Tiêu đề Legal and Judicial Ethics - Agpalo (2009).pdf ✅

Chapter I INTRODUCTORY §1.01 Preliminary. The law is not a trade nor a craft but a profession.1 Its basic ideal is to render public service and secure justice for those who seek its aid.2 If it has to remain an honorable profession and attain its basic ideal, those enrolled in its ranks should not only master its tenets and principles but should also, by their lives, accord continuing fidelity to them.3 This obligation is not an easy task, and its performance is made difficult by the ever-growing pressure of commercialism in all fields of human endeavor as well as by the fact that those tenets and principles have steadily grown through the years from numerous and scattered sources.4 The fulfillment of this obligation requires that professional standards be constantly inculcated among lawyers and that the rules and ethics of the profession be collated into a body of principles and made readily available to every attorney as his “manual of equipment without which he cannot do his part to keep ‘Director of Religious Affairs v. Bayot, 74 Phil. 749 (1944); Ledesma v. Climaco, G.R. No. 12815, June 28, 1974; In re Tagorda, 53 Phil. 37 (1929); People v. Daban, G.R. No. 31429, January 21,1972. 2Mayer v. State Bar, 2 Call2d 71, 39 2d 206 (1934). 3Docena v. Limon, 295 SCRA 262,266 (1998), citing Agpalo, Legal Ethics, 1983 ed., p. 1. 4The sources of legal ethics are the pertinent provisions of the Rules of Court, related laws, controlling decisions of the Supreme Court, The Code of Professional Responsibility, the Canons of Professional Ethics, applicable doctrines laid down by the court and writings of legal scholars on the subject. The Philippine system of legal ethics was taken from that of the United States (In re Cunanan, 4 Phil. 543 (1954); Mortel v. Aspiras, 100 Phil. 586 (1956). And the Canons of Professional Ethics observed in this jurisdiction are those of the American Bar Association. (In re Tagorda, Phil. 37 [1927]). Accordingly, this research study makes use of selected cases decided by courts in the United States as well as opinions of the Committee on Professional Ethics and Grievances of the American Bar Asso- ciation, cited hereinafter as A.B.A. Op. No. 1
2 LEGAL AND JUDICIAL ETHICS the law on the level of a profession.”5 This study seeks to partly fill up the need for the latter and to generate interest in the former. A lawyer, whether he be a private practitioner or a public prosecutor, forms part of the machinery of justice administered by the courts. Hence, included in this book are chapters XVIII and XIX which discuss in detail judicial conduct and liabilities of judges, respectively; and in order to reflect the same in the title of the book, the title has been changed from Legal Ethics to Legal and Judicial Ethics. §1.02. Definitions. The term “legal ethics” is the embodiment of all principles of morality and refinement that should govern the conduct of every member of the bar.6 It has also been broadly defined as the “living spirit of the profession, which limits yet uplifts it as a livelihood.”7 Specifically, it refers to that branch of moral science which treats of the duties which an attorney owes to the court, to his client, to his colleagues in the profession and to the public.8 A number of terms are used to describe a member of the legal profession, such as the words lawyer, attorney or attomey-at-law, advocate, barrister, counsel or counselor, proctor and solicitor. While there are theoretical differences among these terms,9 the actual distinctions, which have been practically abolished in the United States,10 do not exist in this jurisdiction. A member of the Philippine bar is commonly known by the term lawyer or attorney or attomey-at-law or counsel, by the Spanish % Rothman, 12 NJ 528, 97 A2d 621, 39 ALRd 1032 (1953). Mustice Manuel V. Moran’s Foreword to MALCOLM’S LEGAL AND JUDI- CIAL ETHICS, ix (1949). 7Re Rothman, 12 NJ 528, 97 A2d 621, 39 ALR2d 1032, 1045 (1953), quoting Dean H. Wigmore’s Foreword to CARTER’S THE ETHICS OF THE LEGAL PRO- FESSION (1915). “MALCOLM, LEGAL AND JUDICIAL ETHICS, 8 (1949). 9The words lawyer, attorney and attomey-at-law are synonymous. A lawyer is one skilled in the law. An advocate is a person learned in the law and duly admitted to practice, who advises a client and pleads for him in court. A barrister is a person entitled to practice as an advocate or counsel in superior courts in England. A counsel or counselor is an advocate or leader, a member of the legal profession. A doctor is an attorney in the admiralty and ecclesiastical courts. A solicitor is a person prosecuting or defending suits in courts of chancery. 7 C.J.S. 702-703. 10Re Paschal, 10 Wall (US) 483,19 L ed 992 (1890).
INTRODUCTORY 3 word abogado11 or the Filipino word manananggol. The term has a fixed and general signification and refers to that class of persons who by license are officers of the court and who are empowered to appear, prosecute and defend and on whom peculiar duties, responsibilities and liabilities are devolved by law as a consequence.12 A person who is a member of the Philippine Bar and who, by the warrant of another, practices law13 or who acts professionally in legal formalities, negotiations or proceedings, by authority of his client, is an attorney within the meaning of the term.14 A counsel is an adviser, a person professionally engaged in the trial or management of a cause in court; a legal advocate managing a case at law.15 Those who pass the Shari’a Bar are not entitled to be called “Attorneys,” unless they have also been admitted to the Philippine Bar.16 In other words, only those who are admitted to the Philippine Bar can be called “attorneys.” The other terms commonly encountered in the practice of law are counsel de parte, counsel de oficio, attorney of record, of counsel, amicus curiae, bar and bench. A counsel de parte is an attorney retained by a party litigant, usually for a fee, to prosecute or defend his cause in court. The term implies freedom of choice either on the part of the attorney to decline or accept the employment17 or on the part of the litigant to continue or terminate the retainer at any time.18 A counsel de oficio is an attorney appointed by the court to defend an indigent defendant in a criminal action19 or to represent a destitute party in a case.20 The term connotes little or no other choice than the acceptance by the indigent party of whoever is appointed as his counsel21 and, unless excused therefrom by the court, the uThis term means not only possession of the academic degree of Bachelor of Laws but membership in the bar as well as after due admission thereto, qualifying one for the practice of law. Cui v. Cui, 11 SCRA 755 (1964). I2Cui v. Cui, 11 SCRA 755 (1964). lsRe Bailey. 50 Mont. 365,146 p. 1101. 14National Savings Bank v. Ward, 100 U.S. 195, 25 L ed 621 (1880). 15Villegas v. Legaspi, 113 SCRA 39 (1982). 16Alawi v. Alauya, 268 SCRA 628 (1997). 17Canon 31, Canons of Professional Ethics; Enriquez, Sr. v. Gimenez, 107 Phil. 932 (1960). 18Rustia v. CFI of Batangas, 44 Phil. 62 (1922); Bacaro v. Court of Appeals, 37 SCRA 36 (1971). 19Rule 116, Secs. 3, 4, 5; Rule 122, Sec. 13; Rule 138, Sec. 32, Rules of Court. “Rule 138, Sec. 31, Rules of Court; Cf. In re Filart, 40 Phil. 205 (1919). 21U.S. v. Laranja, 21 Phil. 500 (1912).
4 LEGAL AND JUDICIAL ETHICS discharge by the designated attorney of the duty to faithfully and conscientiously render effective legal assistance in favor of such party.22 An attorney of record is the attorney whose name, together with his address, is entered in the record of a case as the designated counsel of the party litigant in the case and to whom judicial notices relative thereto are sent.23 A lawyer called “of counsel” is an experienced lawyer, who is usually a retired member of judiciary, employed by law firms as consultant. An amicus curiae is an experienced and impartial attorney invited by the court to appear and help in the disposition of issues submitted to it.24 It implies the friendly intervention of counsel to call the attention of the court to some matters of law or facts which might otherwise escape its notice, and in regard to which it might go wrong.25 The term “bar” refers to the legal profession. The word “bench” means the judiciary. §1.03. Power to regulate practice of law. The practice of law is a privilege impressed with public interest. The reason for this is that an attorney, who alone enjoys such privilege, owes duties not only to his client but also to the court, to his brethren in the profession and to the public, and takes part in one of the most important functions of the state — the administration of justice.26 He is the first one, either as a government lawyer or as a private practitioner, to sit in judgment on every case, and whether the court will be called upon to act depends upon his decision. He thus sets the judicial machinery in motion and participates in judicial proceedings.27 The interest of the public requires that the function be faithfully discharged and rendered only by those who are qualified, fit and honest and who possess good moral character.28 22Ledesma v. Climaco, 57 SCRA 473 (1974); People v. Estebia, 27 SCRA 106 (1969); People v. Irisuillo, 92 Phil. 1 (1948). “Rule 7, Sec. 5, Rules of Court; Flores v. Zurbito, 37 Phil. 746 (1918); U.S. v. Borromeo, 20 Phil. 189 (1911); Vivero v. Santos, 98 Phil. 500 (1956); Ramos v. Poten- ciano, 9 SCRA 587 (1963). “Rule 168, Sec. 36, Rules of Court. “Hamlin v. particular Baptist Meeting House, 69 A 315; Kemp v. Rubin, 64 NYS2d 518. 2eIn re Integration of the Philippine Bar, 49 SCRA 22 (1973); Cf. Ortiga v. Ri- vera, 37 SCRA 577 (1971). 27Ruckenbrod v. Mullins, 133 2d 325,144 ALR 839 (1943). “/re re Cunanan, 94 Phil. 554 (1954); Phil. Ass’n. of Free Labor Unions v. Binal- bagan Isabela Sugar Co., Inc., 8 SCRA 700 (1971); In re Parazo, 82 Phil. 230 (1948).