A. To society (Canons 1 to 6)

Atty. Jericho Del Puerto

Atty. Jericho Del Puerto

Lawyer, Author, Mentor
Canon 1: A lawyer shall uphold the Constitution, obey the laws of the land, and promote respect for law and legal processes.

Frequency: ★★★★☆

a. Respect for law and legal processes

Canon 1: A lawyer shall uphold the Constitution, obey the laws of the land, and promote respect for law and legal processes.

As first edicts. It is no accident that these are the first edicts laid down in the Code of Professional Responsibility for these are a lawyer’s foremost duties. Lawyers should always keep in mind that, although upholding the Constitution and obeying the law is an obligation imposed on every citizen, a lawyer’s responsibilities under Canon 1 mean more than just staying out of trouble with the law. As servants of the law and officers of the court, lawyers are required to be at the forefront of observing and maintaining the rule of law. They are expected to make themselves exemplars worthy of emulation. This, in fact, is what a lawyer’s obligation to promote respect for law and legal processes entails. (Re: Report on the Financial Audit Conducted on the Books of Account of Atty. Raquel G. Kho, A.M. No. P-06-2177, 10 April 2007)

Rule 1.01: A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

Concept: Unlawful conduct. By definition, any act or omission contrary to law is unlawful. It does not necessarily imply the element of criminality although it is broad enough to include it. (Ibid.)

Thus, 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 Rule 1.01 which specifically prohibits lawyers from engaging in unlawful conduct. (Ibid.)

Any act or omission that is contrary to, or prohibited or unauthorized by, or in defiance of, disobedient to, or disregards the law is “unlawful.” (Jimenez v. Francisco, A.C. No. 10548, 10 December 2014)

2) Dishonest, deceitful

To be “dishonest” means the disposition to lie, cheat, deceive, defraud or betray; be unworthy; lacking in integrity, honesty, probity, integrity in principle, fairness and straight forwardness while conduct that is “deceitful” means the proclivity for fraudulent and deceptive misrepresentation, artifice or device that is used upon another who is ignorant of the true facts, to the prejudice and damage of the party imposed upon. (Ibid.)

By altering the material dates to make it appear that the Notice of Appeal was timely filed, the respondent-lawyer committed an act of dishonesty. Under pertinent rules, dishonesty constitutes grave misconduct upon which the Court, in a recent case, imposed a one-year suspension on respondent therein for inserting in the records of the case a certification of non-forum shopping and making it appear that the same was already part of such records at the time the complaint was filed. (Rivera v. Corral, A.C. No. 3548, 04 July 2002)

A one-year suspension was similarly imposed on respondent in Reyes v. Atty. Rolando Javier for deceiving his client into believing that he filed the petition on time when in fact it was filed on a much later date. It should be stressed that brazenly resorting to such a legal subterfuge to mislead the court and to cover up for his failings toward his client is not only a disgraceful indictment on respondent’s moral fiber and personal fitness to his calling as a lawyer. It is also an embarrassment to his brethren in the Bar. Such misconduct warrants a similar penalty for the Court cannot tolerate any misconduct that tends to besmirch the fair name of an honorable profession. (Ibid.)

a) Deceitful conduct

In the facts obtaining in this case, Atty. Francisco clearly violated the canons and his sworn duty. He is guilty of engaging in dishonest and deceitful conduct when he admitted to having allowed his corporate client, Clarion, to actively misrepresent to the SEC, the significant matters regarding its corporate purpose and subsequently, its corporate shareholdings. In the documents submitted to the SEC, such as the deeds of assignment and the GIS, Atty. Francisco, in his professional capacity, feigned the validity of these transfers of shares, making it appear that these were done for consideration when, in fact, the said transactions were fictitious, albeit upon the alleged orders of Jimenez. (Jimenez v. Francisco, supra.)

Where a lawyer borrowed Php500,000.00, executed promissory note, issued a postdated check but later on bounced, failed to contact/explain to the creditor despite receiving a demand letter, his failure to honor his just debt constitutes dishonest and deceitful conduct. This dishonest conduct was compounded by Atty. Mendoza’s act of interjecting flimsy excuses that only strengthened the conclusion that he refused to pay a valid and just debt. (Sosa v. Mendoza, A.C. No. 8776, 25 March 2015)

3) Immoral conduct

A member of the bar should have moral integrity in addition to professional probity. (Arciga v. Maniwang, A.C. No. 1608, 14 August 1981)

Immoral conduct has been defined as “that 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.” (Ibid.)

Immoral conduct is gross when it is so corrupt as to constitute a criminal act, or so unprincipled as to be reprehensible to a high degree, or when committed under such scandalous or revolting circumstances as to shock the community’s sense of decency. (Garrido v. Garrido, En Banc, A.C. 65983, 04 February 2010)

Membership in the legal profession is bestowed upon individuals who are not only learned in law, but also known to possess good moral character. Lawyers should act and comport themselves with honesty and integrity in a manner beyond reproach, in order to promote the public’s faith in the legal profession. (Jimenez v. Francisco, supra.)

3) Gross immorality

For misconduct to warrant disciplinary action, the same must be “grossly immoral, that is, it must be so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree.” (Fabugais v. Faundo, G.R. No. 10145, 11 June 2018)

Immoral conduct and gross immorality are distinguished from each other as the supreme penalty of disbarment arising from conduct requires grossly immoral, not simply immoral, conduct. (Garrido v. Garrido, supra.)

Arciga v. Maniwang, supra.
1) Where lawyer Arturo P. Lopez succeeded in having carnal knowledge of Virginia C. Almirez, under promise of marriage, which he refused to fulfill, although they had already a marriage license and despite the birth of a child in consequence of their sexual intercourse; he married another woman, and during Virginia’s pregnancy, Lopez urged her to take pills to hasten the flow of her menstruation and he tried to convince her to have an abortion, to which she did not agree. (Arciga v. Maniwang, supra., citing Almirez v. Lopez, A.C. No. 481, 28 February 1969)
2) Where lawyer Francisco Agustin made Anita Cabrera believe that they were married before Leoncio V. Aglubat in the City Hall of Manila, and, after such fake marriage, they cohabited and she later give birth to their child. (Ibid., citing Cabrera v. Agustin, 106 Phil. 256.)
3) Where lawyer Jesus B. Toledo abandoned his lawful wife and cohabited with another woman who had borne him a child. (Ibid., citing Toledo v. Toledo, 117 Phil. 768)
4) The conduct of Abelardo Simbol in making a dupe of Concepcion Bolivar by living on her bounty and allowing her to spend for his schooling and other personal necessities, while dangling before her the mirage of a marriage, marrying another girl as soon as he had finished his studies, keeping his marriage a secret while continuing to demand money from the complainant, and trying to sponge on her and persuade her to resume their broken relationship after the latter’s discovery of his perfidy are indicative of a character not worthy of a member of the bar. (Ibid., citing Bolivar v. Simbol, 123 Phil. 450)
5) Where Flora Quingwa, a public school teacher, who was engaged to lawyer Armando Puno, was prevailed upon by him to have sexual congress with him inside a hotel by telling her that it was alright to have sexual intercourse because, anyway, they were going to get married. She used to give Puno money upon his request. After she became pregnant and gave birth to a baby boy, Puno refused to marry her. (Ibid., citing Quingwa v. Puno, A.C. No. 389, 28 February 1967)
6) Where lawyer Anacleto Aspiras, a married man, misrepresenting that he was single and making a promise of marriage, succeeded in having sexual intercourse with Josefina Mortel. Aspiras faked a marriage between Josefina and his own son Cesar. Aspiras wrote to Josefina: “You are alone in my life till the end of my years in this world. I will bring you along with me before the altar of matrimony.” “Through thick and thin, for better or for worse, in life or in death, my Josephine you will always be the first, middle and the last in my life.” (Ibid., citing Mortel v. Aspiras, 100 Phil. 586)
7) Where lawyer Ariston Oblena, who had been having adulterous relations for fifteen years with Briccia Angeles, a married woman separated from her husband, seduced her eighteen-year-old niece who became pregnant and begot a child. (Ibid., citing Royong v. Oblena, 117 Phil. 865)
8) In Macarrubo v. Macarrubo, the respondent lawyer entered into multiple marriages and subsequently used legal remedies to sever them. It was ruled that the respondent’s pattern of misconduct undermined the institutions of marriage and family – institutions that this society looks up to for the rearing of our children, for the development of values essential to the survival and well-being of our communities, and for the strengthening of our nation as a whole. In this light, no fate other than disbarment awaited the wayward respondent. (Garrido v. Garrido citing Macarrubo v. Macarrubo, En Banc, A.C. No. 6148, 27 February 2004)
9) In Villasanta v. Peralta, the respondent lawyer married the complainant while his marriage with his first wife was subsisting. It was held that the respondent’s act of contracting the second marriage was contrary to honesty, justice, decency and morality. The lack of good moral character required by the Rules of Court disqualified the respondent from admission to the Bar. (Ibid., citing Villasanta v. Peralta, En Banc, 30 April 1957)
10) In Conjuangco, Jr. v. Palma, where the respondent secretly contracted a second marriage with the daughter of his client in Hongkong. It was found that the respondent exhibited a deplorable lack of that degree of morality required of members of the Bar. In particular, he made a mockery of marriage – a sacred institution that demands respect and dignity. We also declared his act of contracting a second marriage contrary to honesty, justice, decency and morality. (Ibid. citing Conjuangco, Jr. v. Palma, En Banc, A.C. No. 2474, 15 September 2004)

Case not considered as grossly immoral

Re: Decision dated 17 March 2011 in Criminal Case No. SB-28361 entitled “People of the Philippines v. Joselito C. Barrozo” (July 2015)
1) Where a lawyer is in a live-in relationship and both have no impediment to marry: Where a lawyer and a woman engaged in a consensual relationship, birthed a child, and upon passing the bar exam, were unable to get married at first due to the lawyer having no money and thereafter him getting married to a woman, in that order, the disbarment case was dismissed as the Court found the lawyer’s refusal to marry “was not so corrupt nor unprincipled as to warrant disbarment.”

a) Moral turpitude

Moral turpitude – is defined as an act of baseness, vileness, or depravity in the private duties which a man owes to his fellowmen, or to society in general, contrary to justice, honesty, modesty, or good morals. (Ibid.)

Under Section 27, Rule 138 of the Rules of Court, one of the grounds for the suspension or disbarment of a lawyer is his conviction of a crime involving moral turpitude. (Ibid.)

A lawyer’s conviction of a crime involving moral turpitude does not automatically call for the imposition of the supreme penalty of disbarment since it may, in its discretion, choose to impose the less severe penalty of suspension. As held, the determination of whether an attorney should be disbarred or merely suspended for a period involves the exercise of sound judicial discretion. (Ibid.)

Examples of moral turpitude cases: adultery, concubinage, rape, arson, evasion of income tax, barratry, bigamy, blackmail, bribery, criminal conspiracy to smuggle opium, dueling, embezzlement, extortion, forgery, libel, making fraudulent proof of loss on insurance contract, murder, mutilation of public records, fabrication of evidence, offenses against pension laws, perjury, seduction under the promise of marriage, estafa, falsification of public document, and estafa thru falsification of public document (Zari v. Flores, A.M. No. (2170-MC) P-1356, 21 November 1979), as well as abduction, bouncing checks (B.P. 22), seduction, smuggling.

4) Plagiarism

Plagiarism, a term not defined by statute, has a popular or common definition. To plagiarize, says Webster, is “to steal and pass off as one’s own” the ideas or words of another. Stealing implies malicious taking. Black’s Law Dictionary, the world’s leading English law dictionary quoted by the Court in its decision, defines plagiarism as the “deliberate and knowing presentation of another person’s original ideas or creative expressions as one’s own.” The presentation of another person’s ideas as one’s own must be deliberate or premeditated – a taking with ill intent. (In the Matter of the Charges of Plagiarism, etc. Against Associate Justice Mariano C. Del Castillo, A.M. No. 10-7-17-SC, 08 February 2011)

The tendency to copy in law is readily explicable. In law accuracy of words is everything. Legal disputes often centre round the way in which obligations have been expressed in legal documents and how the facts of the real world fit the meaning of the words in which the obligation is contained. This, in conjunction with the risk-aversion of lawyers means that refuge will often be sought in articulations that have been tried and tested. In a sense therefore the community of lawyers have together contributed to this body of knowledge, language, and expression which is common property and may be utilized, developed and bettered by anyone. (Ibid.)

a) Not an offense

The Court will not, therefore, consistent with established practice in the Philippines and elsewhere, dare permit the filing of actions to annul the decisions promulgated by its judges or expose them to charges of plagiarism for honest work done. (Ibid.)

This rule should apply to practicing lawyers as well. Counsels for the petitioners, like all lawyers handling cases before courts and administrative tribunals, cannot object to this. Although as a rule they receive compensation for every pleading or paper they file in court or for every opinion they render to clients, lawyers also need to strive for technical accuracy in their writings. They should not be exposed to charges of plagiarism in what they write so long as they do not depart, as officers of the court, from the objective of assisting the Court in the administration of justice. (Ibid.)

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.

1) No defiance of the law

Where a lawyer by advised complainants to execute another Deed of Absolute Sale antedated to 1979 to evade payment of capital gains taxes, he violated his duty to promote respect for law and legal processes, and not to abet activities aimed at defiance of the law. That respondent intended to, as he did defraud not a private party but the government is aggravating. (Hsia v. Mesina, A.C. No. 4904, 12 August 2004)

The respondent-lawyer would shift the blame to his client. That a lay person like the complainant could have swayed a lawyer like the respondent into committing the simulations was patently improbable. Yet, even if he had committed the simulations upon the client’s prodding, he would be no less responsible. Being a lawyer, he was aware of and was bound by the ethical canons of the Code of Professional Responsibility, particularly those quoted earlier, which would have been enough to deter him from committing the falsification, as well as to make him unhesitatingly frustrate her prodding in deference to his sworn obligation as a lawyer to always act with honesty and to obey the laws of the land. Surely, too, he could not have soon forgotten his express undertaking under his Lawyer’s Oath to “do no falsehood, nor consent to its commission. (Madria v. Rivera, A.C. No. 11256, 07 March 2017)

Rule 1.03: A lawyer shall not, for any corrupt motive or interest, encourage any suit or proceeding or delay any man’s cause.

1) Ambulance chasing

Rule 1.03 proscribes “ambulance chasing” (the solicitation of almost any kind of legal business by an attorney, personally or through an agent in order to gain employment) as a measure to protect the community from barratry and champerty. (Linsangan v. Tolentino, A.C. No. 6672, 04 September 2009)

2) Barratry

Common barratry consisting of frequently stirring up suits and quarrels between individuals was a crime at the common law, and one of the penalties for this offense when committed by an attorney was disbarment. Statutes intended to reach the same evil have been provided in a number of jurisdictions usually at the instance of the bar itself, and have been upheld as constitutional. The reason behind statutes of this type is not difficult to discover. The law is a profession and not a business. The lawyer may not seek or obtain employment by himself or through others for to do so would be unprofessional. (In Re Luis B. Tagorda, En Banc, 23 March 1929)

It becomes our duty to condemn in no uncertain terms the ugly practice of solicitation of cases by lawyers. It is destructive of the honor of a great profession. It lowers the standards of that profession. It works against the confidence of the community in the integrity of the members of the bar. It results in needless litigation and in incenting to strife otherwise peacefully inclined citizens. (Ibid.)

3) Champerty

The doctrines of champerty and maintenance were created in response “to medieval practice of assigning doubtful or fraudulent claims to persons of wealth and influence in the expectation that such individuals would enjoy greater success in prosecuting those claims in court, in exchange for which they would receive an entitlement to the spoils of the litigation.” “In order to safeguard the administration of justice, instances of champerty and maintenance were made subject to criminal and tortuous liability and a common law rule was developed, striking down champertous agreements and contracts of maintenance as being unenforceable on the grounds of public policy.” (The Conjugal Partnership of the Spouses Vicente Cadavedo and Benita Arcoy-Cadavedo v. Lacaya, G.R. No. 173188, 15 January 2014)

Rule 1.04: A lawyer shall encourage his clients to avoid, end or settle a controversy if it will admit of a fair settlement.

1) Continue to protect client interest

Indeed, it is the duty of a lawyer to encourage his clients to avoid, end or settle a controversy if it will admit of a fair settlement. However, the same must be done in a manner that will not cause prejudice to the other party. In this case, respondent’s failure to attend several hearings on the pretext that he was exploring the possibility of amicable settlement between the contending parties, resulted in the dismissal of complainant’s suit. (Pineda v. Macapagal, A.C. No. 6026, 29 November 2005)

2) Advising acquiescence

It is the duty of a counsel to advise his client, ordinarily a layman on the intricacies and vagaries of the law, on the merit or lack of merit of his case. If he finds that his client’s cause is defenseless, then it is his bounden duty to advise the latter to acquiesce and submit, rather than traverse the incontrovertible. A lawyer must resist the whims and caprices of his client, and temper his client’s propensity to litigate. A lawyer’s oath to uphold the cause of justice is superior to his duty to his client; its primacy is indisputable. (Pacquing v. CA, Davao Light and Power Company, Inc., G.R. No L-52498, 19 July 1982)

b. Efficient and convenient legal services

Canon 2: A lawyer shall make his legal services available in an efficient and convenient manner compatible with he independence, integrity, and effectiveness of the profession.

c. True, honest, fair, dignified, and objective information on legal services

Canon 3: A lawyer in making known his legal services shall use only true, honest, fair, dignified, and objective information or statement of facts.

1) No to degrading the profession

Time and time again, lawyers are reminded that the practice of law is a profession and not a business; lawyers should not advertise their talents as merchants advertise their wares. To allow a lawyer to advertise his talent or skill is to commercialize the practice of law, degrade the profession in the public’s estimation and impair its ability to efficiently render that high character of service to which every member of the bar is called. (Linsangan v. Tolentino, supra)

Anent the issue on the validity of the questioned advertisements, the Code of Professional Responsibility provides that a lawyer in making known his legal services shall use only true, honest, fair, dignified and objective information or statement of facts. He is not supposed to use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement or claim regarding his qualifications or legal services. Nor shall he pay or give something of value to representatives of the mass media in anticipation of, or in return for, publicity to attract legal business. (Ulep v. The Legal Clinic, Inc., En Banc, Bar Matter No. 553, 17 June 1993)

Rule 3.01: A lawyer shall not use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement or claim regarding his qualifications or legal services.

1) No self-laudation

Prior to the adoption of the code of Professional Responsibility, the Canons of Professional Ethics had also warned that lawyers should not resort to indirect advertisements for professional employment, such as furnishing or inspiring newspaper comments, or procuring his photograph to be published in connection with causes in which the lawyer has been or is engaged or concerning the manner of their conduct, the magnitude of the interest involved, the importance of the lawyer’s position, and all other like self-laudation. (Ibid.)

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BAR EXAM QUESTION

(Question A.8, Legal and Judicial Ethics, 2019 Bar Exam)

A lawyer advertised in the newspaper the following:

“Expert in annulment of marriage. Fast and sure. Consult anytime.”

Is the advertisement proper? Explain. (2.5%)

Suggested Answer:

No. Answer

Under the Code of Professional Responsibility and jurisprudence, it is prohibited to advertise legal services and to make self-laudatory statements. Rule

In the case at bar, the concerned lawyer advertised his legal services. He further lauded himself as an expert in annulment of marriage making it appear that engaging his services would result in a fast and sure annulment. Apply

Thus, the advertisement is not proper. Conclusion

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Rule 3.02: In the choice of a firm name, no false, misleading or assumed name shall be used. The continued use of the name of a deceased partner is permissible provided that the firm indicates in all its communications that said partner is deceased.

1) Use of deceased partner’s name, allowed

The use of a deceased partner’s name in a law firm’s name was allowed upon the effectivity of the Code of Professional Responsibility, with the requirement that “the firm indicates in all its communications that said partner is deceased.” (Kimteng v. Young, G.R. No. 210554, 05 August 2015)

NB: The above rule was superseded and rendered ineffective the Syicp and Ozaeta cases wherein the Supreme Court En Banc resolved to deny the petition to continue using the said names of deceased partners in their respective law firm names.

The sign may be in the form of a cross.

2) No using of disbarred lawyer’s name

Maintaining a disbarred lawyer’s name in the firm name is different from using a deceased partner’s name in the firm name. Canon 3, Rule 3.02 allows the use of a deceased partner’s name as long as there is an indication that the partner is deceased. This ensures that the public is not misled. On the other hand, the retention of a disbarred lawyer’s name in the firm name may mislead the public into believing that the lawyer is still authorized to practice law. The use of the name of a person who is not authorized to practice law constitutes contempt of court. (Ibid.)

3) No using of foreign law firm’s name

Use of foreign law firm’s name is prohibited since foreign lawyers are not authorized to practice law in the Philippines. (Dacanay v. Baker & McKenzie, A.C. No. 2131, 10 May 1985)

4) No using of non-lawyer’s name

The respondent-lawyer admitted that the letterhead of Cristal-Tenorio Law Office listed Felicisimo R. Tenorio, Jr., Gerardo A. Panghulan, and Maricris D. Battung as senior partners. She admitted that the first two are not lawyers but paralegals. They are listed in the letterhead of her law office as senior partners because they have investments in her law office. That is a blatant misrepresentation. (Cambaliza v. Cristal-Tenorio, A.C. No. 6290, 14 July 2004)

5) Firm name with at least two names, presumed a partnership of lawyers

Courts may presume that a law firm that represented itself as such, with at least two name partners and more than one associate is composed of at least three lawyers. It is not the duty of the courts to inquire during the progress of a case whether the partnership continues to exist lawfully, or the partners are still alive or its associates are still connected with the firm. (Bernardo v. CA, G.R. No. 106153, 14 July 1997)

6) Law firm and client relationship

The death of a law firm partner did not extinguish the lawyer-client relationship between the firm and the client. (Ibid.)

Rule 3.03: Where a partner accepts public office, he shall withdraw from the firm and his name shall be dropped from the firm name unless the law allows him to practice law currently.

1) When absolutely prohibited to practice due to Government position

Where a lawyer assumes a Government position which results in absolute prohibition to practice law (e.g. President, Justice/Judge, OSG, etc.), his name should be dropped from the firm name.

Rule 3.04: A lawyer shall not pay or give anything of value to representatives of the mass media in anticipation of, or in return for, publicity to attract legal business.
Rule 2.03: A lawyer shall not do or permit to be done any act designed primarily to solicit legal business.

1) No advertising

A lawyer cannot, without violating the ethics of his profession. advertise his talents or skill as in a manner similar to a merchant advertising his goods. The prescription against advertising of legal services or solicitation of legal business rests on the fundamental postulate that the that the practice of law is a profession. (Ulep v. The Legal Clinic, Inc., supra.)

It is highly unethical for an attorney to advertise his talents or skill as a merchant advertises his wares. Law is a profession and not a trade. The lawyer degrades himself and his profession who stoops to and adopts the practices of mercantilism by advertising his services or offering them to the public. As a member of the bar, he defiles the temple of justice with mercenary activities as the money-changers of old defiled the temple of Jehovah. “The most worthy and effective advertisement possible, even for a young lawyer is the establishment of a well-merited reputation for professional capacity and fidelity to trust. This cannot be forced but must be the outcome of character and conduct.” (Ibid., citing The Director of Religious Affairs v. Bayot, A.C. No. L-1117, 20 March 1994)

The canon of the profession tell us that the best advertising possible for a lawyer is a well-merited reputation for professional capacity and fidelity to trust, which must be earned as the outcome of character and conduct. Good and efficient service to a client as well as to the community has a way of publicizing itself and catching public attention. That publicity is a normal by-product of effective service which is right and proper. A good and reputable lawyer needs no artificial stimulus to generate it and to magnify his success. He easily sees the difference between a normal by-product of able service and the unwholesome result of propaganda. (Ibid.)

a) Even if there is no name on the ad

Where a lawyer paid for an advertising to appear on the Philippine Daily Inquirer – which reads: “ANNULMENT OF MARRIAGE Specialist 532-4333/521-2667”, it was held to violate the rule against advertising. (Khan v. Simbillo, A.C. No. 5299, G.R. No. 157053, 19 August 2003)

2) Exceptions

Not all types of advertising or solicitation are prohibited. The canons of the profession enumerate exceptions to the rule against advertising or solicitation and define the extent to which they may be undertaken. The exceptions are of two broad categories, namely, those which are expressly allowed and those which are necessarily implied from the restrictions. (Ibid.)

a) Expressly allowed

(1) Law list

The first of such exceptions is the publication in reputable law lists, in a manner consistent with the standards of conduct imposed by the canons, of brief biographical and informative data. “Such data must not be misleading and may include only a statement of the lawyer’s name and the names of his professional associates; addresses, telephone numbers, cable addresses; branches of law practiced; date and place of birth and admission to the bar; schools attended with dates of graduation, degrees and other educational distinction; public or quasi-public offices; posts of honor; legal authorships; legal teaching positions; membership and offices in bar associations and committees thereof, in legal and scientific societies and legal fraternities; the fact of listings in other reputable law lists; the names and addresses of references; and, with their written consent, the names of clients regularly represented.” (Ibid.)

The law list must be a reputable law list published primarily for that purpose; it cannot be a mere supplemental feature of a paper, magazine, trade journal or periodical which is published principally for other purposes. For that reason, a lawyer may not properly publish his brief biographical and informative data in a daily paper, magazine, trade journal or society program. Nor may a lawyer permit his name to be published in a law list the conduct, management or contents of which are calculated or likely to deceive or injure the public or the bar, or to lower the dignity or standing of the profession. (Ibid.)

b) Implied from the restrictions

(1) Professional card

The use of an ordinary simple professional card is also permitted. The card may contain only a statement of his name, the name of the law firm which he is connected with, address, telephone number and special branch of law practiced. (Ibid.)

(2) Announcements related to law firm

The publication of a simple announcement of the opening of a law firm or of changes in the partnership, associates, firm name or office address, being for the convenience of the profession, is not objectionable. (Ibid.)

(3) Telephone directory

He may likewise have his name listed in a telephone directory but not under a designation of special branch of law. (Ibid.)

(4) Listing

For solicitation to be proper, it must be compatible with the dignity of the legal profession. If it is made in a modest and decorous manner, it would bring no injury to the lawyer and to the bar. Thus, the use of simple signs stating the name or names of the lawyers, the office and residence address and fields of practice, as well as advertisement in legal periodicals bearing the same brief data, are permissible. (Khan v. Simbillo, supra.)

(5) Biographical and informative data

Brief biographical and informative data is likewise allowable. (Khan v. Simibillo, supra.)

•••••

BAR EXAM QUESTION

(Question XII, Legal and Judicial Ethics, 2017 Bar Exam)

Atty. Simplicio published the following advertisement in a local newspaper: “Annulment of Marriage, Competent Attorney, Reasonable Fees, Call 221-2345.”

A Justice of the Supreme Court saw the advertisement and thereafter called the attention of his colleagues. The Supreme Court directed the Bar Confidant [to] investigate the matter. When directed to explain why no disciplinary action should be taken against him for the improper advertisement, Atty. Simplicio contended that: (a) the advertisement was not improper because his name was not mentioned; and (b) he could not be subjected to disciplinary action because there was no complaint filed against him.

Rule on Atty. Simplicio’s contentions. (4%)

Suggested Answer:

Atty. Simplicio’s contentions are not correct. Answer

Under the Code of Professional Responsibility and jurisprudence, advertising legal services is prohibited, even if the lawyer’s name is not reflected on the ad itself but there is an identifiable information such as contact details. Further, administrative cases against lawyers are suis generis and thus may proceed motu proprio even if there is no complainant. Rule

In the case at bar, the ad was advertising legal services and provided a contact detail. Prospective clients would thus be able to reach out to Atty. Simplicio via the phone number provided. A complainant is not necessary for him to be subjected to disciplinary action. Apply

Thus, it is incorrect for Atty. Simplicio to make such contentions. Conclusion

•••••

BAR EXAM QUESTION

(Question XVI, Legal and Judicial Ethics, 2017 Bar Exam)

Determine if the following advertisements by an attorney are ethical or unethical. Explain your answer.

(a) A calling card, 2 inches x 2 inches in size, bearing the attorney’s name in bold print, office, residence and email addresses, telephone and facsimile numbers. (2%)

It is ethical. Under jurisprudence, the use of an ordinary simple professional card is permitted.

(b) A business card, 3 inches x 4 inches in size, indicating the aforementioned data with his 1 inch x 1 inch photograph. (2%)

It is unethical. Under jurisprudence, the professional card should be ordinary and simple to be allowed. In this case, a 3-inch by 4-inch card with a 1-inch by 1-inch photograph is not ordinary and simple.

(c) A pictorial press release in a broadsheet newspaper made by the attorney showing him being congratulated by the president of a client corporation for winning a multi-million damage suit against the company in the Supreme Court. (2%)

It is unethical. Under the Code of Professional Responsibility, a lawyer shall not use or permit the use of any self-laudatory statement or claim regarding his qualifications or legal services. In this case, the press release made by the attorney is a form of self-laudation. Which is prohibited.

(d) The same press release made in a tabloid by the attorney’s client. (2%)

It is ethical. In this case, the act is attributable to the client. The attorney did not commit any act that would result in a violation of the Code of Professional Responsibility.

(e) A small announcement that the attorney is giving free legal advice on November 30, 2017 published in Balita, a tabloid in Filipino. (2%)

It is unethical. Under the Code of Professional Responsibility and jurisprudence, advertising and self-laudation are prohibited. In this case, the announcement of free legal advice on a publication is a form of advertising legal services and a self-laudation, both of which are prohibited.

•••••

Rule 2.04: A lawyer shall not charge rates lower than those customarily prescribed unless the circumstances so warrant.

d. Participation in the improvements and reforms in the legal system

Canon 4: A lawyer shall participate in the development of the legal system by initiating or supporting efforts in law reform and in the improvement of the administration of justice.

e. Participation in legal education program

Canon 5: A lawyer shall keep abreast of legal development, participate in continuing legal education programs, support efforts to achieve high standards in law schools as well as in the practical training of law students and assist in disseminating the law and jurisprudence.

NB: This is related to MCLE and law student practice rule.

f. Lawyers in government service discharging their tasks

Canon 6: These canons shall apply to lawyers in Government services in the discharge of their tasks.

1) Jurisdiction over Government lawyers

Generally speaking, a lawyer who holds a government office may not be disciplined as a member of the Bar for misconduct in the discharge of his duties as a government official. However, if said misconduct as a government official also constitutes a violation of his oath as a lawyer, then he may be disciplined by this Court as a member of the Bar. (Vitriolo v. Dasig, En Banc, A.C. No. 4984, 01 April 2003)

The Attorney’s Oath is the source of the obligations and duties of every lawyer and any violation thereof is a ground for disbarment, suspension, or other disciplinary action. The Attorney’s Oath imposes upon every member of the bar the duty to delay no man for money or malice. Said duty is further stressed in Rule 1.03 of the Code of Professional Responsibility. Respondent-lawyer’s demands for sums of money to facilitate the processing of pending applications or requests before her office violates such duty, and runs afoul of the oath she took when admitted to the Bar. Such actions likewise run contrary to Rule 1.03 of the Code of Professional Responsibility. A member of the Bar who assumes public office does not shed his professional obligations. Hence, the Code of Professional Responsibility was not meant to govern the conduct of private practitioners alone, but of all lawyers including those in government service. Lawyers in government are public servants who owe the utmost fidelity to the public service. Thus, they should be more sensitive in the performance of their professional obligations, as their conduct is subject to the ever-constant scrutiny of the public. (Ibid.)

Rule 6.01: The primary duty of a lawyer engaged in public prosecution is not to convict but to see that justice is done. The suppression of facts or the concealment of witnesses capable of establishing the innocence of the accused is highly reprehensible and is cause for disciplinary action.

1) Objective: that justice be done

Prosecutors represent a sovereign “whose obligation to govern impartially is compelling as its obligation to govern at all; and whose interest, therefore in a criminal prosecution is not that it shall win a case, but that justice shall be done. (Cuenca v. CA, G.R. No. 109870, 01 December 1995, citing the Solicitor General who referenced Berger v. United States, 295 U.S. 78 [1935])

•••••

BAR EXAM QUESTION

(Question VIII-B, Legal and Judicial Ethics, 2017 Bar Exam)

Prosecutor Regan was designated to represent the State during the trial of an action to declare the nullity of a marriage. He realized soon enough, however, that the counsels of the parties were very competent and sincere in doing their work for their respective clients. Thus, Prosecutor Regan, mindful of his large caseload of preliminary investigations, and believing that his attendance at the trial was superfluous, decided not to attend the trial anymore so that he could devote more time to the work back in his office.

Explain whether or not the decision of Prosecutor Regan to miss the trial of the action to declare the nullity of the marriage was warranted. (4%)

Suggested Answer:

The decision of Prosecutor Regan to miss the trial was not warranted. Answer

Under the Code of Professional Responsibility, the primary duty of a lawyer engaged in public prosecution is to see that justice is done. In line within, the Family Code mandates that, in all cases of annulment or declaration of nullity of marriage, prosecuting attorneys are required to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. Rule

In the case at bar, Prosecutor Regan is duty-bound to see that justice is done by representing the State in the action to declare the nullity of marriage. This applies regardless of whether the opposing counsels are very competent and sincere in going their work for their respective clients. Apply

Thus, Prosecutor Regan’s decision to miss the trial was not warranted. Conclusion

•••••

Rule 6.02: A lawyer in the government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties.

1) Prohibition on use of public office

Rule 6.02 prohibits a lawyer from using his or her public position to:

1) Promote private interests;

2) Advance private interests; or

3) Allow private interest to interfere with his or her public duties. (Olazo v. Tinga, A.M. No. 10-5-7-SC, 07 December 2010)

The restriction extends to all government lawyers who use their public offices to promote their private interests. (Ibid.)

a) Case Law

1) In Huyssen v. Gutierrez, we defined promotion of private interest to include soliciting gifts or anything of monetary value in any transaction requiring the approval of his or her office, or may be affected by the functions of his or her office. The respondent (an employee of the Bureau of Immigration and Deportation) was found liable under Rule 6.02 of the Code of Professional Responsibility, based on the evidence showing that he demanded money from the complainant who had a pending application for visas before his office. (Ibid.)

2) In Ali v. Bubong, we recognized that private interest is not limited to direct interest, but extends to advancing the interest of relatives. We also ruled that private interest interferes with public duty when the respondent uses the office and his or her knowledge of the intricacies of the law to benefit relatives. (Ibid.)

3) In Vitriolo v. Dasig, we found the act of the respondent (an official of the Commission on Higher Education) of extorting money from persons with applications or requests pending before her office to be a serious breach of Rule 6.02 of the Code of Professional Responsibility. (Ibid.)

4) In Igoy v. Soriano, we found the respondent (a Court Attorney of this Court) liable for violating Rule 6.02 of the Code of Professional Responsibility, after considering the evidence showing that he demanded and received money from the complainant who had a pending case before this Court. (Ibid.)

2) Disciplining authority; jurisdiction

Jurisdiction over administrative cases against Government lawyers relating to acts committed in the performance of their official functions lies with their superior or the Ombudsman which exercises administrative supervision over them. (Segura v. Prosecutor Garachico-Fabila, A.C. No. 9837, 02 September 2019; cf. Alicias v. Macatangay, A.C. No. 7478, 11 January 2017; cf. Trovela v. Santos-Madamba, A.C. No. 11920, 21 February 2018)

a) IBP has no jurisdiction

The IBP has no jurisdiction over government lawyers who are charged with administrative offenses involving their official duties. (Alicias v. Macatangay, A.C. No. 7478, 11 January 2017)

Rule 6.03: A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he had intervened while in said service.

1) Intervention

The keyword in Rule 6.03 of the Code of Professional Responsibility is the term “intervene” which we previously interpreted to include an act of a person who has the power to influence the proceedings. Otherwise stated, to fall within the ambit of Rule 6.03 of the Code of Professional Responsibility, the respondent must have accepted engagement or employment in a matter which, by virtue of his public office, he had previously exercised power to influence the outcome of the proceedings. (Olazo v. Tinga, supra.)

2) On “any matter”

In Rule 6.03, the term “any matter” refers to any discrete, isolatable act as well as identifiable transaction or conduct involving a particular situation and specific party, and not merely an act of drafting, enforcing or interpreting government or agency procedures, regulations or laws, or briefing abstract principles of law.

a) Related to Section 7 of R.A. 6713

Section 7 of R.A. No. 6713 generally provides for the prohibited acts and transactions of public officials and employees. Subsection (b)(2) prohibits them from engaging in the private practice of their profession during their incumbency. As an exception, a public official or employee can engage in the practice of his or her profession under the following conditions: first, the private practice is authorized by the Constitution or by the law; and second, the practice will not conflict, or tend to conflict, with his or her official functions. (Query of Atty. Karen M. Silverio-Buffe, former Clerk of Court – Branch 81, Romblon, Romblon – On the Prohibition from Engaging in the Private Practice of Law, En Banc, A.M. No. 08-6-352-RTC, 19 August 2009)

The Section 7 prohibitions continue to apply for a period of one year after the public official or employee’s resignation, retirement, or separation from public office, except for the private practice of profession under subsection (b)(2), which can already be undertaken even within the one-year prohibition period. As an exception to this exception, the one-year prohibited period applies with respect to any matter before the office the public officer or employee used to work with. (Ibid.)

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