The title of "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 in good standing;
and it is they only who are authorized to practice law in this
jurisdiction.
His disinclination to use the title of "counselor" does not warrant
his use of the title of attorney. - Alawi v. Alauya, A.M. SDC-97-2-
P. February 24, 1997
Prohibited acts of an examinee
Rule 138 Sec. 12. Committee of examiners. - Examinations shall
be conducted by a committee of bar examiners to be appointed
by the Supreme Court. This committee shall be composed of a
Justice of the Supreme Court, who shall act as chairman, and
who shall be designated by the court to serve for one year, and
eight members of the bar of the Philippines, who shall hold
office for a period of one year. The names of the members of
this committee shall be published in each volume of the official
reports.
Rule 138 Sec. 13. Disciplinary measures. - No candidate shall
endeavor to influence any member of the committee, and
during examination the candidates shall not communicate
with each other nor shall they give or receive any assistance.
The candidate who violates this provision, or any other provision
of this rule, shall be barred from the examination, and the same
to count as a failure against him, and further disciplinary action,
including permanent disqualification, may be taken in the
discretion of the court.
Requirements after flunking the bar 3 times
Enrollment and completion of pre-bar review course is an
additional requirement under Rule 138 of the Rules of Court for
those who failed the bar examinations for three (3) or more
times. - In re: Purisima, B.M. Nos. 979 and 986 [2002]
Can an “indefinite suspension” from the practice of law
prohibit a lawyer from filing a citizen or taxpayer suit?
Petitioner Alan F. Paguia (petitioner), as citizen and taxpayer,
filed this original action for the writ of certiorari to invalidate
President Gloria Macapagal-Arroyo’s nomination of respondent
former Chief Justice Hilario G. Davide, Jr. (respondent Davide)
as Permanent Representative to the United Nations (UN) for
violation of Section 23 of Republic Act No. 7157 (RA 7157), the
Philippine Foreign Service Act of 1991.
In their separate Comments, respondent Davide, the Office of
the President, and the Secretary of Foreign Affairs (respondents)
raise threshold issues against the petition. First, they question
petitioner’s standing to bring this suit because of his
indefinite suspension from the practice of law.
An incapacity to bring legal actions peculiar to petitioner also
obtains. Petitioner’s suspension from the practice of law bars
him from performing “any activity, in or out of court, which
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requires the application of law, legal procedure, knowledge,
training and experience.” Certainly, preparing a petition raising
carefully crafted arguments on equal protection grounds and
employing highly legalistic rules of statutory construction to
parse Section 23 of RA 7157 falls within the proscribed conduct.
- Paguia v. Office of the President, G.R. No. 176278 [2010]
Law Student Rule
RULE 138-A LAW STUDENT PRACTICE RULE

SC Circular No. 19, prom. Dec. 19, 1986
SECTION 1. Conditions for Student Practice. — A law student
who has successfully completed his 3rd year of the regular
four-year prescribed law curriculum and is enrolled in a
recognized law school's clinical legal education program
approved by the Supreme Court, may appear without
compensation in any civil, criminal or administrative case
before any trial court, tribunal, board or officer, to present
any indigent clients accepted by the legal clinic of the law
school.
Sec. 2. Appearance. — The appearance of the law student
authorized by this rule, shall be under the direct supervision
and control of a member of the Integrated Bar of the
Philippines duly accredited by the law school. Any and all
pleadings, motions, briefs, memoranda or other papers to be
filed, must be signed by the supervising attorney for and in
behalf of the legal clinic.
The phrase "direct supervision and control" requires no less than
the physical presence of the supervising lawyer during the
hearing.
Sec. 3. Privileged communications. — The Rules safeguarding
privileged communications between attorney and client shall
apply to similar communications made to or received by the law
student, acting for the legal clinic.
Sec. 4. Standards of conduct and supervision. — The law student
shall comply with the standards of professional conduct
governing members of the Bar. Failure of an attorney to
provide adequate supervision of student practice may be a
ground for disciplinary action.
Rule 138 (RRC) Sec. 34. By whom litigation conducted. - In the
court of a justice of the peace a party may conduct his
litigation in person, with the aid of an agent or friend
appointed by him for that purpose, or with the aid of an
attorney.
In any other court, a party may conduct his litigation
personally or by aid of an attorney, and his appearance must
be either personal or by a duly authorized member of the bar.
Rule 138 section 34 does not apply in cases before the RTC
The Rules are clear. In municipal courts, the litigant may be
assisted by a friend, agent, or an attorney. However, in cases
before the regional trial court, the litigant must be aided by a
duly authorized member of the bar. The rule invoked by the
Torcinos applies only to cases filed with the regional trial court
and not to cases before a municipal court. - Bulacan v. Torcino,
G.R. No. L-44388 January 30, 1985
But for the protection of the parties and in the interest of
justice, the requirement for appearances in regional trial
courts and higher courts is more stringent. – Bulacan v. Torcino,
G.R. No. L-44388 January 30, 1985
Reconciling the 2 rules
There is really no problem as to the application of Section 34 of
Rule 138 and Rule 138-A. In the former, the appearance of a
non-lawyer, as an agent or friend of a party litigant, is expressly
allowed, while the latter rule provides for conditions when a law
student, not as an agent or a friend of a party litigant, may
appear before the courts. - Cruz v. Mina GR no. 154207 April
27, 2007
The phrase“In the court of a justice of the peace”means:
The phrase “In the court of a justice of the peace” in Bar
Matter No. 730 is subsequently changed to “In the court of a
municipality” as it now appears in Section 34 of Rule 138, thus:
SEC. 34. By whom litigation is conducted. — In the Court of a
municipality a party may conduct his litigation in person, with
the aid of an agent or friend appointed by him for that purpose,
or with the aid of an attorney. In any other court, a party may
conduct his litigation personally or by aid of an attorney and his
appearance must be either personal or by a duly authorized
member of the bar. - Cruz v. Mina GR no. 154207 April 27, 2007
The term "Municipal Trial Courts" as used in these Rules shall
include:
1. Metropolitan Trial Courts,
2. Municipal Trial Courts in Cities,
3. Municipal Trial Courts, and
4. Municipal Circuit Trial Courts.
- Cruz v. Mina GR no. 154207 April 27, 2007
BAR MATTER NO.730 

June 13, 1997
For the guidance of the bench and bar, we hold that a law
student appearing before the Regional Trial Court under Rule
138-A should at all times be accompanied by a supervising
lawyer.
Law student can appear without supervision of a lawyer
The rule, however, is different if the law student appears before
an inferior court, where the issues and procedure are
relatively simple. In inferior courts, a law student may appear
in his personal capacity without the supervision of a lawyer.
Thus, a law student may appear before an inferior court as an
agent or friend of a party without the supervision of a
member of the bar.
Caution when one act as his own attorney
This provision means that in a litigation, parties may personally
do everything during its progress -- from its commencement to
its termination. When they, however, act as their own attorneys,
they are restricted to the same rules of evidence and
procedure as those qualified to practice law; otherwise,
ignorance would be unjustifiably rewarded. Individuals have
long been permitted to manage, prosecute and defend their own
actions; and when they do so, they are not considered to be
in the practice of law. "One does not practice law by acting for
himself any more than he practices medicine by rendering first
aid to himself.“ – Maderada v. Judge Mediodea, A.M. No.
MTJ-02-1459. October 14, 2003
Appearing as his own attorney is not “practice of law”
Clearly, in appearing for herself, complainant was not
customarily or habitually holding herself out to the public as a
lawyer. Neither was she demanding payment for such services.
Hence, she cannot be said to be in the practice of law. -
Maderada v. Judge Mediodea, A.M. No. MTJ-02-1459. October
14, 2003
6|P R O B L E M A R E A S I N L E G A L E T H I C S
The law allows persons who are not lawyers by profession to
litigate their own case in court. The right of complainant to
litigate her case personally cannot be taken away from her. -
Maderada v. Judge Mediodea, A.M. No. MTJ-02-1459. October
14, 2003
UNAUTHORIZED PRACTICE OF LAW
CANON 9 - A LAWYER SHALL NOT, DIRECTLY OR INDIRECTLY,
ASSIST IN THE UNAUTHORIZED PRACTICE OF LAW.
Rule 9.01 - A lawyer shall not delegate to any unqualified
person the performance of any task which by law may only be
performed by a member of the bar in good standing.
Threefold rationale behind the Law Student Practice Rule
1. to ensure that there will be no miscarriage of justice as a
result of incompetence or inexperience of law students, who,
not having as yet passed the test of professional competence,
are presumably not fully equipped to act a counsels on their
own;
2. to provide a mechanism by which the accredited law school
clinic may be able to protect itself from any potential
vicarious liability arising from some culpable action by their law
students; and
3. to ensure consistency with the fundamental principle that
no person is allowed to practice a particular profession without
possessing the qualifications, particularly a license, as required
by law.
Presiding judge has no discretion
The matter of allowing a law student to appear before the court
unaccompanied by a supervising lawyer cannot be left to the
discretion of the presiding judge. The rule clearly states that
the appearance of the law student shall be under the direct
control and supervision of a member of the Integrated Bar of
the Philippines duly accredited by law schools. The rule must be
strictly construed because public policy demands that legal work
should be entrusted only to those who possess tested
qualifications, are sworn to observe the rules and ethics of the
legal profession and subject to judicial disciplinary control. -
BAR MATTER NO. 730 June 13, 1997
Appearance of a law student in inferior courts does not
require supervision of lawyer
For relatively simple litigation before municipal courts, the
Rules still allow a more educated or capable person in behalf
of a litigant who cannot get a lawyer. - Bulacan v. Torcino, G.R.
No. L-44388 January 30, 1985
The rule, however, is different if the law student appears
before an inferior court, where the issues and procedure are
relatively simple. In inferior courts, a law student may appear
in his personal capacity without the supervision of a lawyer. -
BAR MATTER NO. 730 June 13, 1997
A law student may appear before an inferior court as an agent or
friend of a party without the supervision of a member of the
bar. - BAR MATTER NO. 730 June 13, 1997
The respondent alleges that the complaint is irregular as it was
signed not by the plaintiff but by one who was not a member of
the bar and who designated himself merely as "Friend counsel
for the Plaintiff." The appellants argue that the municipal court
did not acquire jurisdiction over the case.
They invoke Section 5, Rule 7 which states that [SEC. 5.
Signature and address] [e]very pleading of a party represented
by an attorney shall be signed by at least one attorney of
record in his individual name, whose address shall be stated. A
party who is not represented by an attorney shall sign his
pleading and state his address.
DECIDE.
Held:
Under the facts of this case, however, the applicable provision is
Section 34, Rule 138 of the Rules of Court which states:
SEC. 34. By whom litigation is conducted. In the Court of a
municipality a party may conduct his litigation in person with
the aid of an agent or friend appointed by him for that
purpose, or with the aid of an attorney. In any other court, a
party may conduct his litigation personally or by aid of an
attorney and his appearance must be either personal or by a
duly authorized member of the bar. - Bulacan v. Torcino, G.R.
No. L-44388 January 30, 1985
Supervising lawyer should be the one to sign the pleadings
Rule 7 (RRC) Section 3. Signature and address. — Every pleading
must be signed by the party or counsel representing him,
stating in either case his address which should not be a post
office box.
Signing amounts to certification of lawyer
Rule 7 (RRC) Section 3. xxx The signature of counsel constitutes
a certificate by him that he has read the pleading; that to the
best of his knowledge, information, and belief there is good
ground to support it; and that it is not interposed for delay.
supervision of a lawyer before inferior courts. - Cruz v. Mina GR
no. 154207 April 27, 2007
Fiscal’s role when there is a private prosecutor
The permission of the fiscal is not necessary for one to enter
his appearance as private prosecutor. In the first place, the
law does not impose this condition. What the fiscal can do, if
he wants to handle the case personally is to disallow the private
prosecutor's participation, whether he be a lawyer or not, in
the trial of the case. On the other hand, if the fiscal desires the
active participation of the private prosecutor, he can just
manifest to the court that the private prosecutor, with its
approval, will conduct the prosecution of the case under his
supervision and control. – Cantimbuhan v. Hon. Cruz, Jr., G.R.
No. L-51813-14 November 29, 1983
Sections 4 and 15, Rule 110 of the Rules of Court
SEC. 4. Who must prosecute criminal actions. — All criminal
actions either commenced by complaint or by information shall
be prosecuted under the direction and control of the fiscal.
xxx xxx xxx
SEC. 15. Intervention of the offended party in criminal action. —
Unless the offended party has waived the civil action or
expressly reserved the right to institute it separately from the
criminal action, and subject to the provisions of section 4
hereof, he may intervene, personally or by attorney, in the
prosecution of the offense.

Effect of unsigned pleadings

Rule 7 (RRC) Section 3. An unsigned pleading produces no legal
effect. However, the court may, in its discretion, allow such
deficiency to be remedied if it shall appear that the same was
due to mere inadvertence and not intended for delay. Counsel
who deliberately files an unsigned pleading,xxx, shall be
subject to appropriate disciplinary action.

Can a third year law student appear as private prosecutor in a

criminal case and within the jurisdiction of the inferior court?
The petitioner, describing himself as a third year law student,
justifies his appearance as private prosecutor on the bases of
Section 34 of Rule 138 of the Rules of Court.

The petitioner furthermore avers that his appearance was with

the prior conformity of the public prosecutor and a written
authority of Mariano Cruz appointing him to be his agent in the
prosecution of the said criminal case.

The MeTC denied permission for petitioner to appear as private

prosecutor on the ground that Circular No. 19 (1997) governing
limited law student practice in conjunction with Rule 138-A of
the Rules of Court (Law Student Practice Rule) should take
precedence over the ruling of the Court laid down in
Cantimbuhan (1983).
Held:
Petitioner expressly anchored his appearance on Section 34 of
Rule 138. The court a quo must have been confused by the fact
that petitioner referred to himself as a law student in his entry
of appearance. Rule 138-A should not have been used by the
courts a quo in denying permission to act as private
prosecutor against petitioner for the simple reason that Rule
138-A is not the basis for the petitioner’s appearance.
Section 34, Rule 138 is clear that appearance before the inferior
courts by a non-lawyer is allowed, irrespective of whether or
not he is a law student. As succinctly clarified in Bar Matter
No. 730, by virtue of Section 34, Rule 138, a law student may
appear, as an agent or a friend of a party litigant, without the

7|P R O B L E M A R E A S I N L E G A L E T H I C S
Solicitation of legal services
Code of Professional Responsibility
CANON 2 - A LAWYER SHALL MAKE HIS LEGAL SERVICES AVAILABLE
IN AN EFFICIENT AND CONVENIENT MANNER COMPATIBLE WITH
THE INDEPENDENCE, INTEGRITY AND EFFECTIVENESS OF THE
PROFESSION.
Rule 2.01 - A lawyer shall not reject, except for valid reasons,
the cause of the defenseless or the oppressed.
Rule 2.02 - In such cases, even if the lawyer does not accept a
case, he shall not refuse to render legal advice to the person
concerned if only to the extent necessary to safeguard the
latter's rights.
Rule 2.03 - A lawyer shall not do or permit to be done any act
designed primarily to solicit legal business.
Rule 2.04 - A lawyer shall not charge rates lower than those
customarily prescribed unless the circumstances so warrant.
CANON 3 - A LAWYER IN MAKING KNOWN HIS LEGAL SERVICES
SHALL USE ONLY TRUE, HONEST, FAIR, DIGNIFIED AND OBJECTIVE
INFORMATION OR STATEMENT OF FACTS.
Rule 3.01 - A lawyer shall not use or permit the use of any false,
fraudulent, misleading, deceptive, undignified, self-laudatory or
unfair statement or claim regarding his qualifications or legal
services.
Rule 3.02 - In the choice of a firm name, no false, misleading or
assumed name shall be used. The continued use of the name of
a deceased partner is permissible provided that the firm
indicates in all its communications that said partner is
deceased.
Rule 3.03 - Where a partner accepts public office, he shall
withdraw from the firm and his name shall be dropped from the
firm name unless the law allows him to practice law currently.
Rule 3.04 - A lawyer shall not pay or give anything of value to
representatives of the mass media in anticipation of, or in
return for publicity to attract legal business.
Rule 138
Sec. 27. Attorneys removed or suspended by Supreme Court on
what grounds. - A member of the bar may be removed or
suspended from his office as attorney by the Supreme Court for
any deceit, malpractice, or other gross misconduct in such
office, grossly immoral conduct, or by reason of his conviction of
a crime involving moral turpitude, or for any violation of the
oath which he is required to take before admission to practice,
or for a wilfull disobedience of any lawful order of a superior
court, or for corruptly or wilfully appearing as an attorney for a
party to a case without authority so to do. The practice of
soliciting cases at law for the purpose of gain, either personally
or through paid agents or brokers, constitutes malpractice.
Rule 2.03 should be read in connection with Rule 1.03 of the CPR
8|P R O B L E M A R E A S I N L E G A L E T H I C S
Rule 2.03 - A lawyer shall not do or permit to be done any act
designed primarily to solicit legal business.
RULE 1.03. A LAWYER SHALL NOT, FOR ANY CORRUPT MOTIVE OR
INTEREST, ENCOURAGE ANY SUIT OR PROCEEDING OR DELAY ANY
MAN’S CAUSE.
This rule proscribes “ambulance chasing” (the solicitation of
almost any kind of legal business by an attorney, personally or
through an agent in order to gain employment) as a measure to
protect the community from barratry and champerty. -
Linsangan v. Atty. Tolentino, A.C. No. 6672, September 4, 2009
Do not “pirate” a client
CANON 8 - A LAWYER SHALL CONDUCT HIMSELF WITH COURTESY,
FA I R N E S S A N D C A N D O R TO WA R D S H I S P R O F E S S I O N A L
COLLEAGUES, AND SHALL AVOID HARASSING TACTICS AGAINST
OPPOSING COUNSEL.
Rule 8.02 - A lawyer shall not, directly or indirectly, encroach
upon the professional employment of another lawyer, however,
it is the right of any lawyer, without fear or favor, to give proper
advice and assistance to those seeking relief against unfaithful
or neglectful counsel.
1. The following elements distinguish the legal profession
from a business:
2. A duty of public service, of which the emolument is a by-
product, and in which one may attain the highest eminence
without making much money;
3. A relation as an “officer of the court” to the administration
of justice involving thorough sincerity, integrity and
reliability;
4. A relation to clients in the highest degree of fiduciary;
5. A relation to colleagues at the bar characterized by candor,
fairness, and unwillingness to resort to current business
methods of advertising and encroachment on their
practice, or dealing directly with their clients. - Atty. Khan
Jr. v. Atty. Simbillo, A.C. No. 5299, August 19, 2003
General rule
Hence, lawyers are prohibited from soliciting cases for the
purpose of gain, either personally or through paid agents or
brokers. Such actuation constitutes malpractice, a ground for
disbarment. - Linsangan v. Atty. Tolentino, A.C. No. 6672,
September 4, 2009
“Solicitation or obtaining of professional employment by any
means of communication." - Geffen v. Moss, 53 Cal.App.3d 215,
125 Cal.Rptr. 687 [1975]
Solicitation or Ambulance chasing
We need not labor the point that solicitation or ambulance
chasing, so-called, either directly or indirectly through the
services of runners or others, is conduct which is reprehensible
and inimicable to the traditions and best interests of the legal
profession. Not only does it provoke derision and disrespect in
the eyes of the public, but it is an overreaching of the other
members of the profession who adhere to the standards fixed by
canons of ethics and the dictates of good conscience. To permit
such conduct to continue undeterred could only result in
unsavory competitions and consequences materially detrimental
to the dignity and honor of the legal profession as a whole. - In
re Krasner 204 N.E.2d 10 (1965)
Ambulance chasing
This rule proscribes “ambulance chasing” (the solicitation of
almost any kind of legal business by an attorney, personally or
through an agent in order to gain employment) as a measure to
protect the community from barratry and champerty. -
Linsangan v. Atty. Tolentino, A.C. No. 6672, September 4, 2009
Champertous contract
Champerty n. an agreement between the party suing in a
lawsuit (plaintiff) and another person, usually an attorney, who
agrees to finance and carry the lawsuit in return for a
percentage of the recovery (money won and paid.) In Common
Law this was illegal on the theory that it encouraged lawsuits.
Contingent fee is valid
Contingent fee contracts are permitted in this jurisdiction
because they redound to the benefit of the poor client and the
lawyer "especially in cases where the client has meritorious
cause of action, but no means with which to pay for legal
services unless he can, with the sanction of law, make a
contract for a contingent fee to be paid out of the proceeds of
litigation. Oftentimes, the contingent fee arrangement is the
only means by which the poor clients can have their rights
vindicated and upheld."
As long as the lawyer does not exert undue influence on his
client, that no fraud is committed or imposition applied, or that
the compensation is clearly not excessive as to amount to
extortion, a contract for contingent fee is valid and
enforceable. – Fabillo v. IAC G.R. No. L-68838 March 11, 1991
Acceptance fee
An acceptance fee is not a contingent fee, but is an absolute fee
arrangement which entitles a lawyer to get paid for his efforts
regardless of the outcome of the litigation. - Yu v. Bondal, A.C.
No. 5534, January 17, 2005
Touters - someone who advertises for customers in an especially
brazen way.
Common barratry consisting of frequently stirring up suits and
quarrels between individuals.
Only way to announce legal service
For this reason, lawyers are only allowed to announce their
services by publication in reputable law lists or use of simple
professional cards. - Linsangan v. Atty. Tolentino, A.C. No. 6672,
September 4, 2009
Nonetheless, the solicitation of legal business is not altogether
proscribed. However, for solicitation to be proper, it must be
compatible with the dignity of the legal profession. If it is made
in a modest and decorous manner, it would bring no injury to
9|P R O B L E M A R E A S I N L E G A L E T H I C S
the lawyer and to the bar. - Atty. Khan Jr. v. Atty. Simbillo, A.C.
No. 5299, August 19, 2003
For this reason, lawyers are only allowed to announce their
services by publication in reputable law lists or use of simple
professional cards. Linsangan v. Atty. Tolentino, A.C. No. 6672,
September 4, 2009
Professional calling cards may only contain the following details:
(a) lawyer’s name;
(b) name of the law firm with which he is connected;
(c) address;
(d) telephone number and
(e) special branch of law practiced.
- Linsangan v. Atty. Tolentino, A.C. No. 6672, September 4,
2009
Brief biographical and informative data
Such data must not be misleading and may include only the
following:
1. a statement of the lawyer’s name and the names of his
professional associates;
2. addresses, telephone numbers, cable addresses;
3. branches of law practiced;
4. date and place of birth and admission to the bar;
5. schools attended with dates of graduation, degrees and other
educational distinctions;
6. public or quasi-public offices;
7. posts of honor;
8. legal authorships;
9. legal teaching positions;
10. membership and offices in bar associations and committees
thereof, in legal and scientific societies and legal fraternities;
11. the fact of listings in other reputable law lists;
12. the names and addresses of references; and,
13. with their written consent, the names of clients regularly
represented. - Atty. Khan Jr. v. Atty. Simbillo, A.C. No. 5299,
August 19, 2003
Acceptable law list publication
The law list must be a reputable law list published primarily for
that purpose; it cannot be a mere supplemental feature of a
paper, magazine, trade journal or periodical which is published
principally for other purposes. For that reason, a lawyer may not
properly publish his brief biographical and informative data in a
daily paper, magazine, trade journal or society program. Nor
may a lawyer permit his name to be published in a law list the
conduct, management, or contents of which are calculated or
likely to deceive or injure the public or the bar, or to lower
dignity or standing of the profession. - Atty. Khan Jr. v. Atty.
Simbillo, A.C. No. 5299, August 19, 2003
Acceptable publication
The use of an ordinary simple professional card is also
permitted. The card may contain only a statement of his name,
the name of the law firm which he is connected with, address,
telephone number and special branch of law practiced. The
publication of a simple announcement of the opening of a law
firm or of changes in the partnership, associates, firm name or
office address, being for the convenience of the profession, is
not objectionable. - Atty. Khan Jr. v. Atty. Simbillo, A.C. No.
5299, August 19, 2003
Telephone directory
He may likewise have his name listed in a telephone directory
but not under a designation of special branch of law. - Atty.
Khan Jr. v. Atty. Simbillo, A.C. No. 5299, August 19, 2003
Whether or not the firm of Velasquez, Rodriguez, Respicio,
Ramos, Nidea, and Prado may call itself “A law Firm Of St.
Thomas More and Associate Members”
We agree with the OBC. Rule 3.02 is clear. No name not
belonging to any of the partners or associates may be used in
the firm name for any purpose. In one case, we have ruled that
the use of the firm name of a foreign law firm is unethical
because that firm is not authorized to practice law in this
jurisdiction. In this case, “The Law Firm of St. Thomas More and
Associate Members” is not a law firm in this jurisdiction or even
in any other jurisdiction. A “St. Thomas More and Associates” or
STMA is in fact the socio-political ministry or the couples for
Christ, a Christian family-renewal community. - PP v. Gonzalez,
Jr., G.R. No. 139542 June 10, 2003
To appellate to the name of the lawyers “The Law Firm of St.
Thomas More and Associate Members” indeed appears
misleading. It implies that St. Thomas More is a Law Firm when
in fact it is not it would also convey to the public the impression
that the lawyers are members of the law firm which does not
exist. To the public, it would seem that the purpose or intention
of adding “The Law Firm of St. Thomas More and Associates
Members” is to bask in the name of a Saint, although that may
not really, be the purpose or intention of the lawyers. The
appellation only tends to confuse the public and in a way
demean both the saints and the legal profession whose members
must depend on their own name and record and merit and not
on the name/glory of other persons living or dead. – PP v.
Gonzalez, Jr., G.R. No. 139542 June 10, 2003
Philippine Daily Inquirer, which reads:
“ANNULMENT OF MARRIAGE Specialist 532-4333/521-2667.”
- Atty. Khan Jr. v. Atty. Simbillo, A.C. No. 5299, August 19,
2003
Thus, the use of simple signs stating the name or names of the
lawyers, the office and residence address and fields of practice,
as well as advertisement in legal periodicals bearing the same
10 | P R O B L E M A R E A S I N L E G A L E T H I C S
brief data, are permissible. Even the use of calling cards is now
acceptable. Publication in reputable law lists, in a manner
consistent with the standards of conduct imposed by the canon,
of brief biographical and informative data is likewise allowable.
- Atty. Khan Jr. v. Atty. Simbillo, A.C. No. 5299, August 19, 2003
Calling card of Atty. Tolentino
Front
NICOMEDES TOLENTINO
LAW OFFFICE
CONSULTANCY & MARITIME SERVICES
W/ FINANCIAL ASSISTANCE
Fe Marie L. Labiano
Paralegal
1st MIJI Mansion, 2nd Flr. Rm. M-01
6th Ave., cor M.H. Del Pilar Fax: (632) 362-7821
Tel: 362-7820
Grace Park, Caloocan City Cel.: (0926) 2701719
Back
SERVICES OFFERED:
CONSULTATION AND ASSISTANCE
TO OVERSEAS SEAMEN
REPATRIATED DUE TO ACCIDENT,
INJURY, ILLNESS, SICKNESS, DEATH
AND INSURANCE BENEFIT CLAIMS
ABROAD.
Complainant alleged that respondent, with the help of paralegal
Fe Marie Labiano, convinced his clients to transfer legal
representation. Respondent promised them financial assistance
and expeditious collection on their claims. To induce them to
hire his services, he persistently called them and sent them text
messages.
To support his allegations, complainant presented the
sworn affidavit of James Gregorio attesting that Labiano tried to
prevail upon him to sever his lawyer-client relations with
complainant and utilize respondent’s services instead, in
exchange for a loan of P50,000.
Moreover, by engaging in a money-lending venture with his
clients as borrowers, respondent violated Rule 16.04:
Rule 16.04 – A lawyer shall not borrow money from his client
unless the client’s interests are fully protected by the nature of
the case or by independent advice. Neither shall a lawyer lend
money to a client except, when in the interest of justice, he has
to advance necessary expenses in a legal matter he is handling
for the client. - Linsangan v. Atty. Tolentino, A.C. No. 6672,
September 4, 2009
The rule is that a lawyer shall not lend money to his client. The
only exception is, when in the interest of justice, he has to
advance necessary expenses (such as filing fees, stenographer’s
fees for transcript of stenographic notes, cash bond or premium
for surety bond, etc.) for a matter that he is handling for the
client.
The rule is intended to safeguard the lawyer’s independence of
mind so that the free exercise of his judgment may not be
adversely affected. It seeks to ensure his undivided attention to
the case he is handling as well as his entire devotion and fidelity
to the client’s cause. - Linsangan v. Atty. Tolentino, A.C. No.
6672, September 4, 2009
Lending money to client
If the lawyer lends money to the client in connection with the
client’s case, the lawyer in effect acquires an interest in the
subject matter of the case or an additional stake in its outcome.
Either of these circumstances may lead the lawyer to consider
his own recovery rather than that of his client, or to accept a
settlement which may take care of his interest in the verdict to
the prejudice of the client in violation of his duty of undivided
fidelity to the client’s cause. - Linsangan v. Atty. Tolentino, A.C.
No. 6672, September 4, 2009
Uninformative fact
Somewhat more troubling is appellant's listing, in large capital
letters, that he was a member of the Bar of the Supreme Court
of the United States. The emphasis of this relatively
uninformative fact is at least bad taste. - In re: R.M.J. 455 U.S.
191 [1982]
Including a government lawyer in a business card
Thus, while he may not be actually and directly employed with
the firm, the fact that his name appears on the calling card as a
partner in the Baligod, Gatdula, Tacardon, Dimailig & Celera
Law Offices give the impression that he is connected therein and
may constitute an act of solicitation and private practice which
is declared unlawful under Republic Act No. 6713. - Samonte v.
Atty. Gatdula A.M. No. P-99-1292 [1999]
A verified complaint, sought to enjoin Juan G. Collas, Jr. and
nine other lawyers from practicing law under the name of Baker
& McKenzie, a law firm organized in Illinois
We hold that Baker & McKenzie, being an alien law firm, cannot
practice law in the Philippines (Sec. 1, Rule 138, Rules of Court).
As admitted by the respondents in their memorandum, Baker &
McKenzie is a professional partnership organized in 1949 in
Chicago, Illinois with members and associates in 30 cities around
the world. Respondents, aside from being members of the
Philippine bar, practicing under the firm name of Guerrero &
Torres, are members or associates of Baker & Mckenzie. -
Dacanay v. Baker & McKenzie, et. al. Adm. Case No. 2131 [1985]
As pointed out by the Solicitor General, respondents' use of the
firm name Baker & McKenzie constitutes a representation that
being associated with the firm they could "render legal services
of the highest quality to multinational business enterprises and
others engaged in foreign trade and investment“. This is
unethical because Baker & McKenzie is not authorized to
practice law here. - Dacanay v. Baker & McKenzie, et. al. Adm.
Case No. 2131 [1985]
Director of Religious Affairs v. Bayot, 
 needs no artificial stimulus to generate it and to magnify his
A.C. No. L-1117, March 20, 1944
Sunday Tribune of June 13, 1943, which reads as follows:
Marriage license promptly secured thru our assistance & the
annoyance of delay or publicity avoided if desired, and marriage
arranged to wishes of parties. Consultation on any matter free
for the poor. Everything confidential.
Legal assistance service
12 Escolta, Manila, Room, 105
Tel. 2-41-60.
Admonition to a young lawyer
11 | P R O B L E M A R E A S I N L E G A L E T H I C S
"The most worth and effective advertisement possible, even for
a young lawyer, . . . is the establishment of a well-merited
reputation for professional capacity and fidelity to trust. This
cannot be forced but must be the outcome of character and
conduct.“ - Director of Religious Affairs v. Bayot, A.C. No.
L-1117, March 20, 1944
Unacceptable advertisement
LUIS B. TAGORDA
Attorney
Notary Public
CANDIDATE FOR THIRD MEMBER
Province of Isabela
(NOTE. — As notary public, he can execute for you a deed of
sale for the purchase of land as required by the cadastral office;
can renew lost documents of your animals; can make your
application and final requisites for your homestead; and can
execute any kind of affidavit. As a lawyer, he can help you
collect your loans although long overdue, as well as any
complaint for or against you. Come or write to him in his town,
Echague, Isabela. He offers free consultation, and is willing to
help and serve the poor.)
Volunteer [legal] advice is malpractice
It is unprofessional for a lawyer to volunteer advice to bring a
lawsuit, except in rare cases where ties of blood, relationship or
trust make it his duty to do so. Stirring up strife and litigation is
not only unprofessional, but it is indictable at common law. -
Canons of Professionals Ethics adopted by the American Bar
Association in 1908 and by the Philippine Bar Association in
1917. Canons 27 and 28 of the Code of Ethics - In re: Tagorda,
53 Phil. 37 (1929)
Your best advertisement as a lawyer
We repeat, the canon of the profession tell us that the best
advertising possible for a lawyer is a well-merited reputation for
professional capacity and fidelity to trust, which must be earned
as the outcome of character and conduct.
Good and efficient service to a client as well as to the
community has a way of publicizing itself and catching public
attention. That publicity is a normal by-product of effective
service which is right and proper. A good and reputable lawyer
success. He easily sees the difference between a normal by-
product of able service and the unwholesome result of
propaganda. - Ulep vs. Legal Clinic 223 SCRA 378
Prohibited advertisement or solicitation In re: Tagorda, 53 Phil.
37 (1929)
But solicitation of business by circulars or advertisements, or by
personal communications or interview not warranted by
personal relations, is unprofessional.
It is equally unprofessional to procure business by indirection
through touters of any kind, whether allied real estate firms or
trust companies advertising to secure the drawing of deeds or
wills or offering retainers in exchange for executorships or
trusteeships to be influenced by the lawyer.
Indirect advertisement for business by furnishing or inspiring
newspaper comments concerning the manner of their conduct,
the magnitude of the interest involved, the importance of the
lawyer's position, and all other like self-laudation, defy the
traditions and lower the tone of our high calling, and are
intolerable.
Best mode of advertisement
The most worthy and effective advertisement possible, even for
a young lawyer, and especially with his brother lawyers, is the
establishment of a well-merited reputation for professional
capacity and fidelity to trust. This cannot be forced, but must
be the outcome of character and conduct. - In re: Tagorda, 53
Phil. 37 (1929)
Law firm with a foreign lawyer as partner
In the year 1904 he made an arrangement with the defendant
Ney, a practicing attorney, to carry on business together, sending
out a circular signed "Ney & Bosque," stating that they had
established an office for the general practice of law in all the
courts of the Islands and that Bosque would devote himself
especially to consultation and office work relating to Spanish
law. The paper was headed "Law Office - Ney & Bosque. Juan G.
Bosque, juris consulto español - C.W. Ney, abogado americano."
Since that time the defendant Bosque has not personally
appeared in the courts, and with one exception, occuring
through an inadvertance, papers from the office were signed not
with the firm name alone nor with any designation of the firm as
attorneys, but with the words "Ney & Bosque - C.W. Ney,
abogado.“ - U.S. vs. Ney and Bosque, 8 Phil. 146 (1907)
Moreover the firm circular in setting forth the establishment of
an office for the general practice of law in all the courts of the
Islands, amounted to an assertion of his right and purpose, not
effectively qualified by the addition that he would devote
himself to consultation and office work relating to Spanish law.
Rule 3.01 - A lawyer shall not use or permit the use of any false,
fraudulent, misleading, deceptive, undignified, self-laudatory or
unfair statement or claim regarding his qualifications or legal
services.
Rule 3.02 - In the choice of a firm name, no false, misleading or
assumed name shall be used. Xxx.
Attorney’s fees and Compensation for legal services
CANON 20 - A LAWYER SHALL CHARGE ONLY FAIR AND
REASONABLE FEES.
Rule 20.01 - A lawyer shall be guided by the following factors in
determining his fees:
(a) the time spent and the extent of the service rendered or
required;
(b) the novelty and difficulty of the questions involved;
(c) The importance of the subject matter;
(d) The skill demanded;
(e) The probability of losing other employment as a result of
acceptance of the proffered case;
(f) The customary charges for similar services and the schedule
of fees of the IBP chapter to which he belongs;
12 | P R O B L E M A R E A S I N L E G A L E T H I C S
(g) The amount involved in the controversy and the benefits
resulting to the client from the service;
(h) The contingency or certainty of compensation;
(i) The character of the employment, whether occasional or
established; and
(j) The professional standing of the lawyer.
Rule 20.02 - A lawyer shall, in case of referral, with the consent
of the client, be entitled to a division of fees in proportion to
the work performed and responsibility assumed.
Rule 20.03 - A lawyer shall not, without the full knowledge and
consent of the client, accept any fee, reward, costs,
commission, interest, rebate or forwarding allowance or other
compensation whatsoever related to his professional
employment from anyone other than the client.
Rule 20.04 - A lawyer shall avoid controversies with clients
concerning his compensation and shall resort to judicial action
only to prevent imposition, injustice or fraud.
Bases for just compensation
With his capital consisting of his brains and with his skill
acquired at tremendous cost not only in money but in
expenditure of time and energy, he is entitled to the
protection of any judicial tribunal against any attempt on the
part of his client to escape payment of his just compensation.–
Masmud v. NLRC, G.R. No. 183385, February 13, 2009
Professional fee is subject to court’s regulatory power
Upon taking his attorney’s oath as an officer of the court, a
lawyer submits himself to the authority of the courts to
regulate his right to charge professional fees.  –Rayos v. Atty.
Hernandez, G.R. No. 169079, February 12, 2007
Reasons why lawyer’s compensation is subject to the
supervision of the court
It follows that a lawyer’s compensation for professional services
rendered is subject to the supervision of the court, not just to
guarantee that the fees he charges and receives remain
reasonable and commensurate with the services rendered, but
also to maintain the dignity and integrity of the legal profession
to which he belongs. – Rayos v. Atty. Hernandez, G.R. No.
169079, February 12, 2007
Collection suit should be the last resort
Rule 20.4 of the Code of Professional Responsibility advises
lawyers to avoid controversies with clients concerning their
compensation and to resort to judicial action only to prevent
imposition, injustice or fraud. Suits to collect fees should be
avoided and should be filed only when circumstances force
lawyers to resort to it. - Pineda v. Atty. De Jesus, et. al. G.R.
No. 155224 August 23, 2006
Rule 138
Sec. 24. Compensation of attorneys; agreement as to fees. - An
attorney shall be entitled to have and recover from his client no
more than a reasonable compensation for his services, with a
view:
1) to the importance of the subject matter of the
controversy,
2) the extent of the services rendered, and
3) the professional standing of the attorney.
No court shall be bound by the opinion of attorneys as expert
witnesses as to the proper compensation, but may disregard
such testimony and base its conclusion on its own professional
knowledge. A written contract for services shall control the
amount to be paid therefor unless found by the court to be
unconscionable or unreasonable.

Section 25, Rule 138 of the Rules of Court:
SEC. 25. Unlawful retention of client’s funds; contempt — When
an attorney unjustly retains in his hands money of his client
after it has been demanded he may be punished for contempt
as an officer of the Court who has misbehaved in his official
transactions; but proceedings under this section shall not be a
bar to a criminal prosecution.
Rule on division of legal fees
Rule 9.02 - A lawyer shall not divide or stipulate to divide a fee
for legal services with persons not licensed to practice law,
except:
(a) Where there is a pre-existing agreement with a partner or
associate that, upon the latter's death, money shall be paid over
a reasonable period of time to his estate or to persons specified
in the agreement; or
(b) Where a lawyer undertakes to complete unfinished legal
business of a deceased lawyer; or
(c) Where a lawyer or law firm includes non-lawyer employees in
a retirement plan even if the plan is based in whole or in part,
on a profit sharing agreement.
CANON 16 - A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND
PROPERTIES OF HIS CLIENT THAT MAY COME INTO HIS
PROFESSION.
 contigent fee of P1,300. It was also provided in the contract
Rule 16.01 - A lawyer shall account for all money or property
collected or received for or from the client.
Rule 16.02 - A lawyer shall keep the funds of each client
separate and apart from his own and those of others kept by
him.
Rule 16.03 - A lawyer shall deliver the funds and property of his
client when due or upon demand. However, he shall have a lien
over the funds and may apply so much thereof as may be
necessary to satisfy his lawful fees and disbursements, giving
notice promptly thereafter to his client. He shall also have a
lien to the same extent on all judgments and executions he has
secured for his client as provided for in the Rules of Court.
Rule 16.04 - A lawyer shall not borrow money from his client
unless the client's interest are fully protected by the nature of
the case or by independent advice. Neither shall a lawyer lend
money to a client except, when in the interest of justice, he has
to advance necessary expenses in a legal matter he is handling
for the client.
This rule is intended to prevent the lawyer from taking
advantage of his influence over the client. – Junio v. Atty.
Grupo, A.C. No. 5020, December 18, 2001
Non-payment of loan is a violation of PCR not
misappropriation or embezzlement
Respondent’s liability is thus not for misappropriation or
embezzlement but for violation of Rule 16.04 of the Code of
Professional Responsibility which forbids lawyers from
borrowing money from their clients unless the latter’s
interests are protected by the nature of the case or by
independent advice. In this case, respondent’s liability is
compounded by the fact that not only did he not give any
security for the payment of the amount loaned to him but
that he has also refused to pay the said amount. His claim
that he could not pay the loan “because circumstances . . . did
not allow it” and that, because of the passage of time, “he
somehow forgot about his obligation” only underscores his
blatant disregard of his obligation which reflects on his honesty
and candor.
13 | P R O B L E M A R E A S I N L E G A L E T H I C S
Whether or not an attorney who was engaged on a contingent
fee basis may, in order to collect his fees, prosecute an
appeal despite his client's refusal to appeal the decision of
the trial court.
A practicing attorney, entered into a written agreement with the
private respondent to appear as her counsel in a petition for
probate of the holographic will. Under the will, a piece of real
property at Sales Street, Quiapo, Manila, was bequeathed to
private respondent. It was agreed that the attorney’s contigent
fee would be thirty-five per cent (35%) of the property that
private respondent may receive upon the probate of the will.
The payment of his fees is contingent and dependent upon
the successful probate of the holographic will. Since the
petition for probate was dismissed by the lower court, the
contingency did not occur. Attorney Leviste is not entitled to his
fee. - Leviste v. CA, G.R. No. L-29184 [1989]
Is the right of a client to enter into a compromise agreement
without the consent of his lawyer defeated by a contrary
written contract ?
It appears from the record that on July 31, 1921, the
respondents by means of a written contract, retained the
petitioner to represent them as their lawyer. The contract fixed
the petitioner's fee at P200 in advance with an additional
that respondent should not compromise the claim against the
defendant in the case without express consent of his lawyer.
Through the sole effort of respondents the case was dismissed
without notice to their counsel.
Right of a client to compromise suit
The client has also an undoubted right to compromise a suit
without the intervention of his lawyer.
Though there is a valid agreement for the payment to the
attorney of a large proportion of the sum recovered in case of
success this does not give the attorney such an interest in the
cause of action that it prevents plaintiff from compromising the
suit. – Rustia v. The Judge of First Instance of Batangas, G.R.
No. L-19695 November 17, 1922
We have recently held that a client has always the right to
settle his cause of action and stop litigation at any stage of the
proceeding, subject, however, to the right of the attorney to
receive compensation for services rendered. - Aro v. The Hon.
Nañawa, G.R. No. L-24163 [1969]
Applies only in civil cases
Rule 1.04 - A lawyer shall encourage his clients to avoid, end or
settle a controversy if it will admit of a fair settlement.
Limitation of client’s right to compromise suit
While We here reaffirm the rule that "the client has an
undoubted right to compromise a suit without the intervention
of his lawyer", We hold that when such compromise is entered
into in fraud of the lawyer, with intent to deprive him of the
fees justly due him, the compromise must be subject to the
said fees, and that when it is evident that the said fraud is
committed in confabulation with the adverse party who had
knowledge of the lawyer's contingent interest or such interest
appears of record and who would benefit under such
compromise, the better practice is to settle the matter of the
attorney's fees in the same proceeding, after hearing all the
affected parties and without prejudice to the finality of the
compromise in so far as it does not adversely affect the rights
of the lawyer. - Aro v. The Hon. Nañawa, G.R. No. L-24163
[1969]
Quantum meruit
The principle of quantum meruit (as much as he deserves) may
be a basis for determining the reasonable amount of attorney’s
fees.
Quantum meruit is a device to prevent undue enrichment based
on the equitable postulate that it is unjust for a person to retain
benefit without paying for it. It is applicable even if there was a
formal written contract for attorney’s fees as long as the agreed
fee was found by the court to be unconscionable. - Atty. Orocio
v. Angulan et. al., G.R. No. 179892-93, January 30, 2009
2 purposes of application Quantum meruit
The recovery of attorney’s fees on this basis is permitted, as in
this case, where there is no express agreement for the payment
of attorney’s fees. Basically, it is a legal mechanism which
prevents an unscrupulous client from running away with the
fruits of the legal services of counsel without paying for it. In
the same vein, it avoids unjust enrichment on the part of the
lawyer himself. - Pineda v. Atty. De Jesus, et. al. G.R. No.
155224 August 23, 2006
When is Quantum meruit authorized
(1) there is no express contract for payment of attorney's fees
agreed upon between the lawyer and the client;
(2) when although there is a formal contract for attorney's fees,
the fees stipulated are found unconscionable or unreasonable by
the court; and
(3) when the contract for attorney's fee's is void due to purely
formal defects of execution;
(4) when the counsel, for justifiable cause, was not able to
finish the case to its conclusion;
(5) when lawyer and client disregard the contract for attorney's
fees, - Rilloza, et. al. v. Eastern Telecommunications Phils.,
Inc., G.R. No. 104600 [1999]
Factors for application of quantum meruit
In fixing a reasonable compensation for the services rendered by
a lawyer on the basis of quantum meruit, factors such as the
time spent, and extent of services rendered; novelty and
difficulty of the questions involved; importance of the subject
matter; skill demanded; probability of losing other employment
as a result of acceptance of the proferred case; customary
charges for similar services; amount involved in the controversy
and the benefits resulting to the client; certainty of
compensation; character of employment; and professional
standing of the lawyer, may be considered. (Atty. Orocio v.
Angulan et. al., G.R. No. 179892-93, January 30, 2009)
The court shall fix the amount
In fixing a reasonable compensation for the services rendered by
a lawyer on the basis of quantum meruit, the elements to be
considered are generally
(1) the importance of the subject matter in
controversy,
(2) the extent of services rendered, and
(3) the professional standing of the lawyer.
A determination of these factors would indispensably require
nothing less than a full-blown trial where private respondents
can adduce evidence to establish the right to lawful attorney's
fees and for petitioner to oppose or refute the same. The trial
court has the principal task of fixing the amount of attorney's
fees. Hence, the necessity of a hearing is beyond cavil. -Rilloza,
14 | P R O B L E M A R E A S I N L E G A L E T H I C S
et. al. v. Eastern Telecommunications Phils., Inc., G.R. No.
104600 [1999]
Champertous contract
"1. On all commission or attorney’s fees that we shall receive
from our clients by virtue of the collection that we shall be able
to effect on their accounts, we shall divide fifty-fifty. Likewise
you are entitled to commission, 50/50 from domestic,
inheritance and commercial from our said clients or in any
criminal cases where they are involved.”
We hold that the said agreement is void because it was
tantamount to malpractice which is "the practice of soliciting
cases at law for the purpose of gain, either personally or
through paid agents or brokers" Sec. 27, Rule 138, Rules of
Court). Malpractice ordinarily refers to any malfeasance or
dereliction of duty committed by a lawyer. Section 27 gives a
special and technical meaning to the term "malpractice" (Act
No. 2828, amending sec. 21 of Act No. 190). – Tan Tek Beng v.
David, A.C. No. 1261. December 29, 1983
Agreement to pay all expenses of proceedings
An agreement whereby an attorney agrees to pay expenses of
proceedings to enforce the client's rights is champertous [JBP
Holding Corp. v. U.S. 166 F. Supp. 324 (1958)]. Such agreements
are against public policy especially where, as in this case, the
attorney has agreed to carry on the action at his own expense in
consideration of some bargain to have part of the thing in
dispute [See Sampliner v. Motion Pictures Patents Co., et al.,
255 F. 242 (1918)]. The execution of these contracts violates the
fiduciary relationship between the lawyer and his client, for
which the former must incur administrative sanctions. - Atty.
Orocio v. Angulan et. al., G.R. No. 179892-93, January 30, 2009
Funding litigation
“[A]s long as litigation and access to the courts remain
expensive, then anyone who has a right that stands in need of
vindication should be able to obtain funding from anyone
willing to offer it and on whatever terms it is offered.” -
Neuberger, From Barretry, Maintenance and Champerty to
Litigation Funding, Speech at Gray’s Inn, May 8, 2013.
Pay the law firm not the handling lawyer
When a client employs the services of a law firm, he does not
employ the services of the lawyer who is assigned to personally
handle the case. Rather, he employs the entire law firm. In the
event that the counsel appearing for the client resigns, the firm
is bound to provide a replacement. - Rilloza, et. al. v. Eastern
Telecommunications Phils., Inc., G.R. No. 104600 [1999]
Retaining lien
Rule 138 Sec. 37. Attorney's liens. — An attorney shall have a
lien upon the funds, documents and papers of his client, which
have lawfully come into his possession and may retain the same
until his lawful fees and disbursements have been paid, and
may apply such funds to the satisfaction thereof. He shall also
have a lien to the same extent upon all judgments for the
payment of money, and executions issued in pursuance of such
judgments, which he has secured in a litigation of his client,
from and after the time when he shall have caused a statement
of his claim of such lien to be entered upon the records of the
court rendering such judgment, or issuing such execution, and
shall have caused written notice thereof to be delivered to his
client and to the adverse party; and he shall have the same right
and power over such judgments and executions as his client
would have to enforce his lien and secure the payment of his
just fees and disbursements."
Charging lien
Rule 138 Section 37. xxx He shall also have a lien to the same
extent upon all judgments for the payment of money, and
executions issued in pursuance of such judgments, which he
has secured in a litigation of his client, from and after the time
when he shall have caused a statement of his claim of such lien
to be entered upon the records of the court rendering such
judgment, or issuing such execution, and shall have caused
written notice thereof to be delivered to his client and to the
adverse party; and he shall have the same right and power over
such judgments and executions as his client would have to
enforce his lien and secure the payment of his just fees and
disbursements."
There must be a favorable judgment
A charging lien to be enforceable as security for the payment of
attorney's fees requires as a condition sine qua non a judgment
for money and execution in pursuance of such judgment secured
in the main action by the attorney in favor of his client. A
charging lien presupposes that the attorney has secured a
favorable money judgment for his client. - Rilloza, et. al. v.
Eastern Telecommunications Phils., Inc., G.R. No. 104600 [1999]
The following are the circumstances to be considered in
determining the compensation of an attorney
1. the amount and character of the services rendered;
2. the labor, time, and trouble involved;
3. the nature and importance of the litigation or business in
which the services were rendered; the responsibility imposed;
4. the amount of money or the value of the property affected by
the controversy, or involved in the employment,
5. the skill and experience called for in the performance of the
services;
6. the professional character and social standing of the
attorney;
7. the results secured; and
8. whether or not the fee is absolute or contingent, it being a
recognized rule that an attorney may properly charge a much a
larger fee when it is to be contingent that when it is not.
9. The financial ability of the defendant may also be considered
not to enhance the amount above a reasonable compensation,
but to determine whether or not he is able to pay a fair and just
compensation for the services rendered, or as incident in
ascertaining the importance and gravity of the interests involved
in the litigation.
Forum does not qualify payment of compensation
We have noted in the beginning that the services here were
rendered in a case of an administrative nature. But that does
not alter the application of the proper rule:
Professional services, to prepare and advocate just claims for
compensation, are as legitimate as services rendered in court
in arguing a cause to convince a court or jury that the claim
presented or the defense set up against a claim presented by
the other party ought to be allowed or rejected. Parties in such
cases require advocates; and the legal profession must have a
right to accept such employment and to receive
compensation for their services. – De Guzman v. Visayan Rapid
Transport Co. Inc. G.R. No. 46396 September 30, 1939
Written contract is not required to prove lawyer-client
relationship
The absence of a written contract will not preclude the finding
that there was a professional relationship which merits
attorney's fees for professional services rendered. Documentary
formalism is not an essential element in the employment of an
attorney; the contract may be express or implied. To establish
15 | P R O B L E M A R E A S I N L E G A L E T H I C S
the relation, it is sufficient that the advice and assistance of
an attorney is sought and received in any matter pertinent to
his profession. An acceptance of the relation is implied on the
part of the attorney from his acting on behalf of his client in
pursuance of a request from the latter. - Dee vs. Court of
Appeals, G.R. No. 77439, August 24, 1989
Options to enforce right to professional fees
A lawyer may enforce his right to his fees by filing the necessary
petition as an incident of the main action in which his services
were rendered or in an independent suit against his client. The
former is preferable to avoid multiplicity of suits. - Pineda v.
Atty. De Jesus, et. al. G.R. No. 155224 August 23, 2006
Only reason to file suit
Rule 20.4 of the Code of Professional Responsibility advises
lawyers to avoid controversies with clients concerning their
compensation and to resort to judicial action only to prevent
imposition, injustice or fraud. Suits to collect fees should be
avoided and should be filed only when circumstances force
lawyers to resort to it. - Pineda v. Atty. De Jesus, et. al. G.R.
No. 155224 August 23, 2006
Two commonly accepted concepts of attorney’s fees
In its ordinary concept, an attorney’s fee is the reasonable
compensation paid to a lawyer by his client for the legal services
he has rendered to the latter. The basis of this compensation is
the fact of his employment by and his agreement with the
client.
In its extraordinary concept, an attorney’s fee is an indemnity
for damages ordered by the court to be paid by the losing party
in a litigation. The basis of this is any of the cases provided by
law where such award can be made, such as those authorized in
Article 2208, Civil Code, and is payable not to the lawyer but to
the client, unless they have agreed that the award shall pertain
to the lawyer as additional compensation or as part thereof. -
Traders Royal Bank Employees Union-Independent v. NLRC G.R.
No. 120592. March 14, 1997
Award of (extraordinary) attorney’s fee is discretionary
The power of this Court to reduce or even delete the award of
attorneys’ fees cannot be denied. Lawyers are officers of the
Court and they participate in the fundamental function of
administering justice. When they took their oath, they
submitted themselves to the authority of the Court and
subjected their professional fees to judicial control. – Pineda v.
Atty. De Jesus, et. al. G.R. No. 155224 August 23, 2006
Contingent fee agreement does not violate Article 1491(5) of
the NCC
The contract of services did not violate said provision of law.
Article 1491 of the Civil Code, specifically paragraph 5 thereof,
prohibits lawyers from acquiring by purchase even at a public or
judicial auction, properties and rights which are the objects of
litigation in which they may take part by virtue of their
profession. The said prohibition, however, applies only if the
sale or assignment of the property takes place during the
pendency of the litigation involving the client's property.
Hence, a contract between a lawyer and his client stipulating a
contingent fee is not covered by said prohibition under
Article 1491 (5) of the Civil Code because the payment of said
fee is not made during the pendency of the litigation but only
after judgment has been rendered in the case handled by the
lawyer. In fact, under the 1988 Code of Professional
Responsibility, a lawyer may have a lien over funds and property
of his client and may apply so much thereof as may be necessary
to satisfy his lawful fees and disbursements. - Fabillo and Tana
v. IAC G.R. No. L-68838 [1991]
Mere demand for delivery of the litigated property is not
unethical
In the instant case, there was no actual acquisition of the
property in litigation since the respondent only made a written
demand for its delivery which the complainant refused to
comply. Mere demand for delivery of the litigated property
does not cause the transfer of ownership, hence, not a
prohibited transaction within the contemplation of Article 1491.
- Ramos v. Atty. Ngaseo, A.C. No. 6210 [2004]
Commission/referral fees prohibited
By openly admitting he divided the Php70,000.00 to other
individuals as commission/referral fees respondent violated Rule
9.02, Canon 9 of the Code of Professional Responsibility which
provides that a lawyer shall not divide or stipulate to divide a
fee for legal services with persons not licensed to practice law. -
Lijauco v. Atty. Terrado, A.C. No. 6317 [2006]
CANON 9 - A LAWYER SHALL NOT, DIRECTLY OR INDIRECTLY,
ASSIST IN THE UNAUTHORIZED PRACTICE OF LAW
Rule 9.02 - A lawyer shall not divide or stipulate to divide a fee
for legal services with persons not licensed to practice law,
except:
(a) Where there is a pre-existing agreement with a partner or
associate that, upon the latter's death, money shall be paid over
a reasonable period of time to his estate or to persons specified
in the agreement; or
(b) Where a lawyer undertakes to complete unfinished legal
business of a deceased lawyer; or
(c) Where a lawyer or law firm includes non-lawyer employees in
a retirement plan even if the plan is based in whole or in part,
on a profit sharing agreement.
Quality of legal service should not vary if rendered for free
It is true that he is a court-appointed counsel. But we do say
that as such counsel de oficio, he has as high a duty to the
accused as one employed and paid by defendant himself.
Because, as in the case of the latter, he must exercise his best
efforts and professional ability in behalf of the person assigned
to his care. His is to render effective assistance. The accused
defendant expects of him due diligence, not mere perfunctory
representation. We do not accept the paradox that
responsibility is less where the defended party is poor. - In
Re: Atty. Adriano, G.R. No. L-26868 [1969]
Rule 14.04 - A lawyer who accepts the cause of a person unable
to pay his professional fees shall observe the same standard of
conduct governing his relations with paying clients.
Case law
Mr. Culpepper sent Mr. Cole a letter in which he confirmed that
he would accept the representation on a contingent fee basis
of one-third "of whatever additional property or money we can
get for you.
After negotiation between Mr. Culpepper and counsel for the
estate of Mr. Cole's mother, Mr. Cole was offered property worth
$21,600.03 over and above what he would have received under
the terms of the decedent's will. Mr. Culpepper thought the
compromise was reasonable and recommended to Mr. Cole that
he accept the offer. However, Mr. Cole refused to settle his
claim for that amount, believing he was entitled to a larger
share of his mother's succession as a forced heir. When Mr.
Culpepper refused to file suit in the matter, Mr. Cole terminated
his representation.
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Pursuant to the parties' agreement, Mr. Culpepper is entitled to
one-third "of whatever additional property or money" he
obtained on behalf of Mr. Cole. It is undisputed that Mr. Cole
recovered no additional property or money as a result of the
litigation against his mother's estate. Because Mr. Cole obtained
no recovery, it follows that Mr. Culpepper is not entitled to any
contingent fee.
Nonetheless, Mr. Culpepper urges us to find that his contingency
should attach to the settlement offer he obtained on behalf of
his client, even though his client refused to accept that offer.
According to Mr. Culpepper, he did the work for which Mr. Cole
retained him, and he is therefore entitled to one-third of the
amount offered in settlement, notwithstanding Mr. Cole's
rejection of the settlement offer.
Decision
To allow Mr. Culpepper to recover a contingent fee under these
circumstances would penalize Mr. Cole for exercising his right
to reject the settlement. We find no statutory or
jurisprudential support for such a proposition. Indeed, this court
has rejected any interpretation of the Rules of Professional
Conduct which would place restrictions on the client's
fundamental right to control the case.
In summary, we find that Mr. Culpepper did not obtain any
recovery on behalf of Mr. Cole. In the absence of a recovery, it
follows that Mr. Culpepper cannot collect a contingent fee for
his services. - Culpepper v. Cole 929 So.2d 1224 [2006]
Acceptance fee is not necessary to establish lawyer-client
relationship
A lawyer-client relationship was established from the very first
moment complainant asked respondent for legal advice
regarding the former’s business. To constitute professional
employment, it is not essential that the client employed the
attorney professionally on any previous occasion. It is not
necessary that any retainer be paid, promised, or charged;
neither is it material that the attorney consulted did not
afterward handle the case for which his service had been
sought. - Burbe v. Atty. Magulta AC No. 99-634. June 10, 2002
“Money down first” policy is unethical
The impropriety lies in the fact that she suggested that
complainant borrow money from Domingo Natavio for the
payment thereof. This act impresses upon the Court that
respondent would do nothing to the cause of complainant’s
mother-in-law unless payment of the acceptance fee is made.
Her duty to render legal services to her client with competence
and diligence should not depend on the payment of
acceptance fee. – Ceniza v. Atty. Rubia, A.C. No. 6166, October
2, 2009
I, do solemnly swear that xxx I will delay no man for money xxx.
Establishment of lawyer-client relationship not influenced by
personal affiliation
Respondent takes further refuge in the intimate and close
relationship existing between himself and the complainant’s
family on the basis of which his legal services were purely
gratuitous or “simply an act of a friend for a friend” with “no
consideration involved.” Unfortunately, his efforts to redeem
the foreclosed property, as already stated, did not produce the
desired result because the mortgagee “would not budge
anymore” and “would not accept the sum offered.”
Thus, the respondent concluded that there was, strictly
speaking, no attorney-client [relationship] existing between
them. Rather, right from the start[,] everything was sort of
personal, he added. xxx This contention has no merit. - Junio v.
Atty. Grupo, A.C. No. 5020. December 18, 2001

Right to a lien versus duty to account
Lawyers who convert the funds entrusted to them are in gross
violation of professional ethics and are guilty of betrayal of
public confidence in the legal profession. It may be true that
they have a lien upon the client’s funds, documents and other
papers that have lawfully come into their possession; that they
may retain them until their lawful fees and disbursements have
been paid; and that they may apply such funds to the
satisfaction of such fees and disbursements. However, these
considerations do not relieve them of their duty to promptly
account for the moneys they received. Their failure to do so
constitutes professional misconduct. In any event, they must
still exert all effort to protect their client’s interest within the
bounds of law. – Burbe v. Atty. Magulta AC No. 99-634. June 10,
2002
Duty of accounting
When a lawyer receives money from a client for a particular
purpose involving the client-attorney relationship, he is bound
to render an accounting to the client showing that the money
was spent for that particular purpose. If the lawyer does not use
the money for the intended purpose, he must immediately
return the money to his client. - Navarro & Presbitero, A.C. No.
9872, January 28, 2014
Change of attorney
Section 26 of Rule 138 of the Revised Rules of Court provides:
"Sec. 26. Change of attorneys -- An attorney may retire at any
time from any action or special proceeding, by the written
consent of his client filed in court. He may also retire at any
time from an action or special proceeding, without the consent
of his client, should the court, on notice to the client and
attorney, and on hearing, determine that he ought to be allowed
to retire. In case of substitution, the name of the attorney
newly employed shall be entered on the docket of the court in
place of the former one, and written notice of the change shall
be given to the adverse party.
Withdrawal of counsel
A lawyer may retire at any time from any action or special
proceeding with the written consent of his client filed in court
and copy thereof served upon the adverse party. Should the
client refuse to give his consent, the lawyer must file an
application with the court. The court, on notice to the client
and adverse party, shall determine whether he ought to be
allowed to retire. The application for withdrawal must be
based on a good cause. - Orcino v. Atty. Gaspar, A.C. No. 3773.
September 24, 1997
Grounds for withdrawal
Respondent's withdrawal was made on the ground that "there no
longer exist[ed] the xxx confidence" between them and that
there had been "serious diffferences between them relating to
the manner of private prosecution.“ - Orcino v. Atty. Gaspar,
A.C. No. 3773. September 24, 1997
Court approval required before counsel can withdraw
Assuming, nevertheless, that respondent was justified in
terminating his services, he, however, cannot just do so and
leave complainant in the cold unprotected. The lawyer has no
right to presume that his petition for withdrawal will be granted
by the court. Until his withdrawal shall have been approved, the
lawyer remains counsel of record who is expected by his client
as well as by the court to do what the interests of his client
require. He must still appear on the date of hearing for the
attorney-client relation does not terminate formally until there
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is a withdrawal of record. – Orcino v. Atty. Gaspar, A.C. No.
3773. September 24, 1997
What is a contingency contract
The client and his lawyer may enter into a written contract
whereby the latter would be paid attorney’s fees only if the
suit or litigation ends favorably to the client. This is called a
contingency fee contract. The amount of attorney’s fees in
this contract may be on a percentage basis, and a much higher
compensation is allowed in consideration of the risk that the
lawyer may get nothing if the suit fails.
In the case at bar, the non-EPIRA separated members and
petitioner voluntarily entered into a contingency fee contract
whereby petitioner did not receive any acceptance fee or
appearance/meeting fee. - Atty. Orocio v. Angulan et. al., G.R.
No. 179892-93 [2009]
Why contingency fee is allowed
Contingent fee contracts are permitted in this jurisdiction
because they redound to the benefit of the poor client and the
lawyer “especially in cases where the client has meritorious
cause of action, but no means with which to pay for legal
services unless he can, with the sanction of law, make a
contract for a contingent fee to be paid out of the proceeds of
litigation. Oftentimes, the contingent fee arrangement is the
only means by which the poor clients can have their rights
vindicated and upheld.”- Atty. Orocio v. Angulan et. al., G.R.
No. 179892-93 [2009]
Contingent fee arrangement must be written
It bears to stress that a contingent fee arrangement is valid in
this jurisdiction and is generally recognized as valid and binding
but must be laid down in an express contract. – Felicisima
Mendoza vda. De Robosa v. Atty. Mendoza & Atty. Navarro, Jr.,
A.C. no. 6056, September 09, 2015
Limitations of a contingency agreement
However, in cases where contingent fees are sanctioned by law,
the same should be reasonable under all the circumstances of
the case, and should always be subject to the supervision of a
court, as to its reasonableness, such that under Canon 20 of the
Code of Professional Responsibility, a lawyer is tasked to charge
only fair and reasonable fees. - Atty. Orocio v. Angulan et. al.,
G.R. No. 179892-93 [2009]
Contingent fee to a witness
Witnesses should always testify truthfully and should be free
from any financial inducements that might tempt them to do
otherwise. A lawyer should not pay or agree to pay a non-expert
witness an amount in excess of reimbursement for expenses and
financial loss incident to being a witness;  however, a lawyer may
pay or agree to pay an expert witness a reasonable fee for
services as an expert.   But in no event should a lawyer pay or
agree to pay a contingent fee to any witness. – Swafford v.
Harris, 967 S.W.2d 319 (1998)
Written contract of legal fees is ordinarily controlling
A stipulation on a lawyer’s compensation in a written contract
for professional services ordinarily controls the amount of fees
that the contracting lawyer may be allowed, unless the court
finds such stipulated amount to be unreasonable or
unconscionable. If the stipulated amount for attorney’s fees is
excessive, the contract may be disregarded even if the client
expressed their conformity thereto. Attorney’s fees are
unconscionable if they affront one’s sense of justice, decency or
reasonableness, or if they are so disproportionate to the value
of the services rendered. In such a case, courts are empowered
to reduce the attorney’s fee or fix a reasonable amount thereof
taking into consideration the surrounding circumstances and the
established parameters. - Atty. Orocio v. Angulan et. al., G.R.
No. 179892-93 [2009]
When is an attorney’s fees unconscionable?
Attorney’s fees are unconscionable if they affront one’s sense of
justice, decency or reasonableness, or if they are so
disproportionate to the value of the services rendered. In such a
case, courts are empowered to reduce the attorney’s fee or fix a
reasonable amount thereof taking into consideration the
surrounding circumstances and the established parameters. -
Atty. Orocio v. Angulan et. al., G.R. No. 179892-93 [2009]
Lawyer’s compensation for professional services rendered is
subject to the supervision of the court
Under Section 24, Rule 138 of the Rules of Court, a written
contract for services shall control the amount to be paid
therefor unless found by the court to be unconscionable or
unreasonable.
. It follows that a lawyer’s compensation for professional
services rendered is subject to the supervision of the court, not
just to guarantee that the fees he charges and receives
remain reasonable and commensurate with the services
rendered, but also to maintain the dignity and integrity of the
legal profession to which he belongs. Upon taking his
attorney’s oath as an officer of the court, a lawyer submits
himself to the authority of the courts to regulate his right to
charge professional fees. - Atty. Orocio v. Angulan et. al., G.R.
No. 179892-93 [2009]
The lawyer and the “[Law] Firm”
Choice of a Firm name
Rule 3.02 of the Code of Professional Responsibility which states
that “in the choice of a firm name, no false, misleading or
assumed name shall be used.”
No name not belonging to any of the partners or associates may
be used in the firm name for any purpose. - PP v. Gonzalez, Jr.,
G.R. No. 139542 June 10, 2003
Negligence of clerks in a law firm
Time and again the Court has admonished law firms to adopt a
system of distributing pleadings and notices, whereby lawyers
working therein receive promptly notices and pleadings
intended for them, so that they will always be informed of the
status of their cases.
Their Court has also often repeated that the negligence of clerks
which adversely affect the cases handled by lawyers, is binding
upon the latter. - B.R. Sebastian Enterprises, Inc. v. CA, G.R.
No. L-41862 [1992]
Law firm represents the client
Respondent judge should not have accommodated so many
Motions for Postponement filed by the then ailing Atty. Rosendo
Castillo Sr. because a law firm (Castillo & Castillo), to which the
latter belonged, was really representing the defendants, there
certainly were other competent lawyers who could have handled
the matter. – Sps. Reaport v. Judge Mariano, A.M. No.
MTJ-00-1253. July 11, 2001
Main and branch office constitute one personality
Petitioner's counsel was and is the firm of Ledesma, Saludo and
Associates (and not any particular member or associate of that
firm) which firm happens to have a main office in Makati and a
branch office in Cebu City. The Court notes that both the main
and branch offices operate under one and the same name,
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Saludo Ledesma and Associates. Having represented itself to the
public as comprising a single firm, LSA should not be allowed at
this point to pretend that its main office and its branch office in
effect constitute separate law firms with separate and distinct
personalities and responsibilities. Ouano Arrastre Service Inc. v.
Judge Aleonor, G.R. No. 97664 October 10, 1991
Death of a handling lawyer of the firm
Hence, the death of the latter did not extinguish the lawyer-
client relationship between said firm and petitioner. - B.R.
Sebastian Enterprises, Inc. v. CA, G.R. No. L-41862 [1992]
Duties of Firms and Lawyers When Someone Leaves
A. Ethical Obligation to Communicate to Certain
clients
B. Trust Account Monies
C. Fee Divisions In General
D. Files
E. Phones
• Partners and Associates Leaving Must Abide By Fiduciary
Duties to Firm
Ethical Obligation to Communicate to Certain Clients
1) lawyers have a duty to tell “their” clients that they are
leaving.
2) clients are not chattels – the firm and departing lawyer
cannot decide which clients can stay and which can go – the
clients decide.
Rule of confidentiality in a law firm
Rule 21.04 - A lawyer may disclose the affairs of a client of the
firm to partners or associates thereof unless prohibited by the
client.
Duty to notify a client
“The departing lawyer and responsible members of the law firm
who remain have an ethical obligation to assure that prompt
notice is given to clients on whose active matters she currently
is working.”
Rule 18.04 - A lawyer shall keep the client informed of the
status of his case and shall respond within a reasonable time to
the client's request for information.
Lawyer who has had “significant personal contacts”
A departing lawyer who has had “significant personal contacts”
with the client, should inform the client that the lawyer is
leaving the firm.
Note: this does not mean that an associate who met a client
once or twice and has prepared discovery requests has had
“significant personal contacts” – the standard is that if the
client were asked “which lawyer(s) at the firm represents you?”
the lawyers mentioned would be those that have had“significant
personal contacts.”

Ethical obligations of departing lawyers
In addition to the ethical obligations departing lawyers have,
they also must avoid interfering with the contracts the firm has
with existing clients.
However, the caution to avoid stealing clients must be balanced
against the departing lawyer’s ethical obligation to notify clients
that an attorney is departing.
How to tell clients
The preferred method of advising firm clients about the
impending departure of an attorney is a joint letter from the
firm and departing lawyer to all clients with whom the lawyer
had significant personal contacts.
A letter should advise the clients when the lawyer is leaving
The client has the option of going with the lawyer, staying with
the firm, or getting a new firm
How any advance fee deposit will be treated
A place for the client to sign and return the letter, with
instructions on where their file should go.
Separate letters may be sent by the lawyer (or the firm) to
clients with whom the departing lawyer had substantial personal
contact as long as:
1) the letters do not disparage the firm or the lawyer; and
2) the letters do not involve improper solicitation
Trust Account Monies
Clients that have given the firm an advance fee or advance cost
deposit take the money with them (less earned fees and costs),
if they go with the departing lawyer. While simple in theory,
application sometimes can be problematic.
The“old” firm should write a check, consistent with the written
instructions of the client, to either the client or to the trust
account for the departed lawyer’s new firm.
Fee Divisions In General
In contingent fee cases where some or much of the work was
performed at the existing firm, but the case is going with the
departing lawyer, the firm and lawyer must agree how the
contingent fee will be apportioned among them, based upon
their respective contributions to the case (i.e., quantum
meruit) or based upon terms in the partnership agreement.
But can a departing lawyer keep all of a contingent fee case
that came into
 WON the firm of “Velasquez, Rodriguez, Respicio, Ramos, Nidea,
the old firm but ultimately settled when the lawyer was at a
new firm?
Probably not, according to several cases.
A lawyer may be entitled to only his partnership portion of the
fees earned on a case, even if he performed most of the work
after the dissolution of the firm.
Nevertheless, some courts will find that when a lawyer leaves a
firm and takes a case with him, he may be entitled to the
quantum meruit value of the work he performed.
Client’s interests not be prejudiced when the attorney/client
relationship is terminated
Do not hold client files hostage, even if the client that is leaving
with the lawyer owes the current firm money.
Model Rule 1.16(d) requires that the client’s interests not be
prejudiced when the attorney/client relationship is terminated.
Have the client or a runner from the departed lawyer’s new firm
sign for the file, if it is going to the new firm.
Also, it is appropriate to request in a litigation matter that the
departed lawyer file a substitution of counsel or at least
notification of address change with the court, to assure that the
old firm is still not listed as counsel of record.
Client’s file = paper and electronic documents
When a client asks for their file, you must give them both the
paper and the electronic documents – including emails.
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And remember that the client file is client property, so you
cannot charge the client for the cost of downloading everything
to disks….
Phones
It is ethically inappropriate to have the receptionist tell callers
who are looking for a lawyer who recently left the firm “we
don’t know where he is.” That game is not professional and not
acceptable.
Assure that all staff are instructed to provide the departed
lawyer’s phone number and mailing address.
Also, assign a partner to answer any client inquiries.
Moreover, mail should be forwarded to the departed lawyer.
Partners and Associates Leaving Must Abide By Fiduciary Duties
to Firm
It is worth noting again that lawyers who are leaving a firm have
certain fiduciary duties to the firm to not interfere with the
contracts that the firm has with existing clients, to not use firm
resources to set up their new firm, and to not attempt to steal
away associates and staff while the lawyers are still working for
the firm. - Lynda C. Shely
A lawyer whose spouse is associated with a firm representing
an opposing party
[T]he lawyer should advise the client of all circumstances that
might cause one to question the undivided loyalty of the law
firm and let the client make the decision as to its employment.
If the client prefers not to employ a law firm containing a
lawyer whose spouse is associated with a firm representing an
opposing party, that decision should be respected.
and Prado”may call itself “A law Firm Of St. Thomas More and
Associate Members”.
It implies that St. Thomas More is a Law Firm when in fact it is
not it would also convey to the public the impression that the
lawyers are members of the law firm which does not exist. To
the public, it would seem that the purpose or intention of
adding “The Law Firm of St. Thomas More and Associates
Members” is to bask in the name of a Saint, although that may
not really, be the purpose or intention of the lawyers. The
appellation only tends to confuse the public and in a way
demean both the saints and the legal profession whose members
must depend on their own name and record and merit and not
on the name/glory of other persons living or dead. - PP v.
Gonzalez, Jr., G.R. No. 139542 June 10, 2003
Duties When Switching Firms
• Duties of Lawyers Interviewing With Other Firms
• Screening an “Infected” Lateral Hire
• Death of a Lawyer
Confidentiality between lawyers and clients
CANON 15 - A lawyer shall observe candor, fairness and
loyalty in all his dealings and transactions with his clients
Rule 15.02. - A lawyer shall be bound by the rule on privilege
communication in respect of matters disclosed to him by a
prospective client.
Rule 130 Sec. 24.Disqualification by reason of privileged
communication. — The following persons cannot testify as to
matters learned in confidence:
(b)An attorney cannot, without the consent of his client, be
examined as to any communication made by the client to him,
or his advice given thereon in the course of, or with a view to,
professional employment, nor can an attorney's secretary,
stenographer, or clerk be examined, without the consent of the
client and his employer, concerning any fact the knowledge of
which has been acquired in such capacity;
Canon 21 – A lawyer shall preserve the confidence and secrets of
his client even after the 

attorney-client relation is terminated
Rule 21.01 - A lawyer shall not reveal the confidences or secrets
of his client except;
(a) When authorized by the client after acquainting him of the
consequences of the disclosure;
(b) When required by law;
(c) When necessary to collect his fees or to defend himself, his
employees or associates or by judicial action.
Rule 21.02 - A lawyer shall not, to the disadvantage of his
client, use information acquired in the course of employment,
nor shall he use the same to his own advantage or that of a
third person, unless the client with full knowledge of the
circumstances consents thereto.
Rule 21.03 - A lawyer shall not, without the written consent of
his client, give information from his files to an outside agency
seeking such information for auditing, statistical, bookkeeping,
accounting, data processing, or any similar purpose.
Rule 21.04 - A lawyer may disclose the affairs of a client of the
firm to partners or associates thereof unless prohibited by the
client.
Rule 21.05 - A lawyer shall adopt such measures as may be
required to prevent those whose services are utilized by him,
from disclosing or using confidences or secrets of the clients.
Rule 21.06 - A lawyer shall avoid indiscreet conversation about
a client's affairs even with members of his family.
Rule 21.07 - A lawyer shall not reveal that he has been
consulted about a particular case except to avoid possible
conflict of interest.
Rule 138 of the Rules of Court
Sec. 20. It is the duty of an attorney: (e) to maintain inviolate
the confidence, and at every peril to himself, to preserve the
secrets of his client, and to accept no compensation in
connection with his client's business except from him or with his
knowledge and approval.
Canon 17. A lawyer owes fidelity to the cause of his client and
he shall be mindful of the trust and confidence reposed in him.
Revised Penal Code
Art. 209. Betrayal of trust by an attorney or solicitor. —
Revelation of secrets. — In addition to the proper
administrative action, xxx shall be imposed upon any attorney-
at-law or solicitor ( procurador judicial) who, by any malicious
breach of professional duty or of inexcusable negligence or
ignorance, shall prejudice his client, or reveal any of the
secrets of the latter learned by him in his professional capacity.
The same penalty shall be imposed upon an attorney-at-law or
solicitor (procurador judicial) who, having undertaken the
defense of a client or having received confidential
information from said client in a case, shall undertake the
defense of the opposing party in the same case, without the
consent of his first client.
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Confidentiality is not the same as the attorney-client
privilege
The lawyer’s duty of confidentiality (an ethical duty) is not the
same as the client’s right to assert the attorney client privilege
(a rule of evidence).
The attorney/client privilege extends only to communications
between lawyers and clients relating to legal services and which
the client reasonably believes is confidential.
Any disclosure may waive the attorney/client privilege as to
other otherwise protected matters; not so with the duty of
confidentiality.
The privilege applies only to limiting testimony in a legal
proceeding. The duty of confidentiality limits voluntary
disclosures anywhere.
Why lawyer-client relationships requires confidentiality
Considerations favoring confidentially in lawyer-client
relationships are many and serve several constitutional and
policy concerns. In the constitutional sphere, the privilege
gives flesh to one of the most sacrosanct rights available to the
accused, the right to counsel. If a client were made to choose
between legal representation without effective communication
and disclosure and legal representation with all his secrets
revealed then he might be compelled, in some instances, to
either opt to stay away from the judicial system or to lose the
right to counsel. If the price of disclosure is too high, or if it
amounts to self incrimination, then the flow of information
would be curtailed thereby rendering the right practically
nugatory. The threat this represents against another sacrosanct
individual right, the right to be presumed innocent is at once
self-evident. - Regala et. al. v. Sandiganbayan, G. R. No.
105938 [1996]
Extent of Confidentiality Rule
The confidentiality rule, for example, applies not only to
matters communicated in confidence by the client but also to
all information relating to the representation, whatever its
source. A lawyer may not disclose such information except as
authorized or required by the Rules of Professional Conduct or
other law.
Lawyer’s duty to keep the confidentiality
An effective lawyer-client relationship is largely dependent
upon the degree of confidence which exists between lawyer
and client which in turn requires a situation which encourages a
dynamic and fruitful exchange and flow of information. It
necessarily follows that in order to attain effective
representation, the lawyer must invoke the privilege not as a
matter of option but as a matter of duty and professional
responsibility. - Regala et. al. v. Sandiganbayan, G. R. No.
105938 [1996]
Duty of lawyer when receiving a material not intended for
him
A lawyer who receives on an unauthorized basis materials of an
adverse party that she knows to be privileged or confidential
should, upon recognizing the privileged or confidential nature of
the materials, either refrain from reviewing such materials or
review them only to the extent required to determine how
appropriately to proceed;
She should notify her adversary's lawyer that she has such
materials and should either follow instructions of the adversary's
lawyer with respect to the disposition of the materials, or
refrain from using the materials until a definitive resolution of
the proper disposition of the materials is obtained from a court.
- ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 382
(1994).
General Rule on client’s identity
As a matter of public policy, a client's identity should not be
shrouded in mystery. Under this premise, the general rule in our
jurisdiction as well as in the United States is that a lawyer may
not invoke the privilege and refuse to divulge the name or
identity of this client. - Regala et. al. v. Sandiganbayan, G. R.
No. 105938 [1996]
Reasons advanced for the general rule
First, the court has a right to know that the client whose
privileged information is sought to be protected is flesh and
blood.
Second, the privilege begins to exist only after the attorney-
client relationship has been established. The attorney-client
privilege does not attach until there is a client.
Third, the privilege generally pertains to the subject matter of
the relationship.
Finally, due process considerations require that the opposing
party should, as a general rule, know his adversary. "A party
suing or sued is entitled to know who his opponent is." He
cannot be obliged to grope in the dark against unknown forces.
Exceptions
1. Client identity is privileged where a strong probability
exists that revealing the client's name would implicate that
client in the very activity for which he sought the lawyer's
advice.
2. Where disclosure would open the client to civil liability; his
identity is privileged.
3. Where the government's lawyers have no case against an
attorney's client unless, by revealing the client's name, the
said name would furnish the only link that would form the
chain of testimony necessary to convict an individual of a
crime, the client's name is privileged. - Regala et. al. v.
Sandiganbayan, G. R. No. 105938 [1996]
Summarizing these exceptions, information relating to the
identity of a client may fall within the ambit of the privilege
when the client's name itself has an independent
significance, such that disclosure would then reveal client
confidences. - Regala et. al. v. Sandiganbayan, G. R. No.
105938 [1996]
Communication to commit crime or fraud not privileged
"The reason of the principle which holds such communications
not to be privileged is that it is not within the professional
character of a lawyer to give advice upon such subjects, and
that it is no part of the profession of an attorney or counselor at
law to be advising persons as to how they may commit crimes
or frauds, or how they may escape the consequences of
contemplated crimes and frauds.
The relation of attorney and client cannot exist for the purpose
of counsel in concocting crimes.
The protection which the law affords to communications
between attorney and client has reference to those which are
legitimately and properly within the scope of a lawful
employment, and does not extend to communications made in
contemplation of a crime, or perpetration of a fraud. -
Dissenting opinion, Regala et. al. v. Sandiganbayan, G. R. No.
105938 [1996]
21 | P R O B L E M A R E A S I N L E G A L E T H I C S
It does not extend to those made in contemplation of a crime or
perpetration of a fraud. If the unlawful purpose is avowed, as in
this case, the complainant’s alleged intention to bribe
government officials in relation to his case, the communication
is not covered by the privilege as the client does not consult
the lawyer professionally. It is not within the profession of a
lawyer to advise a client as to how he may commit a crime as
a lawyer is not a gun for hire. Thus, the attorney-client
privilege does not attach, there being no professional
employment in the strict sense. - Genato v. Atty. Silapan, A.C.
No. 4078. July 14, 2003
Cause of client defense is not absolute
Whatever the contours of the line between traditional lawyering
and criminal conduct, they must inevitably be drawn case-by-
case. We refuse to accept the notion that lawyers may do
anything, including violating the law, to zealously advocate their
clients' interests and then avoid criminal prosecution by
claiming that they were "just doing their job." - United States
v. Cueto (7th Cir. 1998) 151 F.3d 620, 634
Permanent nature of duty to keep confidentiality
The duty to maintain inviolate the client’s confidences and
secrets is not temporary but permanent. It is in effect
perpetual for "it outlasts the lawyer’s employment" (Canon 37,
Code of Professional Responsibility) which means even after the
relationship has been terminated, the duty to preserve the
client’s confidences and secrets remains effective.
This obligation to preserve the confidences and secrets of a
client arises at the inception of their relationship. The
protection given to the client is perpetual and does not cease
with the termination of the litigation, nor is it affected by the
party’s ceasing to employ the attorney and retaining another, or
by any other change of relation between them. It even
survives the death of the client. – Genato v. Atty. Silapan, A.C.
No. 4078. July 14, 2003
Secrets or confidential communications must be obtained in a
lawyer-client relationship
The alleged "secrets" of complainant were not specified by him
in his affidavit-complaint. Whatever facts alleged by respondent
against complainant were not obtained by respondent in his
professional capacity but as a redemptioner of a property
originally owned by his deceased son and therefore, when
respondent filed the complaint for estafa against herein
complainant, which necessarily involved alleging facts that
would constitute estafa, respondent was not, in any way,
violating Canon 21. xxx To hold otherwise would be precluding
any lawyer from instituting a case against anyone to protect his
personal or proprietary interests. – Uy v. Atty. Gonzales, A.C.
No. 5280, March 30, 2004
It must be stressed, however, that the privilege against
disclosure of confidential communications or information is
limited only to communications which are legitimately and
properly within the scope of a lawful employment of a lawyer.
- Genato v. Atty. Silapan, A.C. No. 4078. July 14, 2003
Starting point of duty of confidentiality
The moment complainant approached the then receptive
respondent to seek legal advice, a veritable lawyer-client
relationship evolved between the two. Such relationship
imposes upon the lawyer certain restrictions circumscribed by
the ethics of the profession. Among the burdens of the
relationship is that which enjoins the lawyer, respondent in this
instance, to keep inviolate confidential information acquired
or revealed during legal consultations. - Hadjula v. Atty.
Madianda, A.C. No. 6711 [2007]

This duty of confidentiality also extends to prospective clients
even though an attorney-client relationship is never established.
Not a defense to justify breaching the duty of confidentiality
• Lawyer not inclined to handle the client's case after
consultation.
••No formal professional engagement follows the consultation.
No contract whatsoever was executed by the parties to
memorialize the relationship.
- Hadjula v. Atty. Madianda, A.C. No. 6711 [2007]
The essential factors to establish the existence of the
attorney-client privilege communication
(1) Where legal advice of any kind is sought
(2) from a professional legal adviser in his capacity as such,
(3) the communications relating to that purpose,
(4) made in confidence
(5) by the client,
(6) are at his instance permanently protected
(7) from disclosure by himself or by the legal advisor,
(8) except the protection be waived.
- Hadjula v. Atty. Madianda, A.C. No. 6711 [2007]
Characteristics of the Attorney-Client Privilege
 Client's name not considered confidential unless "intertwined"
1. A-C privilege where legal advice is professionally
sought from an attorney.
2. The client must intend the above communication to be
confidential.
3. A-C privilege embraces all forms of communication
and action.
4. As a general rule, A-C privilege also extends to the
attorney’s secretary, stenographer, clerk or agent with reference
to any fact required in such capacity.
5. The above duty is perpetual and is absolutely
privileged from disclosure.


Attorney-Client Privilege cannot be invoked
 935 P.2d 611 (Wash. 1997)
1. There is consent or waiver or client.
2. Such is required by law.
3. Such is made to protect the lawyer’s rights (i.e. to
collect his fees or associates or by judicial action).
4. When such communication are made in contemplation
of a crime or the perpetuation of a fraud.
The principle of client-lawyer confidentiality is given effect
by related bodies of law
• the attorney-client privilege,
• the work product doctrine and
• the rule of confidentiality established in professional
ethics.
• The attorney-client privilege and work-product doctrine
apply in judicial and other proceedings in which a lawyer
may be called as a witness or otherwise required to
produce evidence concerning a client.
The rule of client-lawyer confidentiality applies in situations
other than those where evidence is sought from the lawyer
through compulsion of law.
Confidentiality does not extend to partners and associates
Lawyers in a firm may, in the course of the firm's practice,
disclose to each other information relating to a client of the
22 | P R O B L E M A R E A S I N L E G A L E T H I C S
firm, unless the client has instructed that particular
information be confined to specified lawyers.
Rule 21.04 - A lawyer may disclose the affairs of a client of the
firm to partners or associates thereof unless prohibited by the
client.
Protection from third party
This prohibition also applies to disclosures by a lawyer that do
not in themselves reveal protected information but could
reasonably lead to the discovery of such information by a
third person.
Disclosure of the Client's Identity and Whereabouts
The general rule is that a client's identity and whereabouts are
not covered by the attorney-client privilege, as opposed to
the ethical duty of confidentiality.
However, exceptions have been made if disclosure would
implicate the client in the criminal activity for which legal
advice was sought or "if the net effect of the disclosure would
be to reveal the nature of a client communication." - Charles
McCormick, McCormick on Evidence § 90 (5th ed. 1999)
Lawyer must testify about identity of client who paid with
counterfeit $100 bill.
with confidential information or last link tying client to crime. -
Alexiou v. United States), 39 F.3d 973 (9th Cir. 1994
Client identity is privileged in exceptional cases when disclosure
would provide "last link" in chain of evidence leading to
conclusion that client committed crime, and would reveal
confidential communication between lawyer and client;
Client who accused divorce lawyer of improper sexual advances
may not obtain client list in discovery. - Brett v. Berkowitz, 706
A.2d 509 (Del. 1998)
Lawyer for client sought in hit-and-run accident may withhold
client's identity when disclosure would implicate client in
criminal activity for which legal advice sought. - Dietz v. Doe,
Certain instances where a court order is not involved, courts
have held the client's whereabouts protected

Lawyer may not be compelled to disclose address
of defendant father in child custody proceeding when he
specifically requested that lawyer not reveal the home address
and telephone number of the father and the name and address
of the school the children were attending; information that the
client requests be kept confidential is protected unless
protection permits a fraud or crime or clearly frustrates the
administration of justice. - Brennan v. Brennan, 422 A2d 510 (Pa
SuperCt 1980)
Domestic relations case where confidentiality of address was
necessary for client safety. - Waldman v. Waldman,358 NE2d 521
(1976)
As a rule a lawyer should challenge an order to disclose
information about client
In sum, the attorney-client privilege ordinarily will not cover
the information sought by a subpoena directed to a lawyer. Yet
even when faced with a subpoena seeking fee information or a
client's identity, the lawyer should generally assert the
attorney-client privilege and obtain a court ruling rather than
make his own determination whether the information is
privileged. The existence of exceptions to the general rule
holding that fee and client identity are not privileged, as well as
the lawyer's ethical duty to oppose disclosure of information
learned during a client's representation, make it advisable to
follow this course of action.

A lawyer faced with a subpoena for information about a client

must resist the subpoena if the lawyer's testimony or the
document production would violate either the attorney-client
privilege or the ethical duty of confidentiality and the client
does not consent to the disclosure. - In re Grand Jury Witness,
695 F2d 359 (CA 9 1982); In re Grand Jury Subpoena (U.S.), 831
F2d 225 (CA 11 1987

A lawyer who receives a subpoena to testify about a client may

file a motion to quash asserting the attorney-client privilege,
along with any other possible grounds for refusing to comply.

A subpoena duces tecum issued to a lawyer that makes no

attempt whatsoever to confine its scope to relevant, non-
privileged matters is unenforceable and must be quashed. - U.S.
v. Horn, 976 F2d 1314 (CA9 1992)

Representing a fugitive
Assuming the client is indeed properly characterized as a
fugitive, defense counsel must take into account the boundaries
of permissible advocacy. It bears noting that any physical act
intended to harbor or conceal a fugitive so as to prevent his
discovery or arrest arguably could constitute a separate criminal
violation.

A lawyer “is free to continue to give legal advice to [a fugitive]

client and to represent him before the authorities, as long as
[the lawyer] does nothing to aid the client to escape trial.

Client is under conditions of bail

“Where a client is under conditions of bail and defies a lawful
court order to appear, his 'whereabouts' are not unqualifiedly
protected by the attorney-client privilege, and the attorney
may be compelled to disclose information of the client's
whereabouts." - Commonwealth v. Maguigan,511 A2d 1327 (Pa
SupCt 1986)

Lawyer who learned from client's wife that client had left with
suitcase for "parts unknown" had firm factual basis for believing
client jumped bond and did not intend to appear for trial, thus
had duty to advise court to avoid assisting in criminal act. -
U.S. v. DelCarpio-Cotrina,733 FSupp 95 (DC SFla 1990)

An attorney representing an individual who has violated the

terms of bail and fled the jurisdiction arguably has an even
greater obligation as an officer of the court to seek the
prompt return of the client in compliance with a judicial release
order.

An attorney “may not assist the [fugitive] client in any way that
the lawyer knows will further an illegal or fraudulent
purpose.”- Association of the Bar of the City of New York
Formal Opinion 1999-02

Where an attorney believes, but does not know, conduct to be

illegal or fraudulent, the attorney may act on behalf of the
fugitive client, but “only after assuring him or herself that there
is reasonable support for an argument that the client’s intended
use of the fruits of the representation will not further a
criminal scheme or act. - Association of the Bar of the City of
New York Formal Opinion 1999-02

23 | P R O B L E M A R E A S I N L E G A L E T H I C S
Conflict of interest in a regular lawyer-client relationship
COI is everywhere
Conflicts of interest are not the exclusive headache of large,
urban, multi-office law firms. Conflicts of interest arise within
and affect law practices of every size, geographical location
and discipline. The number of clients, adverse parties, and
interested non-parties with whom attorneys become involved
throughout their careers is truly staggering and invariably
underestimated.
Extreme case of Conflict of Interest
The most obvious conflicts of interest are those in which the
lawyer's personal interests clash with those of the client.
Rule on Conflicting Interests
It is generally the rule based on sound public policy that
attorney cannot represent diverse interest. It is highly improper
to represent both sides of an issue.
Competitor Conflicts
Courts have found that a competitor conflict is present when
the lawyer attempts to represent two competitors on a
material aspect of their competition.
Whose interest?
It is, of course, a hornbook proposition that it is the client, and
not the lawyer, that defines the client's interests and instructs
the lawyer about them.
Degree of involvement
The greater the involvement in the client's affairs the greater
the danger that confidences (where such exist) will be revealed.
“Closed file” conflicts
Involve representation adverse to a former client in the same or
substantially related matters.
Doctrine of “imputed knowledge”
Doctrine of imputed knowledge is based on the assumption that
an attorney, who has notice of matter affecting his client, has
communicated the same to his principal in the course of
professional dealings. The doctrine applies regardless of
whether or not the lawyer actually communicated to the client
what he learned in his professional capacity, the attorney and
his client being one judicial person.
Knowledge of one member of a law firm will be imputed by
inference to all members of that firm; free flow of information
within the partnership.
Preliminary conflict of interest check
Whenever a prospective client seeking legal assistance contacts
an attorney, the attorney should politely but firmly decline to
discuss the matter in detail until a preliminary conflict of
interest check can be performed.
As the adjective suggests, preliminary conflict of interest
checks should ideally be performed before the prospective
client divulges additional confidential information which may
conflict the attorney out of current or future representations.
Rule 15.01. - A lawyer, in conferring with a prospective client,
shall ascertain as soon as practicable whether the matter would
involve a conflict with another client or his own interest, and if
so, shall forthwith inform the prospective client.
24 | P R O B L E M A R E A S I N L E G A L E T H I C S
CANON 21 - A lawyer shall preserve the confidence and
secrets of his client even after the attorney-client relation is
terminated
Rule 21.02 - A lawyer shall not, to the disadvantage of his client,
use information acquired in the course of employment, nor
shall he use the same to his own advantage or that of a third
person, unless the client with full knowledge of the
circumstances consents thereto.
Rule 21.07 - A lawyer shall not reveal that he has been
consulted about a particular case except to avoid possible
conflict of interest.
General Rule in a law firm
Rule 21.04 - A lawyer may disclose the affairs of a client of the
firm to partners or associates thereof unless prohibited by the
client.
An information obtained from a client by a member or assistant
of a law firm is information imparted to the firm. This is not a
mere fiction or an arbitrary rule; for such member or assistant,
as in our case, not only acts in the name and interest of the
firm, but his information, by the nature of his connection with
the firm is available to his associates or employers. – Hilado v.
David, et. Al., G.R. No. L-961, September 21, 1949
CANON 15 - A lawyer shall observe candor, fairness and
loyalty in all his dealings and transactions with his clients
Rule 15.01. - A lawyer, in conferring with a prospective client,
shall ascertain as soon as practicable whether the matter would
involve a conflict with another client or his own interest, and if
so, shall forthwith inform the prospective client.
Rule 15.03. - A lawyer shall not represent conflicting interests
except by written consent of all concerned given after a full
disclosure of the facts.
Rule 15.04. - A lawyer may, with the written consent of all
concerned, act as mediator, conciliator or arbitrator in settling
disputes.
Rule 15.05. - A lawyer when advising his client, shall give a
candid and honest opinion on the merits and probable results of
the client's case, neither overstating nor understating the
prospects of the case.
Rule 15.08. - A lawyer who is engaged in another profession or
occupation concurrently with the practice of law shall make
clear to his client whether he is acting as a lawyer or in another
capacity.
Confidentiality of information is not relevant in COI
The rule on conflict of interests covers not only cases in which
confidential communications have been confided but also those
in which no confidence has been bestowed or will be used. -
Atty. Jalandoni v. Atty. Villarosa, AC 5303, June 15, 2006
Unqualified opposing interest of new and former clients
The rule prohibits a lawyer from representing new clients whose
interests oppose those of a former client in any manner,
whether or not they are parties in the same action or in totally
unrelated cases. - Atty. Jalandoni v. Atty. Villarosa, AC 5303,
June 15, 2006
Another test of the inconsistency of interests is whether the
acceptance of a new relation will prevent an attorney from the
full discharge of his duty of undivided fidelity and loyalty to his
client or invite suspicion of unfaithfulness or double-dealing
in the performance thereof, and also whether he will be called
upon in his new relation to use against his first client any
knowledge acquire in the previous employment.

The first part of the rule refers to cases in which the opposing
parties are present clients either in the same action or in a
totally unrelated case; the second part pertains to those in
which the adverse party against whom the attorney appears is
his former client in a matter which is related, directly or
indirectly, to the present controversy. - Atty. Jalandoni v. Atty.
Villarosa, AC 5303, June 15, 2006
Counsel of corporation cannot represent members of board of
directors
After due deliberation on the wisdom of this doctrine, we are
sufficiently convinced that a lawyer engaged as counsel for a
corporation cannot represent members of the same
corporation’s board of directors in a derivative suit brought
against them. To do so would be tantamount to representing
conflicting interests, which is prohibited by the Code of
Professional Responsibility.(Hornilla v. Atty. Salunat, A.C. No.
5804, July 1, 2003)
Degree of adverse interest, intention or motive are not
material
An attorney owes to his client undivided allegiance. After being
retained and receiving the confidences of the client, he cannot,
without the free and intelligent consent of his client, act both
for his client and for one whose interest is adverse to, or
conflicting with that of his client in the same general matter….
The prohibition stands even if the adverse interest is very
slight; neither is it material that the intention and motive of
the attorney may have been honest- Lim Jr. v. Atty. Villarosa,
A.C. No. 5303, June 15, 2006
As to who initiate engagement is immaterial
To negate any culpability, respondent explained that he did not
offer his legal services to accused Avila and Ilo but it was the
two accused who sought his assistance in executing their
extrajudicial confessions. Nonetheless, he acceded to their
request to act as counsel after apprising them of their
constitutional rights and after being convinced that the accused
were under no compulsion to give their confession. - Perez v.
Atty. Dela Torre, AC 6160, March 30, 2006
Retained counsel of either party cannot act as mediator
without consent
Even respondent’s alleged effort to settle the existing
controversy among the family members was improper because
the written consent of all concerned was still required. A
lawyer who acts as such in settling a dispute cannot represent
any of the parties to it. - Lim Jr. v. Atty. Villarosa, A.C. No.
5303, June 15, 2006
Rule 15.04. - A lawyer may, with the written consent of all
concerned, act as mediator, conciliator or arbitrator in settling
disputes.
Nature of the case is irrelevant
The claim of respondent that there is no conflict of interests in
this case, as the civil case handled by their law firm where
Gonzales is the complainant and the criminal cases filed by
Gonzales against the Gatcheco spouses are not related, has no
merit. The representation of opposing clients in said cases,
though unrelated, constitutes conflict of interests or, at the very
least, invites suspicion of double-dealing which this Court
cannot allow. - Gonzales v. Atty. Cabucana, A.C. No. 6836,
January 23, 2006
Dismissed employee and counsel of record incompatible
In the instant case, quite apart from the issue of validity of the
1990 compromise agreement, this Court finds fault in
25 | P R O B L E M A R E A S I N L E G A L E T H I C S
respondent's omission of that basic sense of fidelity to steer
clear of situations that put his loyalty and devotion to his client,
the faculty members of UST, open to question. Atty. Mariño
both as lawyer and president of the union was duty bound to
protect and advance the interest of union members and the
bargaining unit above his own. This obligation was jeopardized
when his personal interest as one of the dismissed employees of
UST complicated the negotiation process and eventually resulted
in the lopsided compromise agreement that rightly or wrongly
brought money to him and the other dismissed union officers
and directors, seemingly or otherwise at the expense of the
faculty members. - Dr. Gamilla et. al. v. Atty. Mariño Jr., A.C.
No. 4763, March 20, 2003
Client of law firm is the client of every partners and
associates
Respondent further argued that it was his brother who
represented Gonzales in the civil case and not him, thus, there
could be no conflict of interests. We do not agree. As
respondent admitted, it was their law firm which represented
Gonzales in the civil case. Such being the case, the rule against
representing conflicting interests applies. - Gonzales v. Atty.
Cabucana, A.C. No. 6836, January 23, 2006
Vicarious disqualification
Traditionally, if a lawyer is ineligible to represent a particular
client, all members of the lawyer's firm also are ineligible.
The basis for vicarious disqualification is the "presumption of
shared confidences," which seeks to prevent disclosure of client
confidences, preserve counsel loyalty, and avoid the appearance
of impropriety.
Professional engagement starts the moment the lawyer listens
to his prospective client
An attorney is employed that is, he is engaged in his professional
capacity as a lawyer or counselor when he is listening to his
client s preliminary statement of his case, or when he is giving
advice thereon, just as truly as when he is drawing his client s
pleadings, or advocating his client s pleadings, or advocating his
client s cause in open court. - Atty. Catalan v. Atty. Silvosa A.C.
No. 7360 [2012]
Good faith is not a defense
Indeed, the prohibition against representation of conflicting
interests applies although the attorney’s intentions were honest
and he acted in good faith. - Atty. Catalan v. Atty. Silvosa A.C.
No. 7360 [2012]
Consent ineffective
A lawyer may not properly represent conflicting interests even
though the parties concerned agree to the dual representation
where:
1. the conflict is between the attorney’s interest and that of a
client, or 2. between a private client’s interests and that of
the government or any of its instrumentalities.
3. between an accused and counsel.
Section 12. (Article III of the Constitution)
(1) Any person under investigation for the commission of an
offense shall have the right to be informed of his right to remain
silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence of
counsel.
Three tests to determine conflicting interests
The first is when, on behalf of one client, it is the attorney’s
duty to contest for that which his duty to another client requires
him to oppose or when this possibility of such situation will
develop (conflicting duties).
The second test is whether the acceptance of the new relation
will prevent a lawyer from the full discharge of his duty of
undivided fidelity and loyalty to his client or will invite suspicion
of unfaithfulness or double-dealing in the performance thereof
(Invitation of suspicion).
The third test is whether a lawyer will be called upon in his new
relation to use against the first client any knowledge acquired in
the previous employment (use of prior knowledge obtained).
Representing conflicting interests would occur only where the
attorney’s new engagement would require her to use against a
former client any confidential information gained from the
previous professional relation.
The prohibition did not cover a situation where the subject
matter of the present engagement was totally unrelated to the
previous engagement of the attorney.
- Seares, Jr. v. Atty. Gonzales-Alzate, Adm. Case No. 9058
November 14, 2012
Remember: The test to determine whether there is a conflict of
interest in the representation is PROBABILITY, not certainty of
conflict.
It is of no moment that the lawyer would not be called upon to
contend for one client that which the lawyer has to oppose for
the other client, or that there would be no occasion to use the
confidential information acquired from one to the disadvantage
of the other as the two actions are wholly unrelated. It is
enough that the opposing parties in one case, one of whom
would lose the suit, are present clients and the nature or
conditions of the lawyer’s respective retainers with each of
them would affect the performance of the duty of undivided
fidelity to both clients. - Quiambao v. Atty. Bamba, Adm. Case
No. 6708 August 25, 2005
Effects of Representing Adverse Interests
1. Disqualification as counsel of new client on petition of
former client.
2. Where such is unknown to, becomes prejudicial
interests of the new client, a judgment against such may, on
that ground be set aside.
3. A lawyer can be held administratively liable through
disciplinary action and may be held criminally liable for betrayal
of trust.
4. The attorney’s right to fees may be defeated if found
to be related to such conflict and such was objected to by the
former client, or if there was a concealment and prejudice by
reason of the attorney’s previous professional relationship with
the opposite party.
What are the types of conflict of interest?
1. Concurrent or multiple or simultaneous representation:
A lawyer represents clients whose objectives are adverse to
each other, no matter how slight or remote these are
Take note of this minimal degree
Ex. A CPA-lawyer being part of a firm that represents the estate
and being part of the accountancy firm that represents the
creditors. The conflict need not arise from two legal
relationships.
2. Sequential or successive representation:
Representation of present client who may have an interest
adverse to prior client.
26 | P R O B L E M A R E A S I N L E G A L E T H I C S
Successive representation - when a lawyer or law firm seeks to
represent a client whose interests are adverse to a former
client without the former client's consent. The rule against
simultaneous representation is based principally on the duty of
undivided loyalty.
Unlike simultaneous representation, successive representation
is not prima facie improper. The duty to preserve client
confidences is the primary ethical consideration implicated by
successive representation.
Successive representation implicates both the duty of loyalty
and the preservation of the attorney-client relationship.
Suspicion of Double-dealing even if the case is unrelated
We do not sustain respondent’s theory that since the ejectment
case and the replevin case are unrelated cases fraught with
different issues, parties, and subject matters, the prohibition is
inapplicable. His representation of opposing clients in both
cases, though unrelated, obviously constitutes conflict of
interest or, at the least, invites suspicion of double-dealing. -
Quiambao v. Atty. Bamba, Adm. Case No. 6708 August 25, 2005
Does the lawyer have to be the counsel-of-record for the
other party to violate this provision?
To be guilty of representing conflicting interests, a counsel-of-
record of one party need not also be counsel-of-record of the
adverse party. He does not have to publicly hold himself as the
counsel of the adverse party, nor make his efforts to advance
the adverse party’s conflicting interests of record--- although
these circumstances are the most obvious and satisfactory proof
of the charge. It is enough that the counsel of one party had a
hand in the preparation of the pleading of the other party,
claiming adverse and conflicting interests with that of his
original client. To require that he also be counsel-of-record of
the adverse party would punish only the most obvious form of
deceit and reward, with impunity, the highest form of disloyalty.
– Artezuela v. Atty. Maderazo, A.C. No. 4354. April 22, 2002
Only instance when a lawyer can represent conflicting
interest
A lawyer cannot represent conflicting interests except by
written consent of all concerned given after a full disclosure of
the facts. – Santos Ventura Hocorma Foundation, Inc. v. Atty.
Funk, A.C. No. 9094 August 15, 2012
Limit of full disclosure
A lawyer is forbidden from representing a subsequent client
against a former client when the subject matter of the present
controversy is related, directly or indirectly, to the subject
matter of the previous litigation in which he appeared for the
former client. Conversely, he may properly act as counsel for a
new client, with full disclosure to the latter, against a former
client in a matter wholly unrelated to that of the previous
employment, there being in that instance no conflict of
interests.
Where, however, the subject matter of the present suit between
the lawyer’s new client and his former client is in some way
connected with that of the former client’s action, the lawyer
may have to contend for his new client that which he previously
opposed as counsel for the former client or to use against the
latter information confided to him as his counsel. - Pormento,
Sr. v. Atty. Pontevedra, A.C. No. 5128. March 31, 2005
Purpose and intention is immaterial
Respondent contends that he handled the defense of the
accused in the subject criminal case for humanitarian reasons
and with the honest belief that there exists no conflict of
interests. However, the rule is settled that the prohibition
against representation of conflicting interests applies although
the attorney’s intentions and motives were honest and he
acted in good faith. Moreover, the fact that the conflict of
interests is remote or merely probable does not make the
prohibition inoperative. - Pormento, Sr. v. Atty. Pontevedra,
A.C. No. 5128. March 31, 2005
Termination of A-C relations is not a justification
Respondent also asserts that when he accepted employment in
Criminal Case No. 3159, the attorney-client relations between
him and complainant in Civil Case No. 1648 had already been
terminated. This defense does not hold water because the
termination of the relation of attorney and client provides no
justification for a lawyer to represent an interest adverse to
or in conflict with that of the former client. – Pormento, Sr. v.
Atty. Pontevedra, A.C. No. 5128. March 31, 2005
Acquired knowledge of former client’s doings is indelible
The reason for this is that a lawyer acquires knowledge of his
former client's doings, whether documented or not, that he
would ordinarily not have acquired were it not for the trust
and confidence that his client placed on him in the light of
their relationship. It would simply be impossible for the lawyer
to identify and erase such entrusted knowledge with faultless
precision or lock the same into an iron box when suing the
former client on behalf of a new one. - Santos Ventura Hocorma
Foundation, Inc. v. Atty. Funk, A.C. No. 9094 August 15, 2012
Good faith and honest intention is not a defense
That the representation of conflicting interest is in good faith
and with honest intention on the part of the lawyer does not
make the prohibition inoperative. - Quiambao v. Atty. Bamba,
Adm. Case No. 6708 August 25, 2005
Although there are instances where lawyers cannot decline
representation, they cannot be made to labor under conflict of
interest between a present client and a prospective one. –
Quiambao v. Atty. Bamba, Adm. Case No. 6708 August 25, 2005
The prohibition against conflict of interest rests on five
rationales, rendered as follows:
 represent a client opposing an interest represented by another
x x x. First, the law seeks to assure clients that their lawyers
will represent them with undivided loyalty. A client is entitled to
be represented by a lawyer whom the client can trust. Instilling
such confidence is an objective important in itself. x x x.
Second, the prohibition against conflicts of interest seeks to
enhance the effectiveness of legal representation. To the extent
that a conflict of interest undermines the independence of the
lawyer’s professional judgment or inhibits a lawyer from working
with appropriate vigor in the client’s behalf, the client’s
expectation of effective representation x x x could be
compromised. - Samson v. Atty. Era, A.C. No. 6664 July 16, 2013
Third, a client has a legal right to have the lawyer safeguard the
client’s confidential information xxx.1âwphi1 Preventing use of
confidential client information against the interests of the
client, either to benefit the lawyer’s personal interest, in aid of
some other client, or to foster an assumed public purpose is
facilitated through conflicts rules that reduce the opportunity
for such abuse.
Fourth, conflicts rules help ensure that lawyers will not exploit
clients, such as by inducing a client to make a gift to the lawyer
xxx.
Finally, some conflict-of-interest rules protect interests of the
legal system in obtaining adequate presentations to tribunals. In
27 | P R O B L E M A R E A S I N L E G A L E T H I C S
the absence of such rules, for example, a lawyer might appear
on both sides of the litigation, complicating the process of
taking proof and compromise adversary argumentation x x x. -
Samson v. Atty. Era, A.C. No. 6664 July 16, 2013
Informed consent must be written
A client's implied consent is insufficient to waive a potential
conflict of interest.
Rule 15.03. - A lawyer shall not represent conflicting interests
except by written consent of all concerned given after a full
disclosure of the facts.
While the respondent may assert that the complainant expressly
consented to his continued representation in the ejectment
case, the respondent failed to show that he fully disclosed the
facts to both his clients and he failed to present any written
consent of the complainant and AIB as required under Rule
15.03, Canon 15 of the Code of Professional Responsibility. -
Quiambao v. Atty. Bamba, Adm. Case No. 6708 August 25, 2005
COI remains after termination of attorney-client relationship
The termination of the attorney-client relationship does not
justify a lawyer to represent an interest adverse to or in conflict
with that of the former client. The spirit behind this rule is that
the client’s confidence once given should not be stripped by the
mere expiration of the professional employment. Even after the
severance of the relation, a lawyer should not do anything that
will injuriously affect his former client in any matter in which
the lawyer previously represented the client. – Samson v. Atty.
Era, A.C. No. 6664 July 16, 2013
Current observations husband and wife lawyers in legal
practice
Where both husband and wife are lawyers but they are not
practicing in association with one another, may they or their
firms represent differing interests?
Some firms apparently have been reluctant to employ one
spouse-lawyer where that person's husband or wife is, or may
soon be, practicing with another firm in the same city or area.
Some law firms are concerned whether a law firm is
disqualified, by reason of its employment of one spouse, to
law firm that employs the husband or wife of the inquiring firm's
associate.
It is not necessarily improper for husband-and-wife lawyers who
are practicing in different offices or firms to represent differing
interests. No disciplinary rule expressly requires a lawyer to
decline employment if a husband, wife, son, daughter, brother,
father, or other close relative represents the opposing party in
negotiation or litigation.
Likewise, it is not necessarily improper for a law firm having a
married partner or associate to represent clients whose interests
are opposed to those of other clients represented by another
law firm with which the married lawyer's spouse is associated as
a lawyer.
Married partners who are lawyers must guard carefully at all
times against inadvertent violations of their professional
responsibilities arising by reason of the marital relationship.
The disqualification of married or related lawyers who oppose
one another professionally is not generally imputed to other
lawyers in the related lawyer's law offices.
Such personal disqualification is not imputed to the spouses'
firms unless the lawyers have a personal interest in the outcome
of the case.

Special circumstances that highlight the concern
1. whether the fee of either firm is contingent,
2. whether the disputed matter is one of negotiation or
litigation, and whether the married lawyer in question will or
will not actually be working on the particular matter
3. Another variation of the problem is the situation in which a
governmental agency, such as a district attorney or an attorney
general, is the employer of either the husband or the wife,
and the spouse is associated with a law firm in the same
community.
Concerns about husband & wife lawyers
Yet it also must be recognized that the relationship of husband
and wife is so close that the possibility of an inadvertent
breach of a confidence or the unavoidable receipt of
information concerning the client by the spouse other than the
one who represents the client (for example, information
contained in a telephoned message left for the lawyer at home)
is substantial. Because of the closeness of the husband-and-
wife relationship, a lawyer who is married to a lawyer must be
particularly careful.
Recommendations
Married partners who are lawyers must guard carefully at all
times against inadvertent violations of their professional
responsibilities arising by reason of the marital relationship.
Lawyer Relatives
Ethical precepts admonish lawyers related by blood or marriage
to avoid adversarial representations without the informed
consent of the parties.
Lawyers related by blood or marriage have long been permitted
to represent adversarial interests provided that a reasonable
effort is made to anticipate and expose potential conflicts to
clients before obtaining their consent to representation.
Faced with client consent, courts have consistently required an
actual conflict of interest rather than simply the fact of
adversarial lawyer relatives before ordering disqualification.
Personal Relationships
A lawyer is romantically involved with the opposing party’s
attorney, or sexually involved with a client, the lawyer’s loyalty
or judgment can be impaired.
Lawyers who are dating and also representing adversaries in
litigation should disclose their relationship if it is sufficiently
close that their clients might have questions about the lawyers'
ability to represent them zealously.
Lawyers who are otherwise personally close should do likewise.
The lawyer had enjoyed an "intimate physical relationship" with
the secretary and talked with her "about significant aspects of
the case," for which he was disqualified.
A lawyer is prohibited from having sex with a client unless a
consensual sexual relationship existed prior to the start of
professional representation.
Duty to protect only matters acquired during the lawyer-
client relationship
The intent of the law is to impose upon the lawyer the duty to
protect the client’s interests only on matters that he
previously handled for the former client and not for matters
that arose after the lawyer-client relationship has terminated. –
Palm v. Atty. Iledan, Jr. A.C. No. 8242 [2009]
28 | P R O B L E M A R E A S I N L E G A L E T H I C S
Can a lawyer engaged by a corporation defend members of
the board of the same corporation in a derivative suit?
We are sufficiently convinced that a lawyer engaged as counsel
for a corporation cannot represent members of the same
corporation’s board of directors in a derivative suit brought
against them.
To do so would be tantamount to representing conflicting
interests, which is prohibited by the Code of Professional
Responsibility.
Furthermore, this restriction on dual representation should not
be waivable by consent in the usual way; the corporation
should be presumptively incapable of giving valid consent. –
Hornilla v. Atty. Salunat, A.C. No. 5804. July 1, 2003
“Conflict of interest” of Corporate Lawyers
CPR provisions
Rule 15.03. - A lawyer shall not represent conflicting interests
except by written consent of all concerned given after a full
disclosure of the facts.
Canon 21. A lawyer shall preserve the confidence and secrets of
his client even after the attorney-client relationship is
terminated.


Corporate counsel and possibility of COI
Members of the Board of Directors
Employees of the corporation
General public
Counsel’s private interest
Duty of attorney to a corporate client
“[a]n attorney for a corporate client owes his duty [of loyalty]
to the corporate entity rather than a particular officer,
director, or shareholder.” - ABC Trans Natl Transport, Inc. v.
Aeronautics Forwarders, Inc, 413 NE.2d 1299, 1310 1980
“[a] corporate attorney represents the corporation, not the
individual directors or officers.” - Heim v. Signcraft Screenprint
Inc, No 01C50014, 2001 WL 1018228 2001
“[t]he attorney for a corporation, even a closely held one, does
not have a specific fiduciary duty toward the individual
shareholders.” - Kopka v. Kamensky and Rubenstein, 821 NE.2d
719, 727 (2004)
He should resolve all doubts against the propriety of the
representation. – Cannon v. U.S. Acoustics Corp. 398 F.Supp. 209
(1975)
Palm v. Atty. Iledan, Jr.
A.C. No. 8242 [2009]
Complainant is the President of Comtech, a corporation engaged
in the business of computer software development.
From February 2003 to November 2003, respondent served as
Comtech’s retained corporate counsel for the amount of
P6,000 per month as retainer fee.
From September to October 2003, complainant personally met
with respondent to review corporate matters, including
potential amendments to the corporate by-laws.
In a meeting held on 1 October 2003, respondent suggested that
Comtech amend its corporate by-laws to allow participation
during board meetings, through teleconference, of members of
the Board of Directors who were outside the Philippines.
Comtech decided to terminate its retainer agreement with
respondent effective November 2003.
On 24 March 2004, Comtech’s new counsel sent a demand letter
to Soledad [a former officer and director of Comtech, who
resigned and who was suspected of releasing unauthorized
disbursements of corporate funds] to return or account for the
amount of P90,466.10 representing her unauthorized
disbursements when she was the Corporate Treasurer of
Comtech.
On 22 April 2004, Comtech received Soledad’s reply, signed by
respondent.
In July 2004, due to Soledad’s failure to comply with Comtech's
written demands, Comtech filed a complaint for Estafa against
Soledad before the Makati Prosecutor’s Office. In the
proceedings before the City Prosecution Office of Makati,
respondent appeared as Soledad’s counsel.
In his Answer, respondent alleged that in January 2002, Soledad
consulted him on process and procedure in acquiring property.
In April 2002, Soledad again consulted him about the legal
requirements of putting up a domestic corporation. In February
2003, Soledad engaged his services as consultant for Comtech.
Respondent alleged that from February to October 2003, neither
Soledad nor Palm consulted him on confidential or privileged
matter concerning the operations of the corporation.
Respondent further alleged that he had no access to any record
of Comtech.
Respondent admitted that during the months of September and
October 2003, complainant met with him regarding the
procedure in amending the corporate by-laws to allow board
members outside the Philippines to participate in board
meetings.
Respondent alleged that there was no conflict of interest when
he represented Soledad in the case for Estafa filed by Comtech.
He alleged that Soledad was already a client before he became
a consultant for Comtech. He alleged that the criminal case
was not related to or connected with the limited procedural
queries he handled with Comtech.
In addition, although the information about the necessity to
amend the corporate by-laws may have been given to
respondent, it could not be considered a confidential
information.
Further, whenever any amendment or adoption of new by-laws is
made, copies of the amendments or the new by-laws are filed
with the Securities and Exchange Commission (SEC) and
attached to the original articles of incorporation and by-laws.
The documents are public records and could not be
considered confidential.
We agree with the IBP that in the course of complainant’s
consultations, respondent obtained the information about the
need to amend the corporate by-laws to allow board members
outside the Philippines to participate in board meetings
through teleconferencing. Respondent himself admitted this in
his Answer.
29 | P R O B L E M A R E A S I N L E G A L E T H I C S
It is settled that the mere relation of attorney and client does
not raise a presumption of confidentiality. The client must
intend the communication to be confidential. Since the
proposed amendments must be approved by at least a
majority of the stockholders, and copies of the amended by-
laws must be filed with the SEC, the information could not
have been intended to be confidential. Thus, the disclosure
made by respondent during the stockholders’ meeting could
not be considered a violation of his client’s secrets and
confidence within the contemplation of Canon 21 of the Code of
Professional Responsibility.
We find no conflict of interest when respondent represented
Soledad in a case filed by Comtech. The case where respondent
represents Soledad is an Estafa case filed by Comtech against its
former officer. There was nothing in the records that would
show that respondent used against Comtech any confidential
information acquired while he was still Comtech’s retained
counsel.
Further, respondent made the representation after the
termination of his retainer agreement with Comtech. A
lawyer’s immutable duty to a former client does not cover
transactions that occurred beyond the lawyer’s employment
with the client.
The intent of the law is to impose upon the lawyer the duty to
protect the client’s interests only on matters that he
previously handled for the former client and not for matters
that arose after the lawyer-client relationship has terminated.
Santos Ventura Hocorma Foundation, Inc. v. Atty. Funk, A.C.
No. 9094 August 15, 2012
It alleged that Atty. Funk used to work as corporate secretary,
counsel, chief executive officer, and trustee of the Santos
Ventura Hocorma foundation from 1983 to 1985. He also served
as its counsel in several criminal and civil cases.
Hocorma Foundation further alleged that on November 25, 2006
Atty. Funk filed an action for quieting of title and damages
against Hocorma Foundation on behalf of Mabalacat Institute,
Inc. (Mabalacat Institute). Atty. Funk did so, according to the
foundation, using information that he acquired while serving
as its counsel xxx.
Here, it is undeniable that Atty. Funk was formerly the legal
counsel of Hocorma Foundation. Years after terminating his
relationship with the foundation, he filed a complaint against
it on behalf of another client, the Mabalacat Institute, without
the foundation's written consent.
Here, the evidence shows that Hocorma Foundation availed
itself of the legal services of Atty. Funk in connection with,
among others, the transfer of one of the properties subject of
the several suits that the lawyer subsequently filed against the
foundation. Indeed, Atty. Funk collected attorney's fees from
the foundation for such services.
An attorney may not, without being guilty of professional
misconduct, act as counsel for a person whose interest conflicts
with that of his present or former client. This rule is so
absolute that good faith and honest intention on the erring
lawyer's part does not make it inoperative.
The reason for this is that a lawyer acquires knowledge of his
former client's doings, whether documented or not, that he
would ordinarily not have acquired were it not for the trust
and confidence that his client placed on him in the light of
their relationship.
It would simply be impossible for the lawyer to identify and
erase such entrusted ledge with faultless precision or lock the
same into an iron box when suing the former client on behalf of
a new one.
Hornilla v. Atty. Salunat
A.C. No. 5804, July 1, 2003
They alleged that respondent is a member of the ASSA Law and
Associates, which was the retained counsel of the Philippine
Public School Teachers Association (PPSTA). Respondent’s
brother, Aurelio S. Salunat, was a member of the PPSTA Board
which approved respondent’s engagement as retained counsel of
PPSTA.
Complainants, who are members of the PPSTA, filed an intra-
corporate case against its members of the Board of Directors
for the terms 1992-1995 and 1995-1997 before the Securities and
Exchange Commission. which was docketed as SEC Case No.
05-97-5657, and a complaint before the Office of the
Ombudsman, docketed as OMB Case No. 0-97-0695, for unlawful
spending and the undervalued sale of real property of the
PPSTA.
Respondent entered his appearance as counsel for the PPSTA
Board members in the said cases.
Complainants contend that respondent was guilty of conflict of
interest because he was engaged by the PPSTA, of which
complainants were members, and was being paid out of its
corporate funds where complainants have contributed. Despite
being told by PPSTA members of the said conflict of interest,
respondent refused to withdraw his appearance in the said
cases.
Respondent admits that the ASSA Law Firm, of which he is the
Managing Partner, was the retained counsel of PPSTA. Yet, he
appeared as counsel of record for the respondent Board of
Directors in the said case. Clearly, respondent was guilty of
conflict of interest when he represented the parties against
whom his other client, the PPSTA, filed suit.
What is a “derivative suit”?
Where corporate directors have committed a breach of trust
either by their frauds, ultra vires acts, or negligence, and the
corporation is unable or unwilling to institute suit to remedy the
wrong, a stockholder may sue on behalf of himself and other
stockholders and for the benefit of the corporation, to bring
about a redress of the wrong done directly to the corporation
and indirectly to the stockholders.
This is what is known as a derivative suit, and settled is the
doctrine that in a derivative suit, the corporation is the real
party in interest while the stockholder filing suit for the
corporation’s behalf is only nominal party. The corporation
should be included as a party in the suit.
A lawyer engaged as counsel for a corporation cannot represent
members of the same corporation’s board of directors in a
derivative suit brought against them. To do so would be
tantamount to representing conflicting interests, which is
prohibited by the Code of Professional Responsibility.
The interest of the corporate client is paramount and should
not be influenced by any interest of the individual corporate
officials.
30 | P R O B L E M A R E A S I N L E G A L E T H I C S
Corporation cannot “consent” to a representation of a lawyer
with COI
The cases and ethics opinions differ on whether there must be
separate representation from the outset or merely from the
time the corporation seeks to take an active role. Furthermore,
this restriction on dual representation should not be waivable
by consent in the usual way; the corporation should be
presumptively incapable of giving valid consent.
Outside counsel must thus be retained to represent one of the
defendants.
Rule 15.03. - A lawyer shall not represent conflicting interests
except by written consent of all concerned given after a full
disclosure of the facts.
Quiambao v. Atty. Nestor Bamba
A. C. No. 6708 August 25, 2005
Complainant Felicitas S. Quiambao charges respondent Atty.
Nestor A. Bamba with violation of the Code of Professional
Responsibility for representing conflicting interests when the
latter filed a case against her while he was at that time
representing her in another case, and for committing other
acts of disloyalty and double-dealing.
The complainant was the president and managing director of
Allied Investigation Bureau, Inc. (AIB), a family-owned
corporation engaged in providing security and investigation
services. She avers that she procured the legal services of the
respondent not only for the corporate affairs of AIB but also
for her personal case.
Particularly, the Spouses Santiago and Florita Torroba filed by
her on 29 December 2000 before the Metropolitan Trial Court
(MeTC) of Parañaque City.
About six months after she resigned as AIB president, or on 14
June 2001, the respondent filed on behalf of AIB a complaint for
replevin and damages against her before the MeTC of Quezon
City for the purpose of recovering from her the car of AIB
assigned to her as a service vehicle. This he did without
withdrawing as counsel of record in the ejectment case,
which was then still pending.
We do not sustain respondent’s theory that since the ejectment
case and the replevin case are unrelated cases fraught with
different issues, parties, and subject matters, the prohibition is
inapplicable. His representation of opposing clients in both
cases, though unrelated, obviously constitutes conflict of
interest or, at the least, invites suspicion of double-dealing.
While the respondent may assert that the complainant expressly
consented to his continued representation in the ejectment
case, the respondent failed to show that he fully disclosed the
facts to both his clients and he failed to present any written
consent of the complainant and AIB as required under Rule
15.03, Canon 15 of the Code of Professional Responsibility.
Neither can we accept respondent’s plea that he was duty-
bound to handle all the cases referred to him by AIB, including
the personal cases of its officers which had no connection to
its corporate affairs. That the representation of conflicting
interest is in good faith and with honest intention on the part
of the lawyer does not make the prohibition inoperative.
Extent or degree of prohibition on representing COI
It must be noted that the proscription against representation of
conflicting interests finds application where the conflicting
interests arise with respect to the same general matter
however slight the adverse interest may be.
It applies even if the conflict pertains to the lawyer’s private
activity or in the performance of a function in a non-
professional capacity.
Business transactions between an attorney and his client are
disfavored and discouraged by the policy of the law.
De Guzman v. Atty. L. De Dios, 
 Rule 15.06. - A lawyer shall not state or imply that he is able to
A.C. No. 4943 January 26, 2001
In 1995, complainant engaged the services of respondent as
counsel in order to form a corporation.
On January 10, 1996, with the assistance of Atty. De Dios,
complainant registered Suzuki Beach Hotel, Inc. (SBHI) with the
Securities and Exchange Commission.
On December 15, 1997, the corporation required complainant to
pay her unpaid subscribed shares of stock amounting to two
million two hundred and thirty five thousand pesos
(P2,235,000.00) or 22,350 shares, on or before December 30,
1997.
Complainant soon learned that her shares had been acquired by
Ramon del Rosario, one of the incorporators of SBHI. The sale
ousted complainant from the corporation completely. While
respondent rose to be president of the corporation,
complainant lost all her life's savings invested therein.
Complainant alleged that she relied on the advice of Atty. de
Dios and believed that as the majority stockholder, Atty. de Dios
would help her with the management of the corporation.
Complainant pointed out that respondent appeared as her
counsel and signed pleadings in a case where complainant
was one of the parties. Respondent, however, explained that
she only appeared because the property involved belonged to
SBHI.
Respondent alleged that complainant misunderstood the role
of respondent as legal counsel of Suzuki Beach Hotel, Inc.
Respondent manifested that her appearance as counsel for
complainant Diana de Guzman was to protect the rights and
interest of SBHI since the latter was the real owner of the
land in controversy.
Respondent claims that there was no attorney-client relationship
between her and complainant. The claim has no merit. It was
complainant who retained respondent to form a corporation.
She appeared as counsel in behalf of complainant.
The present situation shows a clear case of conflict of interest
of the respondent.
Limitations/restrictions of government lawyers in the practice
of law


Canon 6 – These canons shall apply to lawyers in government
services in the discharge of their tasks.
Rule 6.01 - The primary duty of a lawyer engaged in public
prosecution is not to convict but to see that justice is done. The
suppression of facts or the concealment of witnesses capable of
31 | P R O B L E M A R E A S I N L E G A L E T H I C S
establishing the innocence of the accused is highly reprehensible
and is cause for disciplinary action.
Rule 6.02 - A lawyer in the government service shall not use his
public position to promote or advance his private interests, nor
allow the latter to interfere with his public duties.
Rule 6.03 - A lawyer shall not, after leaving government service,
accept engagement or employment in connection with any
matter in which he had intervened while in said service.
influence any public official, tribunal or legislative body.
Rule 3.03 - Where a partner accepts public office, he shall
withdraw from the firm and his name shall be dropped from the
firm name unless the law allows him to practice law currently.
RRC Rule 138 Sec. 35. Certain attorneys not to practice. - No
judge or other official or employee of the superior courts or of
the Office of the Solicitor General, shall engage in private
practice as a member of the bar or give professional advice to
clients.
Correct Interpretation
The term "intervene" which we previously interpreted to include
an act of a person who has the power to influence the
proceedings.
Otherwise stated, to fall within the ambit of Rule 6.03 of the
Code of Professional Responsibility, the respondent must have
accepted engagement or employment in a matter which, by
virtue of his public office, he had previously exercised power to
influence the outcome of the proceedings. - Olazo v. Justice
Tinga, A.M. No. 10-5-7-SC [2010]
General Rule
Thus, lawyers in government service cannot handle private cases
for they are expected to devote themselves full-time to the
work of their respective offices. - Ramos v. Atty. Jose R. Imbang,
A.C. no. 6788 [2007]
Admonition to government lawyers
A lawyer in the government service shall not use his public
position to promote or advance his private interests, nor allow
the latter to interfere with his public duties.
The above provision prohibits a lawyer from using his or her
public position to: (1) promote private interests; (2) advance
private interests; or (3) allow private interest to interfere with
his or her public duties.
We previously held that the restriction extends to all
government lawyers who use their public offices to promote
their private interests. - Olazo v. Justice Tinga, A.M. No. 10-5-7-
SC [2010]
“Revolving door” law practice
“[T]he process by which lawyers and others temporarily enter
government service from private life and then leave it for large
fees in private practice, where they can exploit information,
contacts, and influence garnered in government service.“ -
PCCG v. Sandiganbayan and Tan, G.R. Nos. 151809-12 [April 12,
2005]
These concerns were classified as adverse-interest conflicts" and
"congruent-interest conflicts.


Special considerations, both for and against disqualification of
former government attorney
If service with the government will tend to sterilize an attorney
in too large an area of law for too long a time, or will prevent
him from engaging in practice of the very specialty for which
the government sought his service — and if that sterilization will
spread to the firm with which he becomes associated — the
sacrifices of entering government service will be too great for
most men to make. As for those men willing to make these
sacrifices, not only will they and their firms suffer a restricted
practice thereafter, but clients will find it difficult to obtain
counsel, particularly in those specialties and suits dealing with
the government. - US v.Russell White BROTHERS, Jr., G. Thomas
Nebel, and Thomas White Brothers 856 F.Supp. 370 (1992)
Favors disqualification of former government lawyers
On the other hand, policy considerations underlying DR 9-101(B)
which militate toward disqualification include [t]he treachery of
switching sides; the safeguarding of confidential governmental
information from future use against the government; the need
to discourage government lawyers from handling particular
assignments in such a way as to encourage their own future
employment in regard to those particular matters after leaving
government service; and the professional benefit derived from
avoiding the appearance of evil.- US v.Russell White BROTHERS,
Jr., G. Thomas Nebel, and Thomas White Brothers 856 F.Supp.
370 (1992)
Definition of “substantial responsibility”
With these competing policies in mind, the Court turns to the
requirements of Canon 9 which prohibit a former government
attorney from accepting private employment in a matter in
which he had "substantial responsibility" while working for the
government. According to the American Bar Association, a
"substantial responsibility" is "a responsibility requiring the
official to become personally involved to an important, material
degree, in the investigative or deliberative processes regarding
the transactions or facts in question." - US v.Russell White
BROTHERS, Jr., G. Thomas Nebel, and Thomas White Brothers
856 F.Supp. 370 (1992)
Application of C.P.R. on a government lawyer
The Code of Professional Responsibility does not cease to apply
to a lawyer simply because he has joined the government
service. In fact, by the express provision of Canon 6 thereof,
the rules governing the conduct of lawyers“shall apply to
lawyers in government service in the discharge of their official
tasks.” Thus, where a lawyer’s misconduct as a government
official is of such nature as to affect his qualification as a lawyer
or to show moral delinquency, then he may be disciplined as a
member of the bar on such grounds.
Although the general rule is that a lawyer who holds a
government office may not be disciplined as a member of the
bar for infractions he committed as a government official, he
may, however, be disciplined as a lawyer if his misconduct
constitutes a violation of his oath a member of the legal
profession. - Ali v. Atty. Bubong, A.C. No. 4018 [2005]
Now, a lawyer who holds a government position may not be
disciplined as a member of the bar for misconduct in the
discharge of his duties as a government official. However, if the
misconduct also constitutes a violation of the Code of
Professional Responsibility or the lawyer's oath or is of such
character as to affect his qualification as a lawyer or shows
moral delinquency on his part, such individual may be
disciplined as a member of the bar for such misconduct. -
32 | P R O B L E M A R E A S I N L E G A L E T H I C S
Pimentel, Jr. v. Attys. Llorente and Salayon, A.C. no. 4680
[2000]
We begin with the veritable fact that lawyers in government
service in the discharge of their official task have more
restrictions than lawyers in private practice. Want of moral
integrity is to be more severely condemned in a lawyer who
holds a responsible public office.
Otherwise said, a lawyer in government service is a keeper of
the public faith and is burdened with high degree of social
responsibility, perhaps higher than his brethren in private
practice.
It bears stressing also that government lawyers who are public
servants owe fidelity to the public service, a public trust. As
such, government lawyers should be more sensitive to their
professional obligations as their disreputable conduct is more
likely to be magnified in the public eye - Huyssen v. Atty.
Gutierrez, A.C. No. 6707 [2006]


Code of Ethical Standards for Public Officials and Employees
(RA 6713 Rule X)
Section 7. Prohibited Acts and Transactions. - In addition to acts
and omissions of public officials and employees now prescribed
in the Constitution and existing laws, the following shall
constitute prohibited acts and transactions of any public official
and employee and are hereby declared to be unlawful:
(b) Outside employment and other activities related thereto. -
Public officials and employees during their incumbency shall
not:
(2) Engage in the private practice of their profession unless
authorized by the Constitution or law, provided, that such
practice will not conflict or tend to conflict with their official
functions;
These prohibitions shall continue to apply for a period of one (1)
year after resignation, retirement, or separation from public
office, except in the case of subparagraph (b) (2) above, but the
professional concerned cannot practice his profession in
connection with any matter before the office he used to be
with, in which case the one-year prohibition shall likewise apply.


IRR of RA 6713 Rule X
Grounds for Administrative Disciplinary Action
Section 1. In addition to the grounds for administrative
disciplinary action prescribed under existing laws, the acts and
omissions of any official or employee, whether or not he holds
office or employment in a casual, temporary, hold-over,
permanent or regular capacity, declared unlawful or prohibited
by the Code, shall constitute the grounds for administrative
disciplinary action, and without prejudice to criminal and civil
liabilities provided herein, such as:
(c) Engaging in the private practice of his profession unless
authorized by the, Constitution, law or regulation, provided that
such practice will not conflict or tend to conflict with his official
functions;
These acts shall continue to be prohibited for a period of one (1)
year after resignation, retirement, or separation from public
office, except in the case of paragraph (c) above, but the
professional concerned cannot practice his profession in
connection with any matter before the office he used to be
with, within one year after such resignation, retirement, or
separation, provided that any violation hereof shall be a ground
for administrative disciplinary action upon re-entry to the
government service.

Correct Interpretation
“[s]uch practice" - refer to practice "authorized by the
Constitution or law" or the exception to the prohibition against
the practice of profession.
The term "law" was intended by the legislature to include "a
memorandum or a circular or an administrative order issued
pursuant to the authority of law.“
- Query of Atty. Silverio-Buffe, A.M. No. 08-6-352-RTC
[2009]
Purpose of the Law
Thus, it may be well to say that the prohibition was intended to
avoid any impropriety or the appearance of impropriety which
may occur in any transaction between the retired government
employee and his former colleagues, subordinates or superiors
brought about by familiarity, moral ascendancy or undue
influence, as the case may be.
Private practice of law
Private practice has been defined by this Court as follows:
“x x x. Practice is more than an isolated appearance, for it
consists in frequent or customary action, a succession of acts of
the same kind. In other words, it is frequent habitual exercise.
Practice of law to fall within the prohibition of statute [referring
to the prohibition for judges and other officials or employees of
the superior courts or of the Office of the Solicitor General from
engaging in private practice] has been interpreted as
customarily or habitually holding one's self out to the public, as
a lawyer and demanding payment for such services. x x x.”-
Maderada v. Judge Mediodea, A.M. No. MTJ-02-1459. October
14, 2003
Various ways a government lawyer leaves government service
1. retirement
2. resignation
3. expiration of the term of office
4. dismissal
5. abandonment
Pro se litigant
The raison d’etre for allowing litigants to represent themselves
in court will not apply when a person is already appearing for
another party. Obviously, because she was already defending
the rights of another person when she appeared for her co-
plaintiff, it cannot be argued that complainant was merely
protecting her rights. That their rights may be interrelated will
not give complainant authority to appear in court. The
undeniable fact remains that she and her co-plaintiff are two
distinct individuals. The former may be impairing the efficiency
of public service once she appears for the latter without
permission from this Court. - Maderada v. Judge Mediodea, A.M.
No. MTJ-02-1459. October 14, 2003
Under the Rules of Court, parties to a case in a first-level court
may -- without having to resign from their posts -- conduct their
own litigation in person as well as appear for and on their own
behalf as plaintiffs or defendants.
The law allows persons who are not lawyers by profession to
litigate their own case in court. The right of complainant to
litigate her case personally cannot be taken away from her. Her
being an employee of the judiciary does not remove from her
the right to proceedings in propria persona or to self-
representation. To be sure, the lawful exercise of a right cannot
make one administratively liable. xxx However, it was also
33 | P R O B L E M A R E A S I N L E G A L E T H I C S
clearly established that complainant had appeared on behalf of
her co-plaintiff in the case below, for which act the former
cannot be completely exonerated. Representing oneself is
different from appearing on behalf of someone else.- Maderada
v. Judge Mediodea, A.M. No. MTJ-02-1459. October 14, 2003
Two theories on the disqualification of former government
lawyers in representing a client
“Adverse-interest conflict”
“Congruent-interest representation conflicts."
"Adverse-interest conflicts"
"Adverse-interest conflicts" exist where the matter in which the
former government lawyer represents a client in private
practice is substantially related to a matter that the lawyer
dealt with while employed by the government and the interests
of the current and former are adverse.”- PCCG v. Sandiganbayan
and Tan, G.R. Nos. 151809-12 [April 12, 2005]
Adverse-interest conflict
In the “adverse-interest conflict” a former government lawyer
is enjoined from representing a client in private practice when
the matter is substantially related to a matter that the lawyer
dealt with while employed by the government and if the
interests of the current and former clients are adverse.
It must be observed that the “adverse-interest conflict” applies
to all lawyers in that they are generally disqualified from
accepting employment in a subsequent representation if the
interests of the former client and the present client are adverse
and the matters involved are the same or substantially related.
Congruent-interest conflict
In “congruent-interest conflict”, the disqualification does not
really involve a conflict at all, because it prohibits the lawyer
from representing a private practice client even if the interests
of the former government client and the new client are entirely
parallel. The “congruent-interest representation conflict”,
unlike the “adverse-interest conflict”, is unique to former
government lawyers.
Grounds for Disqualification arising from COI
The fatal taint which would require disqualification arises in two
types of cases:
(1) where an attorney's conflict of interests in violation of
[Canons] undermines the court's confidence in the vigor of the
attorney's representation of his client, or more commonly
(2) where the attorney is at least potentially in a position to use
privileged information concerning the other side through prior
representation xxx thus giving his present client an unfair
advantage. - US v.Russell White BROTHERS, Jr., G. Thomas
Nebel, and Thomas White Brothers 856 F.Supp. 370 (1992)
PAO to provide free legal assistance
The PAO was created for the purpose of providing free legal
assistance to indigent litigants.[27] Section 14(3), Chapter 5,
Title III, Book V of the Revised Administrative Code provides:
Sec. 14. xxx
The PAO shall be the principal law office of the Government in
extending free legal assistance to indigent persons in criminal,
civil, labor, administrative and other quasi-judicial cases.
PAO lawyer should not accept any remuneration for his
services
As a PAO lawyer, respondent should not have accepted attorney's
fees from the complainant as this was inconsistent with the
office's mission. Respondent violated the prohibition against
accepting legal fees other than his salary.
Acceptance of money by a government lawyer
Acceptance of money from a client establishes an attorney-
client relationship. Respondent's admission that he accepted
money from the complainant and the receipt confirmed the
presence of an attorney-client relationship between him and the
complainant. Moreover, the receipt showed that he accepted
the complainant's case while he was still a government lawyer.
Respondent clearly violated the prohibition on private practice
of profession. - Ramos v. Atty. Jose R. Imbang, A.C. no. 6788
[2007]
Query
Why may an incumbent engage in private practice under (b)
(2), assuming the same does not conflict or tend to conflict
with his official duties, but a non-incumbent like myself
cannot, as is apparently prohibited by the last paragraph of
Sec. 7?
Why is the former allowed, who is still occupying the very
public position that he is liable to exploit, but a non-
incumbent like myself – who is no longer in a position of
possible abuse/exploitation – cannot?"
Atty. Buffe alleged that Section 7(b)(2) of R.A. No. 6713 gives
preferential treatment to an incumbent public employee, who
may engage in the private practice of his profession so long as
this practice does not conflict or tend to conflict with his
official functions.
In contrast, a public official or employee who has retired,
resigned, or has been separated from government service like
her, is prohibited from engaging in private practice on any
matter before the office where she used to work, for a period of
one (1) year from the date of her separation from government
employment.
The interpretation that Section 7 (b) (2) generally prohibits
incumbent public officials and employees from engaging in the
practice of law, which is declared therein a prohibited and
unlawful act, accords with the constitutional policy on
accountability of public officers stated in Article XI of the
Constitution …
Exception
As an exception, a public official or employee can engage in the
practice of his or her profession under the following conditions:
1. the private practice is authorized by the Constitution or by
the law; and
2.the practice will not conflict, or tend to conflict, with his or
her official functions.
By way of exception, they can practice their profession if the
Constitution or the law allows them, but no conflict of interest
must exist between their current duties and the practice of
their profession.
Interpretation
The Section 7 prohibitions continue to apply for a period of one
year after the public official or employee’s resignation,
retirement, or separation from public office, except for the
private practice of profession under subsection (b)(2), which can
already be undertaken even within the one-year prohibition
period. As an exception to this exception, the one-year
prohibited period applies with respect to any matter before the
office the public officer or employee used to work with.
Section 5, Canon 3 of the Code of Conduct for Court
Personnel
Outside employment may be allowed by the head of office
provided it complies with all of the following requirements:
34 | P R O B L E M A R E A S I N L E G A L E T H I C S
(a) The outside employment is not with a person or entity that
practices law before the courts or conducts business with the
Judiciary;
(b) The outside employment can be performed outside of normal
working hours and is not incompatible with the performance of
the court personnel’s duties and responsibilities;
(c) That outside employment does not require the practice of
law; Provided, however, that court personnel may render
services as professor, lecturer, or resource person in law schools,
review or continuing education centers or similar institutions;
(d) The outside employment does not require or induce the
court personnel to disclose confidential information acquired
while performing officials duties;
(e) The outside employment shall not be with the legislative or
executive branch of government, unless specifically authorized
by the Supreme Court.
No lawyer in the Judiciary can practice law
No chance exists for lawyers in the Judiciary to practice their
profession, as they are in fact expressly prohibited by Section 5,
Canon 3 of the Code of Conduct for Court Personnel from doing
so.
Clerk of Court status after separation from government
A clerk of court can already engage in the practice of law
immediately after her separation from the service and without
any period limitation that applies to other prohibitions under
Section 7 of R.A. No. 6713.
The clerk of court’s limitation is that she cannot practice her
profession within one year before the office where he or she
used to work with. In a comparison between a resigned, retired
or separated official or employee, on the one hand, and an
incumbent official or employee, on the other, the former has
the advantage because the limitation is only with respect to the
office he or she used to work with and only for a period of one
year.
The incumbent cannot practice at all, save only where
specifically allowed by the Constitution and the law and only in
areas where no conflict of interests exists.
Inclusion of name in a business card is “private practice of
law”
"Baligod, Gatdula, Tacardon, Dimailig and Celera"
with office at Rm. 220 Mariwasa Bldg., 717 Aurora Blvd., Cubao,
Quezon City
While respondent denied having assumed any position in said
office, the fact remains that his name is included therein which
may therefore tend to show that he has dealings with said
office. Thus, while he may not be actually and directly
employed with the firm, the fact that his name appears on the
calling card as a partner in the Baligod, Gatdula, Tacardon,
Dimailig & Celera Law Offices give the impression that he is
connected therein and may constitute an act of solicitation and
private practice which is declared unlawful under Republic Act
No. 6713. - Samonte v. Atty. Gatdula, A.M. No. P-99-1292 [1999]
Section 7 sub-par. (b)(2) of Republic Act No. 6713, otherwise
known as "Code of Conduct and Ethical Standards for Public
Officials and Employees" which declares it unlawful for a public
official or employee to, among others:
"(2) Engage in the private practice of their profession unless
authorized by the Constitution or law, provided that such
practice will not conflict or tend to conflict with official
functions."
Preparation of a legal document [Assurance] after separation
from government service
The complainant, too, failed to sufficiently establish that the
respondent was engaged in the practice of law. At face value,
the legal service rendered by the respondent was limited only in
the preparation of a single document.
We specifically described private practice of law as one that
contemplates a succession of acts of the same nature habitually
or customarily holding one’s self to the public as a lawyer.

In any event, even granting that respondent’s act fell within the
definition of practice of law, the available pieces of evidence
are insufficient to show that the legal representation was made
before the Committee on Awards, or that the Assurance was
intended to be presented before it.-Olazo v. Justice Tinga, A.M.
No. 10-5-7-SC [2010]

35 | P R O B L E M A R E A S I N L E G A L E T H I C S
Notarial Law Violations
Problem Areas in Legal Ethics
Arellano University School of Law – Arellano Law Foundation
2015-2016
Resolution A.M. No. 02-8-13-SC
 •
05 July 2004
Acting on the compliance dated 05 July 2004 and on the
proposed Rules on Notarial Practice of 2004 submitted by the
Sub-Committee for the Study, Drafting and Formulation of the
Rules Governing the Appointment of Notaries Public and the
Performance and Exercise of Their Official Functions, of the
Committees on Revision of the Rules of Court and on Legal
Education and Bar Matters, the Court Resolved to APPROVE the
proposed Rules on Notarial Practice of 2004, with modifications.
Eligibility requirements to become a notary public
Rule III SECTION 1. Qualifications. - A notarial commission may
be issued by an Executive Judge to any qualified person who
submits a petition in accordance with these Rules.
To be eligible for commissioning as notary public, the petitioner:
must be a citizen of the Philippines;
must be over twenty-one (21) years of age;
must be a resident in the Philippines for at least one (1) year
and maintains a regular place of work or business in the city or
province where the commission is to be issued;
must be a member of the Philippine Bar in good standing with
clearances from the Office of the Bar Confidant of the
Supreme Court and the Integrated Bar of the Philippines; and
must not have been convicted in the first instance of any crime
involving moral turpitude.
Stationary office is required
Rule II SEC. 11. Regular Place of Work or Business. - The term
"regular place of work or business" refers to a stationary office
in the city or province wherein the notary public renders legal
and notarial services.
Notice of Summary Hearing
Rule III SEC. 5. Notice of Summary Hearing. - (a) The notice of
summary hearing shall be published in a newspaper of general
circulation in the city or province where the hearing shall be
conducted and posted in a conspicuous place in the offices of
the Executive Judge and of the Clerk of Court. The cost of the
publication shall be borne by the petitioner. The notice may
include more than one petitioner.
What is an oath?
Rule II SEC. 2. Affirmation or Oath. - The term "Affirmation" or
"Oath" refers to an act in which an individual on a single
occasion:
• appears in person before the notary public;
• is personally known to the notary public or identified
by the notary public through competent evidence of
identity as defined by these Rules; and
• avows under penalty of law to the whole truth of the
contents of the instrument or document.
Jurat
Rule II SEC. 6. Jurat. - "Jurat" refers to an act in which an
individual on a single occasion:
• appears in person before the notary public and
presents an instrument or document;
36 | P R O B L E M A R E A S I N L E G A L E T H I C S
• is personally known to the notary public or identified
by the notary public through competent evidence of
identity as defined by these Rules;
• signs the instrument or document in the presence of
the notary; and
takes an oath or affirmation before the notary public
as to such instrument or document.
A jurat is, among others, an attestation that the person who
presented the instrument or document to be notarized is
personally known to the notary public or identified by the notary
public through competent evidence of identity.
What is an acknowledgement?
Acknowledgment refers to an act in which an individual on a
single occasion:
• appears in person before the notary public and
presents an integrally complete instrument or
document;
• is attested to be personally known to the notary public
or identified by the notary public through competent
evidence of identity as defined by these Rules; and
• represents to the notary public that the signature on
the instrument or document was voluntarily affixed by
him for the purposes stated in the instrument or
document, declares that he has executed the
instrument or document as his free and voluntary act
a n d d e e d , a n d , i f h e a c t s i n a p a rt i c u la r
representative capacity, that he has the authority to
sign in that capacity. (See Section 1, Rule II of 2004
Rules of Notarial Practice) - Testate Estate of the late
Alipio Abada v. Abaja, G.R. No. 147145. January 31,
2005
Notarized document
Petitioner phrases this issue as to whether the will has to be
“notarized.” A notarized document includes one that is
subscribed and sworn under oath or one that contains a
jurat.– Testate Estate of the late Alipio Abada v. Abaja, G.R.
No. 147145. January 31, 2005
Purpose of acknowledgement in a notarial will
An acknowledgment is the act of one who has executed a deed
in going before some competent officer or court and declaring it
to be his act or deed. It involves an extra step undertaken
whereby the signatory actually declares to the notary public
that the same is his or her own free act and deed. The
acknowledgment in a notarial will has a two-fold purpose: (1)
to safeguard the testator’s wishes long after his demise and (2)
to assure that his estate is administered in the manner that he
intends it to be done. Manuel L. Lee v. Atty. Regino B. Tambago,
A.C. No. 5281, February 12, 2008)
Limitation of Notaries public ex-officio
Notaries public ex-officio only in the notarization of documents
connected with the exercise of their official functions. They
may not undertake the preparation and acknowledgment of
documents which bear no relation to the performance of their
functions as judges. – Ellert v. Judge Galapon, Jr., A.M No.
MTJ-00-1294, July 31, 2000
Changes of Status of Notary
Rule X SECTION 1. Change of Name and Address.
Within ten (10) days after the change of name of the notary
public by court order or by marriage, or after ceasing to
maintain the regular place of work or business, the notary
public shall submit a signed and dated notice of such fact to
the Executive Judge.
The notary public shall not notarize until:
• he receives from the Executive Judge a confirmation
of the new name of the notary public and/or change
of regular place of work or business; and
• a new seal bearing the new name has been obtained.
The foregoing notwithstanding, until the aforementioned steps
have been completed, the notary public may continue to use
the former name or regular place of work or business in
performing notarial acts for three (3) months from the date of
the change, which may be extended once for valid and just
cause by the Executive Judge for another period not exceeding
three (3) months.
Resignation as notary public
Rule 10 SEC. 2. Resignation. - A notary public may resign his
commission by personally submitting a written, dated and signed
formal notice to the Executive Judge together with his notarial
seal, notarial register and records. Effective from the date
indicated in the notice, he shall immediately cease to perform
notarial acts. In the event of his incapacity to personally appear,
the submission of the notice may be performed by his duly
authorized representative.
Publication of Resignation
SEC. 3. Publication of Resignation. - The Executive Judge shall
immediately order the Clerk of Court to post in a conspicuous
place in the offices of the Executive Judge and of the Clerk of
Court the names of notaries public who have resigned their
notarial commissions and the effective dates of their
resignation.
Notarial Certificate
Rule II SEC. 8. Notarial Certificate. - "Notarial Certificate" refers
to the part of, or attachment to, a notarized instrument or
document that is completed by the notary public, bears the
notary's signature and seal, and states the facts attested to by
the notary public in a particular notarization as provided for by
these Rules.
Information required to be indicated as part of a counsel’s
signature
Apart from the signature itself, additional information is
required to be indicated as part of a counsel’s signature:
Per Rule 7, Section 3 of the Rules of Court, a counsel’s address
must be stated;
In Bar Matter No. 1132,40 this court required all lawyers to
indicate their Roll of Attorneys number;
In Bar Matter No. 287,41 this court required the inclusion of the
“number and date of their official receipt indicating payment of
their annual membership dues to the Integrated Bar of the
Philippines for the current year”; in lieu of this, a lawyer may
indicate his or her lifetime membership number;
In accordance with Section 139 of the Local Government Code,
42 a lawyer must indicate his professional tax receipt number;
Bar Matter No. 192243 required the inclusion of a counsel’s
Mandatory Continuing Legal Education Certificate of Compliance
or Certificate of Exemption; and
This court’s Resolution in A.M. No. 07-6-5-SC44 required the
inclusion of a counsel’s contact details. – Uy v. Atty. Pacifico M.
Maghari, III, A.C. No. 10525, September 1, 2015
The inclusion of a counsel’s Roll of Attorneys number,
professional tax receipt number, and Integrated Bar of the
Philippines (IBP) receipt (or lifetime membership) number is
intended to preserve and protect the integrity of legal practice.
37 | P R O B L E M A R E A S I N L E G A L E T H I C S
They seek to ensure that only those who have satisfied the
requisites for legal practice are able to engage in it.
With the Roll of Attorneys number, parties can readily verify if
a person purporting to be a lawyer has, in fact, been admitted
to the Philippine bar.
With the professional tax receipt number, they can verify if
the same person is qualified to engage in a profession in the
place where he or she principally discharges his or her functions.
With the IBP receipt number, they can ascertain if the same
person remains in good standing as a lawyer. These pieces of
information“protect the public from bogus lawyers.”
Paying professional taxes (and the receipt that proves this
payment) is likewise compliance with a revenue mechanism that
has been statutorily devolved to local government units.
The inclusion of information regarding compliance with (or
exemption from) Mandatory Continuing Legal Education (MCLE)
seeks to ensure that legal practice is reserve only for those who
have complied with the recognized mechanism for “keep[ing]
abreast with law and jurisprudence, maintain[ing] the ethics of
the profession[,] and enhanc[ing] the standards of the practice
of law.”
The inclusion of a counsel’s address and contact details is
designed to facilitate the dispensation of justice. These pieces
of information aid in the service of court processes, enhance
compliance with the requisites of due process, and facilitate
better representation of a client’s cause. - Uy v. Atty. Pacifico
M. Maghari, III, A.C. No. 10525, September 1, 2015
Copy Certification
Rule II SEC. 4. Copy Certification. - "Copy Certification" refers to
a notarial act in which a notary public:
is presented with an instrument or document that is neither a
vital record, a public record, nor publicly recordable;
copies or supervises the copying of the instrument or
document;
compares the instrument or document with the copy; and
determines that the copy is accurate and complete.
Copy certification is required by rule of evidence
Rule 132 Section 25. What attestation of copy must state. —
Whenever a copy of a document or record is attested for the
purpose of evidence, the attestation must state, in
substance,:
that the copy is a correct copy of the original, or a specific
part thereof, as the case may be.
The attestation must be under the official seal of the
attesting officer, if there be any, or if he be the clerk of a court
having a seal, under the seal of such court.
Prima facie evidence of the execution
Rule 132 Section 30. Proof of notarial documents. — Every
instrument duly acknowledged or proved and certified as
provided by law, may be presented in evidence without further
proof, the certificate of acknowledgment being prima facie
evidence of the execution of the instrument or document
involved.
Competent Evidence of Identity
Rule II SEC. 12. Competent Evidence of Identity. - The phrase
"competent evidence of identity" refers to the identification of
an individual based on:
at least one current identification document issued by an
official agency bearing the photograph and signature of the
individual; or
the oath or affirmation of one credible witness not privy to the
instrument, document or transaction who is personally known to
the notary public and who personally knows the individual, or of
two credible witnesses neither of whom is privy to the
instrument, document or transaction who each personally knows
the individual and shows to the notary public documentary
identification.
NO current identification document issued by an official
agency
1. the oath or affirmation of one credible witness not privy to
the instrument, document or transaction who is personally
known to the notary public and who personally knows the
individual, or
2. the oath or affirmation of two credible witnesses neither of
whom is privy to the instrument, document or transaction who
each personally knows the individual and shows to the notary
public documentary identification.
The individual has no current identification document issued
by an official agency
A third party can attest in behalf of the individual under the
following:
The credible witness is not privy to the instrument, document or
transaction.
The notary public personally knows the credible witness.
The credible witness personally knows the individual.
The notary public personally knows the third party.
The notary public does not personally knows the third party
[two witnesses]
The 2 credible witnesses are not privy to the instrument,
document or transaction.
The 2 credible witnesses each personally knows the individual
and
Shows to the notary public documentary identification [of their
real by showing current identification document issued by an
official agency].
“Signature witnessing"
Rule II SEC. 14. Signature Witnessing. -The term "signature
witnessing" refers to a notarial act in which an individual on a
single occasion:
appears in person before the notary public and presents an
instrument or document;
is personally known to the notary public or identified by the
notary public through competent evidence of identity as
defined by these Rules; and
signs the instrument or document in the presence of the notary
public.
Term
Rule III SEC. 11. Jurisdiction and Term. - A person commissioned
as notary public may perform notarial acts in any place within
the territorial jurisdiction of the commissioning court for a
period of two (2) years commencing the first day of January of
the year in which the commissioning is made, unless earlier
revoked or the notary public has resigned under these Rules and
the Rules of Court.
Rule III SEC. 7 Form of Notarial Commission
REPUBLIC OF THE PHILIPPINES
38 | P R O B L E M A R E A S I N L E G A L E T H I C S
REGIONAL TRIAL COURT OF ______________
This is to certify that (name of notary public) of (regular place
of work or business) in (city or province) was on this (date) day
of (month) two thousand and (year) commissioned by the
undersigned as a notary public, within and for the said
jurisdiction, for a term ending the thirty-first day of
December (year).
_______________
Executive Judge
Use of thumb or other mark
Rule IV SECTION 1. Powers. –
xxx
A notary public is authorized to certify the affixing of a
signature by thumb or other mark on an instrument or
document presented for notarization if:
(1)the thumb or other mark is affixed in the presence of the
notary public and of two (2) disinterested and unaffected
witnesses to the instrument or document;
(2) both witnesses sign their own names in addition to the
thumb or other mark;
(3) the notary public writes below the thumb or other mark:
"Thumb or other mark affixed by (name of signatory by mark) in
the presence of (names and addresses of witnesses) and
undersigned notary public"; and
(4) the notary public notarizes the signature by thumb or other
mark through an acknowledgment, jurat, or signature
witnessing.
Prohibited acts of a notary
SEC. 2. Prohibitions. –
A notary public shall not perform a notarial act outside his
regular place of work or business; provided, however, that on
certain exceptional occasions or situations, a notarial act may
be performed at the request of the parties in the following
sites located within his territorial jurisdiction:
public offices, convention halls, and similar places where oaths
of office may be administered;
public function areas in hotels and similar places for the signing
of instruments or documents requiring notarization;
hospitals and other medical institutions where a party to an
instrument or document is confined for treatment; and
any place where a party to an instrument or document requiring
notarization is under detention.
(b) A person shall not perform a notarial act if the person
involved as signatory to the instrument or document -
is not in the notary's presence personally at the time of the
notarization; and
(2) is not personally known to the notary public or otherwise
identified by the notary public through competent evidence
of identity as defined by these Rules.
When a notary public can sign on behalf of a person
SECTION 1. Powers. –
xxx
A notary public is authorized to sign on behalf of a person who
is physically unable to sign or make a mark on an instrument or
document if:
the notary public is directed by the person unable to sign or
make a mark to sign on his behalf;
the signature of the notary public is affixed in the presence of
two disinterested and unaffected witnesses to the instrument or
document;
both witnesses sign their own names ;
the notary public writes below his signature: "Signature affixed
by notary in presence of (names and addresses of person and
two [2] witnesses)"; and
the notary public notarizes his signature by acknowledgment or
jurat.
Disqualified to perform notarial act
SEC. 3. Disqualifications. - A notary public is disqualified from
performing a notarial act if he:
(a) is a party to the instrument or document that is to be
notarized;
(b) will receive, as a direct or indirect result, any commission,
fee, advantage, right, title, interest, cash, property, or other
consideration, except as provided by these Rules and by law; or
(c) is a spouse, common-law partner, ancestor, descendant, or
relative by affinity or consanguinity of the principal within the
fourth civil degree.
Prohibition to do a notarial act even if payment is tendered
Rule IV SEC. 4. Refusal to Notarize. - A notary public shall not
perform any notarial act described in these Rules for any person
requesting such an act even if he tenders the appropriate fee
specified by these Rules if:
(a) the notary knows or has good reason to believe that the
notarial act or transaction is unlawful or immoral;
(b) the signatory shows a demeanor which engenders in the mind
of the notary public reasonable doubt as to the former's
knowledge of the consequences of the transaction requiring a
notarial act; and
(c) in the notary's judgment, the signatory is not acting of his or
her own free will.
Prohibition to do a notarial act
Rule IV SEC. 5. False or Incomplete Certificate. - A notary public
shall not:
execute a certificate containing information known or believed
by the notary to be false.
affix an official signature or seal on a notarial certificate that is
incomplete.
Notary public should not notarize Improper Instruments or
Documents
Rule IV SEC. 6. Improper Instruments or Documents. - A notary
public shall not notarize:
(a) a blank or incomplete instrument or document; or an
instrument or document without appropriate notarial
certification.
Contents of the Concluding Part of the Notarial Certificate
Rule VIII SEC. 2. Contents of the Concluding Part of the Notarial
Certificate. - The notarial certificate shall include the following:
(a) the name of the notary public as exactly indicated in the
commission;
(b) the serial number of the commission of the notary public;
(c) the words "Notary Public" and the province or city where the
notary public is commissioned, the expiration date of the
commission, the office address of the notary public; and
(d) the roll of attorney's number, the professional tax receipt
number and the place and date of issuance thereof, and the IBP
membership number.
Schedule of fees
RRC 141 Sec. 12. Notaries. -- No notary public shall charge or
receive for any service rendered by him any fee, remuneration
39 | P R O B L E M A R E A S I N L E G A L E T H I C S
or compensation in excess of those expressly prescribed in the
following schedule:
For protests of drafts, bills of exchange, or promissory notes for
non-acceptance or non-payment, and for notice thereof, ONE
HUNDRED (P100.00) PESOS; chan robles virtual law library
For the registration of such protest and filing or safekeeping of
the same, ONE HUNDRED (P100.00) PESOS;
For authenticating powers of attorney, ONE HUNDRED (P100.00)
PESOS;
For sworn statement concerning correctness of any account or
other document, ONE HUNDRED (P100.00) PESOS;
For each oath of affirmation, ONE HUNDRED (P100.00) PESOS;
For receiving evidence of indebtedness to be sent outside, ONE
HUNDRED (P100.00) PESOS;
For issuing a certified copy of all or part of his notarial register
or notarial records, for each page, ONE HUNDRED (P100.00)
PESOS;
For taking depositions, for each page, ONE HUNDRED (P100.00)
PESOS; and
For acknowledging other documents not enumerated in this
section, ONE HUNDRED (P100.00) PESOS. (11a)
Purpose of physical presence
The physical presence of the affiants enables the notary public
to verify the genuineness of the signatures of the acknowledging
parties and to ascertain that the document is the parties’ free
act and deed. – Angeles, et. al. v. Atty. Ibañez, A.C. No. 7860
January 15, 2009
Interviewing the contracting parties does not make the
parties personally known to the notary public
That the parties appeared before [notary ex-officio] and that he
interviewed them do not make the parties personally known to
him. The parties are supposed to appear in person to subscribe
to their affidavits. To personally know the parties, the notary
public must at least be acquainted with them. Interviewing the
contracting parties does not make the parties personally
known to the notary public. – Tupal v. Judge Rojo, A.M. No.
MTJ–14–1842, February 24, 2014
Acknowledgement and personal appearance
As it were, the Notarial Law is silent as to whether or not the
parties to a conveying instrument must be present before the
notary public at the same time when they acknowledge its due
execution. - Tan Tiong Bio v. Atty. Renato L. Gonzalez, A.C. no.
6634, August 23, 2007
Personal knowledge of a false statement or information
Where admittedly the notary public has personal knowledge of a
false statement or information contained in the instrument to
be notarized, yet proceeds to affix his or her notarial seal on it,
the Court must not hesitate to discipline the notary public
accordingly as the circumstances of the case may dictate.
Otherwise, the integrity and sanctity of the notarization process
may be undermined and public confidence on notarial
documents diminished. Heirs of the late Sps. Lucas and
Francisca Villanueva v. Atty. Salud P. Beradio, A.C. No. 6270,
January 22, 2007)
Personal appearance is required
Hence, a notary public should not notarize a document unless
the persons who signed the same are the very same persons who
executed and personally appeared before him to attest to the
contents and truth of what are stated therein.
A notary public is duty-bound to require the person executing a
document:
to be personally present,
to swear before him that he is that person and ask the latter if
he has voluntarily and freely executed the same. (Pantoja-
Mumar v. Atty. Flores, A.C. No. 5426, April 3, 2007)
Notarization is not a ministerial duty
In this case, Atty. Gasmen claimed that before the SPA and loan
application were notarized, the proceeds were already released
to NGC by AMWSLAI, thus, dispensing with the need for
notarization. Moreover, he insisted that the notarization of said
documents was merely done on a ministerial basis, with proper
safeguards, and that it cannot be expected of him to require
the personal appearance of every loan applicant considering
the hundreds of loan applications brought to him for signing. –
FO Sappayani v. Atty. Gasmen, A.C. no. 7073, September 01,
2015
No need for notary to retain a copy of the will
On the issue of whether respondent was under the legal
obligation to furnish a copy of the notarized will to the archives
division, Article 806 provides:
Art. 806. Every will must be acknowledged before a notary
public by the testator and the witness. The notary public shall
not be required to retain a copy of the will, or file another
with the office of the Clerk of Court. (emphasis supplied)
Respondent’s failure, inadvertent or not, to file in the archives
division a copy of the notarized will was therefore not a cause
for disciplinary action. (Lee v. Atty. Tambago, A.C. No. 5281,
February 12, 2008)
A notary public cannot appear before himself
Respondent also alleged that in signing for and in behalf of his
client Pagunsan and Bofetiado, his signature was preceded by
the word "By" which suggests that he did not in any manner
make it appear that those persons signed in his presence;
aside from the fact that his clients authorized him to sign for
and in their behalf, considering the distance of their place of
residence to that of the respondent and the reglementary period
in filing said pleadings he had to reckon with.
“xxx having signed the Verification of the pleading, he cannot
swear that he appeared before himself as Notary Public.” –
Villarin v. Atty. Sabate, Jr.,A.C. No. 3324 February 9, 2000
Thank you for your attention!!
By respondent’s admission, the affidavit was already signed by
the purported affiant at the time it was presented to him for
notarization. Respondent thus failed to heed his duty as a notary
public to demand that the document for notarization be signed
in his presence. Traya, Jr. v. Atty.Villamor, A.C. No.4595.
February 6, 2004
As quoted supra, competent evidence of identity is not required
in cases where the affiant is personally known to the Notary
Public, which is the case herein. - Amora, Jr. v. COMELEC, G.R.
No. 192280, January 25, 2011
It is apparent that a CTC, which bears no photograph, is no
longer a valid form of identification for purposes of Notarization
of Legal Documents. No less than the Supreme Court itself,
when it revoked the Notarial Commission of a member of the
Bar in Baylon v. Almo, reiterated this when it said:
“As a matter of fact, recognizing the established unreliability of
a community tax certificate in proving the identity of a person
who wishes to have his document notarized, we did not include
it in the list of competent evidence of identity that notaries
40 | P R O B L E M A R E A S I N L E G A L E T H I C S
public should use in ascertaining the identity of persons
appearing before them to have their documents notarized.”-
Amora, Jr. v. COMELEC
G.R. No. 192280, January 25, 2011
If the notary public knows the affiants personally, he need not
require them to show their valid identification cards. This rule is
supported by the definition of a “jurat” under Section 6, Rule II
of the 2004 Rules on Notarial Practice. A “jurat” refers to an act
in which an individual on a single occasion: (a) appears in person
before the notary public and presents an instrument or
document; (b) is personally known to the notary public or
identified by the notary public through competent evidence of
identity; (c) signs the instrument or document in the presence
of the notary; and (d) takes an oath or affirmation before the
notary public as to such instrument or document. Jandoquile v.
Atty. Revilla Jr., A.C. No. 9514, April 10, 2013
In this case, Heneraline Brosas is a sister of Atty. Revilla, Jr.’s
wife; Herizalyn Brosas Pedrosa is his wife’s sister-in-law; and
Elmer Alvarado is the live-in houseboy of the Brosas family. Atty.
Revilla, Jr. knows the three affiants personally. Thus, he was
justified in no longer requiring them to show valid identification
cards. But Atty. Revilla, Jr. is not without fault for failing to
indicate such fact in the “jurat” of the complaint-affidavit. No
statement was included therein that he knows the three affiants
personally. Jandoquile v. Atty. Revilla Jr., A.C. No. 9514, April
10, 2013
Let it be impressed that Atty. Revilla, Jr. was clearly disqualified
to notarize the complaint-affidavit of his relatives within the
fourth civil degree of affinity. While he has a valid defense as to
the second charge, it does not exempt him from liability for
violating the disqualification rule. Jandoquile v. Atty. Revilla Jr.,
A.C. No. 9514, April 10, 2013
The lawyer and the moneys or properties of his clients
CANON 16 - A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND
PROPERTIES OF HIS CLIENT THAT MAY COME INTO HIS
PROFESSION.
Rule 16.01 - A lawyer shall account for all money or property
collected or received for or from the client.
Rule 16.02 - A lawyer shall keep the funds of each client
separate and apart from his own and those of others kept by
him.
Rule 16.03 - A lawyer shall deliver the funds and property of his
client when due or upon demand. However, he shall have a lien
over the funds and may apply so much thereof as may be
necessary to satisfy his lawful fees and disbursements, giving
notice promptly thereafter to his client. He shall also have a
lien to the same extent on all judgments and executions he has
secured for his client as provided for in the Rules of Court.
Rule 16.04 - A lawyer shall not borrow money from his client
unless the client's interest are fully protected by the nature of
the case or by independent advice. Neither shall a lawyer lend
money to a client except, when in the interest of justice, he has
to advance necessary expenses in a legal matter he is handling
for the client.
Rule 138 Sec. 24. Compensation of attorneys; agreement as to
fees. - An attorney shall be entitled to have and recover from
his client no more than a reasonable compensation for his
services, with a view to the importance of the subject matter of
the controversy, the extent of the services rendered, and the
professional standing of the attorney. xxx
Rule 138 Sec. 25. Unlawful retention of client's funds; contempt.
- When an attorney unjustly retains in his hands money of his
client after it has been demanded, he may be punished for
contempt as an officer of the Court who has misbehaved in his
official transactions; but proceedings under this section shall not
be a bar to a criminal prosecution.
Rule 138 Sec. 37. Attorneys' liens. - An attorney shall have a lien
upon the funds, documents and papers of his client which have
lawfully come into his possession and may retain the same until
his lawful fees and disbursements have been paid, and may
apply such funds to the satisfaction thereof.
He shall also have a lien to the same extent upon all judgments
for the payment of money, and executions issued in pursuance
of such judgments, which he has secured in a litigation of his
client, from and after the time when he shall have caused a
statement of his claim of such lien to be entered upon the
records of the court rendering such judgment, or issuing such
execution, and shall have caused written notice thereof to be
delivered to his client and to the adverse party; and he shall
have the same right and power over such judgments and
executions as his client would have to enforce his lien and
secure the payment of his just fees and disbursements.
Lawyer took custody of 2 cars subject of preliminary
attachment
According to Atty. Salomon, the attaching sheriff of Manila,
instead of depositing the attached cars in the court premises,
turned them over to Atty. Frial, Lo’s counsel.
Very patently, Atty. Frial was remiss in his obligation of taking
good care of the attached cars. He also allowed the use of the
Nissan Sentra car by persons who had no business using it. He
did not inform the court or at least the sheriff of the destruction
of the Volvo car. What is worse is that he took custody of them
without so much as informing the court, let alone securing, its
authority. - Atty. Salomon Jr. v. Atty. Frial, A.C. No. 7820 [2008]
Lawyer withdraw money deposited to the Branch Clerk of
Court without informing his client
Complainant, through his new counsel Atty. Miguel D. Larida,
sent respondent on 30 June 2003 a final demand letter for the
accounting and return of the P255,000. Respondent failed to
reply.
Respondent committed a flagrant violation of his oath when he
received the sum of money representing the monthly rentals
intended for his client, without accounting for and returning
such sum to its rightful owner. Respondent received the money
in his capacity as counsel for complainant. Therefore,
respondent held the money in trust for complainant.
Respondent should have immediately notified complainant of
the trial court’s approval of the motion to withdraw the
deposited rentals. Upon release of the funds to him, respondent
could have collected any lien which he had over them in
connection with his legal services, provided he gave prompt
notice to complainant. A lawyer is not entitled to unilaterally
appropriate his client’s money for himself by the mere fact that
the client owes him attorney’s fees. In this case, respondent did
41 | P R O B L E M A R E A S I N L E G A L E T H I C S
not even seek to prove the existence of any lien, or any other
right that he had to retain the money.
Respondent’s failure to turn over the money to complainant
despite the latter’s demands gives rise to the presumption that
he had converted the money for his personal use and benefit. -
Almandrez Jr. v. Atty. Langit, A.C. No. 7057 [2006]
Business transaction between lawyer and client is discourage
As a rule, a lawyer is not barred from dealing with his client but
the business transaction must be characterized with utmost
honesty and good faith. The measure of good faith which an
attorney is required to exercise in his dealings with his client is
a much higher standard that is required in business dealings
where the parties trade at "arms length." Business transactions
between an attorney and his client are disfavored and
discouraged by the policy of the law. Hence, courts carefully
watch these transactions to assure that no advantage is taken by
a lawyer over his client. This rule is founded on public policy for,
by virtue of his office, an attorney is in an easy position to take
advantage of the credulity and ignorance of his client. Thus, no
presumption of innocence or improbability of wrongdoing is
considered in an attorney’s favor. - Chua and Hsia v. Atty.
Mesina Jr., A.C. No. 4904 [2004]
No services rendered, money must be returned
It is now clear to us that since respondent did not take any step
to assist complainant in her case, charging P56,000.00 is
improper. While giving legal advice and opinion on
complainant’s problems and those of her family constitutes legal
service, however, the attorney’s fee must be reasonable.
Obviously, P56,000.00 is exorbitant.
We cannot understand why respondent initially demanded
P8,000.00 as filing fee from complainant when he very well
knew that the docket fee for Civil Case No. 00-044 had been
paid. If it was intended as a docket fee for another case, why
did he not file the corresponding complaint?
Respondent lawyer did not return the money to complainant
despite demand following his failure to file the case. - Dalisay
v. Atty. Mauricio, Jr., A.C. No. 5655 [2006]
Issuing and keeping of receipts are practices of accountability
Ethical and practical considerations made it both natural and
imperative for him to issue receipts, even if not demanded, and
to keep copies of the receipts for his own records. He was all
too aware that he was accountable for the moneys entrusted to
him by the clients, and that his only means of ensuring
accountability was by issuing and keeping receipts. - Tarog v.
Atty. Ricafort, A.C. No. 8253 [2011]
When to deliver funds of clients
Thus, having obtained the funds from the [client] in the course
of his professional employment, [a lawyer] had the obligation to
deliver such funds to his clients
(a) when they became due, or
(b) upon demand.
- Tarog v. Atty. Ricafort, A.C. No. 8253 [2011]
Lawyer should not deposit the funds in his personal account
For him to deposit the amount of P65,000.00 in his personal
account without the consent of the Tarogs and not return it upon
demand, and for him to fail to file the memorandum and yet not
return the amount of P15,000.00 upon demand constituted a
serious breach of his fiduciary duties as their attorney. He
reneged on his duty to render an accounting to his clients
showing that he had spent the amounts for the particular
purposes intended. - Tarog v. Atty. Ricafort, A.C. No. 8253
[2011]
Depositing it in his personal account with the consent of client is
ethical?
Lending money to client
Moreover, by engaging in a money-lending venture with his
clients as borrowers, respondent violated Rule 16.04:
Rule 16.04 – A lawyer shall not borrow money from his client
unless the client’s interests are fully protected by the nature of
the case or by independent advice. Neither shall a lawyer lend
money to a client except, when in the interest of justice, he has
to advance necessary expenses in a legal matter he is handling
for the client.
The rule is that a lawyer shall not lend money to his client. The
only exception is, when in the interest of justice, he has to
advance necessary expenses (such as filing fees, stenographer’s
fees for transcript of stenographic notes, cash bond or premium
for surety bond, etc.) for a matter that he is handling for the
client. - Linsangan v. Atty. Tolentino, A.C. No. 6672 [2009]
Purpose of prohibiting lending of money to client
The rule is intended to safeguard the lawyer’s independence of
mind so that the free exercise of his judgment may not be
adversely affected. It seeks to ensure his undivided attention to
the case he is handling as well as his entire devotion and fidelity
to the client’s cause. - Linsangan v. Atty. Tolentino, A.C. No.
6672 [2009]
Ill-effects of lending money to clients
If the lawyer lends money to the client in connection with the
client’s case, the lawyer in effect acquires an interest in the
subject matter of the case or an additional stake in its outcome.
Either of these circumstances may: a. lead the lawyer to
consider his own recovery rather than that of his client, or b. to
accept a settlement which may take care of his interest in the
verdict to the prejudice of the client in violation of his duty of
undivided fidelity to the client’s cause. - Linsangan v. Atty.
Tolentino, A.C. No. 6672 [2009]
Rule 16.01 includes money judgment in favor of client
There is no question that the money or property received by a
lawyer for her client properly belongs to the latter. Conformably
with these canons of professional responsibility, we have held
that a lawyer is obliged to render an accounting of all the
property and money she has collected for her client. This
obligation includes the prompt reporting and accounting of the
money collected by the lawyer by reason of a favorable
judgment to his client. - Bayonla v. Atty. Reyes, A.C. No. 4808
[2011]
Lawyer and client must agree with the amount before
retaining lien is validly applied
In both cases, however, it is to be assumed that the client
agrees with the lawyer in the amount of attorney's fees. In
case of a disagreement, or when the client disputes the amount
claimed by the lawyer for being unconscionable, the lawyer
should not arbitrarily apply the funds in his possession to the
payment of his fees; instead, it should behoove the lawyer to
file, if he still deems it desirable, the necessary action or the
proper motion with the proper court to fix the amount of his
attorney's fees. If a lawyer were allowed to unilaterally apply
the funds in his hands in payment of his claimed
compensation even when there is a disagreement between
him and his client would not only be violative of the trust
42 | P R O B L E M A R E A S I N L E G A L E T H I C S
relationship between them but can also open the door to
possible abuse by those who are less than mindful of their
fiduciary duty. - J.K. Mercado and Sons v. Atty. De Vera and Atty.
Bandalan, A.C. No. 3066 [2001]
Misuse of filing fee violates the rule that lawyers must be
scrupulously careful in handling money entrusted to them in
their professional capacity
Central to this case are the following alleged acts of respondent
lawyer: (a) his non-filing of the Complaint on behalf of his client
and (b) his appropriation for himself of the money given for the
filing fee. - Burbe v. Atty. Magulta, AC No. 99-634 [2002]
Appropriating the entire award is a violation of Canon 16 and
Rule 16.01
The Court is not oblivious of the right of a lawyer to be paid for
the legal services he has extended to his client but such right
should not be exercised whimsically by appropriating to
himself the money intended for his clients. There should
never be an instance where the victor in litigation loses
everything he won to the fees of his own lawyer. - Rivera v.
Atty. Angeles, A.C. No. 2519 [2000]
Obligation of lawyer once the money or property intended for
his client is received
• should be reported and accounted for promptly and
• should not under any circumstances be commingled
with his own or be used by him. - Judge Angeles v.
Atty. Uy, Jr., A.C. No. 5019. April 6, 2000
Misappropriation is not required
The records do not clearly show whether Attorney Uy had in fact
appropriated the said amount; in fact, Mrs. Del Rosario
acknowledged that she had received it on February 12, 1999.
They do show, however, that respondent failed to promptly
report that amount to her. This is clearly a violation of his
professional responsibility.
Verily, the question is not necessarily whether the rights of the
clients have been prejudiced, but whether the lawyer has
adhered to the ethical standards of the bar. - Judge Angeles v.
Atty. Uy, Jr., A.C. No. 5019. April 6, 2000
Avoid keeping the money of client
Keeping the money in his possession without his client's
knowledge only provided Atty. Uy the tempting opportunity to
appropriate for himself the money belonging to his client. This
situation should, at all times, be avoided by members of the
bar. Like judges, lawyers must not only be clean; they must also
appear clean. This way, the people's faith in the justice system
would remain undisturbed. - Judge Angeles v. Atty. Uy, Jr., A.C.
No. 5019. April 6, 2000
Acquisition of properties subject of litigation
Contingent fee arrangement does not violate Article 1491 (5)
of the Civil Code
Hence, a contract between a lawyer and his client stipulating a
contingent fee is not covered by said prohibition under because
the payment of said fee is not made during the pendency of
the litigation but only after judgment has been rendered in
the case handled by the lawyer. In fact, under the 1988 Code
of Professional Responsibility, a lawyer may have a lien over
funds and property of his client and may apply so much thereof
as may be necessary to satisfy his lawful fees and
disbursements. - Fabillo and Tana v. IAC G.R. No. L-68838
[1991]
Limitations of contingent fee
As long as the lawyer does not exert undue influence on his
client, that no fraud is committed or imposition applied, or
that the compensation is clearly not excessive as to amount to
extortion, a contract for contingent fee is valid and
enforceable. Moreover, contingent fees were impliedly
sanctioned by No. 13 of the Canons of Professional Ethics which
governed lawyer-client relationships when the contract of
services was entered into between the Fabillo spouses and
Murillo. - Fabillo and Tana v. IAC G.R. No. L-68838 [1991]
Appearance of impropriety if judge purchase property after
litigation
Finally, while it is true that respondent Judge did not violate
paragraph 5, Article 1491 of the New Civil Code in acquiring by
purchase a portion of Lot 1184-E which was in litigation in his
court, it was, however, improper for him to have acquired the
same. He should be reminded of Canon 3 of the Canons of
Judicial Ethics which requires that: "A judge's official conduct
should be free from the appearance of impropriety, and his
personal behavior, not only upon the bench and in the
performance of judicial duties, but also in his everyday life,
should be beyond reproach." And as aptly observed by the
Investigating Justice: "... it was unwise and indiscreet on the
part of respondent to have purchased or acquired a portion of
a piece of property that was or had been in litigation in his
court and caused it to be transferred to a corporation of which
he and his wife were ranking officers at the time of such
transfer. - Macariola v. Asuncion, A.M. No. 133-J [1982]
The property must be the very subject of litigation for Article
1491 to apply
It is true that Canon No. 10 of the Canons of Professional Ethics
prohibits the lawyer from purchasing any interest in the
subject-matter of the litigation which he is conducting, and
Article 1491, paragraph 5, of the New Civil Code prohibits him
from acquiring by purchase or assignment the property and
rights which may be the object of any litigation in which he may
take part by virtue of his profession. But in those cases where
these provisions were applied, the rights or properties
purchased by the lawyer were the very subject of the
litigation handled by him. - Guevara v. Calalang, A.M. No. 681
[1982]
Levied property in satisfaction of damages can be properly
acquired by lawyer
In the case at bar, the lot in which respondent acquired rights by
assignment was not the subject of Civil Case No. 2171 in which
he approved (sic) as counsel for Bernabe Flores and others. The
said case was purely one for damages and did not involve the
lot in question. The lot was simply levied upon on execution
after judgment was rendered in favor of the plaintiffs.
Therefore Article 1491 of the New Civil Code did not apply.
Consequently, respondent had not violated the said provision of
law. - Guevara v. Calalang, A.M. No. 681 [1982]
It was not professional misconduct or unethical practice for
the respondent to acquire the rights and interests of his client
to the 439 square meter parcel of land subject of the
administrative charges because the land was not involved in the
litigation he was handling. The land was acquired by Bernabe
Flores in an execution sale conducted to satisfy the judgment
secured in the course of Civil Case No. 2171. The case handled
by the respondent was for damages. - Guevara v. Calalang, A.M.
No. 681 [1982]
43 | P R O B L E M A R E A S I N L E G A L E T H I C S
Withdrawal of the amount deposited in order to pay
attorney’s fees violates Article 1491 of the NCC
The withdrawal of the amount deposited in order to pay
attorney’s fees to petitioner’s counsel, Atty. De Guzman, Jr.,
violates Article 1491 of the Civil Code which forbids lawyers
from acquiring by assignment, property and rights which are
the object of any litigation in which they may take part by
virtue of their profession. Furthermore, Rule 10 of the Canons of
Professional Ethics provides that “the lawyer should not
purchase any interest in the subject matter of the litigation
which he is conducting.” The assailed transaction falls within
the prohibition because the Deed assigning the amount of
P672,900.00 to Atty. De Guzman, Jr., as part of his attorney’s
fees was executed during the pendency of this case with the
Court of Appeals. In his Motion to Intervene, Atty. De Guzman,
Jr., not only asserted ownership over said amount, but likewise
prayed that the same be released to him. - Pabugais v.
Sahijwani G.R. No. 156846 [2004]
Even if litigant voluntarily assigned the amount
That petitioner knowingly and voluntarily assigned the subject
amount to his counsel did not remove their agreement within
the ambit of the prohibitory provisions. - Pabugais v. Sahijwani
G.R. No. 156846 [2004]
Assignment of property violates Article 1491
We agree with the Investigating Commissioner's opinion that the
prohibition applies when the lawyer has not paid money for it
and the property was merely assigned to him in consideration
of legal services rendered at a time when the property is still
the subject of a pending case. - Ordonio v. Atty. Eduarte, A.M.
No. 3216 [1992]
Prohibition still applies even if lessee is a separate juridical
person
Thus, even if the parties designated as lessees in the assailed
lease contracts were the "Heirs of Jose Villegas" and the
partnership HIJOS DE JOSE VILLEGAS, and respondent signed
merely as an agent of the latter, the Court rules that the lease
contracts are covered by the prohibition against any
acquisition or lease by a lawyer of properties involved in
litigation in which he takes part. To rule otherwise would be to
lend a stamp of judicial approval on an arrangement which, in
effect, circumvents that which is directly prohibited by law. For,
piercing through the legal fiction of separate juridical
personality, the Court cannot ignore the obvious implication
that respondent as one of the heirs of Jose Villegas and partner,
later manager of, in HIJOS DE JOSE VILLEGAS stands to benefit
from the contractual relationship created between his client
Felix Leong and his family partnership over properties
involved in the ongoing testate proceedings. - Mananquil v.
Atty. Villegas, A.M. No. 93-7-696-0 February 21, 1995
Mortgage contract included in the prohibition
To state that mortgages are not included within the prohibition
is to open the door to an indirect circumvention of that
statutory injunction, acquisition of the property being merely
postponed till eventual foreclosure.
Respondent asserts further that Article 1491[5] does not apply to
judgment creditors of which, he claims, he was one. Under
ordinary circumstances, the argument of respondent could be
considered plausible. Unfortunately, however, as heretofore
explained, the mortgage was executed in violation of Article
1491[5] so that this Article has a direct bearing on this case and
respondent cannot escape its provision. Having violated the
same, he cannot be considered in the general run of a judgment
creditor. - Fornilda, et. al. v. RTC Branch 164, G.R.No. L-72306
[1989]
Mere demand for delivery of the litigated property does not
violate the rule
In the instant case, there was no actual acquisition of the
property in litigation since the respondent only made a written
demand for its delivery which the complainant refused to
comply. Mere demand for delivery of the litigated property
does not cause the transfer of ownership, hence, not a
prohibited transaction within the contemplation of Article 1491.
Even assuming arguendo that such demand for delivery is
unethical, respondent's act does not fall within the purview of
Article 1491. - Ramos v. Atty. Ngaseo, A.C. No. 6210 [2004]
Certiorari proceeding still bars purchase of property under
Article 1491
In the case at bar, while it is true that Atty. Arsenio Fer.
Cabanting purchased the lot after finality of judgment, there
was still a pending certiorari proceeding. A thing is said to be
in litigation not only if there is some contest or litigation over
it in court, but also from the moment that it becomes subject
to the judicial action of the judge. - Valencia v. Atty.
Cabanting, A.M. No. 1302, 1391 and 1543 [1991]
Criticisms against the courts and judges
CANON 11 - A LAWYER SHALL OBSERVE AND MAINTAIN THE
RESPECT DUE TO THE COURTS AND TO JUDICIAL OFFICERS AND
SHOULD INSIST ON SIMILAR CONDUCT BY OTHERS.
Rule 11.01 - A lawyer shall appear in court properly attired.
Rule 11.02 - A lawyer shall punctually appear at court hearings.
Rule 11.03 - A lawyer shall abstain from scandalous, offensive
or menacing language or behavior before the Courts.
Rule 11.04 - A lawyer shall not attribute to a Judge motives not
supported by the record or have no materiality to the case.
Rule 11.05 - A lawyer shall submit grievances against a Judge to
the proper authorities only.
CANON 13 - A LAWYER SHALL RELY UPON THE MERITS OF HIS
CAUSE AND REFRAIN FROM ANY IMPROPRIETY WHICH TENDS TO
INFLUENCE, OR GIVES THE APPEARANCE OF INFLUENCING THE
COURT.
Rule 13.02 - A lawyer shall not make public statements in the
media regarding a pending case tending to arouse public
opinion for or against a party.
Duty of Lawyers
As part of the machinery for the administration of justice, a
lawyer is expected to bring to the fore irregular and
questionable practices of those sitting in court which tend to
corrode the judicial machinery. Thus, if he acquired reliable
information that anomalies are perpetrated by judicial officers,
it is incumbent upon him to report the matter to the Court so
that it may be properly acted upon. An omission or even a delay
in reporting may tend to erode the dignity of, and the public’s
trust in, the judicial system. – Fudot v. Cattleyla Land, Inc.,
G.R. No. 171008 October 24, 2008
Requirements when raising grievances against judges
The Court is not against lawyers raising grievances against
erring judges but the rules clearly provide for the proper venue
and procedure for doing so, precisely because respect for the
institution must always be maintained. - In re: Atty. Bagabuyo
A.C. No. 7006 [2007]
44 | P R O B L E M A R E A S I N L E G A L E T H I C S
A scurrilous attack
We recall his use of the following words and phrases: abhorrent
nullity, legal monstrosity, horrendous mistake, horrible error,
boner, and an insult to the judiciary and an anachronism in the
judicial process. – Judge Lacurom v. Atty. Jacoba, A.C. No. 5921,
March 10, 2006
Offensive language
They unfairly called the Court of Appeals a “court of
technicalities” for validly dismissing their defectively prepared
petition.
They also accused the Court of Appeals of protecting, in their
view, “an incompetent judge.”
The Court of Appeals’ dismissal of the case shows
its“impatience and readiness to punish petitioners for a
perceived slight on its dignity” and such dismissal“smacks of
retaliation and does not augur for the cold neutrality and
impartiality demanded of the appellate court.”- Asean Pacific
Planners et. al. v. City of Urdaneta et. al., G.R. No. 162525
[2008]
Intemperate language
His characterization of the decision of the respondent Judge as
having been "crafted in order to fool the winning party"; as a
"hypocritical judgment in plaintiffs' favor"; one "you could
have sworn it was the Devil who dictated it"; or one with
"perfidious character," although the petitioners as plaintiffs
therein and who were the prevailing party in the decision did
not appeal therefrom; and by his charge that the respondent
Judge was "a bit confused — with that confusion which is the
natural product of having been born, nurtured and brought
up amongst the crowded surroundings of the non-propertied
class.
- Sps. Tiongco v. Hon. Aguilar, G.R. No. 115932 January 25,
1995
Foul language
The loathsome epithets hurled by the complainant against the
respondent justices, e.g., "Crooks in Robe," "Swindlers in
Robe," "corrupt justices who were only sowing ‘judicial
terrorism,’" as well as his vilification of the Chief Justice whom
he called "Chief-Swindler-in-Robe," go beyond the bounds of
acceptable behavior. – Complaint of Mr. Aurelio Indencia
Arrienda against Justices, A.M. No. 03-11-30-SC, June 9, 2005
Proscribed language
Proscribed then are, inter alia:
1. the use of unnecessary language which jeopardizes high
esteem in courts, creates or promotes distrust in judicial
administration or
2. tends necessarily to undermine the confidence of the people
in the integrity of the members of this Court and to degrade the
administration of justice by this Court of offensive and abusive
language or
3. abrasive and offensive language or
4. of disrespectful, offensive, manifestly baseless, and malicious
statements in pleadings or in a letter addressed to the judge or
5. of disparaging, intemperate, and uncalled-for remarks.
- Sps. Tiongco v. Hon. Aguilar, G.R. No. 115932 January 25,
1995
Not disrespectful, abusive or slanderous
We cannot say that the use of the adjective "insufficiently-
informed" is disrespectful, abusive or slanderous. – Francisco, Jr.
v. UEM-MARA Phil. Corp., et. al., G.R. Nos. 135688-89, October
18, 2007

Constitutional provision on parliamentary immunity
“A Senator or Member of the House of Representative shall, in
all offenses punishable by not more than six years
imprisonment, be privileged from arrest while the Congress is in
session. No member shall be questioned nor be held liable in any
other place for any speech or debate in the Congress or in any
committee thereof.”- Article VI, Section 11 of the Constitution
Purpose of parliamentary immunity
Our Constitution enshrines parliamentary immunity which is a
fundamental privilege cherished in every legislative assembly of
the democratic world. As old as the English Parliament, its
purpose “is to enable and encourage a representative of the
public to discharge his public trust with firmness and success”
for “it is indispensably necessary that he should enjoy the
fullest liberty of speech and that he should be protected from
resentment of every one, however, powerful, to whom the
exercise of that liberty may occasion offense.”
Defensor-Santiago case
Senator Miriam Defensor-Santiago’s speech delivered on the
Senate floor:
x x x I am not angry. I am irate. I am foaming in the
mouth. I am homicidal. I am suicidal. I am humiliated, debased,
degraded. And I am not only that, I feel like throwing up to be
living my middle years in a country of this nature. I am
nauseated. I spit on the face of Chief Justice Artemio
Panganiban and his cohorts in the Supreme Court, I am no longer
interested in the position [of Chief Justice] if I was to be
surrounded by idiots. I would rather be in another environment
but not in the Supreme Court of idiots x x x. - Pobre v. Sen.
Defensor-Santiago A.C. No. 7399 [2009]
The purpose of her speech, according to her, was to bring out in
the open controversial anomalies in governance with a view to
future remedial legislation. She averred that she wanted to
expose what she believed “to be an unjust act of the Judicial
Bar Council [JBC],” which, after sending out public invitations
for nomination to the soon to-be vacated position of Chief
Justice, would eventually inform applicants that only
incumbent justices of the Supreme Court would qualify for
nomination. She felt that the JBC should have at least given an
advanced advisory that non-sitting members of the Court, like
her, would not be considered for the position of Chief Justice.
No lawyer who has taken an oath to maintain the respect due
to the courts should be allowed to erode the people’s faith in
the judiciary. In this case, the lady senator clearly violated
Canon 8, Rule 8.01 and Canon 11 of the Code of Professional
Responsibility, which respectively provide:
Canon 8, Rule 8.01.––A lawyer shall not, in his professional
dealings, use language which is abusive, offensive or otherwise
improper.
Canon 11.––A lawyer shall observe and maintain the respect due
to the courts and to the judicial officers and should insist on
similar conduct by others.
Case against Sen. Defensor-Santiago dismissed
Indeed, her privilege speech is not actionable criminally or in a
disciplinary proceeding under the Rules of Court.
In this case, the lady senator clearly violated Canon 8, Rule
8.01 and Canon 11 of the Code of Professional Responsibility.
45 | P R O B L E M A R E A S I N L E G A L E T H I C S
WHEREFORE, the letter-complaint of Antero J. Pobre against
Senator/Atty. Miriam Defensor-Santiago is, conformably to Art.
VI, Sec. 11 of the Constitution, DISMISSED.
Statements of an accused lawyer
Ed J. Polk was arrested and jailed and his bond revoked because
of his failure to appear for a criminal trial wherein he was
charged as a defendant with driving while intoxicated. Upon his
release from jail Polk issued to the news media from his law
office the following written statement:
I consider this one more awkward attempt by a dishonest and
unethical district attorney and a perverse judge to assure me
an unfair trial.
Questionable conduct on the part of those charged with
administration of justice does little to foster respect for the
law.
- Polk v. State Bar of Texas 374 F. Supp. 784 [1974]
Statements were made as a citizen
The critical statements made by Polk were remarks in response
to the manner in which he was treated as a citizen and not as
an attorney. At no time was Polk an attorney of record or in any
way acting in his capacity as an attorney in the criminal
proceedings against him, nor do the remarks purport to be
made in his capacity as an attorney. - Polk v. State Bar of Texas
374 F. Supp. 784 [1974]
There is no dichotomy of a lawyer’s personality
There is no distinction as to whether the transgression is
committed in the lawyer’s professional capacity or in his private
life. This is because a lawyer may not divide his personality so as
to be an attorney at one time and a mere citizen at another. –
Cojuangco, Jr. v. Atty. Palma, Adm. Case No. 2474, September
15, 2004
Violation of Rule 11.03, Canon 11
Judge claimed that on July 24, 2008, during the hearing on the
motion for reconsideration of Civil Case No. 2502, the
respondent was shouting while arguing his motion. Judge
advised him to tone down his voice but instead, the
respondent shouted at the top of his voice. When warned that
he would be cited for direct contempt, the respondent shouted,
“Then cite me!”. Judge cited him for direct contempt and
imposed a fine of P100.00. The respondent then left.
While other cases were being heard, the respondent re-entered
the courtroom and shouted, “Judge, I will file gross ignorance
against you! I am not afraid of you! Judge ordered the sheriff
to escort the respondent out of the courtroom and cited him for
direct contempt of court for the second time.
A lawyer who insults a judge inside a courtroom completely
disregards the latter’s role, stature and position in our justice
system. When the respondent publicly berated and brazenly
threatened Judge Baculi that he would file a case for gross
ignorance of the law against the latter, the respondent
effectively acted in a manner tending to erode the public
confidence in Judge Baculi’s competence and in his ability to
decide cases. Incompetence is a matter that, even if true,
must be handled with sensitivity in the manner provided
under the Rules of Court; an objecting or complaining lawyer
cannot act in a manner that puts the courts in a bad light and
bring the justice system into disrepute. – Judge Baculi v. Atty.
Battung, A.C. no. 8920, September 28, 2011
Intention and disclaimer not a defense
Atty. Abila's central theme in his written explanation is that he
acted in good faith and was merely motivated by his duty to
defend the interest of his client. His disclaimer of any
intentional disrespect is not a ground for exoneration. His
intent must be determined by a fair interpretation of the
language employed by him. He cannot escape responsibility by
claiming that his words did not mean what any reader must have
understood them to mean. – Borromeo v. CA, G.R. No. L-39253
November 24, 1978
Making threats
In addition, he likewise committed a violation of Canon 11 of
Rule 11.03 by threatening respondent judge that if his motions
were not granted, respondent judge would be administratively
charged. To be sure, the threat made against respondent judge
was not a threat to do him bodily harm. Nonetheless, it was a
threat. Needless to say, disrespectful, abusive and abrasive
language, offensive personalities, unfounded accusations, or
intemperate words tending to obstruct, embarrass, or influence
the court in administering justice or to bring it into disrepute
have no place in a pleading. – Prosecutor Tolentino v. Judge
Cabral, A.M. No. RTJ-00-1528, March 28, 2000
Threat of Impeachment
It is reprehensible for the complainant to threaten the members
of the Court with impeachment. To threaten a judge or justice
with investigation and prosecution for official acts done by him
in the regular exercise of official duty subverts and undermines
the independence of the judiciary. - Complaint of Mr. Aurelio
Indencia Arrienda against Justices, A.M. No. 03-11-30-SC, June
9, 2005
Offensive language against complainant proscribed
Moreover, the records show that respondent used offensive
language in his pleadings in describing complainant and her
relatives. A lawyer’s language should be forceful but dignified,
emphatic but respectful as befitting an advocate and in keeping
with the dignity of the legal profession. The lawyer’s arguments
whether written or oral should be gracious to both court and
opposing counsel and should be of such words as may be
properly addressed by one gentlemen to another. By calling
complainant, a "sly manipulator of truth" as well as a
"vindictive congenital prevaricator", hardly measures to the
sobriety of speech demanded of a lawyer. – N.H. Florido v. Atty.
Florido, A.C. No. 5624, January 20, 2004
Statements in form of questions still proscribed
While most of her statements were in the form of questions
instead of categorical assertions, the effect is still the same:
they constitute a stinging affront to the honor and dignity of the
Court and tend to undermine the confidence of the public in the
integrity of the highest tribunal of the land.
She posed the query, "Nasaan ang katarungan? (Where is
justice?)," implying that this Court failed to dispense justice in
her case. - Bildner and Ilusorio v. Ilusorio, et. al., G.R. No.
157384, June 5, 2009
Direct contempt if submitted in the same court
In Ang vs. Castro, this Court held that if a pleading containing
derogatory, offensive and malicious statements is submitted
in the same court or judge in which the proceedings are
pending, it is direct contempt, equivalent as it is to a
misbehavior committed in the presence of or so near a court
or judge as to interrupt the administration of justice. Direct
contempt is punishable summarily. - Re: Letter dated 21
February 2005 of Atty. Noel S. Sorreda, A.M. No. 05-3-04-SC.
July 22, 2005]
Post litigation criticisms
46 | P R O B L E M A R E A S I N L E G A L E T H I C S
The Philippine rule, therefore, is that in case of a post-litigation
newspaper publication, fair criticism of the court, its
proceedings and its members, are allowed. However, there may
be a contempt of court, even though the case has been
terminated, if the publication is attended by either of these two
circumstances: (1) where it tends to bring the court into
disrespect or, in other words, to scandalize the court; or (2)
where there is a clear and present danger that the
administration of justice would be impeded. – PP v. Godoy, G.R.
Nos. 115908-09 March 29, 1995
Contempt and Disciplinary proceeding are not the same
A contempt proceeding for misbehavior in court is designed to
vindicate the authority of the court; on the other hand, the
object of a disciplinary proceeding is to deal with the fitness
of the court's officer to continue in that office, to preserve
and protect the court and the public from the official
ministrations of persons unfit or unworthy to hold such office.
The principal purpose of the exercise of the power to cite for
contempt is to safeguard the functions of the court and should
thus be used sparingly on a preservative and not, on the
vindictive principle. The principal purpose of the exercise of
disciplinary authority by the Supreme Court is to assure
respect for orders of such court by attorneys who, as much as
judges, are responsible for the orderly administration of justice.
Moreover, it has been held that the imposition a fine as a
penalty in a contempt proceeding is not considered res
judicata to a subsequent charge for unprofessional conduct. In
the same manner an attorney's conviction for contempt was not
collaterally estopped by reason of a subsequent disbarment
proceeding in which the court found in his favor on essentially
the same facts leading to conviction. It has likewise been the
rule that a notice to a lawyer to show cause why he should
not be punished for contempt cannot be considered as a
notice to show cause why he should not be suspended from
the practice of law, considering that they have distinct objects
and for each of them a different procedure is established.
Contempt of court is governed by the procedures laid down
under Rule 71 of the Rules of Court, whereas disciplinary
actions in the Practice of law are governed by file 138 and
139 thereof. - PP v. Godoy, G.R. Nos. 115908-09 March 29, 1995
The test of allowable criticisms of a judge’s decision
Whether or not the criticism is bona fide or done in good faith,
and does not spill over the walls of decency and propriety. –
Lorenzo Shipping Corp., et. al. v. Distribution Management
Association of the Philippines, et. al., G.R. No. 155849, August
31, 2011
Degree of lawyers’ remark or comment
Undoubtedly, lawyers should be allowed some latitude of remark
or comment in the furtherance of causes they uphold. For the
felicity of their clients they may be pardoned some infelicities
of phrase. – In re: Complaint against Atty. Pilar, A.C. No. 263,
October 28, 1958
Is the judiciary onion-skinned?
“The assumption that respect for the judiciary can be won by
shielding judges from published criticism wrongly appraises the
character of …. public opinion. For it is a prized …. privilege to
speak one's mind, although not always with perfect good taste,
on all public institutions. And an enforced silence, however
limited, solely in the name of preserving the dignity of the
bench, would probably engender resentment, suspicion, and
contempt much more than it would enhance respect.”- Bridges
v. California, 314 U.S. 252, 270-271 (1941)
Admonition to judges
More than once in the past, we had occasion to admonish judges
not to be onion-skinned when confronted by dissatisfied
lawyers or litigants. Their power to punish for contempt is not a
bludgeon to be used for the purpose of exacting silent
submission to their rulings and orders however questionable or
unjust they may be. - Sesbreño v. Judge Garcia, A.M. No.
RTJ-88-272 February 6, 1990
Free speech in democratic government
"If there is a bedrock principle underlying the First Amendment,
it is that the government may not prohibit the expression of an
idea simply because society finds the idea itself offensive or
disagreeable.“ - Texas v Johnson, 491 U.S. 397, 414 (1989)
Limited freedom of expression?
“It cannot be seriously asserted that a private citizen surrenders
his right to freedom of expression when he becomes a licensed
attorney in this state. The Supreme Court has built a substantial
line of cases where the Constitution has been read to limit and
restrain the state's power to prescribe standards of conduct for
attorneys.” - Polk v. State Bar of Texas 374 F. Supp. 784 [1974]
Doctrine of privilege communications in pleadings and judicial
proceedings
Concept of “privileged communication [speech]”
1. Privileged communication as rule of evidence
2. Privileged communication as basis to keep confidential the
secrets or confidences of client
3. Privileged speech in congress
4. Privileged communications made in the course of juridical
proceedings, including all kinds of pleadings, petitions and
motions
1. Privileged Communication as rule of evidence
Rule 130 Sec. 24.Disqualification by reason of privileged
communication. — The following persons cannot testify as to
matters learned in confidence in the following cases:
xxx
(b)An attorney cannot, without the consent of his client, be
examined as to any communication made by the client to him,
or his advice given thereon in the course of, or with a view to,
professional employment, nor can an attorney's secretary,
stenographer, or clerk be examined, without the consent of
the client and his employer, concerning any fact the knowledge
of which has been acquired in such capacity;
xxx
Essential factors to establish the existence of the attorney-
client privilege communication
(1) Where legal advice of any kind is sought
(2) from a professional legal adviser in his capacity as such,
(3) the communications relating to that purpose,
(4) made in confidence
(5) by the client,
(6) are at his instance permanently protected
(7) from disclosure by himself or by the legal advisor,
(8) except the protection be waived.
- Ma. Luisa Hadjula v. Atty. Roceles F. Madianda, A.C. No.
6711, July 3, 2007
2. Privileged communication as basis to keep confidential the
secrets or confidences of client
47 | P R O B L E M A R E A S I N L E G A L E T H I C S
CANON 21 - A LAWYER SHALL PRESERVE THE CONFIDENCE AND
SECRETS OF HIS CLIENT EVEN AFTER THE ATTORNEY-CLIENT
RELATION IS TERMINATED.
Rule 21.01 - A lawyer shall not reveal the confidences or secrets
of his client except;
(a) When authorized by the client after acquainting him of the
consequences of the disclosure;
(b) When required by law;
(c) When necessary to collect his fees or to defend himself, his
employees or associates or by judicial action.
Rule 21.02 - A lawyer shall not, to the disadvantage of his client,
use information acquired in the course of employment, nor shall
he use the same to his own advantage or that of a third person,
unless the client with full knowledge of the circumstances
consents thereto.
Rule 21.03 - A lawyer shall not, without the written consent of
his client, give information from his files to an outside agency
seeking such information for auditing, statistical, bookkeeping,
accounting, data processing, or any similar purpose.
Rule 21.04 - A lawyer may disclose the affairs of a client of the
firm to partners or associates thereof unless prohibited by the
client.
Rule 21.05 - A lawyer shall adopt such measures as may be
required to prevent those whose services are utilized by him,
from disclosing or using confidences or secrets of the clients.
Rule 21.06 - A lawyer shall avoid indiscreet conversation about
a client's affairs even with members of his family.
Rule 21.07 - A lawyer shall not reveal that he has been
consulted about a particular case except to avoid possible
conflict of interest.
RPC Art. 209. Betrayal of trust by an attorney or solicitor. —
Revelation of secrets. — In addition to the proper administrative
action, the penalty of prision correccional in its minimum
period, or a fine ranging from 200 to 1,000 pesos, or both, shall
be imposed upon any attorney-at-law or solicitor ( procurador
judicial) who, by any malicious breach of professional duty or of
inexcusable negligence or ignorance, shall prejudice his client,
or reveal any of the secrets of the latter learned by him in his
professional capacity.
The same penalty shall be imposed upon an attorney-at-law or
solicitor (procurador judicial) who, having undertaken the
defense of a client or having received confidential information
from said client in a case, shall undertake the defense of the
opposing party in the same case, without the consent of his first
client.
Rule 15.02. - A lawyer shall be bound by the rule on privilege
communication in respect of matters disclosed to him by a
prospective client.
Limit of privileged communication between client and lawyer
It is well settled that in order that a communication between a
lawyer and his client may be privileged, it must be for a lawful
purpose or in furtherance of a lawful end. The existence of an
unlawful purpose prevents the privilege from attaching.
In fact, it has also been pointed out to the Court that the
"prosecution of the honorable relation of attorney and client
will not be permitted under the guise of privilege, and every
communication made to an attorney by a client for a criminal
purpose is a conspiracy or attempt at a conspiracy which is
not only lawful to divulge, but which the attorney under
certain circumstances may be bound to disclose at once in the
interest of justice.“ – PP v. Sandiganbayan, et. al., G.R. Nos.
115439-41 July 16, 1997
3. Privileged speech in congress
The immunity Senator Santiago claims is rooted primarily on
the provision of Article VI, Section 11 of the Constitution, which
provides:
“A Senator or Member of the House of Representative shall, in
all offenses punishable by not more than six years
imprisonment, be privileged from arrest while the Congress is in
session. No member shall be questioned nor be held liable in
any other place for any speech or debate in the Congress or
in any committee thereof.”
Defensor-Santiago case
Senator Miriam Defensor-Santiago’s speech delivered on the
Senate floor:
x x x I am not angry. I am irate. I am foaming in the
mouth. I am homicidal. I am suicidal. I am humiliated, debased,
degraded. And I am not only that, I feel like throwing up to be
living my middle years in a country of this nature. I am
nauseated. I spit on the face of Chief Justice Artemio
Panganiban and his cohorts in the Supreme Court, I am no longer
interested in the position [of Chief Justice] if I was to be
surrounded by idiots. I would rather be in another environment
but not in the Supreme Court of idiots x x x. - Probe v. Sen.
Defensor-Santiago A.C. No. 7399 [2009]
The purpose of her speech, according to her, was to bring out in
the open controversial anomalies in governance with a view to
future remedial legislation. She averred that she wanted to
expose what she believed “to be an unjust act of the Judicial
Bar Council [JBC],” which, after sending out public invitations
for nomination to the soon to-be vacated position of Chief
Justice, would eventually inform applicants that only
incumbent justices of the Supreme Court would qualify for
nomination. She felt that the JBC should have at least given an
advanced advisory that non-sitting members of the Court, like
her, would not be considered for the position of Chief Justice.
No lawyer who has taken an oath to maintain the respect due
to the courts should be allowed to erode the people’s faith in
the judiciary. In this case, the lady senator clearly violated
Canon 8, Rule 8.01 and Canon 11 of the Code of Professional
Responsibility, which respectively provide:
Canon 8, Rule 8.01.––A lawyer shall not, in his professional
dealings, use language which is abusive, offensive or otherwise
improper.
Canon 11.––A lawyer shall observe and maintain the respect due
to the courts and to the judicial officers and should insist on
similar conduct by others.
Case against Sen. Defensor-Santiago dismissed
Indeed, her privilege speech is not actionable criminally or in a
disciplinary proceeding under the Rules of Court.
In this case, the lady senator clearly violated Canon 8, Rule
8.01 and Canon 11 of the Code of Professional Responsibility.
WHEREFORE, the letter-complaint of Antero J. Pobre against
Senator/Atty. Miriam Defensor-Santiago is, conformably to Art.
VI, Sec. 11 of the Constitution, DISMISSED.
Purpose of Privilege Speech
48 | P R O B L E M A R E A S I N L E G A L E T H I C S
Our Constitution enshrines parliamentary immunity which is a
fundamental privilege cherished in every legislative assembly of
the democratic world. As old as the English Parliament, its
purpose “is to enable and encourage a representative of the
public to discharge his public trust with firmness and success”
for “it is indispensably necessary that he should enjoy the
fullest liberty of speech and that he should be protected from
resentment of every one, however, powerful, to whom the
exercise of that liberty may occasion offense.”- Probe v. Sen.
Defensor-Santiago A.C. No. 7399 [2009]
4. Privileged communications made in the course of juridical
proceedings, including all kinds of pleadings, petitions and
motions

Well-entrenched in the Philippine and American jurisprudence is
the rule that for reasons of public policy, utterances made in
the course of juridical proceedings, including all kinds of
pleadings, petitions and motions are absolutely privileged
when pertinent and relevant to the subject under inquiry,
however false or malicious such utterances may be. - Gutierrez
v. Abila, et. al., G.R. No. L-59161 January 30, 1982
CPR
CANON 8 - A LAWYER SHALL CONDUCT HIMSELF WITH COURTESY,
FAIRNESS AND CANDOR TOWARDS HIS PROFESSIONAL
COLLEAGUES, AND SHALL AVOID HARASSING TACTICS AGAINST
OPPOSING COUNSEL.
Rule 8.01 - A lawyer shall not, in his professional dealings, use
language which is abusive, offensive or otherwise improper.
Rule 11.03 - A lawyer shall abstain from scandalous, offensive
or menacing language or behavior before the Courts.
Certificate of meritorious case
Rue 7 Section 3. The signature of counsel constitutes a
certificate by him that he has read the pleading; that to the
best of his knowledge, information, and belief there is good
ground to support it; and that it is not interposed for delay.
“Honest belief”is a claim of “good faith.”- Alfonso C. Choa vs.
Judge Roberto S. Chiongson, A.M. No. MTJ-95-1063. August
9, 1996
Pleadings in judicial proceedings are considered privileged
Pleadings have become part of public record open to the
public to scrutinize, but also due to the undeniable fact that
said...
Pleadings are presumed to contain allegations and assertions
lawful and legal in nature, appropriate to the disposition of
issues ventilated before the courts for the proper administration
of justice and, therefore, of general public concern.
Moreover, pleadings are presumed to contain allegations
substantially true because they can be supported by evidence
presented in good faith, the contents of which would be under
the scrutiny of courts and, therefore, subject to be purged of all
improprieties and illegal statements contained therein. – Cuenco
v. Cuenco, et. al., G.R. No. L-29560 March 31, 1976
Counsel, parties or witnesses are exempted from liability in
libel or slander
It is the generally accepted rule that counsel, parties or
witnesses are exempted from liability in libel or slander for
words otherwise defamatory published in the course of judicial
proceedings, provided that the statements are connected with,
or relevant, pertinent or material to, the cause in hand or
subject of inquiry.
For as aptly observed in one case, while the doctrine of
privileged communication is liable to be abused, and its abuse
may lead to great hardships, yet to give legal sanction to such
suits as the present would, we think, give rise to far greater
hardships. - Cuenco v. Cuenco, et. al., G.R. No. L-29560 March
31, 1976
Effect of privileged matters
For, although every defamatory imputation is presumed to be
malicious, the presumption does not exist in matters considered
privileged. In fine, the privilege destroys the presumption. -
GMA Network, Inc. v. Bustos, et. al., G.R. No. 146848 October
17, 2006
Privileged matters may be absolute or qualified
Absolutely privileged matters are not actionable regardless of
the existence of malice in fact. In absolutely privileged
communications, the mala or bona fides of the author is of no
moment as the occasion provides an absolute bar to the action.
Examples of these are speeches or debates made by
Congressmen or Senators in the Congress or in any of its
committees.
On the other hand, in qualifiedly or conditionally privileged
communications, the freedom from liability for an otherwise
defamatory utterance is conditioned on the absence of express
malice or malice in fact. The second kind of privilege, in fine,
renders the writer or author susceptible to a suit or finding of
libel provided the prosecution established the presence of bad
faith or malice in fact. To this genre belongs "private
communications" and "fair and true report without any
comments or remarks" falling under and described as exceptions
in Article 354 of the Revised Penal Code. - GMA Network, Inc. v.
Bustos, et. al., G.R. No. 146848 October 17, 2006
Importance of doctrine of privileged communications
The doctrine of privileged communication rests upon public
policy, which looks to the free and unfettered administration
of justice, though, as an incidental result it may in some
instances afford an immunity to the evil disposed and malignant
slanderer. - PP v. Atty. Sesbreno, G.R. No. L-62449 July 16,
1984
All doubts should be resolved in favor of its relevancy
In order the matter alleged in a pleading may be privileged, it
need not be in every case material to the issues presented by
the pleadings.
All doubts should be resolved in favor of its relevancy or
pertinency, and for the purposes of relevancy the court will
assume the alleged slanderous charges to be true, however
false they may have been in fact. - Cuenco v. Cuenco, et. al.,
G.R. No. L-29560 March 31, 1976
There is “no” absolute privilege in pleadings
Absolute privilege attached to allegations made by an attorney
in a pleading filed with the court, as long as the statements
alleged to be defamatory were relevant and pertinent to the
issues in the case. We relied heavily on our earlier decision xxx,
in which we recognized the absolute privilege of an attorney to
make statements in pleadings regardless of their truth or the
existence of actual malice on the part of the attorney so long as
the statements were relevant and pertinent to the pleadings.
– Selby v. Burgess, 712 S.W.2d 898 (1986)
All forms of communications are privileged
The privilege is not confined to verbal or written
communications made by the client to his attorney but extends
as well to information communicated by the client to the
attorney by other means. - PP v. Sandiganbayan, et. al., G.R.
Nos. 115439-41 July 16, 1997
49 | P R O B L E M A R E A S I N L E G A L E T H I C S
Professional discipline may still apply
Although the privilege is absolute where it applies, we consider
it to be a privilege narrowed closely by the "relevancy" and
"pertinency" requirements, and we note that while the
privilege will prohibit an attorney from being subject to
litigation it will not make him immune from professional
discipline, when it is appropriate. – Selby v. Burgess, 712 S.W.
2d 898 (1986)
...makes a lawyer liable for false allegations in a pleading since
the rule states that a lawyer's signature on a pleading
constitutes a certificate by him that to the best of his
knowledge, there is good ground to support the pleading. –
Pogue v. Cooper, et. al., 680 S.W.2d 698 (1984)
Restriction to the privilege
The Court defined the restriction to the privilege enjoyed by
pleadings thus:
The pleadings should contain but the plain and concise
statements of the material facts and not the evidence by which
they are to be proved.
If the pleader goes beyond the requirements of the statute and
alleges an irrelevant matter which is libelous, he loses his
privilege.
The requirement of materiality and relevancy is imposed so that
the protection given to individuals in the interest of an efficient
administration of justice may not be abused as a cloak from
beneath which private malice may be gratified. - Gutierrez v.
Abila, et. al., G.R. No. L-59161 January 30, 1982
Example of slanderous matters in a pleading
Repeated litigations between the same parties might indeed be
tiresome, even nettlesome but this alone is not sufficient cause
for calling another "dirty-minded", and of a "limited mind",
"twisted mind" or to characterize his act as a "devise of
wickedness as earmarks of plaintiff's traits.”
It is noted that far from being isolated statements, these
slanderous matters pervade the entire dimension of the
defendants' answer, with almost every paragraph thereof
scathing with spiteful imputations against the plaintiff. These
imputations constitute a grave reflection upon the mental and
moral character and reputation of the plaintiff, and they
certainly achieve no purpose except to gratify the defendants'
rancor and ill-will.
The aforementioned personal opinions of the defendants,
expressed in vituperative and intemperate language, are
palpably devoid of any relation whatever to the subject of
inquiry and have no place in a pleading. - Gutierrez v. Abila,
et. al., G.R. No. L-59161 January 30, 1982
Admonition to lawyers
While indeed lawyers should be allowed some latitude of remark
or comment in the furtherance of the causes they uphold such
remarks or comments should not trench beyond the bounds of
relevancy and propriety. Besides, the language vehicle does
not run short of expressions which are emphatic but respectful,
convincing but not derogatory, illuminating but not offensive. –
Gutierrez v. Abila, et. al., G.R. No. L-59161 January 30, 1982
Partners who signed the pleadings are liable
In view of the derogatory implications of that observation,
which was couched in intemperate indecorous and vicious
language and which was baseless, since it was belied by the
resolution itself that stated the reason for requiring the Solicitor
General to proceed with the investigation of the disbarment
case, the Court in that aforementioned October 1 resolution
required Attys. Salandanan and Zosimo G. Linato, who signed
the motion under the firm name of "E. M. Salandanan, Aguilar,
Linato & Associates" to show cause why they should not be
adjudged in contempt of court. – Yangson v. Salandanan, A.C.
No. 1347. November 12, 1975
Libelous remarks?
Against said order, Atty. Sesbreno filed a motion seeking
reconsideration with a counter-motion for contempt against the
appellant for reneging on his commitment to reimburse
appellee's clients and for resorting to dilatory tactics. To that,
Atty. Ceniza, filed his "Opposition to Motion for Reconsideration,
Etc." charging Sesbreno with misrepresentation, prevarication,
and "telling a barefaced and documented lie." Replying to
these remarks, Sesbreno then filed his "REPLY" – Atty. Ramon B.
Ceniza is “an irresponsible person, cannot be trusted, like
Judas, a liar and irresponsible childish prankster.”- subject
matter of Ceniza's libel suit.
Balancing act
While the doctrine is liable to be abuse and its abuse may lead
to great hardships, yet to give legal action to such libel suits
would give rise to greater hardships.
Lawyers, most especially, should be allowed a great latitude of
pertinent comment in the furtherance of the causes they
uphold, and for the felicity of their clients, they may be
pardoned some infelicities of language. - PP v. Atty. Sesbreno,
G.R. No. L-62449 July 16, 1984
Test to be applied
A pleading must meet the test of relevancy to avoid being
considered libelous. - PP v. Atty. Sesbreno, G.R. No. L-62449
July 16, 1984
Metes and bounds of relevancy or pertinency
As to the degree of relevancy or pertinency necessary to make
alleged defamatory matters privileged, the courts are inclined
to be liberal.
The matter to which the privilege does not extend must be so
palpably wanting in relation to the subject matter of the
controversy that no reasonable man can doubt its irrelevance
and impropriety.
In order that a matter alleged in a pleading may be privileged,
it need not be in every case material to the issues presented
by the pleadings, It must, however, be legitimately related
thereto, or so pertinent to the subject of the controversy that it
may become the subject of the inquiry in the course of the
trial. - PP v. Atty. Sesbreno, G.R. No. L-62449 July 16, 1984
Legitimate answers to accusations are privileged
Although the language used by defendant-appellee in the
pleading in question was undoubtedly strong, since it was made
in legitimate defense of his own and of his client's interest,
such remarks must be deemed absolutely privileged and cannot
be the basis of an action for libel (Tolentino v. Baylosis, supra). -
PP v. Atty. Sesbreno, G.R. No. L-62449 July 16, 1984
Unprofessional conduct
Mutual bickering and recriminations between brother attorneys
detract from the dignity of the legal profession and will not
receive any sympathy from this Court. - PP v. Atty. Sesbreno,
G.R. No. L-62449 July 16, 1984
Proper conduct of lawyers
50 | P R O B L E M A R E A S I N L E G A L E T H I C S
Clients, not lawyers, are the litigants. Whatever may be the ill-
feeling existing between clients, it should not be allowed to
influence counsel in their conduct and demeanor toward each
other or toward suitors in the case.
All personalities between counsel should be scrupulously
avoided. In the trial of a case it is indecent to allude to the
personal history or the personal peculiarities and
idiosyncracies of counsel on the other side.
Personal colloquies between counsel which cause delay and
promote unseemly wrangling should also be carefully avoided.
Lawyers owe respect not only to the courts and their clients,
but also to other members of the Bar. - PP v. Atty. Sesbreno,
G.R. No. L-62449 July 16, 1984
Using abrasive and offensive language not proper in pleadings
Greater care and circumspection must be exercised in the
preparation of their pleadings and to refrain from using
abrasive and offensive language (Yangson v. Saladanan, 68 SCRA
42). A becoming modesty is a desirable trait also of practising
attorneys. – PP v. Atty. Sesbreno, G.R. No. L-62449 July 16,
1984Privileged
When pleadings are published in newspaper
We are firmly convinced that the correct rule on the matter
should be that a fair and true report of a complaint filed in
court without remarks nor comments even before an answer
is filed or a decision promulgated should be covered by the
privilege.
This Court ruled before that:
Utterances made in the course of judicial proceedings, including
all kinds of pleadings, petitions and motions belong to the
class of communication that are absolutely privileged. - Cuenco
v. Cuenco, et. al., G.R. No. L-29560 March 31, 1976
Issue No. 182, Volume X of "The Republic Daily", bearing date
of August 3, 1958, an article fully reproduced as follows
Rep. Cuenco Sued
Rep. Miguel Cuenco was yesterday sued by the Bisaya Land
Transportation Company, Inc., for alleged illegal and unlawful
collections made by him on the company, amounting to
thousands of pesos. Part of these collections was allegedly
obtained by the defendant in violation of a constitutional
inhibition. Congressman Cuenco, according to the complaint,
had illegally collected a total of P18,700 from the plaintiff, of
which he was formerly assistant manager in charge of the
shipping department. In the same suit, the transportation firm
asked the court to order the defendant to pay it an additional
sum of P5,600 representing attorney's fees which the plaintiff
said it had obligated to pay its counsel. xxx
US jurisprudence
Statements made to the media
Appellant sued respondent's companies for wrongful
termination, making a number of allegations in the complaint
against respondent personally. After respondent published a
response to the allegations in the media, appellant sued him
for defamation.
Whether or not statements made to the media regarding ongoing
or contemplated litigation are covered by absolute privilege. -
Jacobs v. Adelson, 325 P.3d 1282 (2014)
Whether or not the absolute privilege 

applies when the media is the recipient of the statement
These courts have concluded that the policy considerations
underlying the absolute privilege rule are not applicable to
statements made to the media. Statements made to the media
"do little, if anything, to promote the truth finding process in a
judicial proceeding.... [They] do not generally encourage open
and honest discussion between the parties and their counsel in
order to resolve disputes; indeed, such statements often do just
the opposite.“
"Communications made to newspapers and during press
conferences have been almost universally found to be excluded
from the protection of absolute privilege.”- Jacobs v. Adelson,
325 P.3d 1282 (2014)
Not related to judicial proceedings
We have, however, recognized that communications are not
sufficiently related to judicial proceedings when they are made
to someone without an interest in the outcome.
We conclude that assessing the significant interest of the
recipient requires review of the recipient's legal relationship to
the litigation, not their interest as an observer.
A privileged statement, such as one made in a judicial
proceeding, is not privileged for all subsequent publications
by virtue of initially being spoken in a privileged proceeding.
Even an "absolute" privilege does not permit an individual to
categorically republish possibly defamatory statements without
consequence. – Wagner v. Miskin, 660 N.W.2d 593 (2003)
Statements to third party
But we have also recognized that "[a]n attorney's statements to
someone who is not directly involved with the actual or
anticipated judicial proceeding will be covered by the absolute
privilege only if the recipient of the communication is
“significantly interested” in the proceeding." - Jacobs v.
Adelson, 325 P.3d 1282 (2014)

Moreover, the nature of the recipient's interest in or connection

to the litigation is a "case-specific, fact-intensive inquiry" that
must focus on and balance the underlying principles of the
privilege.
We conclude that the newspaper does not have a direct interest
in, or connection to, the outcome of the proceedings, other
than as a spectator. - Jacobs v. Adelson, 325 P.3d 1282 (2014)

A few jurisdictions have held that, under certain

circumstances, an attorney's statements to the media are
absolutely privileged
Extending the privilege to statements made by an attorney to a
reporter after the dismissal of the first lawsuit. Other
jurisdictions have found exceptions to the majority rule based
on unique circumstances. ,
Applying absolute privilege to a statement to a newspaper when
all signs pointed to emerging litigation and the newspaper was
a potential party); ,
Applying absolute privilege to a lawyer's statements to the press
denying allegations and questioning the plaintiff's motives,
where the plaintiff publicly solicited a response; ,
Holding that an attorney's prelitigation statements to the press
are absolutely privileged if a class action lawsuit is
contemplated. – Jacobs v. Adelson, 325 P.3d 1282 (2014)

Communications made to the media

We adopt the majority view that communications made to the
media in an extrajudicial setting are not absolutely privileged,
at least when the media holds no more significant interest in the
litigation than the general public.
In order for the absolute privilege to apply to defamatory
statements made in the context of a judicial or quasi-judicial
proceeding, "(1) a judicial proceeding must be contemplated in
good faith and under serious consideration, and (2) the
communication must be related to the litigation.“
The privilege applies to communications made by either an
attorney or a non-attorney that are related to ongoing litigation
or future litigation contemplated in good faith. - Jacobs v.
Adelson, 325 P.3d 1282 (2014)

Defamatory statements not privileged when made on radio

and television programs
Stating the judicial proceedings privilege protects statements by
parties and their attorneys related to litigation but does not
extend to protect allegedly defamatory statements made on
radio and television programs. – Wagner v. Miskin, 660 N.W.2d
593 (2003)

51 | P R O B L E M A R E A S I N L E G A L E T H I C S
Terminating and Establishing attorney-client relationship
Problem Areas in Legal Ethics
Arellano University School of Law – Arellano Law Foundation
2014-2015
Nature of attorney-client relationship
An attorney-client relationship is said to exist when a lawyer
acquiesces or voluntarily permits the consultation of a
person, who in respect to a business or trouble of any kind,
consults a lawyer with a view of obtaining professional advice or
assistance.
It is not essential that the client should have employed the
lawyer on any previous occasion or that any retainer should
have been paid, promised or charged for; neither is it material
that the attorney consulted did not afterward undertake the
case about which the consultation was had, for as long as the
advice and assistance of the attorney is sought and received in
matters pertinent to his profession. - Virgo v. Atty. Amorin
A.C. No. 7861 [2009]
Can trigger a lawyer-client relationship
A lawyer-client relationship was established from the very first
moment complainant asked respondent for legal advise
regarding the former's business. To constitute professional
employment, it is not essential that the client employed the
attorney professionally on any previous occasion.
It is not necessary that any retainer be paid, promised, or
charged; neither is it material that the attorney consulted did
not afterward handle the case for which his service had been
sought.- Hadjula v. Atty. Madianda, A.C. No. 6711
July 3, 2007
Verbal agreement
There is no gainsaying that a verbal engagement is sufficient to
create an attorney-client relationship. - Urban Bank Inc. vs.
Atty. Pena, A.C. No. 4863 [2001]
Court finds that no attorney-client relationship exists
The relationship of complainant and [counsel] is mainly personal
or business in nature, and that whatever legal services may have
been rendered or given to them by Atty. Amorin for free were
only incidental to said relationship. Noteworthy also is the fact
that complainant was not able to specify any act or transaction
in which [counsel] acted as her or her husband's counsel. - Virgo
v. Atty. Amorin A.C. No. 7861 [2009]
There are instances, however, when the Court finds that no
attorney-client relationship exists between the parties, such as
when the relationship stemmed from a personal transaction
between them rather than the practice of law of respondent or
when the legal acts done were only incidental to their personal
transaction. - Virgo v. Atty. Amorin A.C. No. 7861 [2009]
Duty once a lawyer-client relationship exist
Canon 18 of the Code of Professional Responsibility, that “a
lawyer shall serve his client with competence and diligence.”
Non-payment of fees does not diminish a lawyer’s duty
Assuming the non-payment to be true, such failure should not
be a reason not to inform the client of an important
development, or worse, to withhold vital information from
her. - Somosot v. Atty. Lara A.C. No. 7024 [2009]
Remedy for deliberate refusal to pay
It is but just and proper that if refusal to pay just
compensation ensues in any transaction, the proper remedy is
52 | P R O B L E M A R E A S I N L E G A L E T H I C S
to institute an action before the proper court and such
actuation of the respondent herein did not constitute deceit,
malpractice or gross misconduct. - Urban Bank Inc. vs. Atty.
Pena, A.C. No. 4863 [2001]
Rule 20.04 - A lawyer shall avoid controversies with clients
concerning his compensation and shall resort to judicial action
only to prevent imposition, injustice or fraud.
Implied duty to finish the case
Among the fundamental rules of ethics is the principle that an
attorney who undertakes an action impliedly stipulates to carry
it to its termination, that is, until the case becomes final and
executory. - Venterez, et. al. v. Atty. Cosme, A.C. No. 7421
[2007]
Among the fundamental rules of ethics is the principle that an
attorney who undertakes to conduct an action impliedly
stipulates to carry it to its conclusion.- Francisco v. Atty.
Portugal, A.C. No. 6155, March 14, 2006
Terminating the attorney-client relation
CLIENT: The rule in this jurisdiction is that a client has the
absolute right to terminate the attorney-client relation at
anytime with or without cause.
ATTORNEY: The right of an attorney to withdraw or terminate
the relation other than for sufficient cause is, however,
considerably restricted. Xxx He is not at liberty to abandon it
without reasonable cause. A lawyer’s right to withdraw from a
case before its final adjudication arises only from the client’s
written consent or from a good cause. - Francisco v. Atty.
Portugal, A.C. No. 6155, March 14, 2006
CANON 22 - A LAWYER SHALL WITHDRAW HIS SERVICES ONLY
FOR GOOD CAUSE AND UPON NOTICE APPROPRIATE IN THE
CIRCUMSTANCES.
Rule 22.01 - A lawyer may withdraw his services in any of the
following case:
(a) When the client pursues an illegal or immoral course of
conduct in connection with the matter he is handling; [see Rule
19.02]
(b) When the client insists that the lawyer pursue conduct
violative of these canons and rules;
(c) When his inability to work with co-counsel will not promote
the best interest of the client;
(d) When the mental or physical condition of the lawyer
renders it difficult for him to carry out the employment
effectively;
(e) When the client deliberately fails to pay the fees for the
services or fails to comply with the retainer agreement;
(f) When the lawyer is elected or appointed to public office
[see Rule 3.03]; and
(g) Other similar cases.
Rule 3.03 - Where a partner accepts public office, he shall
withdraw from the firm and his name shall be dropped from
the firm name unless the law allows him to practice law
concurrently.
Rule 15.06. - A lawyer shall not state or imply that he is able to
influence any public official, tribunal or legislative body.
Rule 19.02 - A lawyer who has received information that his
client has, in the course of the representation, perpetrated a
fraud upon a person or tribunal, shall promptly call upon the
client to rectify the same, and failing which he shall terminate
the relationship with such client in accordance with the Rules
of Court.

Changing lawyer does not need the approval of the Court
[A client] may discharge his attorney at any time with or without
cause and thereafter employ another lawyer who may then
enter his appearance. Thus, it has been held that a client is
free to change his counsel in a pending case and thereafter
retain another lawyer to represent him. That manner of
changing a lawyer does not need the consent of the lawyer to
be dismissed. Nor does it require approval of the court. -
Atty. Jalandoni v. Atty. Villarosa, AC 5303, June 15, 2006
Termination of services without the written consent of client
A lawyer who desires to retire from an action without the
written consent of his client must file a petition for withdrawal
in court. He must serve a copy of his petition upon his client and
the adverse party - Atty. Jalandoni v. Atty. Villarosa, AC 5303,
June 15, 2006
A lawyer must see to it that a new lawyer is recorded before
terminating his services
An attorney may only retire from a case either by written
consent of his client or by permission of the court after due
notice and hearing, in which event the attorney should see to
it that the name of the new lawyer is recorded in the case. -
Atty. Jalandoni v. Atty. Villarosa, AC 5303, June 15, 2006
Cessation of law practice is not a “good cause” to withdraw
Neither is the cessation of his law practice an excuse for his
failure to file the required brief. Even if it were true that Atty.
Briones has stopped practicing law, he still could not ignore the
directives coming from the Court. It does not appear from the
records of G.R. No. 130965 that Atty. Briones has withdrawn his
appearance. Unless he has withdrawn his appearance in the
case, the Court would still consider him as counsel for the
accused-appellant and he is expected to comply with all its
orders and directives. - In Re: Atty. David Briones, A.C. No.
5486. August 15, 2001]
The only way to be relieved as counsel
Thus, the only way to be relieved as counsel is to have either
the written conformity of his client or an order from the court
relieving him of the duties of counsel, in accordance with Rule
138, Section 26 of the Rules of Court. - Balatbat v. Atty. Arias,
A.C. No. 1666, April 13, 2007
Duty of lawyer once he is discharged as counsel
Rule 22.02 - A lawyer who withdraws or is discharged shall,
subject to a retainer lien, immediately turn over all papers
and property to which the client is entitled, and shall
cooperative with his successor in the orderly transfer of the
matter, including all information necessary for the proper
handling of the matter.
The discharged attorney must likewise see to it that the name of
the new counsel is properly recorded and the records properly
handed over. - Balatbat v. Atty. Arias, A.C. No. 1666 [2007]
A simple turnover of the records does not end a lawyer’s duty
Contrary to respondent’s contention, his professional relations
as a lawyer with his clients are not terminated by the simple
turnover of the records of the case to his clients. - Venterez,
et. al. v. Atty. Cosme, A.C. No. 7421 [2007]
xxx and shall cooperative with his successor in the orderly
transfer of the matter, including all information necessary for
the proper handling of the matter. - Rule 22.02
53 | P R O B L E M A R E A S I N L E G A L E T H I C S
Client refusal to give his consent is still subject to Court’s
discretion
A lawyer may retire at any time from any action or special
proceeding with the written consent of his client filed in court
and with a copy thereof served upon the adverse party. Should
the client refuse to give his consent, the lawyer must file an
application with the court. The court, on notice to the client
and adverse party, shall determine whether the lawyer ought
to be allowed to retire. The application for withdrawal must
be based on a good cause. - Venterez, et. al. v. Atty. Cosme,
A.C. No. 7421 [2007]
Consent to withdraw must be given by the litigant
Respondent’s defense completely crumbles in face of the fact
that Salvador Ramirez is not even a party in Civil Case No. 981
and, hence, had no authority to withdraw the records of the
said case from respondent or to terminate the latter’s services. -
Venterez, et. al. v. Atty. Cosme, A.C. No. 7421 [2007]
Pendency of petition for withdrawal does not relieve lawyer
of his duty
The lawyer has no right to presume that his petition for
withdrawal will be granted by the court. Until his withdrawal
shall have been approved, the lawyer remains counsel of record
who is expected by his clients, as well as by the court, to do
what the interests of his clients require. He must still appear
before the court to protect the interest of his clients by availing
himself of the proper remedy, for the attorney-client relations
are not terminated formally until there is a withdrawal of
record. - Venterez, et. al. v. Atty. Cosme, A.C. No. 7421
[2007]
A valid cause to withdraw must still be subject to formalities
of withdrawing as counsel
Without a proper revocation of his authority and withdrawal as
counsel, respondent remains counsel of record for the
complainants in Civil Case No. 981; and whether he has a valid
cause to withdraw from the case, he cannot immediately do
so and leave his clients without representation. - Venterez,
et. al. v. Atty. Cosme, A.C. No. 7421 [2007]
Verbal substitution of counsel not allowed
A verbal substitution of counsel, albeit impliedly granted by
respondent judge, contravenes Section 26 of Rule 138 of the
Rules of Court which prescribes the requirements for change of
attorneys. Said provision requires that the written consent of
the client should be filed in court and the adverse party should
be given written notice of the substitution. As correctly pointed
out by the OCA, if her intention was to obviate delay, then she
should have ordered the counsel of record, Atty. Nueva, who was
present during the hearing, to file the required comment or
opposition. - Requirme, Jr. v. Judge Yuipco, A.M. No.
RTJ-98-1427. November 27, 2000
Death of a partner
Petitioner's counsel was the law firm of BAIZAS, ALBERTO &
ASSOCIATES and not merely Atty. Crispin Baizas. Hence, the
death of the latter did not extinguish the lawyer-client
relationship between said firm and petitioner.
Upon receipt of the notice to file Brief, the law firm should
have re-assigned the case to another associate or, it could
have withdrawn as counsel in the manner provided by the Rules
of Court so that the petitioner could contract the services of a
new lawyer. - B.R. Sebastian Enterprises, Inc. v. CA, G.R. No.
L-41862 [1992]
Grounds to withdraw from a case before its final adjudication
A lawyer’s right to withdraw from a case before its final
adjudication arises only from the client’s written consent or
from a good cause. - Francisco v. Atty. Portugal, A.C. No.
6155 [2006]
Written contract is not essential in establishing lawyer-client
relationship
A written contract is not an essential element in the
employment of an attorney; the contract may be express or
implied. - Francisco v. Atty. Portugal, A.C. No. 6155 [2006]
Perceived insufficiency of remuneration not a ground to
diminish professional zeal
Hence, even if respondent felt under-compensated in the case
he undertook to defend, his obligation embodied in the Lawyer’s
Oath and the Code of Professional Responsibility still remains
unwavering. The zeal and the degree of fervor in handling the
case should neither diminish nor cease just because of his
perceived insufficiency of remuneration. - Francisco v. Atty.
Portugal, A.C. No. 6155 [2006]
Close personal relationship will not bar a lawyer-client
relationship
Likewise, a lawyer-client relationship exists notwithstanding
the close personal relationship between the lawyer and the
complainant or the non-payment of the former's fees. - Hadjula
v. Atty. Madianda, A.C. No. 6711 July 3, 2007
Heavy workload
Standing alone, heavy workload is not sufficient reason for the
withdrawal of her services. - Ceniza v. Atty. Rubia, A.C. No.
6166 [2009]
Lost of confidence
Respondent's withdrawal was made on the ground that "there no
longer exist[ed] the xxx confidence" between them and that
there had been "serious differences between them relating to
the manner of private prosecution.”- Orcino v. Atty. Gaspar,
A.C. No. 3773 September 24, 1997
“Hurt feelings” is not a valid ground to automatically
withdraw
Complainant's words and actions may have hurt respondent's
feelings considering the work he had put into the case. But her
words were uttered in a burst of passion. And even at that
moment, complainant did not expressly terminate respondent's
services. She made this clear when she refused to sign his
"Motion to Withdraw as Counsel.“ - Orcino v. Atty. Gaspar, A.C.
No. 3773 September 24, 1997
Withdrawal must be granted by the court
Assuming, nevertheless, that respondent was justified in
terminating his services, he, however, cannot just do so and
leave complainant in the cold unprotected. The lawyer has no
right to presume that his petition for withdrawal will be granted
by the court. Until his withdrawal shall have been approved,
the lawyer remains counsel of record who is expected by his
client as well as by the court to do what the interests of his
client require. He must still appear on the date of hearing for
the attorney-client relation does not terminate formally until
there is a withdrawal of record.- Orcino v. Atty. Gaspar, A.C.
No. 3773 September 24, 1997
Lawyer’s responsibility
CANON 18 - A LAWYER SHALL SERVE HIS CLIENT WITH
COMPETENCE AND DILIGENCE.
xxxx
54 | P R O B L E M A R E A S I N L E G A L E T H I C S
Rule 18.03 - A lawyer shall not neglect a legal matter
entrusted to him and his negligence in connection therewith
shall render him liable.
Rule 18.04 - A lawyer shall keep the client informed of
the status of his case and shall respond within a reasonable
time to the client’s request for information.
Client should not file the Notice to Withdraw
Certainly, respondent ought to know that he was the one who
should have filed the Notice to Withdraw and not the accused. -
Francisco v. Atty. Portugal, A.C. No. 6155 [2006]
Having an additional lawyer did not necessarily mean
conformity
The appearance of Atty. Alminaza in fact was not even to
substitute for respondent but to act as additional counsel. Mrs.
Jalandoni’s conformity to having an additional lawyer did not
necessarily mean conformity to respondent’s desire to
withdraw as counsel. Respondent’s speculations on the
professional relationship of Atty. Alminaza and Mrs. Jalandoni
find no support in the records of this case.
That Mrs. Jalandoni continued with Atty. Alminaza’s professional
engagement on her behalf despite respondent’s withdrawal did
not absolve the latter of the consequences of his
unprofessional conduct. - Atty. Jalandoni v. Atty. Villarosa,
A.C. No. 5303 [2006]
Grounds for disciplinary proceedings against lawyers
Supreme Court is neither bound by the findings of the IBP
Respondent must know that the Court is neither bound by the
findings of the IBP nor, much less, obliged to accept the same as
a matter of course because as the Tribunal which has the final
say on the proper sanctions to be imposed on errant members of
both bench and bar, the Court has the prerogative of making its
own findings and rendering judgment on the basis thereof rather
than that of the IBP, OSG, or any lower court to whom an
administrative complaint has been referred to for investigation
and report. – Dumadag v. Atty. Lumaya, A.C. No. 2614. June
29, 2000
Continuous display and use of the title “Attorney-at-law”after
disbarment
Complainant claims that respondent misrepresented himself as
an "Atty." in the wedding invitation of his son, and a signboard
hanging outside the respondent's office display the title
"Attorney-at-Law“ under respondent's name.
Lastly, complainant informs the Court that she had received
reports that respondent continues in the practice of law by
making other lawyers sign the pleadings that he prepares for
cases involving his clients. – Resolution A.C. No. 4500 (Ban Hua
U. Flores vs. Enrique S. Chua) SEPTEMBER 9, 2014
Resolution
On this matter, the Court is of the view that the title "Atty."
preceding respondent's name in his son's wedding invitation, and
the signboard outside his office bearing his name and the words
"Attorney-at-Law" are not evidence sufficient to convince this
Court that respondent continues in the practice of law, in
violation Court's Decision dated April 30, 1999 that ordered his
disbarment.
Neither is the Court swayed by the complainant's allegations of
respondent's continuous practice of law based on mere "reports."
Without more, these reports are pure hearsay and are without
evidentiary value.
Nonetheless, respondent is hereby ORDERED to remove the
signboard outside his office showing his name and the words
"Attorney-at-Law.“ - Resolution A.C. No. 4500 (Ban Hua U.
Flores vs. Enrique S. Chua) SEPTEMBER 9, 2014
Guidelines to be observed in the matter of the lifting of an order
suspending a lawyer from the practice of law
1) After a finding that respondent lawyer must be suspended
from the practice of law, the Court shall render a decision
imposing the penalty;
2) Unless the Court explicitly states that the decision is
immediately executory upon receipt thereof, respondent has
15 days within which to file a motion for reconsideration
thereof. The denial of said motion shall render the decision
final and executory;
3) Upon the expiration of the period of suspension, respondent
shall file a Sworn Statement with the Court, through the Office
of the Bar Confidant, stating therein that he or she has desisted
from the practice of law and has not appeared in any court
during the period of his or her suspension;
4) Copies of the Sworn Statement shall be furnished to the Local
Chapter of the IBP and to the Executive Judge of the courts
where respondent has pending cases handled by him or her,
and/or where he or she has appeared as counsel;
5) The Sworn Statement shall be considered as proof of
respondent’s compliance with the order of suspension;
6) Any finding or report contrary to the statements made by the
lawyer under oath shall be a ground for the imposition of a more
severe punishment, or disbarment, as may be warranted. -
Maniago v. Atty. De Dios, A.C. No. 7472, March 30, 2010
Lifting of a lawyer’s suspension is not automatic
The lifting of a lawyer’s suspension is not automatic upon the
end of the period stated in the Court’s decision, and an order
from the Court lifting the suspension at the end of the period is
necessary in order to enable [him] to resume the practice of his
profession. – Maniago v. Atty. De Dios, A.C. No. 7472, March
30, 2010
Supreme Court can choose not to refer complaint to IBP
In administrative cases against lawyers, the burden of proof
rests upon the complainant. Administrative complaints that are
prima facie groundless as shown by the pleadings filed by the
parties need not be referred to the Integrated Bar of the
Philippines for further investigation. They may be summarily
dismissed for utter lack of merit.
The Court normally refers administrative cases to the Integrated
Bar of the Philippines (IBP) for investigation, report and
recommendation. Considering, however, that the question
being raised is simple and that no further factual
determination is necessary, the Court resolves to dispense with
such referral and to decide the case on the basis of the
extensive pleadings already on record, which all show the lack
of merit of the Complaint. - Manubay v. Atty. Garcia, A.C. No.
4700 [2000]
Confidentiality
Rules of Court Rule 139-B Sec. 18. Confidentiality. - Proceedings
against attorneys shall be private and confidential. However, the
55 | P R O B L E M A R E A S I N L E G A L E T H I C S
final order of the Supreme Court shall be published like its
decisions in other cases.
Rules of Court Rule 140 SEC. 12. Confidentiality of proceedings.
– Proceedings against Judges of regular and special courts and
Justices of the Court of Appeals and the Sandiganbayan shall be
private and confidential, but a copy of the decision or resolution
of the court shall be attached to the record of the respondent in
the Office of the Court Administrator. - A.M. NO. 01-8-10-SC
RE: PROPOSED AMENDMENT TO RULE 140 OF THE RULES OF
COURT RE: DISCIPLINE OF JUSTICES AND JUDGES [took effect
on October 1, 2001]
Suspension of attorney by CA and RTC
Rule 139-B Sec. 16. Suspension of attorney by the Court of
Appeals or Regional Trial Court. - The Court of Appeals or
Regional Trial Court may suspend an attorney from practice for
any of the causes named in Rule 138, Section 27, until further
action of the Supreme Court in the case.
Rule 139-B Sec. 17. Upon suspension by Court of Appeals or
Regional Trial Court, further proceedings in Supreme Court. -
Upon such suspension, the Court of Appeals or a Regional Trial
Court shall forthwith transmit to the Supreme Court a certified
copy of the order of suspension and a full statement of the facts
upon which the same was based. Upon receipt of such certified
copy and statement, the Supreme Court shall make a full
investigation of the case and may revoke, shorten or extend
the suspension, or disbar the attorney as the facts may
warrant.
Section 27, Rule 138 of the Revised Rules of Court, as
amended by Supreme Court Resolution dated February 13,
1992
Section 27. Disbarment or suspension of attorneys by Supreme
Court, grounds therefor.—A member of the bar may be disbarred
or suspended from his office as attorney by the Supreme Court
for:
1. any deceit,
2. malpractice,
3. other gross misconduct in such office,
4. grossly immoral conduct,
5. by reason of his conviction of a crime involving moral
turpitude,
6. for any violation of the oath which he is required to take
before admission to practice,
7. for a willful disobedience appearing as attorney for a party to
a case without authority to do so.
The practice of soliciting cases at law for the purpose of gain,
either personally or through paid agents or brokers, constitutes
malpractice.
Disbarment or suspension in a foreign jurisdiction
The disbarment or suspension of a member of the Philippine Bar
by a competent court or other disciplinary agency in a foreign
jurisdiction where he has also been admitted as an attorney is a
ground for his disbarment or suspension if the basis of such
action includes any of the acts hereinabove enumerated
[Section 27 of Rule 138 of our Rules of Court]. - Velez v. Atty.
De Vera, A.C. No. 6697 July 25, 2006
Judgment of a foreign court is only prima facie evidence
The disbarment or suspension of a member of the Philippine Bar
by a competent court or other disciplinatory agency in a foreign
jurisdiction where he has also been admitted as an attorney is a
ground for his disbarment or suspension if the basis of such
action includes any of the acts hereinabove enumerated.
The judgment, resolution or order of the foreign court or
disciplinary agency shall be prima facie evidence of the ground
for disbarment or suspension. - In re: Atty. Maquera B.M. No.
793 [2004]
The basis of the foreign court's action must include any of the
grounds for disbarment or suspension in this jurisdiction I
It bears stressing that the Guam Superior Court's judgment
ordering Maquera's suspension from the practice of law in Guam
does not automatically result in his suspension or disbarment in
the Philippines.
Under Section 27,34 Rule 138 of the Revised Rules of Court, the
acts which led to his suspension in Guam are mere grounds for
disbarment or suspension in this jurisdiction, at that only if
the basis of the foreign court's action includes any of the
grounds for disbarment or suspension in this jurisdiction. - In
re: Atty. Maquera B.M. No. 793 [2004]
The basis of the foreign court's action must include any of the
grounds for disbarment or suspension in this jurisdiction II
In Maquera, we emphasized that the judgment of suspension
against a Filipino lawyer in a foreign jurisdiction does not
automatically result in his suspension or disbarment in the
Philippines as the acts giving rise to his suspension are not
grounds for disbarment and suspension in this jurisdiction.
Judgment of suspension against a Filipino lawyer may transmute
into a similar judgment of suspension in the Philippines only if
the basis of the foreign court’s action includes any of the
grounds for disbarment or suspension in this jurisdiction. We
likewise held that the judgment of the foreign court merely
constitutes prima facie evidence of unethical acts as lawyer. -
Velez v. Atty. De Vera, A.C. No. 6697 July 25, 2006
Defenses
The Maquera ruling is consistent with Rule 39, Section 48, of the
Rules of Court which provides:
Sec. 48. Effect of foreign judgments or final orders. - The
effect of a judgment or final order of a tribunal of a foreign
country, having jurisdiction to render the judgment or final
order is as follows:
xxxx
(b) In case of a judgment or final order against a person,
the judgment or final order is presumptive evidence of a right as
between the parties and their successors in interest by a
subsequent title.
In either case, the judgment or final order may be repelled by
evidence of a want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law or fact. - Velez
v. Atty. De Vera, A.C. No. 6697 July 25, 2006
Ex parte investigation valid
Likewise, the judgment of the Superior Court of Guam only
constitutes prima facie evidence of Maquera's unethical acts
as a lawyer. More fundamentally, due process demands that he
be given the opportunity to defend himself and to present
testimonial and documentary evidence on the matter in an
investigation to be conducted in accordance with Rule 139-B of
the Revised Rules of Court. Said rule mandates that a
respondent lawyer must in all cases be notified of the charges
against him. It is only after reasonable notice and failure on
the part of the respondent lawyer to appear during the
scheduled investigation that an investigation may be
conducted ex parte. - In re: Atty. Maquera B.M. No. 793
[2004]
Misconduct pertaining to another profession
56 | P R O B L E M A R E A S I N L E G A L E T H I C S
Respondent is a CPA-lawyer who is actively practicing both
professions. He is the senior partner of his law and accounting
firms which carry his name. He is charged for allowing his
accounting firm to represent two creditors of the estate and, at
the same time, allowing his law firm to represent the estate in
the proceedings where these claims were presented.
Respondent advances the defense that assuming there was
conflict of interest, he could not be charged before this Court as
his alleged “misconduct” pertains to his accounting practice.
Even granting that respondent’s misconduct refers to his
accountancy practice, it would not prevent this Court from
disciplining him as a member of the Bar. The rule is settled that
a lawyer may be suspended or disbarred for ANY misconduct,
even if it pertains to his private activities, as long as it shows
him to be wanting in moral character, honesty, probity or good
demeanor. - Nakpil v. Valdes, A.C. No. 2040 [1998]
Respondent lawyer cannot hide behind the corporate veil
This Court holds that respondent cannot invoke the separate
personality of the corporation to absolve him from exercising
these duties over the properties turned over to him by
complainant. He blatantly used the corporate veil to defeat
his fiduciary obligation to his client, the complainant.
Toleration of such fraudulent conduct was never the reason for
the creation of said corporate fiction. - Cordon v. Atty.
Balicante, A.C. No. 2797 October 4, 2002
Judgment from the RTC not needed in IBP investigation
The Court need not delve into the question of whether or not
respondent did contract a bigamous marriage, a matter which
apparently is still pending with the Regional Trial Court of
Pasig City. It is enough that the records of this administrative
case sufficiently substantiate the findings of the Investigating
Commissioner, as well as the IBP Board of Governors, i.e., that
indeed respondent has been carrying on an illicit affair with a
married woman, grossly immoral conduct and only indicative of
an extremely low regard for the fundamental ethics of his
profession. This detestable behavior renders him regrettably
unfit and undeserving of the treasured honor and privileges
which his license confers upon him. - Tucay v. Atty. Tucay, A.C.
No. 5170 [1999]
Marrying in good faith a married lawyer not immoral
All these taken together leads to the inescapable conclusion
that respondent was imprudent in managing her personal affairs.
However, the fact remains that her relationship with Carlos Ui,
clothed as it was with what respondent believed was a valid
marriage, cannot be considered immoral. For immorality
connotes conduct that shows indifference to the moral norms of
society and the opinion of good and respectable members of the
community. Moreover, for such conduct to warrant disciplinary
action, the same must be "grossly immoral," that is, it must be
so corrupt and false as to constitute a criminal act or so
unprincipled as to be reprehensible to a high degree. - Ui v.
Atty. Bonifacio, A.C. No. 3319. June 8, 2000
Anonymous complaints
Anonymous complaints, as a rule, are received with caution.
They should not be dismissed outright, however, where their
averments may be easily verified and may, without much
difficulty, be substantiated and established by other competent
evidence. - Sinsuat and Paps v. Judge Hidalgo, A.M. No.
RTJ-08-2133, August 6, 2008
Forum shopping
Forum shopping applies only to judicial cases or proceedings,
not to disbarment proceedings. - Quirino Tomlin II v. Atty.
Salvador N. Moya II, A.C. No. 6971, February 23, 2006

Acquittal of respondent of the criminal charge is not a bar to
administrative proceedings.
The acquittal of respondent Ramos [of] the criminal charge is
not a bar to these [administrative] proceedings. The
standards of legal profession are not satisfied by conduct which
merely enables one to escape the penalties of x x x criminal law.
Moreover, this Court, in disbarment proceedings is acting in an
entirely different capacity from that which courts assume in
trying criminal case (Italics in the original). (Joselano Guevara
v. Atty. Jose Emmanuel Eala, A.C. no. 7136, August 1, 2007)
Administrative complaint against a member of the bar does
not prescribe
Indeed, we have held that an administrative complaint against a
member of the bar does not prescribe. (Tan Tiong Bio v. Atty.
Renato L. Gonzalez, A.C. no. 6634, August 23, 2007)
Indefinite suspension
This, we are empowered to do not alone because jurisprudence
grants us discretion on the matter but also because, even
without the comforting support of precedent, it is obvious that
if we have authority to completely exclude a person from the
practice of law, there is no reason why indefinite suspension,
which is lesser in degree and effect, can be regarded as falling
outside of the compass of that authority. The merit of this
choice is best shown by the fact that it will then be left to
[respondent] to determine for himself how long or how short
that suspension shall last. For, at any time after the suspension
becomes effective he may prove to this Court that he is once
again fit to resume the practice of law. - (In re: Atty Almacen,
G.R. No. L-27654 February 18, 1970)
Indefinite suspension
The indefiniteness of respondent’s suspension, far from being
"cruel" or "degrading" or "inhuman" has the effect of placing, as
it were, the key to the restoration of his rights and privileges as
a lawyer in his own hands. That sanction has the effect of giving
respondent the chance to purge himself in his own good time of
his contempt and misconduct by acknowledging such
misconduct, exhibiting appropriate repentance and
demonstrating his willingness and capacity to live up to the
exacting standards of conduct rightly demanded from every
member of the bar and officer of the courts.
Xxx the indefiniteness of respondent’s suspension puts in his
hands the key for the restoration of his rights and privileges
as a lawyer. - Dumadag v. Atty. Lumaya, A.C. No. 2614. June
29, 2000
Censure or reprimand
Censure or reprimand is usually meted out for an isolated act
of misconduct of a lesser nature. It is also imposed for some
minor infraction of the lawyer’s duty to the court or the client. -
Cynthia Advincula v. Atty. Ernesto M. Macabata, A.C. No.
7204 [2007]
Kissing complainant on the lips not grossly immoral
Moreover, while respondent admitted hav ing kissed
complainant on the lips, the same was not motivated by
malice. We come to this conclusion because right after the
complainant expressed her annoyance at being kissed by the
respondent through a cellular phone text message, respondent
immediately extended an apology to complainant also via
cellular phone text message. The exchange of text messages
between complainant and respondent bears this out.
Be it noted also that the incident happened in a place where
there were several people in the vicinity considering that
57 | P R O B L E M A R E A S I N L E G A L E T H I C S
Roosevelt Avenue is a major jeepney route for 24 hours. If
respondent truly had malicious designs on complainant, he
could have brought her to a private place or a more remote
place where he could freely accomplish the same.
All told, as shown by the above circumstances, respondent’s acts
are not grossly immoral nor highly reprehensible to warrant
disbarment or suspension. - Cynthia Advincula v. Atty. Ernesto
M. Macabata, A.C. No. 7204 [2007]
Non-injured party can file a complaint
The right to institute a disbarment proceeding is not confined
to clients nor is it necessary that the person complaining
suffered injury from the alleged wrongdoing. Disbarment
proceedings are matters of public interest and the only basis for
judgment is the proof or failure of proof of the charge. The
evidence submitted by complainant before the Commission on
Bar Discipline sufficed to sustain its resolution and
recommended sanctions. - Atty. Navarro v. Atty. Meneses III,
CBD A.C. No. 313. January 30, 1998
Alternative penalty not allowed
A note and advice on the penalty imposed in the resolution is in
order. The dispositive portion thereof provides that:
x x x Respondent Atty. Rosendo Meneses is hereby SUSPENDED
from the practice of law for three (3) years and is hereby
directed to return the Fifty Thousand Pesos he received from
the petitioner within fifteen (15) days from receipt of this
resolution. Failure on his part to comply will result (i)n his
DISBARMENT.
In other words, it effectively purports to impose either a 3-year
suspension or disbarment, depending on whether or not
respondent duly returns the amount to complainant. Viewed
from another angle, it directs that he shall only be suspended,
subject to the condition that he should make restitution as
prescribed therein. - Atty. Navarro v. Atty. Meneses III, CBD
A.C. No. 313. January 30, 1998]
Dispositions of this nature should be avoided. In the imposition
of penalties in criminal cases, it has long been the rule that the
penalty imposed in a judgment cannot be in the alternative,
even if the law provides for alternative penalties, not can such
penalty be subject to a condition. There is no reason why such
legal principles in penal law should not apply in administrative
disciplinary actions which, as in this case, also involve punitive
sanctions. - Atty. Navarro v. Atty. Meneses III, CBD A.C. No.
313. January 30, 1998]
Misconduct as a government official
As a general rule, a lawyer who holds a government office may
not be disciplined as a member of the bar for misconduct in
the discharge of his duties as a government official. However,
if that misconduct as a government official is of such a
character as to affect his qualification as a lawyer or to show
moral delinquency, then he may be disciplined as a member of
the bar on such ground. – Dinsay v. Atty. Cioco, A.C. No. 2995.
Noveernment officialmber 27, 1996
Res judicata does not apply in administrative proceeding
“The doctrine of res adjudicata applies only to judicial or
quasi-judicial proceedings and not to the exercise of the
[Court’s] administrative powers.”- Dinsay v. Atty. Cioco, A.C.
No. 2995. November 27, 1996
While respondent is in effect being indicted twice for the same
misconduct, it does not amount to double jeopardy as both
proceedings are admittedly administrative in nature. - Dinsay v.
Atty. Cioco, A.C. No. 2995. November 27, 1996




A finding of grave misconduct in the ADMINISTRATIVE CASE
would not be determinative of the guilt or innocence of the
respondent in a criminal proceeding
The issue in the FALSIFICATION CASE is whether or not the
SHERIFFS had unlawfully and feloniously made an alteration or
intercalation in a genuine document which changes its meaning
in violation of Article 171 of the Revised Penal Code. – Dinsay v.
Cioco and Atty. Belleza, A.M. No. R-252-P December 12, 1986
Definition of Unprofessional conduct
Unprofessional conduct in an attorney is that which violates the
rules on ethical code of his profession or which is unbecoming a
member of that profession. - Velez v. Atty. De Vera, A.C. No.
6697 July 25, 2006
Indirect contempt does not involve moral turpitude
The act for which he was found guilty of indirect contempt
does not involve moral turpitude.
In this case, it cannot be said that the act of expressing one’s
opinion on a public interest issue can be considered as an act of
baseness, vileness or depravity. Respondent De Vera did not
bring suffering nor cause undue injury or harm to the public
when he voiced his views on the Plunder Law. Consequently,
there is no basis for petitioner to invoke the administrative case
as evidence of respondent De Vera’s alleged immorality. - In re:
Petition to Disqualify Atty. De Vera, A.C. No. 6052. December
11, 2003
No final judgment yet
On the administrative complaint that was filed against
respondent De Vera while he was still practicing law in
California, he explained that no final judgment was rendered
by the California Supreme Court finding him guilty of the
charge. He surrendered his license to protest the discrimination
he suffered at the hands of the investigator and he found it
impractical to pursue the case to the end.
We find these explanations satisfactory in the absence of
contrary proof. It is a basic rule on evidence that he who
alleges a fact has the burden to prove the same. In this case,
the petitioners have not shown how the administrative
complaint affects respondent De Vera’s moral fitness to run for
governor. – In re: Petition to Disqualify Atty. De Vera, A.C. No.
6052. December 11, 2003
Sexual relations between two unmmaried and consenting
adults
Mere sexual relations between two unmmaried and
consenting adults are not enough to warrant administrative
sanction for illicit behavior. The Court has repeatedly held that
voluntary intimacy between a man and a woman who are not
married, where both are not under any impediment to marry
and where no deceit exists, is neither a criminal nor an
unprincipled act that would warrant disbarment or
disciplinary action.
While the Court has the power to regulate official conduct and,
to a certain extent, private conduct, it is not within our
authority to decide on matters touching on employees’
personal lives, especially those that will affect their and their
family’s future. We cannot intrude into the question of whether
they should or should not marry. - Abanag v. Mabute, A.M. No.
P-11-2922, 2011
Estrada v. Escritor case
Respondent, court interpreter in said court, was investigated for
living with a man not her husband, and having borne a child
within this live-in arrangement. Complainant believes that [the
58 | P R O B L E M A R E A S I N L E G A L E T H I C S
court interpreter] is committing an immoral act that tarnishes
the image of the court, thus she should not be allowed to
remain employed therein as it might appear that the court
condones her act. Consequently, respondent was charged with
committing "disgraceful and immoral conduct“. - Estrada v.
Escritor, A.M. No. P-02-1651 August 4, 2003
She admitted that she started living with Luciano Quilapio, Jr.
without the benefit of marriage more than twenty years ago
when her husband was still alive but living with another woman.
She also admitted that she and Quilapio have a son. But as a
member of the religious sect known as the Jehovah’s Witnesses
and the Watch Tower and Bible Tract Society, respondent
asserted that their conjugal arrangement is in conformity with
their religious beliefs and has the approval of her
congregation.
Invoking the religious beliefs, practices and moral standards of
her congregation, she asserts that her conjugal arrangement
does not constitute disgraceful and immoral conduct for
which she should be held administratively liable. - Estrada v.
Escritor, A.M. No. P-02-1651 August 4, 2003
Cont…
Thus, we find that in this particular case and under these
distinct circumstances, respondent’s conjugal arrangement
cannot be penalized as she has made out a case for exemption
from the law based on her fundamental right to freedom of
religion. The Court recognizes that state interests must be
upheld in order that freedoms - including religious freedom -
may be enjoyed. In the area of religious exercise as a preferred
freedom, however, man stands accountable to an authority
higher than the state, and so the state interest sought to be
upheld must be so compelling that its violation will erode the
very fabric of the state that will also protect the freedom. In
the absence of a showing that such state interest exists, man
must be allowed to subscribe to the Infinite.- Estrada v.
Escritor, A.M. No. P-02-1651 August 4, 2003
Penalties imposed in administrative cases [judiciary] are
immediately executory
We stressed that when suspension is "to take effect
immediately", this Court means that the period of suspension
should commence on the day respondent judge receives notice
of the decision suspending him from office.
While this does not preclude the filing by respondent judge of a
motion for reconsideration, the filing and pendency of such a
motion does not have the effect of staying the suspension order.
– Dr. Alday v. Judge Cruz, A.M. No. RTJ-00-1530. February 4,
2002
Penalties imposed in administrative cases [of lawyers] are 

NOT immediately executory
Unless the Court explicitly states that the decision is
immediately executory upon receipt thereof, respondent has 15
days within which to file a motion for reconsideration thereof.
The denial of said motion shall render the decision final and
executory. - Maniago v. Atty. De Dios, A.C. No. 7472, March
30, 2010
“Res Judicata” applies
The Investigating Commissioner properly dismissed the
complaint in this case on the ground of res judicata, it
appearing that it involves the same incident and the same
cause of action as Administrative Case No. 3825. Indeed, it
appears that on August 5, 1995, the First Division of the Court
dismissed a similar complaint filed in Administrative Case No.
3835. – Halimao v. Atty. Villanueva, A.C. No. 3825. February
1, 1996
Automatic Conversion of Some Administrative Cases Against
Justices of the Court of Appeals and the Sandiganbayan;
Judges of Regular and Special Courts
AM. No. 02-9-02-SC. This resolution, entitled “Re: Automatic
Conversion of Some Administrative Cases Against Justices of the
Court of Appeals and the Sandiganbayan; Judges of Regular and
Special Courts; and Court Officials Who are Lawyers as
Disciplinary Proceedings Against Them Both as Such Officials and
as Members of the Philippine Bar.
Cont…
Under the same rule, a respondent “may forthwith be required
to comment on the complaint and show cause why he should not
also be suspended, disbarred or otherwise disciplinary
sanctioned as member of the Bar.” xxx In other words, an order
to comment on the complaint is an order to give an
explanation on why he should not be held administratively
liable not only as a member of the bench but also as a
member of the bar.
This is the fair and reasonable meaning of “automatic
conversion” of administrative cases against justices and judges
to disciplinary proceedings against them as lawyers. This will
also serve the purpose of A.M. No. 02-9-02-SC to avoid the
duplication or unnecessary replication of actions by treating
an administrative complaint filed against a member of the
bench also as a disciplinary proceeding against him as a lawyer
by mere operation of the rule. – Campos, et. al. v. Atty.
Campos, A.C. No. 8644, January 22, 2014
Definition of Unbecoming conduct
Unbecoming conduct “applies to a broader range of
transgressions of rules not only of social behavior but of ethical
practice or logical procedure or prescribed method.”- ASP
Jamsani-Rodriguez v. Justice Ong, et. al.,A.M. No. 08-19-SB-J
April 12, 2011
Unlimited grounds for suspension or disbarment
“A lawyer may be suspended or disbarred for any misconduct,
even if it pertains to his private activities, as long as it shows
him to be wanting in moral character, honesty, probity or
good demeanor. Possession of good moral character is not only
a good condition precedent to the practice of law but also a
good qualification for all members of the bar. -Manaois v.
Deciembre, A.M. Case No. 5564, August 20, 2008
To ensure competence after reinstatement
Xxx in view of the numerous changes in the law since 1959,
respondent movant should offer some guarantee of his ability
to render adequate service to his prospective clients; the
Court resolved that respondent movant Carlos C. Rusiana be, as
he is hereby required, to enroll in, and pass, regular fourth
year review classes in a recognized law school. - In Re:
Administrative Case Against Atty. Carlos C. Rusiana of Cebu
City. A.C. No. 270 March 29, 1974
SC acting as an administrative tribunal, cannot review the
trial court’s decision
At the outset, it should be emphasized that this Court, acting as
an administrative tribunal, cannot review the trial court’s
decision. – Belga v. Buban, A.M. No. RTJ-99-1512. May 9,
2000
Breached of promise to marry not subject to sanction
Complainant filed the instant petition averring that respondent
and she had been sweethearts, that a child out of wedlock was
born to them and that respondent did not fulfill his repeated
promises to marry her.
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We cannot castigate a man for seeking out the partner of his
dreams, for marriage is a sacred and perpetual bond which
should be entered into because of love, not for any other
reason. – Figueroa v. Barranco, Jr., SBC Case No. 519 July 31,
1997
Desistance cannot stop a disciplinary investigation
The aforesaid letter hardly deserves consideration as
proceedings of this nature cannot be "interrupted by reason of
desistance, settlement, compromise, restitution, withdrawal of
the charges, or failure of the complainant to prosecute the
same. - Section 5, Rule 139-B, Rules of Court
Reconciliation of parties or amicable settlement
Therefore, in the instant case, the Court cannot just set aside
the finding of culpability against the respondents merely
because the complainants have decided to forgive them or
settle matters amicably after the case was completely
evaluated and reviewed by the IBP.
The complainants’ forgiveness or even withdrawal from the case
does not ipso facto obliterate the misconduct committed by
Francisco. To begin with, it is already too late in the day for the
complainants to withdraw the disbarment case considering that
they had already presented and supported their claims with
convincing and credible evidence, and the IBP has
promulgated a resolution on the basis thereof. – Sps. Amatorio v.
Atty. F. Yap & Atty. W. Yap, A.C. No. 5914, March 11, 2015
Ex-parte investigation allowed
An ex parte investigation may only be conducted when
respondent fails to appear despite reasonable notice. –
Cottam v. Atty. Laysa, A.C. No. 4834 February 29, 2000
Rule 139-B of the Rules of Court Sec. 8. Investigation. — Upon
joinder of issues or upon failure of the respondent to answer,
the Investigator shall, with deliberate speed, proceed with the
investigation of the case. He shall have the power to issue
subpoenas and administer oaths. The respondent shall be given
full opportunity to defend himself, to present witnesses on his
behalf and be heard by himself and counsel. However, if upon
reasonable notice, the respondent fails to appear, the
investigation shall proceed ex parte.
Affidavit stands in lieu complainant’s testimony
As for complainant’s failure to testify on her own behalf, this is
of no moment. Complainant’s affidavit stands in lieu of her
testimony; the investigating judge even had her re-subscribe
and re-affirm her sworn statement and let the same be adopted
as part of complainant’s evidence. – Liwanag v. Judge Lustre,
A.M. No. MTJ 98-1168. April 21, 1999
Disciplinary authority v. Judicial action
It is imperative to first determine whether the matter falls
within the disciplinary authority of the Court or whether the
matter is a proper subject of judicial action against lawyers.
If the matter involves violations of the lawyer’s oath and code of
conduct, then it falls within the Court’s disciplinary authority.
However, if the matter arose from acts which carry civil or
criminal liability, and which do not directly require an inquiry
into the moral fitness of the lawyer, then the matter would be a
proper subject of a judicial action which is understandably
outside the purview of the Court’s disciplinary authority. –
Felipe, et. al. v. Atty. Macapagal, A.C. No. 4549, December
02, 2013
WON the money should be returned to complainant
It is imperative to first determine whether the matter falls
within the disciplinary authority of the Court OR whether the
matter is a proper subject of judicial action against lawyers. -
Annacta v. Atty. Resurreccion, A.C. No. 9074 August 14, 2012
If the matter involves violations of the lawyer’s oath and code of
conduct, then it falls within the Court’s disciplinary authority.
However, if the matter arose from acts which carry civil or
criminal liability, and which do not directly require an inquiry
into the moral fitness of the lawyer, then the matter would be a
proper subject of a judicial action which is understandably
outside the purview of the Court’s disciplinary authority.
Thus, we hold that when the matter subject of the inquiry
pertains to the mental and moral fitness of the respondent to
remain as member of the legal fraternity, the issue of whether
the respondent be directed to return the amount received from
his client shall be deemed within the Court’s disciplinary
authority. Annacta v. Atty. Resurreccion, A.C. No. 9074 August
14, 2012
Sui generis principle
It should be emphasized that a finding of guilt in the criminal
case will not necessarily result in a finding of liability in the
administrative case. Conversely, respondent’s acquittal does not
necessarily exculpate him administratively.
In the same vein, the trial court’s finding of civil liability
against the respondent will not inexorably lead to a similar
finding in the administrative action before this Court. Neither
will a favorable disposition in the civil action absolve the
administrative liability of the lawyer.
The basic premise is that criminal and civil cases are altogether
different from administrative matters, such that the disposition
in the first two will not inevitably govern the third and vice
versa. - Gatchalian Promotions Talents Pool, Inc. v. Atty.
Naldoza, A.C. No. 4017. September 29, 1999
“Beso-beso” is merely a form of greeting, casual and
customary in nature
Judge Acosta's acts of bussing Atty. Aquino on her cheek were
merely forms of greetings, casual and customary in nature.
No evidence of intent to sexually harass complainant was
apparent, only that the innocent acts of 'beso-beso' were given
malicious connotations by the complainant. – Atty. Aquino v.
Justice Acosta, A.M. No. CTA-01-1. April 2, 2002
Quantum of evidence [judges]
“The ground for the removal of a judicial officer should be
established beyond reasonable doubt. Such is the rule where
the charges on which the removal is sought is misconduct in
office, willful neglect, corruption, incompetency, etc. The
general rules in regard to admissibility of evidence in criminal
trials apply.”- OCA v. Judge Pascual, A.M. No. MTJ-93-783.
July 29, 1996
Quantum of evidence [judges]
As a rule, proof beyond reasonable doubt is not necessary in
deciding administrative cases. Only substantial evidence is
required, as clearly provided for under Rule 133 of the Revised
Rules of Evidence:
“Sec 5. Substantial evidence. -- In cases filed before
administrative or quasi-judicial bodies, a fact may be deemed
established if it is supported by substantial evidence, or that
amount of relevant evidence which a reasonable mind might
accept as adequate to justify a conclusion.”- Liwanag v. Judge
Lustre, A.M. No. MTJ 98-1168. April 21, 1999
60 | P R O B L E M A R E A S I N L E G A L E T H I C S
Quantum of evidence [lawyers]
Administrative cases against lawyers belong to a class of their
own. They are distinct from and they may proceed
independently of civil and criminal cases.
The burden of proof for these types of cases differ. In a criminal
case, proof beyond reasonable doubt is necessary; in an
administrative case for disbarment or suspension, “clearly
preponderant evidence” is all that is required. Thus, a criminal
prosecution will not constitute a prejudicial question even if
the same facts and circumstances are attendant in the
administrative proceedings. – Gatchalian Promotions Talents
Pool, Inc. v. Atty. Naldoza, A.C. No. 4017. September 29,
1999
Absolute pardon
An absolute pardon not only blots out the crime committed, but
removes all disabilities resulting from the conviction. In the case
of In re Marcelino Lontok, the Court, in dismissing the
disbarment proceeding against the respondent therein, who had
been convicted of bigamy, a crime involving moral turpitude,
upon the ground that the respondent had been granted plenary
pardon for his crime, applied the rule that "a person reaches
both the punishment prescribed for the offense and the guilt of
the offender; and when the pardon is full, it releases the
punishment and blots out of existence the guilt, so that in the
eye of the law the offender is as innocent as if he had never
committed the crime," and, "if granted before conviction, it
prevents any of the penalties and disabilities, and restores him
to all his civil rights; it makes him, as it were, a new man and
gives him a new credit and capacity. - In re:Atty. Rovero, A.M.
No. 126 December 29, 1980
Application of Res Ipsa Loquitor doctrine
Under the doctrine of res ipsa loquitur, the Court may impose its
authority upon erring judges whose actuations, on their face,
would show gross incompetence, ignorance of the law or
misconduct. – Atty. Macalintal v. Judge the, A.M. No.
RTJ-97-1375 October 16, 1997
Preventive suspension for erring lawyer
Rule 139-B Sec. 15. Suspension of attorneys by Supreme Court. -
After receipt of respondent's answer or lapse of the period
therefor, the Supreme Court, motu proprio, or at the instance
of the IBP Board of Governors upon the recommendation of the
Investigator, may suspend an attorney from the practice of his
profession for any of the causes specified in Rule 138, Section
27, during the pendency of the investigation until such
suspension is lifted by the Supreme Court.
Preventive suspension not applicable to judges
Based on the foregoing disquisition, the Court is of the resolve
that, while it is true that preventive suspension pendente lite
does not violate the right of the accused to be presumed
innocent as the same is not a penalty, the rules on preventive
suspension of judges, not having been expressly included in
the Rules of Court, are amorphous at best. – Re: Conviction of
Judge Angeles A.M. No. 06-9-545-RTC January 31, 2008
CA or RTC may suspend an attorney
Rule 139-B Sec. 16. Suspension of attorney by the Court of
Appeals or Regional Trial Court. - The Court of Appeals or
Regional Trial Court may suspend an attorney from practice for
any of the causes named in Rule 138, Section 27, until further
action of the Supreme Court in the case.
Judicial clemency and reinstatement
Forms of clemency
Reinstatement
Commutation
Lifting of disqualification
“The basic inquiry in a petition for reinstatement to the practice
of law is whether the lawyer has sufficiently rehabilitated
himself or herself in conduct and character. Whether the
applicant shall be reinstated in the Roll of Attorneys rests to a
great extent on the sound discretion of the Court. The lawyer
has to demonstrate and prove by clear and convincing evidence
that he or she is again worthy of membership in the Bar. The
Court will take into consideration his or her character and
standing prior to the disbarment, the nature and character of
the charge/s for which he or she was disbarred, his or her
conduct subsequent to the disbarment, and the time that has
elapsed in between the disbarment and the application for
reinstatement.” Re: Petition for reinstatement of Rolando S.
Torres as a member of the Philippine Bar, A.C. No. 5161, August
25, 2015
As a final word, while the Court sympathizes with the
respondent's unfortunate physical condition, we stress that in
considering his application for reinstatement to the practice of
law, the duty of the Court is to determine whether he has
established moral reformation and rehabilitation, disregarding
its feeling of sympathy or pity. - Que v. Atty. Anastacio E.
Revilla, Jr.A.C. No.7054 November 11, 2014
“[B]ecause the purpose of lawyer discipline is not punishment,
disbarred attorneys may be readmitted to practice.
Nevertheless, the ABA believes that the presumption should be
against readmission.“
We agreed with this presumption because "[t]he purpose behind
the presumption is protection of the public. This reflects the
purpose of the disciplinary process: to protect the public, not to
punish the lawyer.“ - In the reinstatement matter involving
Wiederholt, 295 P.3d 396 (2013)
The major consideration in reinstatement proceedings is
whether the disbarred attorney has shown that those
weaknesses that produced the earlier misconduct have been
corrected. Therefore, courts often consider remorse,
rehabilitation, and moral fitness to practice law to be key
elements in the inquiry. Because a petitioner for reinstatement
must demonstrate moral fitness and good character sufficient to
be trusted again, the petitioner must make a showing of these
characteristics that overcome[s] the court's former adverse
judgment on the petitioner's character.- In the reinstatement
matter involving Wiederholt, 295 P.3d 396 (2013)
"Pier factors"
(1) the petitioner's present moral fitness;
(2) the petitioner's acceptance of wrongdoing with sincerity and
honesty;
(3) the extent of the petitioner's rehabilitation;
(4) the nature and seriousness of the original misconduct;
(5) the petitioner's conduct following discipline;
(6) the time elapsed since the original discipline;
(7) the petitioner's character, maturity, and experience at the
time of discipline and at present;
(8) the petitioner's current competency and qualifications to
practice law;
(9) restitution; and
(10) the proof that the petitioner's return to the practice of law
will not be detrimental to the integrity and standing of the bar
61 | P R O B L E M A R E A S I N L E G A L E T H I C S
or the administration of justice, or subversive of the public
interest. - In re Pier, 561 N.W.2d 297, 300 (S.D.1997)
The major consideration in reinstatement proceedings is
whether the disbarred attorney has shown that those
weaknesses which produced the earlier misconduct have been
corrected.- In Re Arrotta, 96 P.3d 213 (Ariz. 2004)
Rehabilitation is demonstrated by a course of conduct that
enables the court to conclude there is little likelihood that after
such rehabilitation is completed and the applicant is readmitted
to the practice of law he will engage in unprofessional conduct.
- In Re Arrotta, 96 P.3d 213 (Ariz. 2004)
2 concepts of moral character
A person's moral character can be judged at both the level of an
individual and in the context of group membership. - Scott
DeVito, Justice and the Felonious Attorney, 48 Santa Clara L.
Rev. 155 (2008).
Two points about good moral character underlie this discussion.
First, the court recognized that a lawyer's special place in
society gives the lawyer special power but with that special
power comes heightened moral requirements. Second, the court
applied this heightened moral character to itself.- Scott DeVito,
Justice and the Felonious Attorney, 48 Santa Clara L. Rev. 155
(2008).
"The concept of rehabilitation cannot be framed around a set of
specific principles but will vary depending on the particular
facts of a given case. Rehabilitation, ultimately, is demonstrated
by a course of conduct that enables the Court to conclude there
is little likelihood that after such rehabilitation is completed
and the applicant is readmitted to the practice of law he will
engage in unprofessional conduct.“ - In Re Arrotta, 96 P.3d 213
(Ariz. 2004)
Reinstatements to the legal profession were allowed under the
following criteria
1. the person appreciates the significance of his dereliction and
he has assured the Court that he now possesses the requisite
probity and integrity necessary to guarantee that he is worthy to
be restored to the practice of law
2. the time that has elapsed between disbarment and the
application for reinstatement,
3. his good conduct and honorable dealing subsequent to his
disbarment,
4. his active involvement in civic, educational, and religious
organizations
5. the favorable indorsement of the Integrated Bar of the
Philippines, as well as the local government officials and citizens
of his community.
6. the pleas of his mother and wife for the sake and the future
of his family. – Tan v. Sabandal, B.M. No. 44 February 10,
1989
Cont…
Evidence of reformation is required before applicant is entitled
to reinstatement, notwithstanding the attorney has received a
pardon following his conviction, and the requirements of
reinstatement had been held to be the same as for original
admission to the bar, except that the court may require a
greater degree of proof than in an original evidence.
The decisive question on an application for reinstatement is
whether applicant is 'of good moral character‘. – In re:
Vailoces, A.M. No. 439 September 30, 1982


Court lays down the following guidelines in resolving requests
for judicial clemency

1. There must be proof of remorse and reformation. These shall
include but should not be limited to certifications or
testimonials of the officer(s) or chapter(s) of the Integrated Bar
of the Philippines, judges or judges associations and prominent
members of the community with proven integrity and probity. A
subsequent finding of guilt in an administrative case for the
same or similar misconduct will give rise to a strong presumption
of non-reformation.
2. Sufficient time must have lapsed from the imposition of the
penalty1 to ensure a period of reformation.
3. The age of the person asking for clemency must show that he
still has productive years ahead of him that can be put to good
use by giving him a chance to redeem himself.
4. There must be a showing of promise (such as intellectual
aptitude, learning or legal acumen or contribution to legal
scholarship and the development of the legal system or
administrative and other relevant skills), as well as potential for
public service.
5. There must be other relevant factors and circumstances that
may justify clemency. – Re: Letter of Judge Diaz, A.M. No.
07-7-17-SC September 19, 2007
Absolute and unconditional pardon
Thereafter, complainant in the criminal case, instituted before
this Court disbarment proceedings against petitioner. The same
culminated in his disbarment on April 12, 1961.
On December 27, 1967, the President of the Philippines granted
petitioner "absolute and unconditional pardon" and restored
him "to full civil and political rights.
True it is that the plenary pardon extended to him by the
President does not of itself warrant his reinstatement.- In re:
Vailoces, A.M. No. 439 September 30, 1982
Effects of pardon
"When proceedings to strike on attorney’s name from the rolls
are founded on, and depend alone, on a statute making the
fact of a conviction for a felony ground for disbarment, it has
been held that a pardon operates to wipe out the conviction
and is a bar to any proceeding for the disbarment of the
attorney after the pardon has been granted.“ In re:
Disbarment proceedings against Atty. Gutierrez, A.C. No.
L-363. July 31, 1962
“A pardon reaches both the punishment prescribed for the
offense and the guilt of the offender; and when the pardon is
full, it releases the punishment and blots out of existence the
guilt, so that in the eyes of the law the offender is as innocent
as if he had never committed the offense.
Effect of conditional pardon
The fact that the respondent was extended conditional pardon
by the Chief Executive is of no moment. Such conditional pardon
merely partially relieved him of the penal consequences of
his act, but did not operate as a bar to his disbarment,
especially so when he is being disbarred on the ground of
professional misconduct for which he had been convicted by
final judgment. In re: Atty. Jose Avanceña, A.C. No. 407
August 15, 1967
62 | P R O B L E M A R E A S I N L E G A L E T H I C S
Conditional pardon merely remitted the unexecuted portion of
his term. It does not reach the offense itself. - In re:
Disbarment proceedings against Atty. Gutierrez, A.C. No.
L-363. July 31, 1962
Pardon granted before conviction
“A pardon reaches both the punishment prescribed for the
offense and the guilt of the offender; and when the pardon is
full, it releases the punishment and blots out of existence the
guilt, so that in the eyes of the law the offender is as innocent
as if he had never committed the offense.
If granted before conviction, it prevents any of the penalties
and disabilities, consequent upon conviction, from attaching;
If granted after conviction, it removes the penalties and
disabilities, and restores him to all his civil rights; it makes him,
as it were, a new man, and gives him a new credit and
capacity.”- In re: Disbarment proceedings against Atty.
Gutierrez, A.C. No. L-363. July 31, 1962
Once an applicant’s conduct raises an issue of fitness to practice
law, especially if prior misconduct involved unlawful acts, he or
she may be obliged to demonstrate rehabilitation. One
significant factor in determinations of rehabilitation and fitness
is whether the applicant expresses and demonstrates remorse.
When an applicant previously convicted of a serious crime
applies for admission to the [] Bar, the court conducts a two-
part inquiry. First, the court determines whether the applicant
has proven “complete rehabilitation from the character deficits
that led to the commission of the crime.”
If the applicant meets this prerequisite, the court must then
decide whether the applicant “presently possesses good moral
character.”
- In re Hamm, 123 P.3d 652, 662 (Ariz. 2005)
While Petitioner was "vouched for" by several long standing
members of the Bar, and a former Supreme Court Justice, even
impressive character testimonials, by themselves, are not
enough to establish a disbarred lawyer's rehabilitation.
In re Menna, [47 Cal.Rptr.2d at 9,] 905 P.2d at 951. Indeed, of
more significance to this matter is the fact that all of
Petitioner's witnesses knew little or nothing about how he used
to practice law or why he was disbarred, which suggests
Petitioner lacks insight into the significance to others of his
misconduct. In re: Wiederholt, 89 P.3d 771 (2004)
To prove rehabilitation, the applicant must “identify the
weakness that caused him to engage in criminal misconduct and
then demonstrate that he has overcome that weakness,” and
must demonstrate that he or she accepted responsibility for the
criminal conduct.
- In re King: Is rehabilitation from serious crimes possible?
Suzanne Diaz, ARIZONA LAW REVIEW [VOL. 48:669] 2006
If the applicant proves he or she is rehabilitated, the court must
then evaluate his or her present moral character because
“showing rehabilitation from criminal conduct does not, in
itself, establish good moral character.” In doing so, the court
considers past misconduct to “determine what past bad acts
reveal about an applicant’s current character.”- In re King: Is
rehabilitation from serious crimes possible? Suzanne Diaz,
ARIZONA LAW REVIEW [VOL. 48:669] 2006
The Court was guided by the principle that “the more serious
the misconduct, the greater the showing of rehabilitation that
will be required. . . . [and] in the case of extremely damning
past misconduct, a showing of rehabilitation may be virtually
impossible to make.”- In re Dortch, 860 A.2d 346 (D.C. 2004)
When applicants seek admission to the bar, they have placed
their character at issue. Therefore, the applicant bears the
burden of producing information proving good moral character.
- Mitchell Simon , Nick Smith and Nicole Negowetti
Grounds for voluntary inhibition and disqualification of judges
“Judge’s family”
Includes a judge’s:
1. spouse,
2. son,
3. daughter,
4. son-in-law,
5. daughter-in-law, and
6. any other relative by consanguinity or affinity within the
sixth civil degree, or
7. person who is a companion or employee of the judge and
who lives in the judge’s household.
Disqualification of judges under Rule 137 section 1
Sec. 1. Disqualification of judges. - No judge or judicial officer
shall sit in any case in which he, or his wife or child, is
pecuniarily interested as heir, legatee, creditor or otherwise,
or in which he is related to either party within the sixth degree
of consanguinity or affinity, or to counsel within the fourth
degree, computed according to the rules of the civil law, or in
which he has been executor, administrator, guardian, trustee or
counsel, or in which he has presided in any inferior court when
his ruling or decision is the subject of review, without the
written consent of all parties in interest, signed by them and
entered upon the record.
A judge may, in the exercise of his sound discretion, disqualify
himself from sitting in a case, for just or valid reasons other
than those mentioned above.
Sec. 2. Objection that judge disqualified, how made and effect.
- If it be claimed that an official is disqualified from sitting as
above provided, the party objecting to his competency may, in
writing, file with the official his objection, stating the grounds
therefor, and the official shall thereupon proceed with the trial,
or withdraw therefrom, in accordance with his determination of
the question of his disqualification. His decision shall be
forthwith made in writing and filed with the other papers in the
case, but no appeal or stay shall be allowed from, or by reason
of, his decision in favor of his own competency, until after final
judgment in the case.
Rules contemplate two kinds of inhibition
1. compulsory - it is conclusively presumed that judges cannot
actively and impartially sit in the instances mentioned.
2. voluntary - leaves to the sound discretion of the judges
concerned whether to sit in a case for other just and valid
reasons, with only their conscience as guide. - Ramiscal, Jr. v.
Justice Hernandez G.R. Nos. 173057-74 [2010]
Proof that a specific act of bias or partiality was committed
What can reasonably be gleaned from jurisprudence on this
point of law is the necessity of proving bias and partiality
under the second paragraph of the rule in question. The proof
required needs to point to some act or conduct on the part of
the judge being sought for inhibition. In the instant Motions,
there is not even a single act or conduct attributed to Justice
Hernandez from where a suspicion of bias or partiality can be
63 | P R O B L E M A R E A S I N L E G A L E T H I C S
derived or appreciated. - Ramiscal, Jr. v. Justice Hernandez
G.R. Nos. 173057-74 [2010]
Evidence required
We find the above explanation well-taken and thus uphold the
assailed Resolution upon the grounds so stated. We have ruled in
Philippine Commercial International Bank v. Dy Hong Pi, that
the mere imputation of bias or partiality is not enough ground
for inhibition, especially when the charge is without basis.
Extrinsic evidence must further be presented to establish bias,
bad faith, malice, or corrupt purpose, in addition to palpable
error which may be inferred from the decision or order itself.
This Court has to be shown acts or conduct of the judge
clearly indicative of arbitrariness or prejudice before the
latter can be branded the stigma of being biased or partial. -
Ramiscal, Jr. v. Justice Hernandez G.R. Nos. 173057-74
[2010]
Proof of clear and convincing evidence
The bare allegations of the judge’s partiality, as in this case, will
not suffice in the absence of clear and convincing evidence to
overcome the presumption that the judge will undertake his
noble role of dispensing justice in accordance with law and
evidence, and without fear or favor. - Ramiscal, Jr. v. Justice
Hernandez G.R. Nos. 173057-74 [2010]
"No judge or judicial officer shall sit in any case in which he,
or his wife or child, is pecuniarily interested as heir, legatee,
creditor or otherwise...."
The relationship mentioned therein becomes relevant only when
such spouse or child of the judge is "pecuniarily interested" as
heir, legatee, creditor or otherwise. Petitioner, however,
miserably failed to show that Professor Carolina G. Hernandez
is financially or pecuniarily interested in these cases before
the Sandiganbayan. - Ramiscal, Jr. v. Justice Hernandez G.R.
Nos. 173057-74 [2010]
A summary of judicial obligations
3.1 A judge’s conduct should be above reproach and in the
discharge of his judicial duties he should be conscientious,
studious, thorough, courteous, patient, punctual, just,
impartial, fearless of public clamour, and regardless of private
influence should administer justice according to law and should
deal with the patronage of the position as a public trust; and he
should not allow outside matters or his private interests to
interfere with the prompt and proper performance of his
office.”- Administrative Order No. 162, of the Department of
Justice, dated August 1, 1946. Sandoval v. Justice Tan, Jr. G.R.
No. 106657 [1996]
Meaning of “ruling in a lower court is the subject of review”
or 

“in which he has presided in any inferior court when his
ruling or decision is the subject of review.”
Granted that Justice Victor presided partly over the case in the
court a quo, his was not the pen that finally rendered the
decision therein. Hence, he cannot be said to have been
placed in a position where he had to review his own decision
as judge in the trial court. Accordingly, he was not legally
bound to inhibit himself from the case. - Sandoval v. Justice
Tan, Jr. G.R. No. 106657 [1996]
Nevertheless, Justice Victor should have been more prudent
and circumspect and declined to take on the case, owing to
his earlier involvement in the case. The Court has held that a
judge should not handle a case in which he might be perceived,
rightly or wrongly, to be susceptible to bias and partiality, which
axiom is intended to preserve and promote public confidence in
the integrity and respect for the judiciary. While he is not
legally required to decline from taking part in the case, it is our
considered view that his active participation in the case below
constitutes a “just or valid reason,” under Section 1 of Rule 137
for him to voluntarily inhibit himself from the case. - Sandoval
v. Justice Tan, Jr. G.R. No. 106657 [1996]
Automatic granting of a motion for voluntary inhibition
improper
Indeed, the automatic granting of a motion for voluntary
inhibition would open the floodgates to a form of forum-
shopping, in which litigants would be allowed to shop for a
judge more sympathetic to their cause, and would prove
antithetical to the speedy and fair administration of justice. -
Kilosbayan Foundation v. Judge Janolo, Jr. G.R. No. 180543
[2010]
“Utang na loob” per se not a ground for inhibition
Inhibition is not allowed at every instance that a friend,
classmate, associate or patron of a presiding judge appears
before him as counsel for one of the parties to a case. "Utang na
loob", per se, should not be a hindrance to the administration
of justice. Nor should recognition of such value in Philippine
society prevent the performance of one's duties as judge. –
Query of Executive Judge Estrada, A.M. No. 87-9-3918-RTC
October 26, 1987
Intimacy or friendship between a judge and an attorney of
record is no ground for disqualification
It is clear from a reading of the law that intimacy or friendship
between a judge and an attorney of record of one of the
parties to a suit is no ground for disqualification. xxx We held
that the fact "that one of the counsels in a case was a classmate
of the trial judge is not a legal ground for the disqualification
of said judge.” To allow it would unnecessarily burden other
trial judges to whom the case would be transferred.
Ultimately, confusion would result, for under a different rule, a
judge would be barred from sitting in a case whenever one of
his former classmates (and he could have many) appeared." -
Query of Executive Judge Estrada, A.M. No. 87-9-3918-RTC
October 26, 1987
Personally approaching the judge to disqualify himself not
contempt
We do not consider it as an act of contempt of court when
petitioner asked his counsel to see respondent Judge in his
chamber and request him to disqualify himself upon a ground
which respondent Judge might consider just or valid. It is one
thing to act not in accordance with the rules, and another thing
to act in a manner which would amount to a disrespect or an
affront to the dignity of the court or judge. - Austria v. Hon.
Judge Masaquel, G.R. No. L-22536 August 31, 1967
Former associate in practice of law
We are in accord with the statement of respondent Judge in his
memorandum that the circumstance invoked by petitioner in
asking him to inhibit himself from further trying the case — that
Atty. Sicat was his former associate in his practice of law — is
not one of the grounds enumerated in the first paragraph of
Section 1, Rule 137 of the new Rules of Court for disqualifying a
judge. While it is true that respondent Judge may not be
compelled to disqualify himself, the fact that Atty. Sicat,
admittedly his former associate, was counsel for a party in the
case being tried by him, may constitute a just or valid reason
for him to voluntarily inhibit himself from hearing the case on
a retrial, if he so decides, pursuant to the provision of the
second paragraph of Section 1 of the said Rule 137. – Austria v.
Hon. Judge Masaquel, G.R. No. L-22536 August 31, 1967
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Judge was the former public prosecutor who handled the
same case
The above-mentioned criminal case was inherited by the
undersigned upon assumption to office as Presiding Judge of this
sala last November 12, 1996. It was only after 4 months herein
undersigned discovered and remembered that he handled the
aforecited criminal case as public prosecutor years back. Hence,
for all intents and purposes, from the time he discovered his
previous participation in the above-cited criminal case, up to
the present, the undersigned never heard nor tried nor
conducted any full-blown trial in the same. Besides the private
prosecutor did not interpose any objection.
WON respondent judge should be administratively sanctioned.
The prohibition is thus not limited to cases in which a judge
hears the evidence of the parties but includes as well cases
where he acts by resolving motions, issuing orders and the
like as Judge Rojas has done in the criminal case. xxx The
purpose of the rule is to prevent not only a conflict of interest
but also the appearance of impropriety on the part of the
judge. A judge should take no part in a proceeding where his
impartiality might reasonably be questioned.
In violation of these rules, Judge Rojas sat as a judge in Criminal
Case No. 09-5668 from November 12, 1996 to April 13, 1998
without securing the written consent of both the prosecution
and the defense and entering the same upon the record of
the case. For almost one and a half years, he issued various
orders resetting the dates of the hearing and of the reception of
additional evidence for the prosecution and for the defense.
Undoubtedly, by these acts, he sat in and acted on the case. -
In Re: Inhibition of Judge Rojas A.M. No. 98-6-185-RTC
[1998]
Justice of CA had acted as counsel for respondent but no
sanction
Considering that Justice Montenegro had so represented the
National Power Corporation in CA G.R. CV No. 34524 in his then
capacity as the Acting Solicitor General, he should have really
begged off from any participation in the decision process by,
indeed from being the ponente for, the appellate court.
In all fairness to Justice Montenegro, however, he explained
such failure to promptly inhibit himself as one of mere
inadvertence and oversight on his part, and when reminded
that he, in fact, had acted as counsel for respondent NPC as
the then Acting Solicitor General, he then forthwith
disengaged himself from further involvement in the disposition
of the case. - Urbanes, R. v. CA, G.R. No. 112884 August 30,
1994
Should a judge whose decision was reversed by the appellate
court voluntarily inhibit herself when the case is remanded to
her sala
The fact that Judge Quijano-Padilla ruled adversely against
petitioner in the resolution of the motion to dismiss, which this
Court later reversed in G.R. No. 160753, is not enough reason,
absent any extrinsic evidence of malice or bad faith, to
conclude that the judge was biased and partial against
petitioner. As this Court has emphasized in Webb v. People, the
remedy of erroneous interlocutory rulings in the course of a trial
is not the outright disqualification of a judge, for there is yet
to come a judge with the omniscience to issue rulings that are
always infallible. The courts will close shop if we disqualify
judges who err, for we all err. - Barnes v. reyes, et. al., G.R.
No. 179583 [2009]
Is a former assistant or associate of the judge in the practice
of law a ground for automatic disqualification
We are in accord with the statement of respondent Judge in his
memorandum that the circumstance invoked by petitioner in
asking him to inhibit himself from further trying the case — that
Atty. Sicat was his former associate in his practice of law — is
not one of the grounds enumerated in the first paragraph of
Section 1, Rule 137 of the new Rules of Court for disqualifying
a judge. While it is true that respondent Judge may not be
compelled to disqualify himself, the fact that Atty. Sicat,
admittedly his former associate, was counsel for a party in the
case being tried by him, may constitute a just or valid reason
for him to voluntarily inhibit himself from hearing the case on
a retrial, if he so decides, pursuant to the provision of the
second paragraph of Section 1 of the said Rule 137. – Austria v.
Hon. Judge Masaquel, G.R. No. L-22536 August 31, 1967
Is being a former classmate of the judge a ground for
inhibition or disqualification?
Appellants stress that the trial court should be held disqualified
because the counsel for plaintiffs-appellees had been a
classmate of the trial judge. Admittedly, this is not a legal
ground for disqualification. To allow it would unnecessarily
burden other trial judges to whom the case would be
transferred. Ultimately, confusion would result, for under the
rule advocated, a judge would be barred from sitting in a case
whenever one of his former classmates (and he could have
many) appeared. – Vda. De Bonifacio v. BLTB, et. al., G.R. No.
L-26810. August 31, 1970
It is clear from a reading of the law that intimacy or friendship
between a judge and an attorney of record of one of the
parties to a suit is no ground for disqualification. - Query of
Executive Judge Estrada, A.M. No. 87-9-3918-RTC October
26, 1987
Who shall resolve a motion for reconsideration filed against
the decision of a judge, after he had voluntarily inhibited
himself from further sitting in the case?
The administrative matter before us differs from most petitions
involving a judge's disqualification here, a judge voluntarily
inhibits himself and, instead of a party or both parties filing a
motion on the matter, it is another judge who insists that he
continue with the case.
However, as much as possible, the judge to whom a case is
transferred should not resist too much the order of
recusation unless the motives for inhibition are suspect. -
Query of Executive Judge Estrada, A.M. No. 87-9-3918-RTC
October 26, 1987
Judge attempted to make complainant and the accused settle
their dispute amicably considering that they are brothers and
the wife of the accused is his first cousin
Respondent's efforts, praiseworthy though they may be, cannot
justify the disregard of the law. At the first sign that
complainant was not willing to listen to respondent's counsel,
the latter should have recused himself from the case without
further delay. He cannot sacrifice the integrity of the judicial
office on the chance that complainant might relent and agree at
last to settle the matter with his brother. A period of two (2)
months is more than enough for respondent to make use of
his good office. After a reasonable time trying his ability to
bring the parties to an amicable settlement and using his moral
influence on them without success, he should have inhibited
himself from the case and continued his peace efforts in a
private capacity.
Judge is reprimanded. – Lazo v. Judge Tiong, A.M. No.
MTJ-98-1173. December 15, 1998
65 | P R O B L E M A R E A S I N L E G A L E T H I C S
Would mandamus lie to compel respondent Judge to proceed
with hearing the case
On July 26, 1995, respondent Judge de la Cruz, Jr. issued an
order denying the motion for inhibition but voluntarily
inhibited himself and subsequently denied the motion for
reconsideration of the order of inhibition.
As such, mandamus would not lie to compel respondent Judge
Marino M. dela Cruz, Jr. to proceed with hearing the case since
the grant or
denial of the motion to inhibit involves the exercise of
discretion. The right or duty to exercise this discretion has been
imposed on him by the Rules of Court with regard to any matter
brought before him. Furthermore, petitioners have no vested
right to the issuance of the motion to inhibit given its
discretionary nature. – Gutang, et. al. v. CA, G.R. No. 124760
July 8, 1998
Verbal motion for voluntary inhibition is not proper
Acting thereupon, respondent judge ordered the lawyer to file
the corresponding motion within five (5) days from receipt of
the Order; and in the meantime, he suspended the arraignment
of the accused. However, the private prosecutor did not file
the required motion for inhibition, an omission which was
interpreted as abandonment of the stance of the complainant
to inhibit the respondent Judge from hearing subject cases. –
Villanueva v. Judge Almazan, A.M. No. MTJ-99-1221. March
16, 2000
DISQUALIFICATION OF JUDICIAL OFFICERS Rule 137
Sec. 2. Objection that judge disqualified, how made and effect.
- If it be claimed that an official is disqualified from sitting as
above provided, the party objecting to his competency may, in
writing, file with the official his objection, stating the grounds
therefor, and the official shall thereupon proceed with the trial,
or withdraw therefrom, in accordance with his determination of
the question of his disqualification. His decision shall be
forthwith made in writing and filed with the other papers in the
case, but no appeal or stay shall be allowed from, or by reason
of, his decision in favor of his own competency, until after final
judgment in the case.
No appeal or stay shall be allowed until after final judgment
in the case is not an absolute rule
Second, while the restriction in the Rule against appeal or stay
of the proceedings where the trial judge rules in favor of her
competency to sit in a case is not an absolute rule in civil
cases, and has not precluded a resort in appropriate cases to
the special civil action of certiorari before the higher courts
for determination.
This will apply only in cases where the denial of the motion
for inhibition or disqualification was made ahead of the trial
court’s judgment on the merits and there is a clear showing
that the case is an exceptional one. This is not true in the
case of the present petitioner. Ong v. Basco, G.R. No. 167899
August 6, 2008
Interpretation of Section 2 of Rule 137 of the Rules of Court
against appeal or stay of the proceedings when the trial judge
denies a motion to disqualify himself and rules in favor of his
own competency
Rule 137 in criminal cases might give a contrary impression,
that such restriction against appeal or stay of the proceedings
when the trial judge denies a motion to disqualify himself and
rules in favor of his own competency does not apply in criminal
cases where such disqualification is sought by the prosecution
or offended party. - Paredes v. Judge Gopengco, G.R. No.
L-23710 September 30, 1969

When the accused seeks inhibition or disqualification
Where, however, it is the accused in a criminal case who seeks
the disqualification of the trial judge, the general restriction
provided in the rule against appeal or stay of the proceedings
when the judge denies the motion and rules in favor of his own
competency would apply, as it does in civil cases.
In such case, the accused, in the event of his conviction, could
raise the correctness of the judge's ruling on his non-
disqualification with his appeal from the decision on the merits;
and were he to be acquitted, he would have no cause for
complaint against the judge's acquittal verdict and ruling of non-
disqualification of himself from trying the case and rendering
such verdict. - Paredes v. Judge Gopengco, G.R. No. L-23710
September 30, 1969
Rule on restriction against appeal or stay of the proceedings
when the trial judge denies a motion to disqualify himself and
rules in favor of his own competency
When it is the accused in a criminal case who seeks the
disqualification of the trial judge, the general restriction would
apply – meaning no appeal until final judgment.
When it is the prosecution or offended party in a criminal case
who seeks the disqualification of the trial judge such restriction
against appeal or stay of the proceedings does not apply. –
otherwise the rule on double jeopardy will apply against the
prosecution or offended party.
In civil and [administrative] cases, no appeal or stay shall be
allowed from, or by reason of, his decision in favor of his own
competency, until after final judgment in the case.
Disqualification of a judge is not a matter that affects his
jurisdiction
This Court's jurisprudence, likewise contrary to petitioners'
contention, holds that the disqualification of a judge is not a
matter that affects his jurisdiction and power to act such as to
render his decision null and void, so much so that failure on the
part of a party, to timely interpose such an objection of
disqualification prior to the decision has been held to be a fatal
obstacle to raising such objection on appeal. - Paredes v. Judge
Gopengco, G.R. No. L-23710 September 30, 1969
When to file a motion for disqualification?
The question of a judge's disqualification, therefore, is one that
should be timely raised in the first instance, so that it may
properly be raised and considered on appeal.
At the same time, as we pointed out in the Abella case, supra, if
this Court were of the opinion upon a review of the case that
the litigant had not had a fair trial, it would grant a new trial,
although the judge may not have been disqualified under Rule
137, not on the ground of lack of jurisdiction but in the best
interests of justice.
This we did in Dais vs. Torres, where we ruled that: "Although a
judge may not have been disqualified under said section,
nevertheless if it appears to this court that the appellant was
not given a fair and impartial trial because of the trial judge's
bias or prejudice, this court will order a new trial, if it deems
it necessary, in the interest of justice." Paredes v. Judge
Gopengco, G.R. No. L-23710 September 30, 1969
“Remittal of Disqualification”
SEC. 6. A judge disqualified as stated above may, instead of
withdrawing from the proceeding, disclose on the records the
basis of disqualification. If, based on such disclosure, the parties
and lawyers independently of the judge’s participation, all agree
in writing that the reason for the inhibition is immaterial or
66 | P R O B L E M A R E A S I N L E G A L E T H I C S
unsubstantial, the judge may then participate in the proceeding.
The agreement, signed by all parties and lawyers, shall be
incorporated in the record of the proceedings. - CANON 3
IMPARTIALITY New Code of Judicial Conduct
Written consent of all the parties is required in “Remittal of
Disqualification”
From the foregoing provision of the rules, a judge cannot sit in
any case in which he was a counsel without the written consent
of all the parties in interest, signed by them and entered upon
the record. The respondent alleged that since there was no
objection from any of the parties, he proceeded to preside
over the case and to decide it. This is a clear violation of the
law. The rule is explicit that he must secure the written consent
of all the parties, not a mere verbal consent much less a tacit
acquiescence. More than this, said written consent must be
signed by them and entered upon the record. - Lorenzo v.
Judge Marquez, A.M. No. MTJ-87-123 June 27, 1988
“Common law” relationship not a relationship by affinity
The law cannot be stretched to include persons attached by
common-law relations. Here, there is no blood relationship or
legal bond that links the appellant to his victim. Thus, the
modifying circumstance of relationship cannot be considered
against him. – PP v. Atop, G.R. Nos. 124303-05 February 10,
1998
Presumption of regularity
Mere allegations, conjectures, suppositions, speculations or
hearsay cannot overcome the presumption that the respondent
[judge] has regularly performed his or her duties. - Bautista v.
Ass. Justice Abdulwahid, A.M. OCA IPI No. 06-97-CA-J, May 2,
2006
"Bare allegations of partiality x x x [is not sufficient] in the
absence of clear and convincing evidence to overcome the
presumption that the judge will undertake his noble role to
dispense justice according to law and evidence and without fear
or favor." - Crisostomo v. People of the Philippines, G.R. No.
171526, September 1, 2010
Duty not to recuse
Judges should not recuse themselves merely because an
unfounded claim of bias or prejudice has been lodged against
them. xxx . [A] judge has an equally strong duty not to recuse
when the circumstances do not require recusal. - Annotated
Model Code of Judicial Conduct, American Bar Association, page
187, 2004
Improper purpose for filing motion to inhibit/disqualify
The rule [on inhibition or disqualification] should “not be used
cavalierly to suit a litigant’s personal designs or to defeat the
ends of justice.”
It deemed as intolerable acts of litigants who, for any
conceivable reason, would seek to disqualify a judge for their
own purposes under a plea of bias, hostility, or prejudgment.
It further held that it did not approve of some litigants’ tactic of
filing baseless motions for disqualification as a means of
delaying the case or of forum-shopping for a more friendly
judge. - People v. Serrano, 203 SCRA 171, 186-87, October 28,
1991, cited by Justice Panganiban in his Extended Explanation
for Inhibition in the case of Estrada vs. Desierto, G.R. Nos.
146710-15, March 2, 2001
Grounds for disciplinary proceedings against judges and
justices

Resolution to protect members of judiciary from baseless
complaints
First of all, we deem it necessary to determine the applicability
of A.M. No. 03-10-01-SC, a Resolution Prescribing Measures to
Protect Members of the Judiciary from Baseless and Unfounded
Administrative Complaints, which took effect on November 3,
2003.
Recognizing the proliferation of unfounded or malicious
administrative or criminal cases against members of the
judiciary for purposes of harassment, we issued said Resolution,
which provides:
2. If the complaint is filed within six months before the
compulsory retirement of a Justice or Judge; for an alleged
cause of action that occurred at least a year before such filing;
and shown prima facie that it is intended to harass the
respondent, it must forthwith be recommended for dismissal.
If such is not the case, the Office of the Court Administrator
must require the respondent to file a comment within ten (10)
days from receipt of the complaint, and submit to the Court a
report and recommendation not later than thirty (30) days from
receipt of the comment. The Court shall act on the
recommendation before the date of compulsory retirement of
the respondent, or, if it is not possible to do so, within six (6)
months from such date without prejudice to the release of the
retirement benefits less such amount as the Court may order to
be withheld, taking into account the gravity of the cause of
action alleged in the complaint.
Power of the Supreme Court
Article 8 Section 6. The Supreme Court shall have administrative
supervision over all courts and the personnel thereof. –
Philippine Constitution 1987
By virtue of this power, it is only the Supreme Court that can
oversee the judges' and court personnel's compliance with all
laws, and take the proper administrative action against them if
they commit any violation thereof. No other branch of
government may intrude into this power, without running afoul
of the doctrine of separation of powers. – Maceda v. Hon.
Ombudsman Vasquez, G.R. No. 102781. April 22, 1993
Competence to review a judicial order or decision belongs to
the Court
“No other entity or official of the Government, not the
prosecution or investigation service of any other branch, not any
functionary thereof, has competence to review a judicial
order or decision--whether final and executory or not--and
pronounce it erroneous so as to lay the basis for a criminal or
administrative complaint for rendering an unjust judgment or
order. That prerogative belongs to the courts alone.”- De Vera
v. Pelayo, 335 SCRA 281(2000)
Powers, functions, and duties of the Office of the Ombudsman
Section 13. The Office of the Ombudsman shall have the
following powers, functions, and duties:
(1) Investigate on its own, or on complaint by any person, any
act or omission of any public official, employee, office or
agency, when such act or omission appears to be illegal, unjust,
improper, or inefficient.
(2) Direct, upon complaint or at its own instance, any public
official or employee of the Government, or any subdivision,
agency or instrumentality thereof, as well as of any government-
owned or controlled corporation with original charter, to
perform and expedite any act or duty required by law, or to
stop, prevent, and correct any abuse or impropriety in the
performance of duties.
67 | P R O B L E M A R E A S I N L E G A L E T H I C S
xxx
Ombudsman Act of 1989 [R.A. 6770]
Republic Act No. 6770, otherwise known as the Ombudsman Act
of 1989, provides:
“Sec. 15. Powers, Functions and Duties. - The Office of the
Ombudsman shall have the following powers, functions and
duties: (1) Investigate and prosecute on its own or on
complaint by any person, any act or omission of any public
officer or employee, office or agency, when such act or omission
appears to be illegal, unjust, improper or inefficient. It has
primary jurisdiction over cases cognizable by the Sandiganbayan
and, in the exercise of this primary jurisdiction, it may take
over, at any stage, from any investigatory agency of
Government, the investigation of such cases.”
xxx xxx
“Section 21. Officials Subject To Disciplinary Authority,
Exceptions.- The Office of the Ombudsman shall have
disciplinary authority over all elective and appointive officials of
the Government and its subdivisions, instrumentalities and
agencies, including members of the Cabinet, local government,
government-owned or controlled corporations and their
subsidiaries, except over officials who may be removed only
by impeachment or over Members of Congress, and the
Judiciary.
When criminal complaint against a Judge or other court
employee arises from their administrative duties
In fine, where a criminal complaint against a Judge or other
court employee arises from their administrative duties, the
Ombudsman must defer action on said complaint and refer the
same to this Court for determination whether said Judge or
court employee had acted within the scope of their
administrative duties. - Maceda v. Hon. Ombudsman Vasquez,
G.R. No. 102781. April 22, 1993
Whether the Office of the Ombudsman could entertain a
criminal complaint for the alleged falsification of a judge's
certification submitted to the Supreme Court, and assuming
that it can, whether a referral should be made first to the
Supreme Court.
Thus, the Ombudsman should first refer the matter of
petitioner's certificates of service to this Court for
determination of whether said certificates reflected the true
status of his pending case load, as the Court has the necessary
records to make such a determination.
The Ombudsman cannot compel this Court, as one of the three
branches of government, to submit its records, or to allow its
personnel to testify on this matter, as suggested by public
respondent Abiera in his affidavit-complaint. - Maceda v. Hon.
Ombudsman Vasquez, G.R. No. 102781. April 22, 1993
Whether the Ombudsman may conduct an investigation over
the acts of a judge in the exercise of his official functions
alleged to be in violation of the Anti-Graft and Corrupt
Practices Act, in the absence of an administrative charge for
the same acts before the Supreme Court.
Thus, the Ombudsman may not initiate or investigate a
criminal or administrative complaint before his office against
petitioner judge, pursuant to his power to investigate public
officers. The Ombudsman must indorse the case to the Supreme
Court, for appropriate action. - Fuentes v. Office of the
Ombudsman-Mindanao, G.R. No. 124295, October 23, 2001
Whether the MTC can take cognizance of a complaint of
reckless imprudence against an incumbent judge pending the
resolution of an administrative complaint arising from the
same facts
On January 31, 2003, complainant filed a letter complaint
before the Ombudsman-Vizayas, charging Judge Rodolfo B.
Garcia, then Presiding Judge of the MCTC, Calatrava-Toboso,
Negros Occidental with the crime of murder and the
administrative offenses of grave misconduct and abuse of
authority.
The complaint arose from the death of complaianant’s husband,
on November 12, 2002, as a result of a vehicular mishap
between a Toyota Land Cruiser driven by Judge Garcia and the
motorcycle driven by the deceased.
The Graft Investigation Officer found the existence of probable
cause for the crime of Reckless Imprudence Resulting to
Homicide and recommended the filing of the corresponding
charges against Judge Garcia.
Judge Garcia filed a Motion to Quash the Information on the
following grounds:xxx; (2) that the court trying the case has no
jurisdiction over the offense charged and over his person;
and,xxx.
Petitioner [judge] argues that respondents violated this Court’s
pronouncements in Caoibes, Jr. v. Ombudsman, directing the
Ombudsman to refer all cases against judges and court
personnel filed before his office to the Supreme Court; and, in
Fuentes v. Office of the Ombudsman-Mindanao, restricting not
only the Ombudsman and the prosecution arm of the
government, but also other official and functionary thereof in
initiating or investigating judges and court personnel.
Held
In the case at bar, the criminal case filed against petitioner was
in no way related to the performance of his duties as a judge.
From the foregoing, the filing of the criminal charges against
the petitioner before the MCTC was warranted by the above
circumstances.
To reiterate, the case filed against petitioner before the MCTC is
a criminal case under its own jurisdiction as prescribed by law
and not an administrative case. To be sure, trial courts retain
jurisdiction over the criminal aspect of offenses committed by
judges of the lower courts. – Garcia v. Miro, G.R. No. 167409,
March 20, 2009
When to file administrative case against judges
Now, the established doctrine and policy is that disciplinary
proceedings and criminal actions against Judges are not
complementary or suppletory of, nor a substitute for, these
judicial remedies, whether ordinary or extraordinary. Resort to
and exhaustion of these judicial remedies, as well as the entry
of judgment in the corresponding action or proceeding, are pre-
requisites for the taking of other measures against the
persons of the judges concerned, whether of civil,
administrative, or criminal nature. It is only after the available
judicial remedies have been exhausted and the appellate
tribunals have spoken with finality, that the door to an inquiry
into his criminal, civil, or administrative liability may be said to
have opened, or closed. - Bello III v. Judge Diaz, AM-
MTJ-00-1311. October 3, 2003
Prosecution of the judge can be had only if “there be a final
declaration by a competent court in some appropriate
proceeding of the manifestly unjust character of the
challenged judgment or order, and also evidence of malice or
bad faith, ignorance of inexcusable negligence, on the part of
the judge in rendering said judgment or order” or under the
stringent circumstances set out in Article 32 of the Civil Code. –
Bello III v. Judge Diaz, AM-MTJ-00-1311. October 3, 2003
Anonymous complaint
First, we clear the objection of respondent judge that the
letter-complaint should not be given due course because it is
68 | P R O B L E M A R E A S I N L E G A L E T H I C S
only anonymous. Section 1, Rule 140 of the Revised Rules of
Court provides that the disciplinary proceedings against judges
and justices may be instituted under either of three ways:
1. by the Supreme Court motu proprio;
2. upon a verified complaint; or
3. upon an anonymous complaint, supported by public
records of indubitable integrity.
Re: Anonymous Complaint against Judge Gedorio, A.M. No.
RTJ-05-1955, May 25, 2007
Lack of verification is only a formal defect
As to the contention of respondent that the Court should not
have taken cognizance of the complaint because the letter-
complaint was not verified, as required in Rule 139-B, §1 of the
Rules of Court on Disbarment and Discipline of Attorneys, suffice
it to say that such constitutes only a formal defect and does
not affect the jurisdiction of the Court over the subject
matter of the complaint. "The verification is merely a formal
requirement intended to secure an assurance that matters which
are alleged are true and correct — the court may simply order
the correction of unverified pleadings or act on it and waive
strict compliance with the rules in order that the ends of justice
may be served." (Fernandez v. Atty. Novero Jr., A.C. No. 5394,
December 02, 2002)
Effect of retirement of respondent judge
Respondent's retirement from office did not render the present
administrative case moot and academic. Neither does it free
him from liability. (Lagcao v. Judge Gako, A.M. RTJ-04-1840,
August 2, 2007)
Death of respondent judge
The dismissal of the administrative case against Judge Butacan
by reason of his demise is in accordance with Bote v. Judge
Eduardo where the Court held that in view of the death of Judge
Escudero, for humanitarian reasons, it is inappropriate to
impose any administrative liability of a punitive nature; and
declared the administrative complaint against the respondent
Judge, dismissed, closed and terminated. - RE: Application for
retirement/gratuity benefits xxx., A.M. No. 12535-ret., April
22, 2008
Judge also liable if court employee fraternized with litigant
Unfortunately, these standards were not met by respondent
Judge Alagar in this case having tolerated unknowingly his
employee to fraternize, receive or give personal favors no
matter how small, with party litigants in a case pending before
his sala.
Thus, while this Court finds the respondent Judge to have acted
with impartiality and propriety in dealing with the complainants
in Criminal Case No. 4252 , we find fault on his part in failing
to supervise the conduct and behavior of his court employee
for the latter’s improper use of his vehicle, to the detriment of
the court’s image. - Balderama v. Judge Alagar, A.M. No.
RTJ-99-1449. January 18, 2002
Having lunch with counsel
For respondent judge to eat lunch with counsel is not wrong
per se. The Canons, however, provides that as much as possible
he should be scrupulously careful to avoid any suspicion that his
social or business or friendly relationship is an element in
“determining his judicial course.” Knowing that Atty. Verano,
Jr., is counsel of the petitioner in an annulment case pending
before him, the respondent judge should have thought twice
about joining counsel for lunch, especially in the courtroom at
that. - Pertierra v. Judge Lerma, A.M. No. RTJ-03-1799.
September 12, 2003
Effect of reconciliation of the parties
The subsequent reconciliation of the parties to an
administrative proceeding does not strip the court of its
jurisdiction to hear the administrative case until its resolution.
Atonement, in administrative cases, merely obliterates the
personal injury of the parties and does not extend to erase the
offense that may have been committed against the public
service. (Flores v. Judge Garcia, A.M. No. MTJ-03-1499,
October 6, 2008)
Conviction in a criminal case
Evidence to support a conviction in a criminal case is not
necessary, and the dismissal of the criminal case against the
respondent in an administrative case is not a ground for the
dismissal of the administrative case.
Conversely, conviction in the criminal case will not
automatically warrant a finding of guilt in the administrative
case. We emphasize the well-settled rule that criminal and civil
cases are altogether different from administrative matters, and
each must be disposed of according to the facts and the law
applicable to it. In other words, the disposition in the first two
will not necessarily govern the third, and vice versa. (Velasco v.
Judge Adoracion G. Angeles A.M. No. RTJ-05-1908, August 15,
2007)
Effect of resignation from office
Verily, the resignation of Judge Quitain which was accepted by
the Court without prejudice does not render moot and academic
the instant administrative case. The jurisdiction that the Court
had at the time of the filing of the administrative complaint is
not lost by the mere fact that the respondent judge by his
resignation and its consequent acceptance – without prejudice –
by this Court, has ceased to be in office during the pendency of
this case. The Court retains its authority to pronounce the
respondent official innocent or guilty of the charges against
him. A contrary rule would be fraught with injustice and
pregnant with dreadful and dangerous implications. (Non-
disclosure before the JBC of the administrative case filed
against Judge Jaime V. Quitain, JBC no. 013, August 22,
2007)
Grounds for outright dismissal
Thus, in order for an administrative complaint against a retiring
judge or justice to be dismissed outright, the following
requisites must concur:
(1) the complaint must have been filed within six months from
the compulsory retirement of the judge or justice;
(2) the cause of action must have occurred at least a year
before such filing; and
(3) it is shown that the complaint was intended to harass the
respondent. (Miguel Colorado v. Judge Ricardo M. Agapito,
A.M. no. MTJ-06-1658, July 3, 2007)
Warning is not a penalty
A warning, however, no matter how stern, is not a penalty. -
Rosauro M. Miranda v. Judge Cesar A. Mangrobang, Sr., A.M.
No. RTJ-01-1665, November 29, 2001
Gross ignorance of the law
To constitute gross ignorance of the law, the subject decision,
order or actuation of the judge in the performance of his official
duties must not only be contrary to existing law and
jurisprudence but, most importantly, he must be moved by
bad faith, fraud, dishonesty or corruption. In the case before
us, the administrative complaint does not even allege that the
69 | P R O B L E M A R E A S I N L E G A L E T H I C S
erroneous decision of respondent was thus motivated. - Sps.
Daracan v. Judge Natividad, A.M. No. RTJ-99-1447.
September 27, 2000
Rendering an unjust judgment
Knowingly rendering an unjust judgment is both a criminal and
an administrative charge. As a crime, it is punished under Art.
204 of the Revised Penal Code the elements of which are:
(a) the offender is a judge;
(b) he renders a judgment in a case submitted to him for
decision;
(c) the judgment is unjust; and
(d) the judge knows that his judgment is unjust.
The gist of the offense therefore is that an unjust judgment be
rendered maliciously or in bad faith, that is, knowing it to be
unjust. - Sps. Daracan v. Judge Natividad, A.M. No.
RTJ-99-1447. September 27, 2000
There is no liability at all for a mere error
An unjust judgment is one which is contrary to law or is not
supported by evidence or both. The source of an unjust
judgment may be error or ill-will. There is no liability at all for
a mere error. It is well-settled that a judicial officer, when
required to exercise his judgment or discretion, is not liable
criminally for any error which he commits, provided he acts in
good faith.
Bad faith is therefore the ground of liability. If in rendering
judgment the judge fully knew that the same was unjust in the
sense aforesaid, then he acted maliciously and must have been
actuated and prevailed upon by hatred, envy, revenge, greed or
some other similar motive. - Sps. Daracan v. Judge Natividad,
A.M. No. RTJ-99-1447. September 27, 2000
Mere error therefore in the interpretation or application of the
law does not constitute the crime. - Sps. Daracan v. Judge
Natividad, A.M. No. RTJ-99-1447. September 27, 2000
When good faith will not be applied
We need not belabor jurisprudence to accommodate
respondent’s argument which in effect posits that not every
judicial error bespeaks ignorance of the law and that, if
committed in good faith, does not warrant administrative
sanction. So we have ruled and so we have acted, but only in
cases within the parameters of tolerable judgment.
Where, however, the issues are so simple and the facts so
evident as to be beyond permissible margins of error, to still
err thereon amounts to ignorance of the law which, hopefully,
was not merely feigned to subserve an unworthy purpose. – Sps.
Daracan v. Judge Natividad, A.M. No. RTJ-99-1447.
September 27, 2000
Complaint for gross ignorance of the law is impermissible if
case is appealed
The main issue for our resolution is whether the instant
administrative complaint for gross ignorance of the law is
permissible in light of the filing by complainants of a notice of
appeal and a petition for certiorari assailing respondent
judge’s decision and his order of execution.
In the present case, the complainants filed this administrative
case against respondent judge while their appeal and petition
for certiorari challenging his decision and order were still
pending with the RTC. Following our settled pronouncements
cited above, the instant complaint is impermissible. – Camacho
v. Judge Gatdula, A.M. No. MTJ-00-1252. December 17, 2002
Period to decide or resolve the case submitted for decision
The 90-day period to decide or resolve the case submitted for
decision, fixed no less by the Constitution, is a mandatory
requirement. Hence, non-compliance thereof shall subject the
erring judge to administrative sanction as this Court may deem
appropriate.
It is only in certain meritorious cases, i.e., those involving
difficult questions of law or complex issues or when the judge is
burdened by heavy caseloads, that a longer period to decide
may be allowed but only upon proper application made with
the Supreme Court by the concerned judge.- Dr. Seares v.
Judge Salazar, A.M. No. MTJ-98-1160 November 22, 2000
Judge attended the hearing of his brother
Judge Dojillo “sat beside the counsel of his brother” and
“actively coached, aided, assisted, and guided said counsel by
now and then saying something, handing piece of writing,
reminding, and or stopping the counsel from manifesting
something to the court, and other similar acts.”
Respondent, in his defense, stated that he attended the hearing
of his brother’s election protest case just to give moral support
and, in the process, also observe how election protest
proceedings are conducted. Although concern for family
members is deeply ingrained in the Filipino culture, respondent,
being a judge, should bear in mind that he is also called upon
to serve the higher interest of preserving the integrity of the
entire judiciary. Canon 2 of the Code of Judicial Conduct
requires a judge to avoid not only impropriety but also the mere
appearance of impropriety in all activities. - Vidal v. Judge
Dojillo, Jr., A.M. No. MTJ-05-1591. July 14, 2005
Judge is a heckler
The regular session of a municipal council was interrupted by a
heckler in the audience hurling various accusatory remarks and
insults at the council members. The heckler is a judge, the
incident, the subject of this case.
All told, Judge Malanyaon did not dispute the facts as laid down
by the complainants and the latter’s witnesses. He justified his
behavior though as the fulminations of a righteously outraged
citizen which according to him should be segregated from his
function as a judge.
Judge Malanyaon deserves to be taken to task for his outrageous
behavior as it clearly violates the Code of Judicial Conduct. –
Hon. Decena v. Judge Malanyaon AM No. RTJ-02-1669.  April 14,
2004
No dichotomy of personality
Thus, the Court has to dismiss outright Judge Malanyaon’s
suggestion that his actions be evaluated as one of a taxpayer
or ordinary citizen and not as that of a judge.
In fact, his utterances were not made under a cloak of
anonymity, for the members of the council, as well as some of
the people in the gallery knew very well that he was a judge. It
is highly probable that his invectives took on a greater
imperative on the listeners precisely because he was a judge,
with all the authority attendant to the office. -Hon. Decena v.
Judge Malanyaon AM No. RTJ-02-1669,  April 14, 2004
Comment on Certiorari filed by public respondent judge in
behalf of private respondent
Further, respondent judge, in signing and filing a comment with
the court on behalf of one of the parties, engaged in the
private practice of law.
Under Section 35, Rule 138 of the Revised Rules of Court, and
Rule 5.07 of the Code of Judicial Conduct, judges are prohibited
from engaging in the private practice of law.
In filing such comment, respondent judge violated the
provision in the Revised Rules of Court which provides:
70 | P R O B L E M A R E A S I N L E G A L E T H I C S
“Unless otherwise specifically directed by the court where the
petition is pending, the public respondents shall not appear in or
file an answer or comment to the petition or any pleading
therein. If either party elevates the case to a higher court, the
public respondents shall be included therein as nominal parties.
However, unless otherwise specifically directed, they shall not
appear or participate in the proceedings therein. - Tuzon v.
Judge Cloribel-Purugganan, A.M. No. RTJ-01-1662 [2001]
Can the members of the Supreme Court be removed from
office only by impeachment?
Justice Reyes maintains that Members of the Court may be
removed from office only by impeachment. Since removal
from office is a disciplinary or administrative sanction, it follows
that there is no manner by which a Justice of this Court may be
disciplined for acts done during his incumbency. Considering that
the power to impeach a Justice of this Court is lodged in the
legislative branch of the government, the Court is without
authority to proceed against and discipline its former Member.
He added that what constitutes impeachable offenses is a purely
political question which the Constitution has left to the sound
discretion of the legislature, and that the misconduct of leakage
is not one of the impeachable offenses. - In Re: Undated Letter
of Mr. Louis C. Biraogo, Petitioner in Biraogo v. Nograles and
Limkaichong, G.R. No.179120A.M. No. 09-2-19-SC : August
11, 2009
When Justice Reyes compulsorily retired upon reaching the
mandatory age of 70, his perceived mantle of protection and
immunity, that the mode of his removal from office can be done
only through impeachment, no longer exists. His duties and
responsibilities as a Justice having ceased by reason of his
retirement, he is reverted to the status of a lawyer and,
consequently, can be subjected to appropriate sanctions for
administrative offenses, particularly, an act of misconduct. The
fact that the Investigating Committee, created per Resolution
dated December 10, 2008 of the Court, commenced the
investigation during the incumbency of Justice Reyes is of no
moment, as he was then not yet a respondent in an
administrative matter against him. - In Re: Undated Letter of
Mr. Biraogo, Petitioner in Biraogo v. Nograles and
Limkaichong, G.R. No.179120 A.M. No. 09-2-19-SC : August
11, 2009
Res ipsa loquitor
Under the doctrine of res ipsa loquitur, the Court may impose its
authority upon erring judges whose actuations, on their face,
would show gross incompetence, ignorance of the law or
misconduct. - Atty. Macalintal v. Judge The, A.M. No.
RTJ-97-1375. October 16, 1997]
Res ipsa loquitor
In several cases, the Court has disciplined lawyers without
further inquiry or resort to any formal investigation where the
facts on record sufficiently provided the basis for the
determination of their administrative liability. – Query of Atty.
Karen M. Silverio-Buffe, A.M. No. 08-6-352-RTC, August 19,
2009
Court disbarred a lawyer without need of any further
investigation after considering his actions based on records
showing his unethical misconduct. - In re: Complaint against
Atty. Asoy, Adm. Case No. 2655 July 9, 1987
A trial-type hearing is not de riqueur. - In re: Complaint
against Atty. Asoy, Adm. Case No. 2655 July 9, 1987
Quantum of evidence
It is likewise a settled rule in administrative proceedings that
the burden of proving the allegations in the complaint with
substantial evidence falls on the complainant. - Bautista v.
Justice Abdulwahid A.M. OCA IPI No. 06-97-CA-J [2006]
Quantum of evidence required for removal of judge from
office
Jurisprudence dictates –
“The ground for the removal of a judicial officer should be
established beyond reasonable doubt. Such is the rule where
the charges on which the removal is sought is misconduct in
office, willful neglect, corruption or incompetence. The general
rules with regard to admissibility of evidence in criminal trials
apply. - Jabon v. Judge Sibanah E. Usman, A.M. No.
RTJ-02-1713 [2005]
Acts of a collegial court
It is also imperative to state that the Resolution dated May 31,
2004 was not rendered by Justice Abdulwahid alone, in his
individual capacity. The Court of Appeals is a collegiate court
whose members reach their conclusions in consultation and
accordingly render their collective judgment after due
deliberation. Thus, we have held that a charge of violation of
the Anti-Graft and Corrupt Practices Act on the ground that a
collective decision is "unjust" cannot prosper. Consequently, the
filing of charges against a single member of a division of the
appellate court is inappropriate. - Bautista v. Justice
Abdulwahid A.M. OCA IPI No. 06-97-CA-J [2006]
The act of a single member, though he may be its head, done
without the participation of the others, cannot be considered
the act of the collegial body itself. – ASP Jamsani-Rodriguez v.
Justice Ong, et, al. A.M. No. 08-19-SB-J August 24, 2010
“Rendering knowingly unjust judgment" does not apply to a
collegial court
Respondents should know that the provisions of Article 204 of
the Revised Penal Code as to "rendering knowingly unjust
judgment" refer to an individual judge who does so "in any
case submitted to him for decision" and even then, it is not the
prosecutor who would pass judgment on the "unjustness" of the
decision rendered by him but the proper appellate court with
jurisdiction to review the same, either the Court of Appeals
and/or the Supreme Court. Respondents should likewise know
that said penal article has no application to the members of a
collegiate court such as this Court or its Divisions who reach
their conclusions in consultation and accordingly render their
collective judgment after due deliberation. It also follows,
consequently, that a charge of violation of the AntiGraft and
Corrupt Practices Act on the ground that such a collective
decision is "unjust" cannot prosper. - Bautista v. Justice
Abdulwahid A.M. OCA IPI No. 06-97-CA-J [2006]
Judge's conviction by the RTC does not necessarily warrant
her suspension
The mere existence of pending criminal charges against the
respondent-lawyer cannot be a ground for disbarment or
suspension of the latter. To hold otherwise would open the door
to harassment of attorneys through the mere filing of numerous
criminal cases against them.
By parity of reasoning, the fact of respondent's conviction by
the RTC does not necessarily warrant her suspension. We
agree with respondent's argument that since her conviction of
the crime of child abuse is currently on appeal before the CA,
the same has not yet attained finality. As such, she still enjoys
the constitutional presumption of innocence. - Re: Conviction
of Judge Angeles A.M. No. 06-9-545-RTC January 31, 2008
71 | P R O B L E M A R E A S I N L E G A L E T H I C S
Existence of a presumption indicating the guilt of the accused
does not in itself destroy the constitutional presumption of
innocence
It must be remembered that the existence of a presumption
indicating the guilt of the accused does not in itself destroy the
constitutional presumption of innocence unless the inculpating
presumption, together with all the evidence, or the lack of any
evidence or explanation, proves the accused's guilt beyond a
reasonable doubt. Until the accused's guilt is shown in this
manner, the presumption of innocence continues. - Re:
Conviction of Judge Angeles A.M. No. 06-9-545-RTC January
31, 2008
Preventive suspension not applicable to judges
Based on the foregoing disquisition, the Court is of the resolve
that, while it is true that preventive suspension pendente lite
does not violate the right of the accused to be presumed
innocent as the same is not a penalty, the rules on preventive
suspension of judges, not having been expressly included in
the Rules of Court, are amorphous at best. – Re: Conviction of
Judge Angeles A.M. No. 06-9-545-RTC January 31, 2008
Preventive suspension for erring lawyer
Rule 139-B Sec. 15. Suspension of attorneys by Supreme Court. -
After receipt of respondent's answer or lapse of the period
therefor, the Supreme Court, motu proprio, or at the instance
of the IBP Board of Governors upon the recommendation of the
Investigator, may suspend an attorney from the practice of his
profession for any of the causes specified in Rule 138, Section
27, during the pendency of the investigation until such
suspension is lifted by the Supreme Court.
Collegial court needs to act as one body
Respondent Justices contend that they preserved the collegiality
of the Fourth Division despite their having separately conducted
hearings, considering that the three of them were in the same
venue and were acting within hearing and communicating
distance of one another.
The information and evidence upon which the Fourth Division
would base any decisions or other judicial actions in the cases
tried before it must be made directly available to each and
every one of its members during the proceedings. This
necessitates the equal and full participation of each member in
the trial and adjudication of their cases. It is simply not
enough, therefore, that the three members of the Fourth
Division were within hearing and communicating distance of
one another at the hearings in question, as they explained in
hindsight, because even in those circumstances not all of them
sat together in session. - ASP Jamsani-Rodriguez v. Justice
Ong, et, al. A.M. No. 08-19-SB-J August 24, 2010
Affinity and consanguinity as a basis for disqualification under
Canon 3 section 5(f)
DISQUALIFICATION OF JUDICIAL OFFICERS

RRC Rule 137
Sec. 1. Disqualification of judges. - No judge or judicial officer
shall sit in any case in which he, or his wife or child, is
pecuniarily interested as heir, legatee, creditor or otherwise, or
in which he is related to either party within the sixth degree
of consanguinity or affinity, or to counsel within the fourth
degree, computed according to the rules of the civil law, or in
which he has been executor, administrator, guardian, trustee or
counsel, or in which he has presided in any inferior court when
his ruling or decision is the subject of review, without the
written consent of all parties in interest, signed by them and
entered upon the record.
A judge may, in the exercise of his sound discretion, disqualify
himself from sitting in a case, for just or valid reasons other
than those mentioned above.
Sec. 2. Objection that judge disqualified, how made and effect.
- If it be claimed that an official is disqualified from sitting as
above provided, the party objecting to his competency may, in
writing, file with the official his objection, stating the grounds
therefor, and the official shall thereupon proceed with the trial,
or withdraw therefrom, in accordance with his determination of
the question of his disqualification. His decision shall be
forthwith made in writing and filed with the other papers in the
case, but no appeal or stay shall be allowed from, or by reason
of, his decision in favor of his own competency, until after final
judgment in the case.
CANON 3
A JUDGE SHOULD PERFORM OFFICIAL DUTIES HONESTLY, AND
WITH IMPARTIALITY AND DILIGENCE
RULE 3.12 - A judge should take no part in a proceeding where
the judge's impartiality might reasonably be questioned. These
cases include among others, proceedings where:
(a) the judge has personal knowledge of disputed evidentiary
facts concerning the proceeding;
(b) the judge served as executor, administrator, guardian,
trustee or lawyer in the case or matter in controversy, or a
former associate of the judge served as counsel during their
association, or the judge or lawyer was a material witness
therein;
(c) the judge's ruling in a lower court is the subject of review;
(d) the judge is related by consanguinity or affinity to a party
litigant within the sixth degree or to counsel within the
fourth degree;
(e) the judge knows the judge's spouse or child has a financial
interest, as heir, legatee, creditor, fiduciary, or otherwise, in the
subject matter in controversy or in a party to the proceeding, or
any other interest that could be substantially affected by the
outcome of the proceeding.
In every instance, the judge shall indicate the legal reason for
inhibition.
Definition of affinity
Affinity is defined as "the relation which one spouse because of
marriage has to blood relatives of the other. The connection
existing, in consequence of marriage between each of the
married persons and the kindred of the other. The doctrine of
affinity grows out of the canonical maxim that marriage makes
husband and wife one. The husband has the same relation by
affinity to his wife's blood relatives as she has by consanguinity
and vice versa. – PP v. Raul Berana, G.R. No. 123544 July 29,
1999
Relationship by affinity refers to a relation by virtue of a legal
bond such as marriage. Relatives by affinity therefore are those
commonly referred to as "in-laws," or stepfather, stepmother,
stepchild and the like. - PP v. Atop, G.R. Nos. 124303-05
February 10, 1998
Affinity denotes "the relation that one spouse has to the blood
relatives of the other spouse." It is a relationship by marriage or
a familial relation resulting from marriage. It is a fictive kinship,
a fiction created by law in connection with the institution of
marriage and family relations. - Tiggangay v. Judge Wacas
A.M. OCA IPI No. 09-3243-RTJ [2013]
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NCC SUBSECTION 1. - Relationship
Art. 963. Proximity of relationship is determined by the number
of generations. Each generation forms a degree.
Art. 964. A series of degrees forms a line, which may be either
direct or collateral.
A direct line is that constituted by the series of degrees among
ascendants and descendants.
A collateral line is that constituted by the series of degrees
among persons who are not ascendants and descendants, but
who come from a common ancestor.
Art. 965. The direct line is either descending or ascending.
The former unites the head of the family with those who
descend from him. The latter binds a person with those from
whom he descends.
Art. 966. In the line, as many degrees are counted as there are
generations or persons, excluding the progenitor.
In the direct line, ascent is made to the common ancestor.
Thus, the child is one degree removed from the parent, two
from the grandfather, and three from the great-grandparent.
In the collateral line, ascent is made to the common ancestor
and then descent is made to the person with whom the
computation is to be made. Thus, a person is two degrees
removed from his brother, three from his uncle, who is the
brother of his father, four from his first cousin, and so forth.
Art. 967. Full blood relationship is that existing between
persons who have the same father and the same mother.
Half blood relationship is that existing between persons who
have the same father, but not the same mother, or the same
mother, but not the same father.
2 legal theories
1. The terminated affinity view holds that relationship by
affinity terminates with the dissolution of the marriage either by
death or divorce which gave rise to the relationship of affinity
between the parties.
Under this view, the relationship by affinity is simply
coextensive and coexistent with the marriage that produced it.
Its duration is indispensably and necessarily determined by the
marriage that created it.
Thus, it exists only for so long as the marriage subsists, such
that the death of a spouse ipso facto ends the relationship by
affinity of the surviving spouse to the deceased spouse’s blood
relatives.
The first view admits of an exception. The relationship by
affinity continues even after the death of one spouse when
there is a surviving issue. The rationale is that the relationship is
preserved because of the living issue of the marriage in whose
veins the blood of both parties is commingled.
2.The continuing affinity view maintains that relationship by
affinity between the surviving spouse and the kindred of the
deceased spouse continues even after the death of the
deceased spouse, regardless of whether the marriage
produced children or not.
Under this view, the relationship by affinity endures even after
the dissolution of the marriage that produced it as a result of
the death of one of the parties to the said marriage.
This view considers that, where statutes have indicated an
intent to benefit step-relatives or in-laws, the “tie of affinity”
between these people and their relatives-by-marriage is not to
be regarded as terminated upon the death of one of the
married parties. – Intestate Estate of Gonzales vda. De
Carungcong v. PP, G.R. No. 181409 February 11, 2010
“Blood relatives”
Relatives by consanguinity or blood relatives encompassed the
following: (1) an ascendant; (2) a descendant; (3) a legitimate,
natural or adopted brother or sister - PP v. Atop, G.R. Nos.
124303-05 February 10, 1998
No affinity
Indeed, "there is no affinity between the blood relatives of one
spouse and the blood relatives of the other. A husband is related
by affinity to his wife’s brother, but not to the wife of his
wife’s brother. There is no affinity between the husband’s
brother and the wife’s sister. - Tiggangay v. Judge Wacas A.M.
OCA IPI No. 09-3243-RTJ [2013]
Is the relationship by affinity created between the husband and
the blood relatives of his wife (as well as between the wife and
the blood relatives of her husband) dissolved by the death of
one spouse, thus ending the marriage which created such
relationship by affinity?
If marriage gives rise to one’s relationship by affinity to the
blood relatives of one’s spouse, does the extinguishment of
marriage by the death of the spouse dissolve the relationship by
affinity?
“Common law” relationship not a relationship by affinity
The law cannot be stretched to include persons attached by
common-law relations. Here, there is no blood relationship or
legal bond that links the appellant to his victim. Thus, the
modifying circumstance of relationship cannot be considered
against him. – PP v. Atop, G.R. Nos. 124303-05 February 10,
1998
Case 1
Judge is respondent’s second cousin by affinity, the former’s
[judge] aunt is married to an uncle of respondent. The
relationship notwithstanding, Judge did not inhibit himself from
hearing said electoral case.
Judge, as alleged, are related within the sixth degree by affinity
in that the aunt of the judge is married to the uncle of
respondent.
WON the judge is related by affinity to respondent.
Judge not disqualified
In the instant case, considering that Judge Wacas is related to
his aunt by consanguinity in the third degree, it follows by
virtue of the marriage of his aunt to the uncle of Dagadag that
Judge Wacas is the nephew-in-law of the uncle of Dagadag,
i.e., a relationship by affinity in the third degree.
But Judge Wacas is not related by affinity to the blood
relatives of the uncle of Dagadag as they are not his in-laws
and, thus, are not related in any way to Dagadag.
In like manner, Dagadag is the nephew-in-law of the aunt of
Judge Wacas but is not related by affinity to the blood relatives
of Judge Wacas’ aunt, like Judge Wacas.
In short, there is no relationship by affinity between Judge
Wacas and Dagadag as they are not in-laws of each other. Thus,
Judge Wacas is not disqualified under Sec. 1 of Rule 137 to hear
Election Case. - Tiggangay v. Judge Wacas A.M. OCA IPI No.
09-3243-RTJ [2013]
Being“magbalaes” is not a ground for automatic
disqualification
Complainant contends that respondent judge is guilty of
impropriety by refusing to inhibit himself from the case despite
73 | P R O B L E M A R E A S I N L E G A L E T H I C S
the fact that one of the accused, Lope Panti, Sr., is the father-
in-law of respondent judge’s daughter.
To be sure, respondent judge and accused Lope Panti, Sr. are
not, strictly speaking, relatives within the meaning of Rule 137,
§1 of the Rules of Court.
Nevertheless, the close personal relations between them as
parents of their respective children, being in our culture
known as “magbalaes,” should have cautioned respondent
judge to inhibit himself from the case, lest his impartiality be
placed in doubt. – Agunday v. Judge Tresvalles, A.M. No.
MTJ-99-1236. November 25, 1999
Complainant is the judge’s wife
Respondent issued a warrant for the arrest of complainant,
knowing that the private complainant therein was his wife,
Atty. Ester Flor. – Tenenan v. Judge Flor, Jr., A.M. No.
RTJ-06-1995 September 25, 2007
Judge’s nephew is the husband of the daughter of the counsel
for the accused
It is alleged that respondent should have inhibited himself from
Criminal Case No. 207096, entitled “People v. Crisostomo
Yalung, Roy Manuel M. Villasor, SG Fernando Tagle, and SG Ronan
Guerrero” because respondent’s nephew, Atty. Cris Pascua
Zafra, is married to the daughter of Atty. P. M. Castillo,
complainants’ defense counsel in that case. Complainants’
claim that although respondent’s relationship is to the husband
of the daughter of their counsel, they did not want respondent
to try their case because they wanted “to [avoid] any stigma
and/or cloud of doubt on any order/decision” which respondent
may render on the case.
In this case, respondent judge failed to take into account the
loss of trust on the part of the complainant as to his
impartiality.
When a judge exhibits actions that give rise, fairly or unfairly,
to perceptions of bias, such faith and confidence are eroded,
and he has no choice but to inhibit himself voluntarily. A judge
may not be legally prohibited from sitting in a litigation, but
when circumstances appear that will induce doubt on his
honest actuation and probity in favor of either party, or incite
such state of mind, he should conduct a careful self-
examination. He should exercise his discretion in a way that
the people’s faith in the courts of justice is not impaired. The
better course for the judge is to disqualify himself. - Latorre v.
Judge Ansaldo, A.M. No. RTJ-00-1563 [2001]
In any event, the grounds relied upon by complainants to
support their motion, i.e., that respondent’s nephew is the
husband of the daughter of the counsel for the accused; that
they lacked confidence in respondent’s impartiality xxx have no
merit.
The first is not a ground for mandatory disqualification of
judges under Rule 137, par. 1 since respondent is not even
related to counsel for the accused. - Yalung v. Judge Pascua,
A.M. No. MTJ-01-1342 [2001]
Father-in-law of the judge present in the proceeding
The meat of this motion for inhibition is that the father-in-law
of the Presiding Judge, herein respondent, was conspicuously
present in the proceedings during which time he gave
consultation to the complainant who was reportedly his political
leader and protégée.
In this case, however, respondent did not simply fail to recuse
himself from cases in which his relatives were either involved or
interested, the record shows he did so to favor or protect the
parties. – Siawan v. Judge Inopiquez, Jr., A.M. No.
MTJ-95-1056. May 21, 2001
Discussing the pending case with a brother
By allowing his brother to discuss with him the merits of one
party’s position, Justice Sabio gave his brother the opportunity
to influence him. Any reasonable person would tend to doubt
Justice Sabio’s independence and objectivity after such a
conversation with a close family member who also happens to
hold a high government position. As a magistrate, Justice
Sabio has the duty to prevent any circumstance that would cast
doubt on his ability to decide a case without interference or
pressure from litigants, counsels or their surrogates. (Re: Letter
of Presiding Justice Vasquez, Jr., A.M. No. 08-8-11-CA, October
15, 2008)
Clearly, respondent judge's participation in the preliminary
investigation, involving his nephew is a violation of the
aforequoted rules laid down to guide members of the judiciary.
The rationale for the rule on disqualification of a judge stems
from the principle that no judge should preside in a case in
which he is not wholly free, disinterested, impartial and
independent. A judge should not handle a case in which he
might be perceived to be susceptible to bias and partiality. 7
The rule is intended to preserve the people's faith and
confidence in the courts of justice. Perez v. Judge Suller, A.M.
No. MTJ-94-936 November 6, 1995
A stepdaughter has no common ancestry by her stepmother. -
Petition for cancellation and correction of entries in the record
of birth, G.R. No. 177861, July 13, 2010
Grounds for disciplinary proceedings against lawyers
Supreme Court is neither bound by the findings of the IBP
Respondent must know that the Court is neither bound by the
findings of the IBP nor, much less, obliged to accept the same as
a matter of course because as the Tribunal which has the final
say on the proper sanctions to be imposed on errant members of
both bench and bar, the Court has the prerogative of making its
own findings and rendering judgment on the basis thereof rather
than that of the IBP, OSG, or any lower court to whom an
administrative complaint has been referred to for investigation
and report. – Dumadag v. Atty. Lumaya, A.C. No. 2614. June
29, 2000
Continuous display and use of the title “Attorney-at-law”after
disbarment
Complainant claims that respondent misrepresented himself as
an "Atty." in the wedding invitation of his son, and a signboard
hanging outside the respondent's office display the title
"Attorney-at-Law“ under respondent's name.
Lastly, complainant informs the Court that she had received
reports that respondent continues in the practice of law by
making other lawyers sign the pleadings that he prepares for
cases involving his clients. – Resolution A.C. No. 4500 (Ban Hua
U. Flores vs. Enrique S. Chua) SEPTEMBER 9, 2014
Resolution
On this matter, the Court is of the view that the title "Atty."
preceding respondent's name in his son's wedding invitation, and
the signboard outside his office bearing his name and the words
"Attorney-at-Law" are not evidence sufficient to convince this
Court that respondent continues in the practice of law, in
violation Court's Decision dated April 30, 1999 that ordered his
disbarment.
74 | P R O B L E M A R E A S I N L E G A L E T H I C S
Neither is the Court swayed by the complainant's allegations of
respondent's continuous practice of law based on mere "reports."
Without more, these reports are pure hearsay and are without
evidentiary value.
Nonetheless, respondent is hereby ORDERED to remove the
signboard outside his office showing his name and the words
"Attorney-at-Law.“ - Resolution A.C. No. 4500 (Ban Hua U.
Flores vs. Enrique S. Chua) SEPTEMBER 9, 2014
Guidelines to be observed in the matter of the lifting of an order
suspending a lawyer from the practice of law
After a finding that respondent lawyer must be suspended from
the practice of law, the Court shall render a decision imposing
the penalty;
Unless the Court explicitly states that the decision is
immediately executory upon receipt thereof, respondent has
15 days within which to file a motion for reconsideration
thereof. The denial of said motion shall render the decision
final and executory;
Upon the expiration of the period of suspension, respondent
shall file a Sworn Statement with the Court, through the Office
of the Bar Confidant, stating therein that he or she has desisted
from the practice of law and has not appeared in any court
during the period of his or her suspension;
Copies of the Sworn Statement shall be furnished to the Local
Chapter of the IBP and to the Executive Judge of the courts
where respondent has pending cases handled by him or her,
and/or where he or she has appeared as counsel;
The Sworn Statement shall be considered as proof of
respondent’s compliance with the order of suspension;
Any finding or report contrary to the statements made by the
lawyer under oath shall be a ground for the imposition of a more
severe punishment, or disbarment, as may be warranted. -
Maniago v. Atty. De Dios, A.C. No. 7472, March 30, 2010
Lifting of a lawyer’s suspension is not automatic
The lifting of a lawyer’s suspension is not automatic upon the
end of the period stated in the Court’s decision, and an order
from the Court lifting the suspension at the end of the period is
necessary in order to enable [him] to resume the practice of his
profession. – Maniago v. Atty. De Dios, A.C. No. 7472, March
30, 2010
Supreme Court can choose not to refer complaint to IBP
In administrative cases against lawyers, the burden of proof
rests upon the complainant. Administrative complaints that are
prima facie groundless as shown by the pleadings filed by the
parties need not be referred to the Integrated Bar of the
Philippines for further investigation. They may be summarily
dismissed for utter lack of merit.
The Court normally refers administrative cases to the Integrated
Bar of the Philippines (IBP) for investigation, report and
recommendation. Considering, however, that the question
being raised is simple and that no further factual
determination is necessary, the Court resolves to dispense with
such referral and to decide the case on the basis of the
extensive pleadings already on record, which all show the lack
of merit of the Complaint. - Manubay v. Atty. Garcia, A.C. No.
4700 [2000]
Confidentiality
Rules of Court Rule 139-B Sec. 18. Confidentiality. - Proceedings
against attorneys shall be private and confidential. However, the
final order of the Supreme Court shall be published like its
decisions in other cases.
Rules of Court Rule 140 SEC. 12. Confidentiality of proceedings.
– Proceedings against Judges of regular and special courts and
Justices of the Court of Appeals and the Sandiganbayan shall be
private and confidential, but a copy of the decision or resolution
of the court shall be attached to the record of the respondent in
the Office of the Court Administrator. - A.M. NO. 01-8-10-SC
RE: PROPOSED AMENDMENT TO RULE 140 OF THE RULES OF
COURT RE: DISCIPLINE OF JUSTICES AND JUDGES [took effect
on October 1, 2001]
Suspension of attorney by CA and RTC
Rule 139-B Sec. 16. Suspension of attorney by the Court of
Appeals or Regional Trial Court. - The Court of Appeals or
Regional Trial Court may suspend an attorney from practice for
any of the causes named in Rule 138, Section 27, until further
action of the Supreme Court in the case.
Rule 139-B Sec. 17. Upon suspension by Court of Appeals or
Regional Trial Court, further proceedings in Supreme Court. -
Upon such suspension, the Court of Appeals or a Regional Trial
Court shall forthwith transmit to the Supreme Court a certified
copy of the order of suspension and a full statement of the facts
upon which the same was based. Upon receipt of such certified
copy and statement, the Supreme Court shall make a full
investigation of the case and may revoke, shorten or extend
the suspension, or disbar the attorney as the facts may
warrant.
Section 27, Rule 138 of the Revised Rules of Court, as
amended by Supreme Court Resolution dated February 13,
1992
Section 27. Disbarment or suspension of attorneys by Supreme
Court, grounds therefor.—A member of the bar may be disbarred
or suspended from his office as attorney by the Supreme Court
for:
any deceit,
malpractice,
other gross misconduct in such office,
grossly immoral conduct,
by reason of his conviction of a crime involving moral turpitude,
for any violation of the oath which he is required to take before
admission to practice,
for a willful disobedience appearing as attorney for a party to a
case without authority to do so.
The practice of soliciting cases at law for the purpose of gain,
either personally or through paid agents or brokers, constitutes
malpractice.
Judgment of a foreign court is only prima facie evidence
The disbarment or suspension of a member of the Philippine Bar
by a competent court or other disciplinatory agency in a foreign
jurisdiction where he has also been admitted as an attorney is a
ground for his disbarment or suspension if the basis of such
action includes any of the acts hereinabove enumerated.
The judgment, resolution or order of the foreign court or
disciplinary agency shall be prima facie evidence of the ground
for disbarment or suspension. - In re: Atty. Maquera B.M. No.
793 [2004]
The basis of the foreign court's action must include any of the
grounds for disbarment or suspension in this jurisdiction I
75 | P R O B L E M A R E A S I N L E G A L E T H I C S
It bears stressing that the Guam Superior Court's judgment
ordering Maquera's suspension from the practice of law in Guam
does not automatically result in his suspension or disbarment in
the Philippines.
Under Section 27,34 Rule 138 of the Revised Rules of Court, the
acts which led to his suspension in Guam are mere grounds for
disbarment or suspension in this jurisdiction, at that only if
the basis of the foreign court's action includes any of the
grounds for disbarment or suspension in this jurisdiction. - In
re: Atty. Maquera B.M. No. 793 [2004]
The basis of the foreign court's action must include any of the
grounds for disbarment or suspension in this jurisdiction II
In Maquera, we emphasized that the judgment of suspension
against a Filipino lawyer in a foreign jurisdiction does not
automatically result in his suspension or disbarment in the
Philippines as the acts giving rise to his suspension are not
grounds for disbarment and suspension in this jurisdiction.
Judgment of suspension against a Filipino lawyer may transmute
into a similar judgment of suspension in the Philippines only if
the basis of the foreign court’s action includes any of the
grounds for disbarment or suspension in this jurisdiction. We
likewise held that the judgment of the foreign court merely
constitutes prima facie evidence of unethical acts as lawyer. -
Velez v. Atty. De Vera, A.C. No. 6697 July 25, 2006
Defenses
The Maquera ruling is consistent with Rule 39, Section 48, of the
Rules of Court which provides:
Sec. 48. Effect of foreign judgments or final orders. - The
effect of a judgment or final order of a tribunal of a foreign
country, having jurisdiction to render the judgment or final
order is as follows:
xxxx
(b) In case of a judgment or final order against a person,
the judgment or final order is presumptive evidence of a right as
between the parties and their successors in interest by a
subsequent title.
In either case, the judgment or final order may be repelled by
evidence of a want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law or fact. - Velez
v. Atty. De Vera, A.C. No. 6697 July 25, 2006
Ex parte investigation valid
Likewise, the judgment of the Superior Court of Guam only
constitutes prima facie evidence of Maquera's unethical acts
as a lawyer. More fundamentally, due process demands that he
be given the opportunity to defend himself and to present
testimonial and documentary evidence on the matter in an
investigation to be conducted in accordance with Rule 139-B of
the Revised Rules of Court. Said rule mandates that a
respondent lawyer must in all cases be notified of the charges
against him. It is only after reasonable notice and failure on
the part of the respondent lawyer to appear during the
scheduled investigation that an investigation may be
conducted ex parte. - In re: Atty. Maquera B.M. No. 793
[2004]
Misconduct pertaining to another profession
Respondent is a CPA-lawyer who is actively practicing both
professions. He is the senior partner of his law and accounting
firms which carry his name. He is charged for allowing his
accounting firm to represent two creditors of the estate and, at
the same time, allowing his law firm to represent the estate in
the proceedings where these claims were presented.
Respondent advances the defense that assuming there was
conflict of interest, he could not be charged before this Court as
his alleged “misconduct” pertains to his accounting practice.
Even granting that respondent’s misconduct refers to his
accountancy practice, it would not prevent this Court from
disciplining him as a member of the Bar. The rule is settled that
a lawyer may be suspended or disbarred for ANY misconduct,
even if it pertains to his private activities, as long as it shows
him to be wanting in moral character, honesty, probity or good
demeanor. - Nakpil v. Valdes, A.C. No. 2040 [1998]
Respondent lawyer cannot hide behind the corporate veil
This Court holds that respondent cannot invoke the separate
personality of the corporation to absolve him from exercising
these duties over the properties turned over to him by
complainant. He blatantly used the corporate veil to defeat
his fiduciary obligation to his client, the complainant.
Toleration of such fraudulent conduct was never the reason for
the creation of said corporate fiction. - Cordon v. Atty.
Balicante, A.C. No. 2797 October 4, 2002
Judgment from the RTC not needed in IBP investigation
The Court need not delve into the question of whether or not
respondent did contract a bigamous marriage, a matter which
apparently is still pending with the Regional Trial Court of
Pasig City. It is enough that the records of this administrative
case sufficiently substantiate the findings of the Investigating
Commissioner, as well as the IBP Board of Governors, i.e., that
indeed respondent has been carrying on an illicit affair with a
married woman, grossly immoral conduct and only indicative of
an extremely low regard for the fundamental ethics of his
profession. This detestable behavior renders him regrettably
unfit and undeserving of the treasured honor and privileges
which his license confers upon him. - Tucay v. Atty. Tucay, A.C.
No. 5170 [1999]
Private phone call to litigant prohibited
If at all, the judge could have only been guilty of judicial
indiscretion or impropriety when he admittedly made a private
phone call to, or sent for, the complainant, and talked to him in
the chambers.
It need not be overemphasized that making private phone calls
to, sending for and talking to the complainant in the judge’s
chambers, as in this case, undermines even more the people’s
faith and confidence in the judiciary. - Dacera, Jr. v. Judge
Dizon, Jr., A.M. No. RTJ-00-1573. August 2, 2000
Marrying in good faith a married lawyer not immoral
All these taken together leads to the inescapable conclusion
that respondent was imprudent in managing her personal affairs.
However, the fact remains that her relationship with Carlos Ui,
clothed as it was with what respondent believed was a valid
marriage, cannot be considered immoral. For immorality
connotes conduct that shows indifference to the moral norms of
society and the opinion of good and respectable members of the
community. Moreover, for such conduct to warrant disciplinary
action, the same must be "grossly immoral," that is, it must be
so corrupt and false as to constitute a criminal act or so
unprincipled as to be reprehensible to a high degree. - Ui v.
Atty. Bonifacio, A.C. No. 3319. June 8, 2000
A single member of a collegial court cannot be charged for
rendering unjust judgment
Thus, we have held that a charge of violation of the Anti-Graft
and Corrupt Practices Act on the ground that a collective
decision is “unjust” cannot prosper. Consequently, the filing of
charges against a single member of a division of the appellate
court is inappropriate. - Bautista v. Ass. Justice Hakim S.
76 | P R O B L E M A R E A S I N L E G A L E T H I C S
Abdulwahid, Court of Appeals, A.M. OCA IPI No. 06-97-CA-J,
May 2, 2006
Anonymous complaints
Anonymous complaints, as a rule, are received with caution.
They should not be dismissed outright, however, where their
averments may be easily verified and may, without much
difficulty, be substantiated and established by other competent
evidence. - Sinsuat and Paps v. Judge Hidalgo, A.M. No.
RTJ-08-2133, August 6, 2008
Forum shopping
Forum shopping applies only to judicial cases or proceedings,
not to disbarment proceedings. - Quirino Tomlin II v. Atty.
Salvador N. Moya II, A.C. No. 6971, February 23, 2006
Retirement from office
The Court emphasizes at this point that respondent’s
retirement from office does not render the present
administrative case moot and academic; neither does it free
him from liability. Since complainant filed the case when
respondent was still in the service, the Court retains the
authority to investigate and resolve the administrative
complaint against him. - City of Cebu v. Judge Gako Jr., A.M.
No. RTJ-08-2111, May 7, 2008
Infraction committed by judge before appointment
This step finds support in Heck v. Santos where the Court held
that while the infraction was committed before the
respondent’s appointment as judge, the Court may still
discipline him therefore. RE: Application for retirement/
gratuity benefits xxx., A.M. No. 12535-ret., April 22, 2008
Acquittal of respondent of the criminal charge is not a bar to
administrative proceedings.
The acquittal of respondent Ramos [of] the criminal charge is
not a bar to these [administrative] proceedings. The
standards of legal profession are not satisfied by conduct which
merely enables one to escape the penalties of x x x criminal law.
Moreover, this Court, in disbarment proceedings is acting in an
entirely different capacity from that which courts assume in
trying criminal case (Italics in the original). (Joselano Guevara
v. Atty. Jose Emmanuel Eala, A.C. no. 7136, August 1, 2007)
Administrative complaint against a member of the bar does
not prescribe
Indeed, we have held that an administrative complaint against a
member of the bar does not prescribe. (Tan Tiong Bio v. Atty.
Renato L. Gonzalez, A.C. no. 6634, August 23, 2007)
Indefinite suspension
This, we are empowered to do not alone because jurisprudence
grants us discretion on the matter but also because, even
without the comforting support of precedent, it is obvious that
if we have authority to completely exclude a person from the
practice of law, there is no reason why indefinite suspension,
which is lesser in degree and effect, can be regarded as falling
outside of the compass of that authority. The merit of this
choice is best shown by the fact that it will then be left to
[respondent] to determine for himself how long or how short
that suspension shall last. For, at any time after the suspension
becomes effective he may prove to this Court that he is once
again fit to resume the practice of law. - (In re: Atty Almacen,
G.R. No. L-27654 February 18, 1970)
Censure or reprimand
Censure or reprimand is usually meted out for an isolated act
of misconduct of a lesser nature. It is also imposed for some
minor infraction of the lawyer’s duty to the court or the client. -
Cynthia Advincula v. Atty. Ernesto M. Macabata, A.C. No.
7204 [2007]
Kissing complainant on the lips not grossly immoral
Moreover, while respondent admitted hav ing kissed
complainant on the lips, the same was not motivated by
malice. We come to this conclusion because right after the
complainant expressed her annoyance at being kissed by the
respondent through a cellular phone text message, respondent
immediately extended an apology to complainant also via
cellular phone text message. The exchange of text messages
between complainant and respondent bears this out.
Be it noted also that the incident happened in a place where
there were several people in the vicinity considering that
Roosevelt Avenue is a major jeepney route for 24 hours. If
respondent truly had malicious designs on complainant, he
could have brought her to a private place or a more remote
place where he could freely accomplish the same.
All told, as shown by the above circumstances, respondent’s acts
are not grossly immoral nor highly reprehensible to warrant
disbarment or suspension. - Cynthia Advincula v. Atty. Ernesto
M. Macabata, A.C. No. 7204 [2007]
Non-injured party can file a complaint
The right to institute a disbarment proceeding is not confined
to clients nor is it necessary that the person complaining
suffered injury from the alleged wrongdoing. Disbarment
proceedings are matters of public interest and the only basis for
judgment is the proof or failure of proof of the charge. The
evidence submitted by complainant before the Commission on
Bar Discipline sufficed to sustain its resolution and
recommended sanctions. - Atty. Navarro v. Atty. Meneses III,
CBD A.C. No. 313. January 30, 1998
Alternative penalty not allowed
A note and advice on the penalty imposed in the resolution is in
order. The dispositive portion thereof provides that:
x x x Respondent Atty. Rosendo Meneses is hereby SUSPENDED
from the practice of law for three (3) years and is hereby
directed to return the Fifty Thousand Pesos he received from
the petitioner within fifteen (15) days from receipt of this
resolution. Failure on his part to comply will result (i)n his
DISBARMENT.
In other words, it effectively purports to impose either a 3-year
suspension or disbarment, depending on whether or not
respondent duly returns the amount to complainant. Viewed
from another angle, it directs that he shall only be suspended,
subject to the condition that he should make restitution as
prescribed therein. - Atty. Navarro v. Atty. Meneses III, CBD
A.C. No. 313. January 30, 1998]
Dispositions of this nature should be avoided. In the imposition
of penalties in criminal cases, it has long been the rule that the
penalty imposed in a judgment cannot be in the alternative,
even if the law provides for alternative penalties, not can such
penalty be subject to a condition. There is no reason why such
legal principles in penal law should not apply in administrative
disciplinary actions which, as in this case, also involve punitive
sanctions. - Atty. Navarro v. Atty. Meneses III, CBD A.C. No.
313. January 30, 1998]
Misconduct as a government official
As a general rule, a lawyer who holds a government office may
not be disciplined as a member of the bar for misconduct in
the discharge of his duties as a government official. However,
if that misconduct as a government official is of such a
character as to affect his qualification as a lawyer or to show
moral delinquency, then he may be disciplined as a member of
77 | P R O B L E M A R E A S I N L E G A L E T H I C S
the bar on such ground. – Dinsay v. Atty. Cioco, A.C. No. 2995.
Noveernment officialmber 27, 1996
Disbarment or suspension in a foreign jurisdiction
The disbarment or suspension of a member of the Philippine Bar
by a competent court or other disciplinary agency in a foreign
jurisdiction where he has also been admitted as an attorney is a
ground for his disbarment or suspension if the basis of such
action includes any of the acts hereinabove enumerated
[Section 27 of Rule 138 of our Rules of Court]. - Velez v. Atty.
De Vera, A.C. No. 6697 July 25, 2006
Res judicata does not apply in administrative proceeding
“The doctrine of res adjudicata applies only to judicial or
quasi-judicial proceedings and not to the exercise of the
[Court’s] administrative powers.”- Dinsay v. Atty. Cioco, A.C.
No. 2995. November 27, 1996
While respondent is in effect being indicted twice for the same
misconduct, it does not amount to double jeopardy as both
proceedings are admittedly administrative in nature. - Dinsay v.
Atty. Cioco, A.C. No. 2995. November 27, 1996
A finding of grave misconduct in the ADMINISTRATIVE CASE
would not be determinative of the guilt or innocence of the
respondent in a criminal proceeding
The issue in the FALSIFICATION CASE is whether or not the
SHERIFFS had unlawfully and feloniously made an alteration or
intercalation in a genuine document which changes its meaning
in violation of Article 171 of the Revised Penal Code. – Dinsay v.
Cioco and Atty. Belleza, A.M. No. R-252-P December 12, 1986
Definition of Unprofessional conduct
Unprofessional conduct in an attorney is that which violates the
rules on ethical code of his profession or which is unbecoming a
member of that profession. - Velez v. Atty. De Vera, A.C. No.
6697 July 25, 2006
Indirect contempt does not involve moral turpitude
The act for which he was found guilty of indirect contempt
does not involve moral turpitude.
In this case, it cannot be said that the act of expressing one’s
opinion on a public interest issue can be considered as an act of
baseness, vileness or depravity. Respondent De Vera did not
bring suffering nor cause undue injury or harm to the public
when he voiced his views on the Plunder Law. Consequently,
there is no basis for petitioner to invoke the administrative case
as evidence of respondent De Vera’s alleged immorality. - In re:
Petition to Disqualify Atty. De Vera, A.C. No. 6052. December
11, 2003
No final judgment yet
On the administrative complaint that was filed against
respondent De Vera while he was still practicing law in
California, he explained that no final judgment was rendered
by the California Supreme Court finding him guilty of the
charge. He surrendered his license to protest the discrimination
he suffered at the hands of the investigator and he found it
impractical to pursue the case to the end. We find these
explanations satisfactory in the absence of contrary proof. It
is a basic rule on evidence that he who alleges a fact has the
burden to prove the same. In this case, the petitioners have not
shown how the administrative complaint affects respondent De
Vera’s moral fitness to run for governor. – In re: Petition to
Disqualify Atty. De Vera, A.C. No. 6052. December 11, 2003
Sexual relations between two unmmaried and consenting
adults
Mere sexual relations between two unmmaried and
consenting adults are not enough to warrant administrative
sanction for illicit behavior. The Court has repeatedly held that
voluntary intimacy between a man and a woman who are not
married, where both are not under any impediment to marry
and where no deceit exists, is neither a criminal nor an
unprincipled act that would warrant disbarment or
disciplinary action.
While the Court has the power to regulate official conduct and,
to a certain extent, private conduct, it is not within our
authority to decide on matters touching on employees’
personal lives, especially those that will affect their and their
family’s future. We cannot intrude into the question of whether
they should or should not marry. - Abanag v. Mabute, A.M. No.
P-11-2922, 2011
Estrada v. Escritor case
Respondent, court interpreter in said court, was investigated for
living with a man not her husband, and having borne a child
within this live-in arrangement. Complainant believes that [the
court interpreter] is committing an immoral act that tarnishes
the image of the court, thus she should not be allowed to
remain employed therein as it might appear that the court
condones her act. Consequently, respondent was charged with
committing "disgraceful and immoral conduct“. - Estrada v.
Escritor, A.M. No. P-02-1651 August 4, 2003
She admitted that she started living with Luciano Quilapio, Jr.
without the benefit of marriage more than twenty years ago
when her husband was still alive but living with another woman.
She also admitted that she and Quilapio have a son. But as a
member of the religious sect known as the Jehovah’s Witnesses
and the Watch Tower and Bible Tract Society, respondent
asserted that their conjugal arrangement is in conformity with
their religious beliefs and has the approval of her
congregation.
Invoking the religious beliefs, practices and moral standards of
her congregation, she asserts that her conjugal arrangement
does not constitute disgraceful and immoral conduct for
which she should be held administratively liable. - Estrada v.
Escritor, A.M. No. P-02-1651 August 4, 2003
Thus, we find that in this particular case and under these
distinct circumstances, respondent’s conjugal arrangement
cannot be penalized as she has made out a case for exemption
from the law based on her fundamental right to freedom of
religion. The Court recognizes that state interests must be
upheld in order that freedoms - including religious freedom -
may be enjoyed. In the area of religious exercise as a preferred
freedom, however, man stands accountable to an authority
higher than the state, and so the state interest sought to be
upheld must be so compelling that its violation will erode the
very fabric of the state that will also protect the freedom. In
the absence of a showing that such state interest exists, man
must be allowed to subscribe to the Infinite.- Estrada v.
Escritor, A.M. No. P-02-1651 August 4, 2003
Penalties imposed in administrative cases [judiciary] are
immediately executory
We stressed that when suspension is "to take effect
immediately", this Court means that the period of suspension
should commence on the day respondent judge receives notice
of the decision suspending him from office.
While this does not preclude the filing by respondent judge of a
motion for reconsideration, the filing and pendency of such a
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motion does not have the effect of staying the suspension order.
– Dr. Alday v. Judge Cruz, A.M. No. RTJ-00-1530. February 4,
2002
Penalties imposed in administrative cases [of lawyers] are 

NOT immediately executory
Unless the Court explicitly states that the decision is
immediately executory upon receipt thereof, respondent has 15
days within which to file a motion for reconsideration thereof.
The denial of said motion shall render the decision final and
executory. - Maniago v. Atty. De Dios, A.C. No. 7472, March
30, 2010
“Res Judicata” applies
The Investigating Commissioner properly dismissed the
complaint in this case on the ground of res judicata, it
appearing that it involves the same incident and the same
cause of action as Administrative Case No. 3825. Indeed, it
appears that on August 5, 1995, the First Division of the Court
dismissed a similar complaint filed in Administrative Case No.
3835. – Halimao v. Atty. Villanueva, A.C. No. 3825. February
1, 1996
Automatic Conversion of Some Administrative Cases Against
Justices of the Court of Appeals and the Sandiganbayan;
Judges of Regular and Special Courts
AM. No. 02-9-02-SC. This resolution, entitled “Re: Automatic
Conversion of Some Administrative Cases Against Justices of the
Court of Appeals and the Sandiganbayan; Judges of Regular and
Special Courts; and Court Officials Who are Lawyers as
Disciplinary Proceedings Against Them Both as Such Officials and
as Members of the Philippine Bar.
Cont…
Under the same rule, a respondent “may forthwith be required
to comment on the complaint and show cause why he should not
also be suspended, disbarred or otherwise disciplinary
sanctioned as member of the Bar.” xxx In other words, an order
to comment on the complaint is an order to give an
explanation on why he should not be held administratively
liable not only as a member of the bench but also as a
member of the bar.
This is the fair and reasonable meaning of “automatic
conversion” of administrative cases against justices and judges
to disciplinary proceedings against them as lawyers. This will
also serve the purpose of A.M. No. 02-9-02-SC to avoid the
duplication or unnecessary replication of actions by treating
an administrative complaint filed against a member of the
bench also as a disciplinary proceeding against him as a lawyer
by mere operation of the rule. – Campos, et. al. v. Atty.
Campos, A.C. No. 8644, January 22, 2014
Definition of Unbecoming conduct
Unbecoming conduct “applies to a broader range of
transgressions of rules not only of social behavior but of ethical
practice or logical procedure or prescribed method.”- ASP
Jamsani-Rodriguez v. Justice Ong, et. al.,A.M. No. 08-19-SB-J
April 12, 2011
Unlimited grounds for suspension or disbarment
“A lawyer may be suspended or disbarred for any misconduct,
even if it pertains to his private activities, as long as it shows
him to be wanting in moral character, honesty, probity or
good demeanor. Possession of good moral character is not only
a good condition precedent to the practice of law but also a
good qualification for all members of the bar. -Manaois v.
Deciembre,

A.M. Case No. 5564, August 20, 2008
To ensure competence after reinstatement
Xxx in view of the numerous changes in the law since 1959,
respondent movant should offer some guarantee of his ability
to render adequate service to his prospective clients; the
Court resolved that respondent movant Carlos C. Rusiana be, as
he is hereby required, to enroll in, and pass, regular fourth
year review classes in a recognized law school. - In Re:
Administrative Case Against Atty. Carlos C. Rusiana of Cebu
City. A.C. No. 270 March 29, 1974
SC acting as an administrative tribunal, cannot review the
trial court’s decision
At the outset, it should be emphasized that this Court, acting as
an administrative tribunal, cannot review the trial court’s
decision. – Belga v. Buban, A.M. No. RTJ-99-1512. May 9,
2000
Breached of promise to marry not subject to sanction
Complainant filed the instant petition averring that respondent
and she had been sweethearts, that a child out of wedlock was
born to them and that respondent did not fulfill his repeated
promises to marry her.
We cannot castigate a man for seeking out the partner of his
dreams, for marriage is a sacred and perpetual bond which
should be entered into because of love, not for any other
reason. – Figueroa v. Barranco, Jr., SBC Case No. 519 July 31,
1997
Desistance cannot stop a disciplinary investigation
The aforesaid letter hardly deserves consideration as
proceedings of this nature cannot be "interrupted by reason of
desistance, settlement, compromise, restitution, withdrawal of
the charges, or failure of the complainant to prosecute the
same. - Section 5, Rule 139-B, Rules of Court
Ex-parte investigation allowed
An ex parte investigation may only be conducted when
respondent fails to appear despite reasonable notice. –
Cottam v. Atty. Laysa, A.C. No. 4834 February 29, 2000
Rule 139-B of the Rules of Court Sec. 8. Investigation. — Upon
joinder of issues or upon failure of the respondent to answer,
the Investigator shall, with deliberate speed, proceed with the
investigation of the case. He shall have the power to issue
subpoenas and administer oaths. The respondent shall be given
full opportunity to defend himself, to present witnesses on his
behalf and be heard by himself and counsel. However, if upon
reasonable notice, the respondent fails to appear, the
investigation shall proceed ex parte.
Affidavit stands in lieu complainant’s testimony
As for complainant’s failure to testify on her own behalf, this is
of no moment. Complainant’s affidavit stands in lieu of her
testimony; the investigating judge even had her re-subscribe
and re-affirm her sworn statement and let the same be adopted
as part of complainant’s evidence. – Liwanag v. Judge Lustre,
A.M. No. MTJ 98-1168. April 21, 1999
Disciplinary authority v. Judicial action
It is imperative to first determine whether the matter falls
within the disciplinary authority of the Court or whether the
matter is a proper subject of judicial action against lawyers.
If the matter involves violations of the lawyer’s oath and code of
conduct, then it falls within the Court’s disciplinary authority.
However, if the matter arose from acts which carry civil or
criminal liability, and which do not directly require an inquiry
79 | P R O B L E M A R E A S I N L E G A L E T H I C S
into the moral fitness of the lawyer, then the matter would be a
proper subject of a judicial action which is understandably
outside the purview of the Court’s disciplinary authority. –
Felipe, et. al. v. Atty. Macapagal, A.C. No. 4549, December
02, 2013
WON the money should be returned to complainant
It is imperative to first determine whether the matter falls
within the disciplinary authority of the Court OR whether the
matter is a proper subject of judicial action against lawyers. -
Annacta v. Atty. Resurreccion, A.C. No. 9074 August 14, 2012
If the matter involves violations of the lawyer’s oath and code of
conduct, then it falls within the Court’s disciplinary authority.
However, if the matter arose from acts which carry civil or
criminal liability, and which do not directly require an inquiry
into the moral fitness of the lawyer, then the matter would be a
proper subject of a judicial action which is understandably
outside the purview of the Court’s disciplinary authority.
Thus, we hold that when the matter subject of the inquiry
pertains to the mental and moral fitness of the respondent to
remain as member of the legal fraternity, the issue of whether
the respondent be directed to return the amount received from
his client shall be deemed within the Court’s disciplinary
authority. Annacta v. Atty. Resurreccion, A.C. No. 9074 August
14, 2012
Sui generis principle
It should be emphasized that a finding of guilt in the criminal
case will not necessarily result in a finding of liability in the
administrative case. Conversely, respondent’s acquittal does not
necessarily exculpate him administratively.
In the same vein, the trial court’s finding of civil liability
against the respondent will not inexorably lead to a similar
finding in the administrative action before this Court. Neither
will a favorable disposition in the civil action absolve the
administrative liability of the lawyer.
The basic premise is that criminal and civil cases are altogether
different from administrative matters, such that the disposition
in the first two will not inevitably govern the third and vice
versa. - Gatchalian Promotions Talents Pool, Inc. v. Atty.
Naldoza, A.C. No. 4017. September 29, 1999
Indefinite suspension
The indefiniteness of respondent’s suspension, far from being
"cruel" or "degrading" or "inhuman" has the effect of placing, as
it were, the key to the restoration of his rights and privileges as
a lawyer in his own hands. That sanction has the effect of giving
respondent the chance to purge himself in his own good time of
his contempt and misconduct by acknowledging such
misconduct, exhibiting appropriate repentance and
demonstrating his willingness and capacity to live up to the
exacting standards of conduct rightly demanded from every
member of the bar and officer of the courts.
Xxx the indefiniteness of respondent’s suspension puts in his
hands the key for the restoration of his rights and privileges
as a lawyer. - Dumadag v. Atty. Lumaya, A.C. No. 2614. June
29, 2000
“Beso-beso” is merely a form of greeting, casual and
customary in nature
Judge Acosta's acts of bussing Atty. Aquino on her cheek were
merely forms of greetings, casual and customary in nature.
No evidence of intent to sexually harass complainant was
apparent, only that the innocent acts of 'beso-beso' were given
malicious connotations by the complainant. – Atty. Aquino v.
Justice Acosta, A.M. No. CTA-01-1. April 2, 2002
Quantum of evidence
“The ground for the removal of a judicial officer should be
established beyond reasonable doubt. Such is the rule where
the charges on which the removal is sought is misconduct in
office, willful neglect, corruption, incompetency, etc. The
general rules in regard to admissibility of evidence in criminal
trials apply.”- OCA v. Judge Pascual, A.M. No. MTJ-93-783.
July 29, 1996
Quantum of evidence
Administrative cases against lawyers belong to a class of their
own. They are distinct from and they may proceed
independently of civil and criminal cases.
The burden of proof for these types of cases differ. In a criminal
case, proof beyond reasonable doubt is necessary; in an
administrative case for disbarment or suspension, “clearly
preponderant evidence” is all that is required. Thus, a criminal
prosecution will not constitute a prejudicial question even if
the same facts and circumstances are attendant in the
administrative proceedings. – Gatchalian Promotions Talents
Pool, Inc. v. Atty. Naldoza, A.C. No. 4017. September 29,
1999
Quantum of evidence
As a rule, proof beyond reasonable doubt is not necessary in
deciding administrative cases. Only substantial evidence is
required, as clearly provided for under Rule 133 of the Revised
Rules of Evidence:
“Sec 5. Substantial evidence. -- In cases filed before
administrative or quasi-judicial bodies, a fact may be deemed
established if it is supported by substantial evidence, or that
amount of relevant evidence which a reasonable mind might
accept as adequate to justify a conclusion.”- Liwanag v. Judge
Lustre, A.M. No. MTJ 98-1168. April 21, 1999
Absolute pardon
An absolute pardon not only blots out the crime committed, but
removes all disabilities resulting from the conviction. In the case
of In re Marcelino Lontok, the Court, in dismissing the
disbarment proceeding against the respondent therein, who had
been convicted of bigamy, a crime involving moral turpitude,
upon the ground that the respondent had been granted plenary
pardon for his crime, applied the rule that "a person reaches
both the punishment prescribed for the offense and the guilt of
the offender; and when the pardon is full, it releases the
punishment and blots out of existence the guilt, so that in the
eye of the law the offender is as innocent as if he had never
committed the crime," and, "if granted before conviction, it
prevents any of the penalties and disabilities, and restores him
to all his civil rights; it makes him, as it were, a new man and
gives him a new credit and capacity. - In re:Atty. Rovero, A.M.
No. 126 December 29, 1980
Application of Res Ipsa Loquitor doctrine
Under the doctrine of res ipsa loquitur, the Court may impose its
authority upon erring judges whose actuations, on their face,
would show gross incompetence, ignorance of the law or
misconduct. – Atty. Macalintal v. Judge the, A.M. No.
RTJ-97-1375 October 16, 1997
Preventive suspension for erring lawyer
Rule 139-B Sec. 15. Suspension of attorneys by Supreme Court. -
After receipt of respondent's answer or lapse of the period
therefor, the Supreme Court, motu proprio, or at the instance
of the IBP Board of Governors upon the recommendation of the
Investigator, may suspend an attorney from the practice of his
profession for any of the causes specified in Rule 138, Section
80 | P R O B L E M A R E A S I N L E G A L E T H I C S
27, during the pendency of the investigation until such
suspension is lifted by the Supreme Court.
CA or RTC may suspend an attorney
Rule 139-B Sec. 16. Suspension of attorney by the Court of
Appeals or Regional Trial Court. - The Court of Appeals or
Regional Trial Court may suspend an attorney from practice for
any of the causes named in Rule 138, Section 27, until further
action of the Supreme Court in the case.
To begin with, it is already too late in the day for the
complainants to withdraw the disbarment case considering that
they had already presented and supported their claims with
convincing and credible evidence, and the IBP has
promulgated a resolution on the basis thereof. – Sps. Amatorio v.
Sps. Atty. Whelma and Francisco Yap, A.C. no. 5914, March 11,
2015.
Extrajudicial activities of judges /justices
The previous “Canons of Judicial Ethics and the Code of
Judicial Conduct is a supplement to the new Code
“Canons of Judicial Ethics and the Code of Judicial Conduct”,
promulgated on 5 September 1989, shall take effect on 20
October 1989
This “New Code of Judicial Conduct for the Philippine Judiciary”
shall take effect on the first day of June 2004
This Code, which shall hereafter be referred to as the New Code
of Judicial Conduct for the Philippine Judiciary, supersedes the
Canons of Judicial Ethics and the Code of Judicial Conduct
heretofore applied in the Philippines to the extent that the
provisions or concepts therein are embodied in this Code:
Provided, however, that in case of deficiency or absence of
specific provisions in this New Code, the Canons of Judicial
Ethics and the Code of Judicial Conduct shall be applicable in a
suppletory character.
CANON 4 PROPRIETY

New Code of Judicial Conduct [2004]

Propriety and the appearance of propriety are essential to the
performance of all the activities of a judge.
SECTION 1. Judges shall avoid impropriety and the appearance
of impropriety in all of their activities.
SEC. 2. As a subject of constant public scrutiny, judges must
accept personal restrictions that might be viewed as
burdensome by the ordinary citizen and should do so freely and
willingly. In particular, judges shall conduct themselves in a way
that is consistent with the dignity of the judicial office.
SEC. 3. Judges shall, in their personal relations with individual
members of the legal profession who practice regularly in their
court, avoid situations which might reasonably give rise to the
suspicion or appearance of favoritism or partiality.
SEC. 4. Judges shall not participate in the determination of a
case in which any member of their family represents a litigant
or is associated in any manner with the case.
SEC. 5. Judges shall not allow the use of their residence by a
member of the legal profession to receive clients of the latter or
of other members of the legal profession.

SEC. 6. Judges, like any other citizen, are entitled to freedom of
expression, belief, association and assembly, but in exercising
such rights, they shall always conduct themselves in such a
manner as to preserve the dignity of the judicial office and the
impartiality and independence of the judiciary.
SEC. 7. Judges shall inform themselves about their personal
fiduciary financial interests and shall make reasonable efforts to
be informed about the financial interests of members of their
family.
SEC. 8. Judges shall not use or lend the prestige of the judicial
office to advance their private interests, or those of a member
of their family or of anyone else, nor shall they convey or permit
others to convey the impression that anyone is in a special
position improperly to influence them in the performance of
judicial duties.
SEC. 9. Confidential information acquired by judges in their
judicial capacity shall not be used or disclosed by for any other
purpose related to their judicial duties.
SEC. 10. Subject to the proper performance of judicial duties,
judges may
(a) Write, lecture, teach and participate in activities concerning
the law, the legal system, the administration of justice or
related matters;
(b) Appear at a public hearing before an official body concerned
with matters relating to the law, the legal system, the
administration of justice or related matters;
(c) Engage in other activities if such activities do not detract
from the dignity of the judicial office or otherwise interfere
with the performance of judicial duties.
SEC. 12. Judges may form or join associations of judges or
participate in other organizations representing the interests of
judges.
SEC. 13. Judges and members of their families shall neither ask
for, nor accept, any gift, bequest, loan or favor in relation to
anything done or to be done or omitted to be done by him or her
in connection with the performance of judicial duties.
SEC. 14. Judges shall not knowingly permit court staff or others
subject to their influence, direction or authority, to ask for, or
accept, any gift, bequest, loan or favor in relation to anything
done or to be done or omitted to be done in connection with
their duties or functions.
SEC. 15. Subject to law and to any legal requirements of public
disclosure, judges may receive a token gift, award or benefit
as appropriate to the occasion on which it is made provided
that such gift, award or benefit might not reasonably be
perceived as intended to influence the judge in the
performance of judicial duties or otherwise give rise to an
appearance of partiality.
Private practice of law prohibited
Rule 138 RRC Sec. 35. Certain attorneys not to practice. - No
judge or other official or employee of the superior courts or of
the Office of the Solicitor General, shall engage in private
practice as a member of the bar or give professional advice to
clients.
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Canon 5, Rule 5.07 of the Code of Judicial Conduct states that: A
judge shall not engage in the private practice of law. Unless
prohibited by the Constitution or law, a judge may engage in the
practice of any other profession provided that such practice will
not conflict or tend to conflict with judicial functions.
Why a judge cannot practice law
These provisions are based on public policy for there is no
question that the rights, duties, privileges and functions of the
office of an attorney-at-law are inherently incompatible with
the high official functions, duties, powers, discretion and
privileges of a judge.
It also aims to ensure that judges give their full time and
attention to their judicial duties, prevent them from
extending special favors to their own private interests and
assure the public of their impartiality in the performance of
their functions.
These objectives are dictated by a sense of moral decency and
desire to promote the public interest. - Ziga v. Judge Arejola,
A.M. No. MTJ-99-1203. June 10, 2003
Drafting complainant’s affidavit is practice of law
Respondent acted as a lawyer for complainant and her father-in-
law when he drafted complainant’s affidavit which became the
basis of a complaint for estafa filed against Heidi Navarra.
By acting as counsel for complainant and the latter’s father-in-
law in a case filed in his court, respondent compromised his
neutrality and independence. How could he then be expected
to decide with objectivity and fairness the cases in which he has
acted as a lawyer for the plaintiff or complainant?
Respondent’s misconduct in this case is further compounded by
the fact that he rendered the legal services in question using
government facilities during office hours. - Biboso v. Judge
Villanueva, A.M. No. MTJ-01-1356. April 16, 2001
Instances when a judge canserving as executor, administrator,
trustee, guardian or other fiduciary
As a general rule, a judge is prohibited from serving as executor,
administrator, trustee, guardian or other fiduciary. The only
exception is when the estate or trust belongs to, or the ward is
a member of his immediate family, and only if his service as
executor, administrator, trustee, guardian or fiduciary will not
interfere with the proper performance of his judicial duties.
The Code has defined who may be considered as members of his
immediate family and they are the spouse and relatives within
the second degree of consanguinity. – Carual v. Brusola A.M.
No. RTJ-99-1500. October 20, 1999
“Judge’s family”
Includes a judge’s:
1. spouse,
2. son,
3. daughter,
4. son-in-law,
5. daughter-in-law, and
6. any other relative by consanguinity or affinity within the
sixth civil degree, or
7. person who is a companion or employee of the judge and
who lives in the judge’s household.
Rendering legal opinion proscribed
To escape our disciplining wrath, respondent judge argues that
the "resolution" he issued was a mere expression of his legal
opinion and not a judgment or order "which adjudicates and
settles rights and obligations of the parties." He said that the
petition for declaratory relief, earlier quoted, is not a pleading,
but a mere letter-request for a legal opinion. Hence,
complainant Gozun was not entitled to notice and hearing.
Besides, even assuming arguendo that the resolution was a mere
legal opinion, still respondent must know that rendering of
"legal opinions" is not the function of a judge. The function of
the court is limited to adjudication of actual controversies
involving rights which are legally demandable or enforceable.
Unlike lawyers, judges cannot render legal advice. Judges are
expressly prohibited from engaging in the private practice of law
or from giving professional advice to clients. – Gozun v. Judge
Liangco A.M. No. MTJ-97-1136. August 30, 2000
A judge who violates the judicial code of conduct also violates
the lawyer’s oath
We ruled that because membership in the bar is an integral
qualification for membership in the bench, the moral fitness of
a judge also reflects the latter’s moral fitness as a lawyer. A
judge who disobeys the basic rules of judicial conduct also
violates the lawyer’s oath. - OCA v. Atty. Liangco, A. C. No.
5355 [2011]
As attorney-in-fact in actual litigations
Except for the initiatory pleading, respondent Judge signed the
pleadings relative to the civil case and participated in some of
the hearings held relative thereto.
The proscription against the private practice of law, or just
giving professional advice to clients, by Judges is based on
public policy.
The prohibition applies equally well to the appointment of and
acceptance by judges to the post of attorney-in-fact in actual
litigations, a fact which is also, by and large, incompatible with
the high office, functions, prestige and privileges of a judge. It
is of no moment, albeit worse, that the case where he accepts
such designation as attorney-in-fact is one that pends before his
own court. - Sps. Gragera v. Judge Francisco, A. M. No.
RTJ-02-1670. June 26, 2003
A.M. NO. 13-05-05-SC
RE: REVISION OFRESTRICTIONS ON TEACHING HOURS OF
 Judge Sibanah E. Usman, A.M. No. RTJ-02-1713 [2005]
JUSTICES, JUDGES AND PERSONNEL OF THE JUDICIARY

EN BANC RESOLUTION DATED 01 APRIL 2014
Teaching shall be allowed for not more than ten (10) hours a
week. On regular working days (Monday through Friday),
teaching shall not be conducted earlier than 5:30 p.m.
2. An application for permission to teach if filed by a judge shall
be accompanied by a certification of the Clerk of Court
concerned regarding the condition of the court docket showing:
(a) the number of pending cases; and
(b) the number of cases disposed of within a three-month period
prior to the start of the semester in his or her respective sala.
An application for permission to teach filed by a
 determining his judicial course.’”- Abundo v. Judge Manio, Jr.,
judge or justice shall require approval as follows:
a. If filed by a judge from a lower level court, it shall be
subject to the approval of the executive judge
concerned;
b. If filed by an executive judge, it shall be subject to
the approval of the Court Administrator;
c. If filed by an Associate Justice of the Court of Appeals,
the Sandiganbayan, or the Court of Tax Appeals, it
shall be subject to the approval of the presiding
justice concerned;
d. If filed by the Presiding Justice of the Court of
Appeals, the Sandiganbayan, or the Court of Tax
Appeals, it shall be subject to the approval of the
Chief Justice.
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An application for permission to teach filed by

court personnel shall require approval as follows
a. If filed by court personnel from a lower level court, it shall be
subject to the approval of the executive judge concerned;
b. If filed by court personnel from the Court of Appeals, the
Sandiganbayan, or the Court of Tax Appeals, it shall be subject
to the approval of the presiding justice or the executive justice
concerned, as the case may be;
c. If filed by Supreme Court personnel belonging to a chamber of
an Associate Justice of the Supreme Court, it shall be subject to
the approval of the Associate Justice concerned, who will notify
the Chief Justice and the Office of Administrative Services,
Supreme Court, of this approval;
d. If filed by other Supreme Court personnel, it shall be subject
to the approval of the Chief Justice.
Disposition of applications
5. The approving authority may deny the application or allow
less than ten (10) hours of teaching a week, depending on the
applicant’s performance record.
6. At the end of every year, an approving authority shall submit
to the Chief Justice a report on the applications submitted for
the year and the respective status of, or action taken on, each
application.
Failure to secure permit to teach
To justify his failure to obtain a permit from the Supreme
Court, he said that the University of the East did not require
him to submit one.
Respondent judge’s failure to accomplish the Request for
Permission to Teach form prescribed in Circular No. 50-97, dated
July 18, 1997 is inexcusable. It is a clear violation of the
judiciary rules and regulations, indicating respondent judge’s
disregard of the authority of the Supreme Court. For no matter
how insignificant or inconsequential the circular may seem to
respondent judge, he should have complied with it. - Jabon v.
Proper for judges to attend meetings of members of the bar
It is not necessary to the proper performance of judicial duty
that judges should live in retirement or seclusion; it is desirable
that, so far as the reasonable attention to the completion of
their work will permit, they continue to mingle in social
intercourse, and that they should not discontinue their
interests in or appearance at meetings of members at the bar.
A judge should, however, in pending or prospective litigation
before him be scrupulously careful to avoid such action as may
reasonably tend to waken the suspicion that his social or
business relations or friendships constitute an element in
A.M. No. RTJ-98-1416. August 6, 1999
Judge eating lunch with counsel
For respondent judge to eat lunch with counsel is not wrong
per se. The Canons, however, provides that as much as possible
he should be scrupulously careful to avoid any suspicion that
his social or business or friendly relationship is an element in
“determining his judicial course.”
Knowing that Atty. Verano, Jr., is counsel of the petitioner in an
annulment case pending before him, the respondent judge
should have thought twice about joining counsel for lunch,
especially in the courtroom at that. – Pertierra v. Judge
Lerma, A.M. No. RTJ-03-1799. September 12, 2003
Political activities of judges
Allowed : A judge is entitled to entertain personal views on
political questions.
Prohibited: But to avoid suspicion of political partisanship:
1. a judge shall not make political speeches,
2. a judge shall not contribute to party funds
3. a judge shall not publicly endorse candidates for political
office or participate in other partisan political activities. - Rule
5.10, Canon 5, of the Code of Judicial Conduct
Engaging in partisan political activity
 expeditious and proper administration of justice.
improper under Civil Service Law
Pres. Decree No. 807 (Civil Service Law) clearly states:
Section 45. No officer or employee in the Civil Service including
members of the Armed Forces, shall engage directly or indirectly
in any partisan political activity or take part in any election
except to vote nor shall be use his official authority or
influence to coerce the political activity of any other person or
body. Nothing herein provided shall be understood to prevent
any officer or employee from expressing his views on current
political problems or issues, or from mentioning the names of
candidates for public office whom he supports: ...
Engaging in political activity
Respondent started circulating handbills/letters addressed to
electoral constituents in the second district of Bulacan
indicating his intention to run for a congressional seat.
For having held himself out as a congressional candidate while
still a member of the Bench, Respondent took advantage of his
position to boost his candidacy, demeaned the stature of his
office, and must be pronounced guilty of gross misconduct. -
Vistan v. Judge Nicolas A.M. No. MTJ-87-79 [1991]
Filing of a certificate of candidacy
When he was appointed as a judge, he took an oath to
uphold the law, yet in filing a certificate of candidacy as a
party-list representative in the May 1998 elections without
giving up his judicial post, Judge Limbona violated not only the
law, but the constitutional mandate that “no officer or
employee in the civil service shall engage directly or
indirectly, in any electioneering or partisan political
campaign.”
The filing of a certificate of candidacy is a partisan political
activity as the candidate thereby offers himself to the
electorate for an elective post. - Limbona v. Judge Limbona,
A.M. No. SCC-98-4 March 22, 2011
Limit of judge’s journalistic writing
Complainant alleged that respondent used his newspaper
column to ventilate his biases or personal anger at people or
institutions.
Complainant believes that respondent judge should not engage
in active, sensational, and free-for-all journalistic writing
because such act degrades the judicial system and compromises
his impartiality as an administrator of justice.
Respondent’s writing of active and vicious editorials
compromises his duties as judge in the impartial administration
of justice, for his views printed on newspapers reflect on his
office as well as on the public officers that he challenges.
Not only does he act as its contributor or columnist, he is also
its publisher, editor and legal adviser. Although the Code of
Judicial Conduct allows a judge to engage in certain lawful
activities, they should not interfere with the performance of
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judicial duties nor detract from the dignity of the court. -
Galang v. Judge Santos G.R. No. MTJ-99-1197 [1999]
Judge cannot be appointed to executive position in any
enterprise
Circular No. 6 dated April 10, 1987 strictly enjoins all Judges,
Clerks of Court and Sheriffs not to accept the position of
director or any other position in any electric cooperative or
other enterprises, or to resign immediately from such position
if they are already holding the same so as not to prejudice the
In violation of this circular, Judge Estrada, who was appointed to
the judiciary on May 17, 1994, did not resign from the Board of
Directors of the Rural Bank of Labrador until May 31, 1997. - Re:
Inhibition of Judge Bienvenido R. Estrada A.M. No. 98-1-32-
RTC July 29, 1998
Judge should not accept any position in any business
enterprise
RULE 5.01 - A judge may engage in the following activities
provided that they do not interfere with the performance of
judicial duties or detract from the dignity of the court:
xxx
(d) serve as an officer, director, trustee, or non-legal advisor of
a non-profit or non-political educational, religious, charitable,
fraternal, or civic organization.
RULE 5.03 - Subject to the provisions of the proceeding rule, a
judge may hold and manage investments but should not serve
as officer, director, manager or advisor, or employee of any
business except as director of a family business of the judge. -
Canons of Judicial Ethics and the Code of Judicial Conduct
Not good for judges to engage in business
Indeed, it is not good for judges to engage in business except
only to the extent allowed by Rule 5.03 of the Code of Judicial
Conduct which provides:
Subject to the provisions of the preceding rule, a judge may
hold and manage investments but should not serve as an officer,
director, manager, advisor, or employee of any business except
as director of a family business of the judge.
- Berin and Alorro v. Judge Barte A.M. No. MTJ-02-1443.
July 31, 2002
Limits of financial and business dealings
Refrain from financial and business dealings that tend to:
• reflect adversely on the court’s impartiality,
• interfere with the proper performance of judicial
activities, or
• increase involvement with lawyers or persons likely to
come before the court.
- Berin and Alorro v. Judge Barte A.M. No. MTJ-02-1443. July
31, 2002 citing Rule 5.02 of the Canons of Judicial Ethics and
the Code of Judicial Conduct
Act of writing a letter to opposing counsel and defending a
right amounts to private practice of law
We also find merit in complainant's contention that respondent's
act of writing to Atty. Cargullo and defending the right of Andres
Bo to possess the lot in dispute amounts to private practice of
law.
The tenor of the letter shows that respondent, as representative
of Andres Bo, was defending the latter's rights over the
disputed property. Respondent's act of representing and
defending the interest of a private individual in the disputed
property constitutes private practice of law. It has been ruled
that "the practice of law is not limited to the conduct of cases in
court or participation in court proceedings but also includes
preparation of pleadings or papers in anticipation of a litigation,
giving advice to clients or persons needing the same, etc. -
Carual v. Brusola A.M. No. RTJ-99-1500. October 20, 1999
As agent in the sale of the subject property
By allowing himself to act as agent in the sale of the subject
property, respondent judge has increased the possibility of his
disqualification to act as an impartial judge in the event that
a dispute involving the said contract of sale arises.
Also, the possibility that the parties to the sale might plead
before his court is not remote and his business dealings with
them might not only create suspicion as to his fairness but also
to his ability to render it in a manner that is free from any
suspicion as to its fairness and impartiality and also as to the
judge’s integrity. - Rosauro v. Judge Kallos A.M. No. RTJ-03-1796
February 10, 2006
Financial and business dealings
Judge can engage in financial and business dealings provide:
1. such will not reflect adversely on the court’s impartiality.
2. will not interfere with the proper performance of judicial
activities.
3. will not increase involvement with lawyers or persons likely
to come before the court.
A judge should so manage investments and other financial
interests as to minimize the number of cases giving grounds
for disqualification. - Catbagan v. Judge Barte, A.M. No.
MTJ-02-1452. April 06, 2005
Sheer presence - as a member of the Judiciary - would be
sufficient suggestion of persuasion and influence
As a member of the bench, the respondent judge should realize
that his presence, opinion and participation in any proceeding
could slant the evaluation and resolution of the case in favor of
(the) party he identifies himself with. A judge need not utter
any word for his sheer presence - as a member of the Judiciary -
would be sufficient suggestion of persuasion and influence.
In this case, the respondent judge's presence and
participation in the proceedings were to the advantage of his
relatives, the heirs of Dr. Cosme T. Valdez, Sr. That his efforts
failed to influence the DARAB, for the motion filed by the
Valdez heirs in DARAB Case No. 282-T-93 for contempt was
dismissed, has no relevance. - Garcia, et. al. v. Judge Valdez,
A.M. No. MTJ-98-1156 [1998]
Giving moral support to a family member by attending the
hearing is improper
Judge Dojillo admitted that he was present during the
mentioned hearings but explained that he did not sit beside his
brother’s lawyer but in the area reserved for the public; and
that the main reason why he was there was to observe how
election protests are conducted as he has never conducted
one. His other reason was to give moral support to his
brother. - Vidal v. Judge Dojillo, Jr. A.M. No. MTJ-05-1591
[2005]
Objection from complainant or counsel is immaterial
Although concern for family members is deeply ingrained in the
Filipino culture, respondent, being a judge, should bear in mind
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that he is also called upon to serve the higher interest of
preserving the integrity of the entire judiciary.
The fact that neither complainant nor his counsel objected to
the presence of respondent during the hearing is immaterial. -
Vidal v. Judge Dojillo, Jr. A.M. No. MTJ-05-1591 [2005]
Use of letterhead by a judge
In other words, the respondent Judge’s transgression was not
per se in the use of the letterhead, but in not being very careful
and discerning in considering the circumstances surrounding the
use of his letterhead and his title. - Ladignon v. Judge Garong,
A.M. No. MTJ-08-1712 [2008]
Hence, respondent judge’s use of the court heading outside of
judicial business warrants disciplinary action for violation of the
Code of Judicial Conduct particularly Section 1, Canon 4.
Use of ordinary bond papers and placing his official station as
return address
The Judge’s claim that he used an ordinary bond papers and
placed thereon his official station as return address is not
totally without merit.
For, indeed, this is not an unusual practice and it would be
hypocritical to deny its occurrence at all levels of the Judiciary.
For example, some members of the Judiciary may use a social
card with the letterhead of their office to indicate their
address as well as their station within the judicial hierarchy;
some also use notepads bearing their names, designation and
station. - Ladignon v. Judge Garong, A.M. No. MTJ-08-1712
[2008]
Use of court’s stationery
The Court also finds respondent Judge liable for violating Rule
2.03 of the Code in using official stationery for his
correspondence with complainant and the latter’s counsel
regarding Lot No. 1470. A court’s stationery, with its official
letterhead, should only be used for official correspondence.
By using his sala’s stationery other than for official purposes,
respondent Judge evidently used the prestige of his office to
benefit Guererro (and himself) in violation of Rule 2.0322 of the
Code. - Rosauro v. Judge Kallos A.M. No. RTJ-03-1796
February 10, 2006
Respondent Judge should know that a court’s letterhead should
be used only for official correspondence. - Oktubre v. Judge
Velasco A.M. No. MTJ 02-1444. July 22, 2004
Judge required tenants to pay at MTC
Respondent Judge aggravates his liability when, in his letters to
the tenants, he further required them to pay their rent at the
MTC Maasin, although he was then staying at the Paler building.
By these calculated steps, respondent Judge in the words of
Rule 2.03, clearly intended to “use the prestige of his judicial
office” to advance the interest of his maternal co-heirs. –
Oktubre v. Judge Velasco A.M. No. MTJ 02-1444. July 22,
2004