Pale-prelims-reviewer.docx

PRACTICE OF LAW Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training, and experience

4. Defrauding of injured persons having proper causes of action but ignorant of legal rights and court procedures by means of contracts which retain exorbitant percentages of recovery and illegal charges for court costs and expenses and by settlement made for quick returns of fees and against just rights of the injured persons.

Essential criteria in determining whether a person is engaged in the practice of law [CAHA] 1. Compensation – implies that one must have presented himself to be in active practice and that his professional services are available to the public for compensation, as a source of livelihood or in consideration of his said services; se 2. Application of law, legal principle, practice or procedure which calls for legal knowledge, training and experience; 3. Habituality – implies customary or habitually holding oneself out to the public as a lawyer. Practice of law is more than an isolated appearance for it consists in frequent or customary action; and 4. Attorney-Client relationship - engaging in the practice of law presupposes the existence of a lawyer-client relationship. Ten (10) years of practice of law includes work as a litigator, in-house counsel, giving of legal advice, teaching of law, and even foreign assignment which requires the knowledge and application of the laws. Requirements 1) a Citizen of the Philippines; 2) At least 21 years of age; 3) Of Good moral character; 4) a Resident of the Philippines; 5) Must produce before the SC satisfactory Evidence of good moral character; 6) No charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines 7) Must have complied with the Academic requirements; 8) Must Pass the bar examinations; 9) Take the lawyer’s Oath; and 10) Sign the Roll of Attorneys.

NON LAWYERS IN COURT The following are the instances whereby non-lawyers may appear in court: 1) Cases before the MTC: A party to the litigation, may conduct his own case or litigation in person, with the aid of an agent or friend appointed by him for that purpose 2)

NOTE: A non-lawyer conducting his own litigation is bound by the same rules in conducting the trial case. He cannot after judgment, claim that he was not properly represented. 3)

Criminal case before the MTC in a locality where a duly licensed member of the Bar is not available, the judge may appoint a nonlawyer who is a: a) Resident of the province; and b) Of good repute for probity and ability to aid the accused in his defense

4)

Any official or other person appointed or designated to appear for the Government of the Philippines in accordance with law

Continuing requirements

Attorney-at-law vs. Attorney-in-fact ATTORNEY-AT-LAW Class of persons who are licensed officers of the court empowered to appear, prosecute and defend, and upon whom peculiar duties, responsibilities and liabilities are developed by law as a consequence.

ATTORNEY-IN-FACT Simply an agent whose authority is strictly limited by the instrument appointing him. His authority is provided in a special power of attorney, or general power of attorney, or letter of attorney. He is not necessarily a lawyer.

NON-LAWYERS IN ADMINISTRATIVE TRIBUNAL 1) Under the Labor Code, non-lawyers may appear before the NLRC or any Labor Arbiter, if: a) They represent themselves; or b) They represent their organization or members thereof Or c) If they are duly accredited members of any legal aid office duly recognized by the Department of Justice, or the Integrated Bar of the Philippines in cases referred to by the latter. NOTE: He is not, however, entitled to attorney’s fees under Article 222 of the Labor Code for not being a lawyer

Barratry vs Ambulance Chasing BARRATRY An offense of frequently exciting and stirring up quarrels and suits, either at law or otherwise; lawyer’s act of fomenting suits among individuals and offering his legal services to one of them. Barratry is not a crime under the Philippine laws. However, it is proscribed by the rules of legal ethics.

AMBULANCE CHASING An act of chasing victims of accidents for the purpose of talking to the said victims (or relatives) and offering his legal services for the filing of a case against the person(s) who caused the accident(s). It has spawned a number of recognized evils such as [FSMD]: 1. Fomenting of litigation with resulting burdens on the courts and the public; 2. Subordination of perjury; 3. Mulcting of innocent persons by judgments, upon manufactured causes of action; and

Before any other court, a party may conduct his litigation personally but if he gets someone to aid him, that someone must be authorized member of the Bar

2)

Under the Cadastral Act, a non-lawyer can represent a claimant before the Cadastral Court

PROCEEDINGS WHERE LAWYERS ARE PROHIBITED FROM APPEARING 1) Proceedings before the Small Claims Court - No attorney shall appear in behalf of or represent a party at the hearing, unless the attorney is the plaintiff or defendant (Sec. 17, Rule of Procedure for Small Claims Cases). NOTE: If the court determines that a party cannot properly present his/her claim or defense and needs assistance, the court may, in its discretion, allow another individual who is not an attorney to assist that party upon the latter’s consent. (Sec. 17, Rule of Procedure for Small Claims Cases) 2)

Proceedings before the Katarungang Pambarangay - During the pre-trial conference under the Rules of Court, lawyers are prohibited from appearing for the parties. Parties must appear in

person only except minors or incompetents who may be assisted by their next of kin who are not lawyers PUBLIC OFFICIALS NOT ALLOWED TO ENGAGE IN LAW PRACTICE (ABSOLUTE PROHIBITION) [JOPPC2OMS]: 1) Judges and other officials and employees of the Supreme Court 2) Officials and employees of the OSG 3) Government Prosecutors 4) President, Vice-President, Members of the Cabinet, their deputies and assistants 5) Members of the Constitutional Commission 6) Civil Service Officers or employees whose duties and responsibilities require that their entire time be at the disposal of the government 7) Ombudsman and his deputies 8) All governors, city and municipal Mayors and 9) Those prohibited by Special laws. RESTRICTIONS ON THE PRACTICE OF LAW ON CERTAIN INDIVIDUALS (RELATIVE PROHIBITION) 1) No Senator or member of the House of Representatives may personally “appear” as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administration bodies NOTE: What is prohibited is to “personally appear” in court and other bodies. The word “appearance” includes not only arguing a case before any such body but also filing a pleading on behalf of a client as “by simply filing a formal motion, plea, or answer.” 2)

3)

4)

5)

Under the Local Government Code, Sanggunian members may practice their professions provided that if they are members of the Bar, they shall NOT: a) Appear as counsel before any court in any civil case wherein a local government unit or any office, agency, or instrumentality of the government is the adverse party; b) Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office; c) Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official; or d) Use property and personnel of the government except when the Sanggunian member concerned is defending the interest of the government. Under Sec. 1, R.A. 910, as amended, a retired justice or judge receiving pension from the government, cannot act as counsel: a) In any civil case in which the Government, or any of its subdivision or agencies is the adverse party; or b) In a criminal case wherein an officer or employee of the Government is accused of an offense in relation to his office; nor c) Collect any fees for his appearance in any administrative proceedings to maintain an interest adverse to the government, provincial or municipal, or to any of its legally constituted officers). Civil service officers and employees without permit from their respective department heads A former government attorney cannot, after leaving government service, accept engagement or employment in connection with any matter in which he had intervened while in the said service

DEFINITIONS: Morality Good moral character Deceitful Conduct An act that has the proclivity for fraudulent and deceptive misrepresentation, artifice or device that is used upon another who is ignorant of the fact, to the prejudice and damage of the party imposed upon (CPR Annotated, PhilJA).

It is the transgression of any provision of law, which need not be a penal law. The presence of evil intent on the part of the lawyer is not essential in order to bring his act or omission within the terms of this Rule. Immoral Conduct Conduct which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community. To warrant disciplinary action, the act must not only be merely immoral but grossly immoral. Grossly immoral conduct 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 willful, flagrant, or shameless act, which shows a moral indifference to the opinion of respectable members of the community Dishonest conduct - concealment or distortion of truth in a matter of fact relevant to one’s office or connected with the performance of his duty

Canons applied in SC DECISIONS: CANON 1 - A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW OF AND LEGAL PROCESSES. Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. Rule 1.02 - A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system. Rule 1.03 - A lawyer shall not, for any corrupt motive or interest, encourage any suit or proceeding or delay any man's cause. Rule 1.04 - A lawyer shall encourage his clients to avoid, end or settle a controversy if it will admit of a fair settlement. 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 6 - THESE CANONS SHALL APPLY TO LAWYERS IN GOVERNMENT SERVICES IN THE DISCHARGE OF THEIR TASKS. 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. Rule 7.03 - A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he whether in public or private life, behave in a scandalous manner to the discredit of the legal profession. 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.

CANON 15 - A LAWYER SHALL OBSERVE CANDOR, FAIRNESS Unlawful Conduct

AND LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENTS.

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Rule 15.07. - A lawyer shall impress upon his client compliance with the laws and the principles of fairness. 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.

“He violated his duty to promote respect for law and legal processes and not to abet activities aimed at defiance of the law” 

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 16.04 - 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. 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. RULE 138, Rules of Court Section 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: 1) any deceit, malpractice, or other gross misconduct in such office, 2) grossly immoral conduct, or 3) by reason of his conviction of a crime involving moral turpitude, or 4) for any violation of the oath which he is required to take before the admission to practice, or 5) for a wilfull disobedience of any lawful order of a superior court, or 6) for corruptly or willful appearing as an attorney for a party to a case without authority so to do. 7) The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice. SUPREME COURT DECISIONS

Asking substantial amount of money to be given to the NLRC Commissioner to insure a favorable decision DISBARMENT – GROSS MISCONDUCT, VIOLATION OF LAWYERS OATH (not to delay any man for money/malice) 1, 1.01, 1.02

Advising to execute another Deed of Absolute Sale antedate to evade payment of capital gain’s taxes DISBARMENT – GROSS MISCONDUCT and DISHONESTY 1, 1.01, 1.02, 7.03, 15, 15.07, 17

“A lawyer should encourage his client to avoid, end or settle the controversy if it will admit of a fair settlement” “A lawyer should be a mediator for concord and conciliator for compromise, rather than a virtuoso of technicality in the conduct of litigation” 

Father and son’s counsels brought suit against each other NONE.

“When an officer or employee is disciplined, the object sought is not the punishment of such officer or employee, but the improvement of the public service and the preservation of the public’s faith and confidence in the government; Acts that go against the established rules of conduct for government personnel bring harm to the civil service, whether they result in loss or not.” “Dishonesty is defined as the concealment or distortion of truth in a matter of fact relevant to one’s office or connected with the performance of his duty.” 

Profiting venture involving the processing of claims for SSS death and funeral benefits – incorrect disbursement of public funds Cases regarding sexual acts/ conducts/ relationships

Cases which involved the constitution, law or legal orders

“Failed to maintain the highest degree of morality expected and required of a member of the bar”

“Sworn to uphold the constitution and used legal knowledge for lawful end, amounts to malpractice in his office and serious misconduct”

“Grossly immoral conduct – conduct so corrupt and false that it constitutes a criminal act or so unprincipled or disgraceful to be reprehensible to a high degree”

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“Lawyers, as keepers of public faith, are burdened with a higher degree of social responsibility and thus must hand their personal affairs with greatest caution”

Assist in dishonest scheme of notarizing document that evades the law against foreign ownership of lands SUSPENSION – UPHOLD THE CONSTITUTION

“He should advise client to uphold the law, not to violate or disobey it. He should not recommend to his client any recourse or remedy that is contrary to law, public policy, public order and public morals” 

Proposal of an unlawful scheme misrepresentation SUSPENSION – OBEY THE LAWS 1, 1.01, 1.02

through

deceitful

“Every lawyer should not render any service or give advice to any client that would involve defiance of the very laws that he is bound to uphold and obey” “Grave misconduct – improper or wrong conduct, the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies a wrongful intent and not mere error of judgement” “Gross misconduct by an attorney in his professional or private capacity renders him unfit to manage the affairs of others and is a ground for suspension/disbarment – because good moral character is an essential qualification for the admission of an attorney and for continuance of such privilege

“A member of the bar and officer of the court is not only required to refrain from adulterous relationship, but must also behave himself as to avoid scandalizing the public by creating belief that he is flouting those moral standards” “As officers of the court, lawyers must in fact and in truth be of good moral character” “Immoral conduct involves acts that are willful, flagrant, or shameless, and that show a moral indifference to the opinion of the upright and respectable members of the community.” “A lawyer may be disbarred for any misconduct, whether in his professional or private capacity, which shows him to be wanting in moral character, in honesty, probity and good demeanor or unworthy to continue as an officer of the court.” “Illicit sexual relations have been previously punished with disbarment, indefinite or definite suspension, depending on the circumstances.” 

Abandoned lawful wife and cohabited with another woman DISBARMENT – GROSSLY IMMORAL

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Convinces married woman to marry him who supported him thru law school and abandons child; then subsequently marry DISBARMENT – GROSSLY IMMORAL

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Taking advantage of position to have carnal knowledge with a student under threat of failing her subjects DISBARMENT – GROSSLY IMMORAL

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Carrying on an immoral relationship with a married man, believing that their 2nd marriage was valid and immediately distancing herself upon discovery of real civil status DISMISS. – NOT GROSSLY IMMORAL

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Inviting another married man’s wife and her 10-year old daughter to sleep with him in the same bed while arms around the woman, however not proven; entering room with just towel wherein woman, daughter and 2 other women companions are inside SUSPENSION – GROSSLY IMMORAL 7 & 7.03

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Atty’s act of engaging in sex with a young lass, the daughter of his former employee, sexually abusing her, + also showed no remorse whatsoever when he asserted that he did nothing wrong because she allegedly agreed and he even gave her money DISBARMENT – GROSSLY IMMORAL, VIOLATION OF OATH 1, 1.01, 7, 7.03

“Good moral character is not only a condition precedent to admission to the practice of law; Continued possession is also essential for remaining in the practice of law” “Power to disbar must be exercised with great caution and only in clear case of misconduct that seriously affects the standing and character of rhe lawyer; It shall never be decreed where any lesser penalty such as temporary suspension could accomplish the end desired” 

Forged wife’s signature in the bank loan documents (however proven to be authorized by wife), and sired a daughter with a woman not his wife (proven) – immorality and abandonment of his own family SUSPENDED – DISHONESTY AND GROSSLY IMMORAL CONDUCT

“It is difficult to state with precision and to fix an inflexible standard as to what is “grossly immoral conduct” or to specify the moral delinquency and obliquity which render a lawyer unworthy of continuing as a member of the bar—the rule implies that what appears to be unconventional behavior to the straight-laced may not be the immoral conduct that warrants disbarment.” “Immorality has not been confined to sexual matters” “Only those acts which cause loss of moral character should merit disbarment or suspension, while those acts which neither affect nor erode the moral character of the lawyer should only justify a lesser sanction unless they are of such nature and to such extent as to clearly show the lawyer’s unfitness to continue in the practice of law” 

Atty’s act of kissing client in the lips (Ruled as beso-beso, greeting) REPRIMAND – NOT GROSSLY IMMORAL Cases which involved dealings with money, debts or obligations

“Deception and other fraudulent acts by a lawyer are disgraceful and dishonorable. They reveal moral flaws in a lawyer.” “A lawyers relationship with others should be characterized with highest degree of good faith, fairness and candor.” 

Furnish spurious documents DISBARMENT – DECEITFUL CONDUCT

“The deliberate failure to pay just debts and the issuance of worthless checks constitutes gross misconduct” “Prompt payment of financial obligations is one of the duties of a lawyer” “A lawyer may be disciplined not only for malpractice and dishonesty in his profession but also for gross misconduct outside his professional capacity” “Cannot ordinarily discipline a lawyer for misconduct committed in his non-professional/ private capacity, except when it is so gross in character as to show him morally unfit and unworthy of the privilege which his license and law confer” 

Issuance of bouncing checks, showing no remorse or refusal to recognize any wrong SUSPENSION – VIOLATION OF LAWYERS OATH

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Failure to honor debts even after several demands + indifference to the complaint SUSPENSION - CONDUCT UNBECOMING OF AN OFFICER 1, 1.01, 7, 7.03, 11

“A lawyer may be disciplined for misconduct committed either in his professional or private capacity” “A lawyer’s failure to return the excess money in his possession gives rise to the presumption that he has misappropriated it for his own use to the prejudice of, and in violation of trust reposed to him” 

Receiving various amounts of money but failed to render an accounting; Did nothing after receipt of money DISBARMENT – MISCONDUCT 1.01, 16, 16.01, 16.04

“Any conduct unbecoming of a lawyer constitutes a violation of his oath” “A lawyer should comply with the orders of the Court and of the Court’s duly constituted authorities, like the IBP” 

Receiving money after having made them believe that she could assist them in ensuring redemption of property, paired with wanton disregard of the several notices sent to her by IBP SUSPENSION – DECEITFUL CONDUCT 1 & 1.01