TV OR RADIO PROGRAMS GIVING LEGAL ADVICE FACTS: There has been a spate of TV and radio programs where lawyers

would give legal advice from phone-in callers or texters. Author Agpalo wrote, The giving of advice on legal matters through the medium of a newspaper column or radio or television broadcast is improper citing A.B.A. Op. 270 dated November 30, 1945. He said, It cannot be undertaken by a layman because that service constitutes practice of law. Nor can it be undertaken by a lawyer because that work involves indirect advertising, violation of the confidential relation of attorney and client, and a breach of the traditional standards of the profession, citing the case of Rosenthal v. Shepard Broadcasting Service, 12 NE2d 819, 114 ALR 1502 (1938). In Drinkers work on Legal Ethics, he said that writing a column in a newspaper will, sooner or later, violate those ethical principles because what the readers want is not a general discussion such as they can find in law books or articles in law journals, but something practical which they can apply to their own experience, which is what the publishers will see that they get, and a lawyer answering such is apt to follow what he thinks his readers want to hear about and to answer the personal problem which he sees behind the questions. ISSUES: The following issues are to be taken into consideration based on the abovementioned facts: 1. Is there a client-lawyer relationship when the client either calls in his legal query or sends his query by SMS message? 2. What if the lawyers advice is found to be wrong, can he be held administratively liable for it? 3. Can the producer of the TV or Radio program be held liable for damages for the wrong advice given by the lawyer? COMMENTS: 1. Is there a client-lawyer relationship when the client either calls in his legal query or sends his query by SMS message?

Yes, it is our position that a client-lawyer relationship is created when the client either calls in his legal query or sends his query by SMS message. It is a settled rule that to establish the professional relation, it is sufficient that the advice and assistance of an attorney are sought and received in any manner pertinent to his profession (George c. Solatan vs. Attys. Oscar a. Inocentes A.C. No. 6504. August 9, 2005). The Supreme Court reiterated their pronouncement in Solatan in ruling the case of Virginia Villaflores vs. Atty. Sinamar E. Limos( A.C. No. 7504. November 23, 2007), to wit: The relation of attorney and client begins from the time an attorney is retained. To establish the professional

relation, it is sufficient that the advice and assistance of an attorney are sought and received in any manner pertinent to his profession. Thus, it is as to what kind of query will determine whether client-lawyer relationship is created. It is not how and in what form or presence of formal requisites constitutes client-lawyer relationship. Obviously if the query pertains to legal matters, the inevitable conclusion is that, as the Supreme Court interprets it, client-lawyer relationship will exists no matter how conscious or unconscious, and regardless of its medium, a lawyer when they give their advice. Before, the client-lawyer relationship is premised on the Roman Law Concept of Contract of lease of service, at the same time agency. But in the modern day understanding of the relationship, lawyer is more than a mere agent or servant because he possesses special power of trust and confidence reposed by his client. An attorney is employed - that is, he is engaged in his professional capacity as a lawyer or counsellor - 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 cause in open court (Denver Tramway Co. vs. Owens, 20 Colo., 107; 36 P., 848.). It may be asked whether text/SMS message is recognized in our jurisdiction. By virtue of RA 8792 and its Implementing Rules, said question will be answered in a positive. Chapter II of the said law recognizes the Electronic Data Message1 and Electronic Documents2 as to its validity and enforceability and to have its corresponding legal effects. Moreover, even not recognizing the involvement of text/SMS message in the given facts, the same question can answered in the clarification made by the Supreme Court in the case Rolando B. Pacana, Jr. vs. Atty. Maricel Pascual-Lopez wherein they categorically pronounced that The absence of a written contract will not preclude the finding that there was a professional relationship between the parties. Documentary formalism is not an essential element in the employment of an attorney; the contract may be express or implied. To establish the relation, it is sufficient that the advice and assistance of an attorney is sought and received in any matter pertinent to his profession. Finally, it is nice to revisit the case of Junio v. Grupo (Administrative Case No 5020, Dec 18, 2001) Respondent (Grupo) claims that complainant is a close personal friend and that in helping redeem the property of complainant's parents, he did not act as a lawyer but as a friend, hence there is no client-attorney relationship between them. The Supreme Court ruled that the contention of Respondent has no merit and explained their conclusion by citing Hilado v. David3: To constitute professional employment it is not essential that the client should have employed the attorney professionally on any previous occasion . . . It is not

necessary 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. If a person, in respect to his business affairs or troubles of any kind, consults with his attorney in his professional capacity with the view to obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces in such consultation, then the professional employment must be regarded as established. 2. What if the lawyers advice is found to be wrong, can he be held administratively liable for it? Yes, we believe that if the lawyers advice is found to be wrong, he can be held administratively liable for such wrong advice. The usual scenario in providing legal advice on radio or television is that the lawyer answers questions that undertake to advise a particular member of the audience as regards a particular legal problem. It is important to highlight that the giving of advice on legal matters through the medium of radio or television may create an attorney-client relationship which gives rise to a legal duty on the part of the lawyer vis-a-vis his putative client (i.e., the person who sought the advice). The creation of the attorney-client relationship can be inferred in our previously reported case of Burbe vs. Atty. Magulta4 wherein the Court ruled that if a person, in respect to business affairs or troubles of any kind, consults a lawyer with a view to obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces with the consultation, then the professional employment is established. Generally, an attorney-client relationship is understood as an assurance to employ a reasonable degree of care, skill and diligence. Although, this undertaking does not grant that the lawyer profess to know all the law or is incapable of error or mistake in applying it to the facts of each case, we believe that the lawyer is nonetheless required to exert that degree of vigilance and attention in the performance of his legal duties. Applying this to the situation of persons who seek legal advice through the medium of radio or television, it is critical to note that these persons are usually those who are highly unfamiliar about the law (even the very basics thereof), readily assumes that the answers they receive from the lawyer are correct and spontaneously decides to take an action (or not to take an act5ion) based on the legal advice they have received. This reliance should be foreseeable by the lawyer and taking this into consideration, he must employ caution or prudence.

Thus, the lawyers failure to apply a reasonable degree of caution in giving a legal advice which may lead to the provision of a wrong legal advice can provide a justification for administrative liability. This liability is more compelling if said wrong advice resulted damage to the person who sought and relied with the advice. Further, in consideration of the established attorney-client relationship, the administrative liability of the lawyer in providing a wrong advice may be justified based on Rule 18.03 of the Code of Professional Responsibility which provides that a lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable. Nonetheless, we would like to reiterate that the existence or non-existence of attorney-client relationship may not always be relevant for a lawyer to be liable. In the case of Mendoza vs. Atty. Deciembre6, the Court ruled that the fact that there is no attorney-client relationship xxx cannot shield respondent, as a lawyer, from liability. A lawyer may be disciplined xxx for acts which tend to bring reproach on the legal profession or to injure it in the favorable opinion of the public. Thus, if the lawyer will give an advice which would likely bring reproach to the legal profession liability will still attach notwithstanding that there is no attorney-client relationship. The provision of legal advice through the medium of radio or television provides the general public a cheaper and convenient means of soliciting reliable legal advice. We believe that if the courts will not attach liability when a wrong advice is given by the lawyer would eventually create a downside on the integrity of the legal profession. Accordingly, the issue of lawyers participation in radio and television advice programs must be guarded because there is a concern that a lawyer giving legal advice through these mediums will have insufficient facts to give a full response and thus, a broadcast exchange between a lawyer and questioner may raise concerns of misunderstanding or misapprehension of facts and/or advice. At worst, other listeners might erroneously rely on the legal advice given.

3. Can the producer of the TV or Radio program be held liable for damages for the wrong advice given by the lawyer? Yes, we believe that producers may be held liable jointly and severally with the person granted the airtime (lawyer giving advice) and the station, provided that: Four instances: a. An undertaking has been executed, that they shall be liable jointly and severally; b. the person giving legal advice is NOT duly qualified or NOT duly authorized; c. the source of the advice given is NOT authoritative; d. sources are NOT identified when the information is aired.

(1)

No mention of liability attaching due to WRONG advice.

BASIS: PART I: 2007 Broadcast Code of the Philippines Article 14. MEDICAL, LEGAL AND OTHER PROFESSIONAL ADVICE Sec.1. Only duly qualified and authorized persons shall be allowed to give medical, legal or other professional advice. (S) Sec.2. Information about medical, legal and other professional matters, especially those affecting the well-being of others, must come only from authoritative sources. These sources must be identified when the information is aired. (G) NOTE: The letter at the end of each provision indicates the class of penalties to be imposed for violations. PART II. IMPLEMENTING RULES AND REGULATIONS Article 2. Persons, natural and juridical, who are granted airtime, whether by sale or donation (including blocktimers and independent producers) shall be required to execute an undertaking that they shall be liable, jointly and severally with the station, for all applicable penalties that may be imposed for violations of this Code in their programs. Individuals who go on the air during such airtime shall also be required to execute the same undertaking. PART III. PENALTIES Article 3. Serious (S) offenses shall be subject to the following penalties: 1. When the violation is on radio:
On the Individual 1st Offense 2nd Offense P10,000.00 and reprimand P15,000.00 and 30-day on-air suspension P20,000.00 and 60-day on-air suspension P25,000.00 and revocation of accreditation On the Station P20,000.00 and censure P30,000.00

3rd Offense

P40,000.00

4th Offense

P50,000.00 and 90-day suspension of membership privileges

2. When the violation is on television:

On the Individual 1st Offense 2nd Offense P15,000.00 and reprimand P20,000.00 and 30-day on-air suspension P25,000.00 and 60-day on-air suspension P30,000.00 and revocation of accreditation On the Station P30,000.00 and censure P40,000.00

3rd Offense

P50,000.00

4th Offense

P60,000.00 and 120-day suspension of membership privileges

Article 4. Grave (G) offenses shall be subject to the following penalties: 1. When the violation is on radio:
On the Individual 1st Offense 2nd Offense P15,000.00 and reprimand P20,000.00 and 60-day on-air suspension P25,000.00 and 90-day on-air suspension P30,000.00 and revocation of accreditation On the Station P30,000.00 and censure P40,000.00

3rd Offense

P50,000.00

4th Offense

P60,000.00 and 120-day suspension of membership privileges

2. When the violation is on television:

On the Individual P20,000.00 and reprimand P25,000.00 and 60-day on-air suspension P30,000.00 and 90-day on-air On the Station P40,000.00 and censure P50,000.00

1st Offense 2nd Offense

3rd Offense

P60,000.00

4th Offense

suspension P35,000.00 and revocation of accreditation

P70,000.00 and 150day suspension of membership privileges

OTHER CONSIDERATIONS: Liability of producers (in case of existence of employer-employee relationship) QUASI-DELICT Whoever by act or omission causes damage to another, there being fault or negligence is obliged to pay for the damage done. (Article 2176 Civil Code) Culpa Criminal (criminal negligence) Crime Affect the public interest The Revised Penal Code punishes or corrects criminal act Punished only if there is a penal law clearly covering them Liability of the employer of the actor-employee is subsidiary in crimes Governed by Art. 365 of the Revised Penal Code.

Art. 365. Imprudence and negligence. Any person who, by reckless imprudence, shall commit any act which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in its maximum period to prision correccional in its medium period; if it would have constituted a less grave felony, the penalty of arresto mayor in its minimum and medium periods shall be imposed; if it would have constituted a light felony, the penalty of arresto menor in its maximum period shall be imposed. Any person who, by simple imprudence or negligence, shall commit an act which would otherwise constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and maximum periods; if it would have constituted a less serious felony, the penalty of arresto mayor in its minimum period shall be imposed. When the execution of the act covered by this article shall have only resulted in damage to the property of another, the offender shall be punished by a fine ranging from an amount equal to the value of said damages to three times such value, but which shall in no case be less than twenty-five pesos.

A fine not exceeding two hundred pesos and censure shall be imposed upon any person who, by simple imprudence or negligence, shall cause some wrong which, if done maliciously, would have constituted a light felony. In the imposition of these penalties, the court shall exercise their sound discretion, without regard to the rules prescribed in Article sixty-four. The provisions contained in this article shall not be applicable: 1. When the penalty provided for the offense is equal to or lower than those provided in the first two paragraphs of this article, in which case the court shall impose the penalty next lower in degree than that which should be imposed in the period which they may deem proper to apply. 2. When, by imprudence or negligence and with violation of the Automobile Law, to death of a person shall be caused, in which case the defendant shall be punished by prision correccional in its medium and maximum periods. Reckless imprudence consists in voluntary, but without malice, doing or falling to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing of failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place. Simple imprudence consists in the lack of precaution displayed in those cases in which the damage impending to be caused is not immediate nor the danger clearly manifest. The penalty next higher in degree to those provided for in this article shall be imposed upon the offender who fails to lend on the spot to the injured parties such help as may be in this hand to give. (As amended by R.A. 1790, approved June 21, 1957).(Sole Chapter on CRIMINAL NEGLIGENCE, QUASI-OFFENSES-TITLE XIV) Doctrine of Respondeat Superior the liability is strictly imputed, the employer is liable not because of his act or omission but because of the act or omission of the employee; employer cannot escape liability by claiming that he exercised due diligence in the selection or supervision of the employee. Employers are made liable not only because of the negligent or wrongful act of the person for whom they are responsible but also because of their own negligence; Liability is imposed on the employer because he failed to exercise due diligence in the selection or supervision of the employee Governed by Art. 103 of the Revised Penal Code.

Art. 103. Subsidiary civil liability of other persons. The subsidiary liability established in the next preceding article shall also apply to employers, teachers, persons, and corporations engaged in any kind of industry for felonies committed by their servants, pupils, workmen, apprentices, or employees in the discharge of their duties. AFFIRMATIVE DUTIES AND MISCELLANEOUS ACTIVITIES:

Employers and Employees Employers In quasi-delictual actions against the employer, the employee may use the provisions of the Labor Code which imposes upon the employer certain duties with respect to the proper maintenance of the work place or the provisions of adequate facilities to ensure the safety of the employees. Employees

Employees are bound to exercise due care in the performance of their functions for the employers; absence such due care, the employee may be held liable Exceptions Articles 1711 and 1712 of the Civil Code impose liability without fault on the part of the employers Art. 1711. Owners of enterprises and other employers are obliged to pay compensation for the death of or injuries to their laborers, workmen, mechanics or other employees, even though the event may have been purely accidental or entirely due to a fortuitous cause, if the death or personal injury arose out of and in the course of the employment. The employer is also liable for compensation if the employee contracts any illness or disease caused by such employment or as the result of the nature of the employment. If the mishap was due to the employee's own notorious negligence, or voluntary act, or drunkenness, the employer shall not be liable for compensation. When the employee's lack of due care contributed to his death or injury, the compensation shall be equitably reduced. Art. 1712. If the death or injury is due to the negligence of a fellow worker, the latter and the employer shall be solidarily liable for compensation. If a fellow worker's intentional malicious act is the only cause of the death or injury, the employer shall not be answerable, unless it should be shown that the latter did not exercise due diligence in the selection or supervision of the plaintiff's fellow worker. Circumstances affecting Civil Liability Justifying circumstances defendant is free from civil liability if justifying circumstances are properly establishes Exempting Circumstances They do not erase the civil liability

Mitigating and Aggravating circums-tances Damages to be adjudicated may either be decreased or increased depending on the presence of mitigating or aggravating circumstances persons relying on advice given by an expert (civil code);

Art. 1341. A mere expression of an opinion does not signify fraud, unless made by an expert and the other party has relied on the former's special knowledge. (n)

Term paper
Problem Areas in Legal Ethics Topic: TV OR RADIO GIVING LEGAL ADVICE

By: Leo Anthony Gamiao