Code Of Professional Responsibility and Accountability Flashcards
A.
- Applicable Canons
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.
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.
* What this rule prevents is a market or bargaining attitude
THE PRACTICE OF LAW IS NOT TRADE OR CRAFT, THUS A LAWYER MAY NOT ADVERTISE HIS SKILL AS A TRADESMAN DOES
A.
GR: No advertisements is allowed.
– The most worthy and effective advertisements possible is the establishment of a well-merited reputation for professional capacity and fidelity to trust
RULE ON ADVERTISEMENT
A.
Canon 3 ( A LAWYER IN MAKING KNOWN HIS LEGAL SERVICES SHALL USE ONLY TRUE, HONEST, FAIR, DIGNIFIED AND OBJECTIVE INFORMATION OR STATEMENT OF FACTS.)
– What are those “consistent with the standards of conduct imposed by the canons”?
– These rules means that advertisement is not malum in se (wrong) and what the prohibition tries to prevent is advertising that tends to degrade the dignity of the profession.
RULE ON EXCEPTED OR PERMISSIBLE ADVERTISEMENTS
A.
What should be guarded against is the violation of ethical principles concerning the:
* proper advertising by a lawyer,
* giving of legal advice to one with whom no attorney-client relationship exists, and
* aiding a layman to engage in unauthorized practice of law.
* RULE 15.08 ( A lawyer, in conferring with a prospective client, shall ascertain as soon as practicable whether the matter would involve a conflict with another client or his own interest, and if so, shall forthwith inform the prospective client.)
POSSIBLE ARENAS FOR INDIRECT SOLICITATION
B.
HARACTERISTICS OF THE RELATIONSHIP:
* strictly personal,
* highly confidential and
* fiduciary
THE LAWYER AND THE CLIENT RELATIONSHIP
B.
RULE 15.05 - ( A lawyer when advising his client, shall give a candid and honest opinion on the merits and probable results of the client’s case, neither overstating nor understating the prospects of the case.)
Honesty when advising client
Canon 17 - No fear of judicial disfavor or public popularity should restrain him from full discharge of his duty. / A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM.
Canon 18 - A lawyer shall serve his client with competence and diligence.
RULES REGARDING THE AGENCY RELATION BETWEEN LAWYER AND CLIENT
B.
- Rule: Negligence or mistakes of counsel will bind the client based on the principle of agency.
- Exception: The principle that the rigid rule must yield to the court’s duty to render justice must prevail when:
- there is gross negligence of the lawyer
- client’s meritorious claim or defense has been prejudiced (i.e. non-presentaBon of a crucial document)
- there is diligence or absence of gross negligence on the part of the party represented.
ATTORNEY’S ACTS BIND THE CLIENT
B.
COUNSEL OF RECORD - Attorneys who have no formal appearance are not entitled to notice. However, as long as the lawyer remains listed as counsel of record, there having been no withdrawal or substitution of counsel, notice to him will bind the client.
NOTICE TO LAWYER IS NOTICE TO CLIENT
B.
CANON 9 - (A LAWYER SHALL NOT, DIRECTLY OR INDIRECTLY, ASSIST IN THE UNAUTHORIZED PRACTICE OF LAW.)
A lawyer must not take as partner or associate one who:
* is not a lawyer
* Is disbarred
* Has been suspended from the practice of law
* Foreign lawyer,unless licensed by the SC.
PURELY PERSONAL NATURE OF RELATIONSHIP
B.
is the principle that attorney derives no undue advantage that may operate to the prejudice or cause an occasion for loss of a client.
Canon 16 - ( A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND PROPERTIES OF HIS CLIENT THAT MAY COME INTO HIS PROFESSION.)
FIDUCIARY DUTY
B.
General Rule: A lawyer may not purchase, even at a public or judicial auction, in person or through the mediation of another, any property or interest involved in any litigation in which he may take part by virtue of his profession.
Exceptions:
- Property is acquired by lawyer through a contingent fee arrangement
- Any of the 4 elements of Art. 1491 is missing
SPECIAL RULE ON LAWYER’S PURCHASE OF CLIENT’S PROPERTY BECAUSE OF FIDUCIARY RELATIONSHIP
B.
RULE 15.02 - (A lawyer shall be bound by the rule on privilege communication in respect of matters disclosed to him by a prospective client.)
Requisites of Privileged Communication:
1. Attorney-client relationship(or a kind of consultancy relationship with a prospective client)
2. Communication made by client to lawyer in the course of lawyer’s professional employment
3. Communication is intended to be confidential
CONFIDENTIALITY
WHEN IS THERE NO PRIVILEGED COMMUNICATION:
1. After pleading has been filed
2. Communication intended by the client to be sent to a third person through his counsel
3. When communication sought by client is intended to aid future crime
4. When communication between attorney and client is heard by a third party
CANON 21-
Confidence – refers to information protected by the attorney-client privilege. (Revised Rules of Court)
Secret – refers to other information gained in the professional relationship that the client has regulated to be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client.
B.
Rule: An attorney cannot represent adverse interest.
Exception: Where the parties consent to the representation after full disclosure of facts.
CONFLICT OF INTEREST
TESTS IN DETERMINING CONFLICTING INTERESTS
Conflicting duties: when on behalf one client, it is the attorney’s duty to contest for that which duty to another client requires him to oppose or when the possibility of such situation will develop
Invitation of suspicion: Whether or not the acceptance of a new relaBon will prevent an attorney from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness in double- dealing in the performance thereof.
Use of prior knowledge obtained: Whether a lawyer will be called upon in his new relaBon to use against the first client any k
B.
RULE 19.03
– Rule:
* Negligence binds client.
– Exceptions:
* Reckless imprudence (deprives client of due process)
* Results in outright deprivation of one’s property through technicality
B. 10 TERMINATION OF SERVICES
Canon 22 - In withdrawal as counsel for a client, an attorney may only retire from a case either by written consent of his client or by permission of the court after due notice and hearing, in which event the aPorney should see to it that the name of the new attorney is recorded in the case.
INDEPENDENCE OF THE LAWYER EVEN IF AN AGENT OF CLIENT
REQUIREMENTS FOR THE SUBSTITUTION OF COUNSEL IN A CASE:
* Written application
* Written consent of client
* Written consent of attorney to be submitted
* If the consent of the attorney to be
* Substituted cannot be obtained, there must be at least a proof of notice that the motion for substitution has been served upon him, in the manner prescribed by the rules.
B.
Canon 20 - (A LAWYER SHALL CHARGE ONLY FAIR AND REASONABLE FEES.)
1. Ordinary a]orney’s fee
2. Extraordinary a]orney’s fee
ATTORNEY’S FEES
KINDS OF PAYMENT WHICH MAY BE STIPULATED UPON:
1. A fixed or absolute fee which is payable regardless of the result of the case
2. A contingent fee that is conditioned to the securing of a favorable judgment and recovery of money or property and the amount of which may be on percentage basis
3. A fixed fee payable per appearance
4. A fixed fee computed by the number of hours spent
5. A fixed fee based on a piece of work
