legal ethics preweek 2010

7/27/2019 Legal Ethics Preweek 2010

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LEGAL ETHICS PRE-WEEK2

PRE-WEEK

LEGAL ETHICS

CODE OF PROFESSIONALRESPONSIBILITY

Q: What does it mean not to engage inunlawful, dishonest or immoral conduct?

A: An unlawful conduct is an act or omissionwhich is against the law. Dishonesty involveslying or cheating. There is immoral or deceitfulconduct when the act is willful, flagrant orshameless and which shows a moralindifference to the opinion of the good andrespectable members of the community.

Moral turpitude includes everything which isdone contrary to justice, honesty, modesty, orgood morals. (Barrios v. Martinez)

Q: How shall a lawyer avoid, end or settle acontroversy?

A: The function of a lawyer is not only to conductlitigation but to avoid it where possible, byadvising settlement or withholding suit. He mustact as mediator for compromise rather than aninstigator and conflict. What sometimesbeclouds a lawyers judgment as to what is bestfor his client is his eye on the attorneys feeswhich are often considerably less when thecause is amicably settled. The problem ofconflict of interests must be resolved against

self-interest. (Agpalo)

Q: Why are lawyers prohibited fromsoliciting legal business?

A: The legal practice is not a business. Unlike abusinessman, the lawyer has:1) Relation to the administration of justice

involving sincerity, integrity and reliability asan officer of the court;

2) duty of public service;3) relation to clients with the highest degree of

fiduciary;4) relation to colleagues at the bar

characterized by candor, fairness andunwillingness to resort to business methodsof advertising and encroachment on theirpractice, or dealing directly with their clients.(Agpalo)

In relation to Rule 3.01, solicitation of any kind isprohibited; but some forms of advertisementmay be allowed.

Q: What are the rules behind theprohibition against misleading or falsenames?

A:GENERAL RULE 1: All partners in firm namemust be alive.

EXCEPTION: When removal of thedeceased partners name disturbs the clientgoodwill built through the years.

The continued use of the name of adeceased partner is permissibleprovided that the firm indicates in all itscommunications that said partner isdeceased. (Agpalo)

Death of a partner does not extinguish

the client-lawyer relationship with the lawfirm. (B.R. Sebastian Enterprises Inc. vs.Court of Appeals, 206 SCRA 28)

GENERAL RULE 2: Filipino lawyers cannotpractice law under the name of a foreign lawfirm.

Firms may not use misleading names showingassociation with other firms to purport legalservices of highest quality and ties withmultinational business enterprise especiallywhen such firm attached as an associate

cannot legally practice law in the Philippines.(Dacanay v. Baker and McKenzie, 136 SCRA349 (1985))

Q: What types of business advertisementsare allowed in the legal profession?

A: THE MOST WORTHY AND EFFECTIVEADVERTISEMENT possible is the establishmentof a well-merited reputation for professionalcapacity and fidelity to trust. This cannot beforced, but must be the outcome of characterand conduct.

Allowable advertisement (The Exceptions toRule 3.01):o an ordinary professional cardo publication in reputable law list with brief

biographical and other informative datawhich may include:1. name2. associates3. address


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4. phone numbers5. branches of law practiced6. birthday7. date admitted to the bar8. schools and dates attended9. degrees and distinctions10. public or quasi-public offices11. posts of honor12. legal authorships13. teaching positions14. associations15. legal fraternities and societies16. references and regularly represented

clients must be published for thatpurpose

o publication of simple announcement ofopening of law firm, change of firm

o listing in telephone directory but not underdesignation of special branch of law

o if acting as an associate (specializing in abranch of law), may publish a brief anddignified announcement to lawyers (law list,law journal)

o if in media, those acts incidental to hispractice and not of his own initiative

o write articles for publication givinginformation upon the law (and not individualrights or advising through column/ TV.broadcast, lest such be considered indirectadvertising)

o activity of an association for the purpose oflegal representation

Q: What are the prohibited types ofbusiness advertisements in the legalprofession?

A: Prohibited advertisement (Sec. 27, Canon ofProfessional Ethics):o Through touters of any kind whether allied

real estate firms or trust companiesadvertising to secure the drawing of deedsor wills

o Offering retainers in exchange for executorships or trusteeships to beinfluenced by the lawyer

o Furnishing or inspiring newspapercomments concerning the manner of theirconduct, the magnitude of the interests

involved, the importance of lawyersposition, and all other like self-laudation

Q: What is the purpose of the MandatoryContinuing Legal Education (MCLE)?

A: To ensure that lawyers throughout theircareer keep abreast with law and jurisprudence,maintain the ethics of the profession and

enhance the standards of the practice of law(Bar Matter 850, (2000))

Q: How often should the MCLE be taken?

A: Every three years and at least 36 hours oflegal education activities.

Q: What are the obligations of a lawyer in

taking the MCLE?

A: Obligations1) To self for continued improvement of

knowledge2) To his profession for maintenance of high

standards of legal education3) To the public for social consciousness

Q: Who are exempted from the MCLE?

A: Exemptions1. President, vice-president, cabinet members2. Members of Congress3. Chief Justice and incumbent and retired

members of the judiciary4. Chief state counsel, prosecutor and

assistant secretaries of the Department ofJustice

5. Solicitor General and assistants6. Government Corporate Counsel, his

deputies and assistants7. Chairman and members of Constitutional

Commissions8. Ombudsman and his deputies9. Heads of government agencies exercising

quasi-judicial functions

10. Incumbent deans, bar reviewers andprofessors of law who have 10 year teachingexperience

11. Officers and lecturers of the PhilippineJudicial Academy

12. Governors and mayor13. Those not in law practice (special

exemption)14. Those who have retired from the law

practice (special exemption)

Q: What is the duty of a public prosecutor?

A: It is upon the discretion of the prosecutor todecide what charge to file upon properappreciation of facts and evidences. Fiscals arenot precluded from exercising their sounddiscretion in investigation. His primary duty isnot to convict but to see that justice isserved. (People v. Pineda, 20 SCRA 748(1967))


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Q: What do you mean by privilegedcommunication?

A: An attorney cannot, without the consent of hisclient, be examined as to any communicationmade by the client to him or his advice giventhereon in the course of professionalemployment; nor can an attorneys secretary,stenographer, or clerk be examined, without theconsent of the client and his employer,

concerning any fact the knowledge of which hasbeen acquired in such capacity.

Requisites of Privileged Communication(Rule 130, Section 24 (b) of the RRC):(1) There is an attorney-client relationship or a

kind of consultancy requirement with aprospective client;

(2) The communication was made by the clientto the lawyer in the course of the lawyersprofessional employment;

(3) The communication must be intended to beconfidential.

Exceptions to privilege (Aguirre):(1) When a lawyer is accused by the client and

he needs to reveal information to defendhimself

(2) When the client discloses the intention tocommit a crime or unlawful act. (Futurecrime)

Q: What is the rule on conflict of interests?

A: GENERAL RULE: A lawyer may notrepresent two opposing parties at any point intime.

A lawyer need not be the counsel-of-record ofeither party. He does not have to publicly holdhimself as the counsel of the adverse party normake efforts to advance the adverse partysconflicting interests of record. It is enough thatthe counsel had a hand in the preparation ofthe pleading of one party.

EXCEPTION: W hen the parties agree, and foramicable settlement (Agpalo)

Tests to determine conflict of interest:

(1) when there are conflicting duties(2) when the acceptance of the new relations

invites or actually lead to unfaithfulness ordouble-dealing to another client

(3) when the attorney will be called upon to useagainst his first client any knowledgeacquired in the previous employment

NOTE: The test to determine whether there is aconflict of interest in the representation isprobability, not certainty of conflict.

Q: What is the difference between acharging lien and a retaining lien?

A: A charging lien is an equitable right to havethe fees and lawful disbursements due a lawyerfor his services, secured to him out of a money

judgment.

Related statutory basis: Rule 138, Sec. 37. Anattorney shall have a lien upon the funds,documents and papers of his client whichhave lawfully come into his possession andmay retain the same until his lawful fees anddisbursements have been paid, and may applysuch funds to the satisfaction thereof.

Requisites for Validity:(1) attorney-client relationship(2) lawful possession by lawyer of the clients

funds, documents and papers in hisprofessional capacity

(3) unsatisfied claim for attorneys fees ordisbursements

A retaining lien is a right merely to retain thefunds, documents and papers of his client whichhave lawfully come into his possession and mayretain the same until his lawful fees anddisbursements have been paid.

RETAINING CHARGING

Nature Passive lien. It

cannot beactivelyenforced. It isa general lien.

Active lien. It

can beenforced byexecution. It isa special lien.

Basis Lawfulpossession offunds, papers,documents,propertybelonging toclient

Securing of afavorablemoney

judgment forclient

Coverage Covers onlyfunds, papers,

documents,and propertyin the lawfulpossession ofthe attorney byreason of hisprofessionalemployment

Covers alljudgments for

the payment ofmoney andexecutionsissued inpursuance ofsuch judgment


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RETAINING CHARGING

Effectivity As soon as thelawyer getspossession ofthe funds,papers,documents,property

As soon as theclaim for attorneys feeshad beenentered intothe records ofthe case

Notice Client neednot be notifiedto make iteffective

Client andadverse partyneed tonotified tomake iteffective

Applicability May beexercisedbefore

judgment orexecution, orregardlessthereof

Generally, it isexercisableonly when theattorney hadalreadysecured afavorable

judgment forhis client

Q: When is a lawyer liable to his client fornegligence?

A: GENERAL RULE: Client is bound byattorneys conduct, negligence and mistake inhandling case or in management of litigation andin procedural technique, and he cannot be heardto complain that result might have been differenthad his lawyer proceeded differently.

EXCEPTIONS:1) Where it results in outright deprivation of

clients liberty or property or where interestof justice so requires

2) Where error by counsel is purely technicalwhich does not affect substantially clientscause

3) Ignorance, incompetence or inexperience oflawyer is so great and error so serious thatclient, who has good cause is prejudicedand denied a day in court

4) Gross negligence of lawyer5) Lack of acquaintance with technical part of

procedure.

Q: What should a lawyer do in case that hefinds that his client has perpetuated fraud?

A: A lawyer should not allow his client toperpetuate fraud. However, the lawyer shall notvolunteer the information about the clientscommission of the fraud to anyone for that willrun counter to his duty to maintain at all timesthe clients confidences and secrets. (Canon 21)

Rule 19.02 requires the lawyer to terminate hisrelationship with the client in the event the latterfails or refuses to rectify the fraud. (Agpalo)

Q: Differentiate an ordinary attorneys feefrom a quantum meruit-based attorneysfee.

A: An attorneys fee is the reasonable

compensation paid to a lawyer for the legalservices he has rendered to a client. The basisof this compensation is the fact of enjoyment bythe client.

Quantum Meruit means as much as a lawyerdeserves. Its essential requisite is acceptanceof the benefits by one sought to be charged forservices rendered under circumstances asreasonable to notify him that lawyer expectscompensation.

Quantum Meruit is authorized when:

o there is no express contract for attorneysfees agreed upon between the lawyer andthe client;

o when although there is a formal contract ofattorneys fees, the stipulated fees are foundunconscionable or unreasonable by thecourt;

o when the contract for attorneys fees is voiddue to purely formal matters or defects ofexecution;

o when the counsel, for justifiable cause, wasnot able to finish the case to its conclusion;

o when lawyer and client disregard thecontract of attorneys fees

o when there is a contract but no stipulation asto attorneys fees

Guides in Determining Attorneys Fees inQuantum Meruit Basis(1) Time spent and Extent of the Services

Rendered A lawyer is justified in fixinghigher fees when the case is so complicatedand requires more time and efforts to finishit.

(2) Importance of Subject Matter The moreimportant the subject matter or the biggervalue of the interest or property in litigation,

the higher is the attorneys fee.(3) Novelty and Difficulty of Questions Involved

When the questions in a case are noveland difficult, greater efforts, deeper studyand research, are bound to burn thelawyers time and stamina considering thatthere are no local precedents to rely upon.

(4) Skill demanded of the Lawyer The totalityof the lawyers experience provides him theskill and competence admired in lawyers.


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Q: What is the difference between achampertous contract and a contingentcontract?

A: A champertous contract is one where thelawyer stipulates with his client that upon theprosecution of the case, former will bear all theexpenses for the recovery of things or propertybeing claimed, and the latter pays only uponsuccessful litigation. This kind of contract is void

for being against public policy.

A contingent contract is an agreement in whichthe lawyers fee, usually a fixed percentage ofwhat may be recovered in the action, is made todepend upon the success in the effort to enforceor defend the clients right. It is a validagreement. It is different from a champertouscontract in that the lawyer does not undertake toshoulder the expenses of the litigation.

CONTINGENT CHAMPERTOUS

Contingent fee is

payable in cash.

Payable in kind only

Lawyers do notundertake to pay allexpenses of litigation

Lawyers undertake topay all expenses oflitigation

Not prohibited Void

Q: What are the factors considered incomputing attorneys fees?

A: Factors of the value (Rule 138, Sec, 24)1) the importance of the subject matter of

controversy;2) the extent of the services rendered; and

3) the professional standing of the attorney.

Additionally, the court is not bound by theopinion of attorneys as expert witness as toproper compensation and that written contractshall control the amount paid unless found bythe court to be unconscionable or reasonable.

According to jurisprudence, the court may alsotake into consideration the clients capacity topay.

Q: What are the limitations imposed onjudges and lawyers regarding thepurchase of properties under litigation?

A: According to Art. 1491 of the Civil Code,Justices, judges, prosecuting attorneys, clerks ofsuperior and inferior courts, and other officersand employees connected with theadministration of justice, cannot acquire bypurchase, even at a public or judicial auction,

either in person or through the mediation ofanother, the property and rights in litigation orlevied upon an execution before the court withinwhose jurisdiction or territory they exercise theirrespective functions; this prohibition includes theact of acquiring by assignment and shall apply tolawyers, with respect to the property and rightswhich may be the object of any litigation in whichthey may take part by virtue of their profession.

Q: When can the client terminate theservices of his/her counsel?

A: GENERAL RULE: The client has the right toterminate at any time with or without justcause.

LIMITATIONS:

Client cannot deprive counsel of right to bepaid services if dismissal is without cause

Client cannot discharge counsel as anexcuse to secure repeated extensions oftime

Notice of discharge is required for both courtand adverse party

Q: In what cases may a lawyer withdrawhis services from a client?

A: Rule 22.01 - A lawyer may withdraw hisservices in any of the following case:o When the client pursues an illegal or

immoral course of conduct in connectionwith the matter he is handling;

o When the client insists that the lawyerpursue conduct violative of these canonsand rules;

o When his inability to work with co-counselwill not promote the best interest of theclient;

o When the mental or physical condition of thelawyer renders it difficult for him to carry outthe employment effectively;

o When the client deliberately fails to pay thefees for the services or fails to comply withthe retainer agreement;

o When the lawyer is elected or appointed topublic office; and

o Other similar cases.

Conditions for the Substitution of Counsel1) Written request for substitution2) Written consent of client3) Written consent of the attorney to be

substituted or in the absence, proof ofservice of notice of said motion to theattorney to be substituted


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Q: What should a lawyer do after withdrawing his services or having hisservices substituted by another?

A: Rule 22.02 - A lawyer who withdraws or isdischarged shall, subject to a retainer lien,immediately turn over all papers and property towhich the client is entitled, and shall cooperatewith his successor in the orderly transfer of thematter, including all information necessary for

the proper handling of the matter.

Q: What are the requirements for admission to practice law?

A: A person is admitted to practice law in thePhilippine if s/he is a Filipino citizen, who is aresident of the Philippines, at least 21 years ofage, of good moral character, a holder of acollege degree and a graduate of a law schoolapproved and recognized by the Secretary ofEducation, and one who has successfully takenand passed the bar examinations and taken the

lawyers oath.

Q: What are the qualifications for thepractice of law?

A: GENERAL RULE: Any person duly admittedas member of the Bar and who is in good andregular standing is qualified to practice law.

EXCEPTIONS: (Rule 138)

(1) Any LAW STUDENT who has successfullycompleted the third year of the prescribed 4

year law curriculum and who is undergoinglaw student practice under the schoolsclinical legal education program.

(2) AGENT

a party in a civil suit may conduct hislitigation either personally or by attorneyunless the party is a juridical person.(Allowed in MTC, RTC, appellate court.)

for a criminal case, in a locality where alawyer is unavailable, a judge mayappoint a non-lawyer who is a residentof the province, and of good repute forprobity and ability to defend the

accused. (Allowed up to MTC-level only)(3) SELF-REPRESENTAION- A person may

represent himself before any court. He isbound by the same rules in conducting thetrial of his case. He cannot, after judgment,claim that he was not properly represented.

Q: What is the lawyers oath?

A: I, _____, do solemnly swear that I willmaintain allegiance to the Republic of thePhilippines.

I will support the Constitution and obey the lawsas well as the legal orders of the duly constitutedauthorities therein;

I will do no falsehood nor consent to the doing ofany in court;

I will not wittingly or willingly promote or sue anygroundless, false or unlawful suit nor give aidnor consent to the same;

I will delay no man for money or malice, and willconduct myself as a lawyer according to the bestof my knowledge and discretion with all goodfidelity as well to the court as to my clients; and

I impose upon myself this obligation voluntarily,

without any mental reservation or purpose ofevasion.

So help me God.

Q: What is an indigent litigant?

A: Indigent litigants are those(1) whose gross income and that of their

immediate family do not exceed an amountdouble the monthly minimum wage of anemployee and

(2) who do not own real property with a fairmarket value as stated in the current taxdeclaration of more than P300,000 shall beexempt from payment of legal fees (BarMatter No. 2012)

Q: What is the proposed requirement onMandatory Legal Aid Service for PracticingLawyers?

A: Every practicing lawyer is required to render aminimum of sixty (60) hours of free legal aidservices to indigent litigants in a year. Said 60hours shall be spread within a period of twelve(12) months, with a minimum of five (5) hours offree legal aid services each month. He shallcoordinate with the Clerk of Court for caseswhere he may render free legal aid service andshall be required to secure and obtain acertificate from the Clerk of Court attesting to thenumber of hours spent rendering free legal aidservices in a case. (Bar Matter 2012)


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Q: What are the fourfold duties of alawyer?

A: The duties of an attorney, impressed with thesolemnity of his oath, may be classified intothose which he owes to the court, to the public,to the bar, and to his client.

As an officer of the court, an attorney issubject to the disciplinary authority of the court

and to its orders and directives with respect tohis relation to the court as well as to his client.He is continually accountable to the court for themanner in which he exercises his privilege topractice law

A lawyers duty to this client dictates that hefaithfully, honestly and conscientiously representthe interest of his client.

A lawyers duty to the legal professionimposed upon him a relation to colleagues at thebar characterized by candor, fairness, and

unwillingness to resort to current businessmethods of advertising and encroachment ontheir practice, or dealing directly with theirclients.

Lastly, the practice of law is a profession, a formof public trust, the performance of which isentrusted only to those who are qualified andwho possess good moral character. The basicideal of the profession is to render public serviceand secure justice for those who seek its aid.(Agpalo)

Q: What is the purpose of legal aid,according to the IBP?

A: LEGAL AID IS NOT A MATTER OFCHARITY. It is a means for the correction ofsocial imbalance that may and often do leadto injustice, for which reason it is a publicresponsibility of the Bar. The spirit of publicservice should, therefore, underlie all legal aidoffices. The same should be administered toindigent and deserving members of thecommunity on all cases, matters and situationsin which legal aid may be necessary to forestallan injustice. (IBP Handbook, Guidelines

Governing the Establishment and Operation ofthe Legal Aid Office, Art. 1, Sec. 1)

Q: What is the character of the lawyer-client relationship and how is it created?

A: The relation of attorney and client is strictlypersonal and highly confidential and fiduciary.

(1) Strictly personal- It involves mutual trustand confidence of the highest degree,irrespective of whether the client is a privateperson or a government functionary. Since itis a personal relation, a court or administrative tribunal cannot but recognizeits creation on the faith of the clients word. Itshould not be established as the result ofpressure or deception.

(2) Fiduciary- The relation of attorney andclient is highly fiduciary in nature and of avery delicate, exacting and confidentialcharacter. It demands of an attorney anundivided allegiance, a conspicuous andhigh degree of good faith, disinterestedness,candor, fairness, loyalty, fidelity andabsolute integrity in all his dealings andtransactions with his clients and an utterrenunciation of every personal advantageconflicting in any way, directly or indirectly,with the interest of his client.

Q: Are lawyers prohibited from practicing adual profession or partnership?

A: NO. GENERAL RULE: Exercise of dualprofession is not prohibited but a lawyermust make it clear when he is acting as alawyer and when he is otherwise, especially inoccupations related to the practice of law.Reason: certain ethical considerations may beoperative in one profession and not in the other.(Agpalo)

A lawyer is not barred from dealing with his

client but the business transaction must becharacterized with utmost honesty and goodfaith. Business transactions between an attorneyand his client are disfavored and discouraged bypolicy of law because by virtue of a lawyersoffice, he is an easy position to take advantageof the credulity and ignorance of his client. Thus,there is no presumption of innocence orimprobability of wrongdoing in favor oflawyers. (Nakpil v. Valdez, 286 SCRA 758(1998))

Q: What is the duty of a counsel when a

client is believed to be guilty in a criminalcase?

A: The law makes it the lawyers duty never toreject, for any consideration personal to himself,the cause of the defenseless or the oppressed.Rule 14.01 complements it by requiring that: Alawyer shall not decline to represent a personsolely on account of his opinion regarding theguilt of said person.


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Q: What are the kinds of contempt?

A: Kinds of ContemptDirect ContemptConsists of misbehavior in the presence of ornear a court or judge as to interrupt or obstructthe proceedings before the court or theadministration of justice.

Indirect or Constructive Contempt

One committed away from the court involvingdisobedience of or resistance to a lawful writ,process, order, judgment or command of thecourt, tending to belittle, degrade, obstruct,interrupt or embarrass the court.

Civil contemptFailure to do something ordered by the courtwhich is for the benefit of the party.

Criminal contemptConsists of any conduct directed against theauthority or dignity of the court.

Q: What acts of a lawyer constitutecontempt?

A: A c t s o f a L a w y e r C o n s t i t u t i n g C o n t e m p t o Misbehavior as officer of courto Disobedience or resistance to court ordero Abuse or interference with judicial

proceedingso Obstruction in administration of justiceo Misleading courtso Making false allegations, criticisms, insults,

veiled threats against the courtso Aiding in unauthorized practice of law

(suspended or disbarred)o Unlawful retention of clients fundso Advise client to commit contemptuous acts

Q: What constitutes negligence orabandonment by a lawyer?

A: The failure to exercise due diligence or theabandonment if the clients cause makes thelawyer unworthy of the trust which the client hasreposed in him. It is a breach of his undertaking

with his client. To warrant suspension ordisbarment, however, the negligence orcarelessness in the performance of duty shouldnot only be gross in character but should havecaused material prejudice to clients interest aswell. Mere negligence or inattention whichproduces no pecuniary damage to the client mayonly justify reprimand or censure (Alcala v. DeVera) except when the breach of duty of clientalso constitutes a gross violation of obligation to

the court, in which case a severer sanction, suchas suspension from the practice of law, may bewarranted.(Agpalo)

Q: In what way can lawyers be civilly orcriminally liable?

A:CIVIL LIABILITY

Client is prejudiced by lawyers negligenceand misconduct.

Breach of fiduciary obligation

Civil liability to third persons

Libelous words in pleadings; violation ofcommunication privilege

Liability for costs of suit (treble costs) when lawyer is made liable for insisting onclients patently unmeritorious case orinterposing appeal merely to delay litigation

CRIMINAL LIABILITY

Prejudicing client through malicious breachof professional duty

Revealing client secrets

Representing adverse interests

Introducing false evidence

Misappropriating clients funds (estafa)

Libel except if statements are connectedwith the relevant, pertinent, and material tothe cause in hand or the subject of theinquiry

Q: What is a notary public and what ishis/her duty and purpose?

A: A NOTARY PUBLIC or a notary is any personcommissioned to perform official acts,acknowledgements; oaths and affirmations;

jurats; signature witnessing;copy certifications; and any other act authorizesin the rules

PurposeTo verify the personal appearance of affiant andthe genuineness of signature

To authenticate documents and verify dueexecution, making the documents admissible asevidence without proof of authenticity.

Notarization is not an empty, meaningless,routinary act. It is invested with substantivepublic interest, such that only those who arequalified or authorized may act as notariespublicA notarial document is by law entitled tofull faith and credit upon its face. Courts,administrative agencies and the public at


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large must be able to rely upon theacknowledgement executed by a notarypublic. (Baylon v. Almo, A.C. No.6962, June 25, 2008)

Q: What are the qualifications of a notarypublic?

A: A Notary Public must be a citizen of thePhilippines, over 21 years of age, a resident ofthe Philippines for at least one year andmaintains a regular place of work or business, amember of the Philippine Bar in good standing,with clearances from the Bar Confidant of theSC and the IBP and must have no conviction forany crime involving moral turpitude. (Hence allnotaries are lawyers but not all lawyers arenotaries.)

Q: What is a notarial commission?

A: A notarial commission is granted by anexecutive judge after petition of the lawyer, and

is good for two years. Every petition undergoesa hearing and approved after petition is provensufficient in form and substance, petitionerproves allegations in petition, petitionerestablishes to the satisfaction of the court thathe has read and understood the Rules onNotarial Practice.

Q: What can be notarized?

A: GENERAL RULE: A notary can notarize anydocument, upon request of affiant. Notarizationof document must be at the notary publics

regular place of work.

Exceptions:(1) in public offices, convention halls and other

places where oaths of office areadministered

(2) public function areas in hotels and similarareas used for the signing of instruments ordocuments requiring notarization

(3) hospitals and other medical institutionswhere a part to an instrument is confined fortreatment

(4) any place where a party to the instrument

requiring notarization is under detention

*Irregularity in place - if it is outside of histerritorial jurisdiction

CODE OF JUDICIAL CONDUCT

Q: How can the judiciary remainindependent or unaffected by media andinfluence?

A: Mass media has its duty to fearlessly butfaithfully inform the public about events andpersons. However, when a case has receivedwide and sensational publicity, the trial courtshould be doubly careful not only to be fairand impartial but also to give the appearanceof complete objectivity in its handling of thecase. (Go v. Court of Appeals, 206 SCRA 165)

Q: What is expected of a judges conductwhether in public and in private?

A: Judges shall ensure that not only is theirconduct above reproach, but that it is perceivedto be so in the view of a reasonable observer.(Canon 2, Sec. 1)

Respondent judge was also at fault for hisshortness of temper and impatience, contraryto the duties and restriction imposed upon himby reason of his office. He failed to observe theproper decorum expected of judicial officers.Judicial officers are given contempt powersso that they can remind counsels of theirduties in court without being arbitrary,unreasonable or unjust. Respondent shouldhave cited the complainant in contempt of courtinstead of throwing tantrums by banging hisgavel loudly and unceremoniously walking out ofthe courtroom.

Although respondent had a valid explanationfor carrying a gun, his act of carrying it inplain view of the lawyers (including thecomplainant) and considering what justhappened, cannot be taken as an innocentgesture. It was calculated to instill fear andintimidate the complainant. Respondent'sbehavior constitutes grave misconduct. A

judge's conduct should be free from theappearance of impropriety not only in his officialduties but in his everyday life. One who lives bythe precept that might is right is unworthy to be

a judicial officer. (Romero v. Valle (1987))


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Q: What are the grounds for disqualification or inhibition fromproceedings?

A: Canon 3, sec. 5

Judges shall disqualify themselves fromparticipating in any proceedings in which theyare unable to decide the matter impartially or inwhich it may appear to a reasonable observer

that they are unable to decide the matterimpartially. Such proceedings include, but arenot limited to, instances where:o The judge has actual bias or prejudice

concerning a party or personal knowledge ofdisputed evidentiary facts concerning theproceedings;

o The judge previously served as a lawyer orwas a material witness in the matter incontroversy;

o The judge, or a member of his or her family,has an economic interest in the outcome ofthe matter in controversy;

o The judge served as executor, administrator,guardian, trustee or lawyer in the case ormatter in controversy, or a former associateof the judge served as counsel during theirassociation, or the judge or lawyer was amaterial witness therein;

o The judge's ruling in a lower court is thesubject of review;

o The judge is related by consanguinity oraffinity to a party litigant within the sixth civildegree or to counsel within the fourth civildegree; or

o The judge knows that his or her spouse or

child has a financial interest, as heir,legatee, creditor, fiduciary, or otherwise, inthe subject matter in controversy or in aparty to the proceeding, or any other interestthat could be substantially affected by theoutcome of the proceedings

Under the Rules of Court, the grounds forMandatory or Compulsory Disqualification(Rule 131, ROC) are:1) He or his wife or his child is pecuniarily

interested as heir, legatee, creditor orotherwise;

2) Relation to either party within the sixthdegree of consanguinity or affinity or tocounsel within the 4th civil degree

3) When he has been an executor, guardian,administrator, trustee or counsel;

4) When he has presided in an inferior courtwhere his ruling or decision is subject toreview.

However, a judge may also voluntarily inhibithimself for just and valid reasons other thanthose mentioned above. (Rule 137, Sec. 1)This leaves the discretion to the judge to decidefor himself questions as to whether he will desistfrom sitting in case for other just and validreasons with only his conscience to guide him,unless he cannot discern for himself his inabilityto meet the test of the cold neutrality required ofhim, in which event the appellate court will seeto it that he disqualifies himself.

A decision to disqualify himself is not conclusiveand his competency may be determined onapplication for mandamus to compel him to act.Judges decision to continue hearing a case inwhich he is not legally prohibited from tryingnotwithstanding challenge to his objectivity maynot constitute reversible error.

DISQUALIFICATION INHIBITION

Basis Specific and exclusive No specificgrounds BUT

there is abroad basisfor such, i.e.,good, soundethicalgrounds

Role ofthe

judicialofficer

Judicial officer has nodiscretion to sit or trythe case

The matter isleft to thesounddiscretion ofthe judge

Q: How shall a judge ensure equality in theperformance of his duty?

A: Ensuring equality of treatment to all beforethe courts is essential to the due performance ofthe judicial office. (Canon 5)

This is a new Canon not found in the previoustwo Philippine Codes of Judicial Conduct. Itexpands the measures to promote equalityrequired by international human rightsagreements. Those agreements advocate auniversal application of law and non-discrimination between the sexes. (PhilJa)

Sec. 1. Judges shall be aware of, andunderstand, diversity in society and differencesarising from various sources, including but notlimited to race, color, sex, religion, nationalorigin, caste, disability, age, marital status,sexual orientation, social and economic statusand other like causes.


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Sec. 2. Judges shall not, in the performance ofjudicial duties, by words or conduct, manifestbias or prejudice towards any person or groupon irrelevant grounds.

Sec. 3. Judges shall carry out judicial duties withappropriate consideration for all persons, suchas the parties, witnesses, lawyers, court staffand judicial colleagues, without differentiation on

any irrelevant ground, immaterial to the properperformance of such duties.

Sec. 4. Judges shall not knowingly permit courtstaff or others subject to his or her influence,direction or control to differentiate betweenpersons concerned, in a matter before the judge,on any irrelevant ground.

Sec. 5. Judges shall require lawyers inproceedings before the court to refrain frommanifesting, by words or conduct, bias orprejudice based on irrelevant grounds, except

such as are legally relevant to an issue inproceedings and may be the subject oflegitimate advocacy.

Q: What are the prerequisites to the dueperformance of judicial office?

A: Competence and diligence are prerequisitesto the due performance of judicial office. (Canon6)

The judicial duties of a judge take precedenceover all other activities (sec.1). Judges shall

devote their professional activity to judicialduties, which include not only the performanceof judicial functions and responsibilities in courtand the making of decisions, but also other tasksrelevant to the judicial office or the courtsoperations (sec. 2).

In the instant case, respondent judge impededthe speedy disposition of cases by his successoron account of missing records of cases. This factreflects an inefficient and disorderly system inthe recording of cases assigned to his sala.Proper and efficient court management is asmuch the judge's responsibility for the Courtpersonnel are not the guardians of a Judge'sresponsibilities. A judge is expected to ensurethat the records of cases assigned to his salaare intact. There is no justification for missingrecords save fortuitous events. The loss of notone but eight records is indicative of grossmisconduct and inexcusable negligenceunbecoming of a judge. (Longboan v. Polig(1990))

legal ethics preweek 2010

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