DISBARMENT PROCEEDING Flashcards
T/F. The power to discipline a lawyer is judicial in nature and can be exercised ONLY by the Courts.
True. Not defeated by the other two departments. See Andres v. Cabrera
T/F. Disbarment must be exercised with great caution, and only in a clear case of misconduct that seriously affects the standing and character of the lawyer as an officer of the Court and as members of the bar.
True. See Ventura v. Samson
Eight forms of disciplinary measures by the Supreme Court. WARCSDIP
- Warning
- Admonition
- Reprimand
- Censure
- Suspension
- Disbarment
- Interim Suspension
- Probation
An act of putting one on his guard against an impending danger, evil, consequence or penalty
Warning
A gentle reproof, mild rebuke, warning reminder or counselling on fault, error or oversight
Admonition
A public and formal censure or severe reproof, administered to a person at fault by his superior officer or the body to which he belongs
Reprimand
Official reprimand
Censure
Temporary withholding of a lawyer’s right to practice his profession for a certain or indefinite period
Suspension
Act of the SC of withdrawing from an attorney the right to practice law
Disbarment
Temporary suspension of a lawyer he practice of law pending imposition of clinical discipline
Interim Suspension
A sanction that allows a lawyer to practice law under specified circumstances
Probation
Five powers of lower Courts in relation to Discipline Lawyers? SWARP.
- Suspend an attorney from practice for any causes under Section 27, Rule 138
- Warn
- Admonish
- Reprimand
- Probation
T/F. The CA and RTC can disbar a lawyer.
NO. Only the Supreme Court.
Seven other sanctions and remedies. RARAROL
- Restitution
- Assessment of costs.
- Limitation upon practice
- Appointment of a receiver
- Requirement that a lawyer take the bar examination or professional responsibility examination
- Requirement that a lawyer attend continuing education courts
- Other requirements.
Five factors to be considered in imposing lawyer sanctions
- Duty violated
- Mental state
- Actual and potential injury caused
- Aggravating and mitigating factors
Ten aggravating factors
- Prior disciplinary offenses
- Dishonest and selfish
- Pattern of misconduct
- Multiple offenses
- Bad faith obstruction of the disciplinary proceeding
- Submission of false evidence, false statements or other deceptive practices
- Refusal to acknowledge wrongful nature
- Vulnerability of the victim
- Substantial experience in the practice of law
- Indifference to making a restitution.
Seventeen mitigating circumstances
- Good faith
- Inexperience
- Age
- Apology
- Lack of unlawful intent
- Absence of prior disciplinary record
- Absence of dishonest or selfish motive
- Personal or emotional problems
- Timely good faith effort to make restitution or to rectify consequences of misconduct
- Full and free disclosure to disciplinary board
- Character or reputation
- Physical or mental disability
- Delay in disciplinary proceedings
- Interim rehabilitation
- Imposition of other penalties or sanctions
- Remorse
- Remoteness of prior offenses
T/F. Admin cases against lawyers are sui generis. They are distinct from and may proceed independently from civil and criminal cases
True. See Re: Almacen
Six goals of disbarment and suspension
- Compel fair and honest dealings
- Remove from the profession person proven to have misconduct
- Punish lawyer
- Set an example or warning to other members
- Safeguard the admin o justice from dishonest lawyers
- Protect public
T/F. There is a prescriptive period of ten years to file an admin complaint against an erring lawyer
True. See Heirs of Falame v. Atty. Baguio
T/F. A lawyer can be disbarred more than twice
False. See Yuhico v. Atty Guiterrez
Eight grounds for suspension or disbarment
- Deceit
- Malpractice
- Grossly immoral conduct
- Conviction of a crime involving moral turpitude
- Violation of oath of office
- Willful disobedience of any lawful order
- Corrupt or willful appearance as an attorney
- Non-payment of IBP dues
Consists of failure of an attorney to use such skill, prudence and diligence as a lawyer of ordinary skill and capacity commonly possess and exercise in the performance of tasks which they undertake, and when such failure proximately causes damages, it gives rise to an action in tort.
Legal malpractice. See Tan Tek Beng v. David.
Any inexcusable, shameful, or flagrant unlawful conduct on the part of the person concerned in the administration of justice which is PREJUDICAL TO THE RIGHTS OF THE PARTIES or to the RIGHT DETERMINATION of a cause; conduct that is generally MOTIVATED by premediated, obstinate, or intentional purpose
Gross misconduct. See Yumol Jr. v. Ferrer.
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. Treads the line of grossness 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’ sense of decency.
Grossly immoral conduct. See Abella v. Atty. Barrios
Three other statutory grounds for suspension or disbarment
- Acquisition of interest in subject matter of litigation
- Breach of professional duty
- Representing conflict of interests
Five other grounds for discipline
- Non-professional conduct
- Promoting the violation of penal laws
- Misconduct in the discharge of official duties
- Commission of fraud and falsehood
- Misconduct as notary public
Two people who may file disbarment proceedings
- Any interested person
- The Court motu proprio
Three offices authorized to investigate disbarment proceedings
- Supreme Court
- IBP through its Commission on Bar Proceedings
- Office of the Bar Confidant
T/F. The complaint shall state clearly and concisely the facts complained of and shall be supported by affidavits of persons having personal knowledge of the facts therein alleged and/or by such documents as may substantiate said facts
True.
T/F. It is the purpose of disbarment to punish the erring lawyer
False. It is beyond the personal dealings of the lawyer. It is to protect the public, to protect the legal profession, and to compel the lawyers to adhere to the CPRA
T/F. The quantum of evidence required for admin cases is beyond reasonable doubt
False. It is only substantial evidence. See Reyes v. Nieva.
The amount of relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if reasonable minds may opine otherwise
Substantial evidence
T/F. The IBP will forward to the Supreme Court with six copies for appropriate disposition all complaints for disbarment, suspension and discipline filed against any justice or lawyer
True.
Seven procedural steps of disbarment in the IBP
- Appointment of one or three investigators in the IBP
- If meritorious, the respondent will be served requiring him to answer within 15 days
- The Supreme Court after receipt of the answer may suspend the attorney during pendency of the investigation
- If failed to answer, investigator may proceed ex parte. Investigation will proceed for 3 months
- Investigator to make a report within 30 days after termination
- Board of Governors to render decision within 30 days of receipt of report
- IBP Board of Governors will issue a resolution
T/F. If a decision resolution was rendered by the Board of Governors, there can no longer be a motion for reconsideration.
False. Only true if Investigating Commissioner or BOG, it can be entertained within 15 days of receipt of notice.
T/F. BOG resolutions that imposes sanctions less than suspension or disbarment, the aggrieved party may file a motion to reconsider within 15 days of receipt. After denial, the aggrived party may file a motion for reconsideration to the SC
True.
T/F. In BOG resolutions that imposes sanctions of suspension or disbarment, the aggrieved party may file a motion to reconsider within 15 days of receipt. This will automatically be elevated to the SC
True.
T/F. If the proceeding was initiated by the Supreme Court, it may refer the investigation to the office of the Bar Confidant or to any officer of the SC or the IBP, or to the lower Courts
True.
T/F. The death of the lawyer will not stop an administrative proceeding initiated against him prior to his death
False. It renders it moot. HOWEVER, the Court may still resolve the case in order to clear the name of the lawyer publicly.
Three reasons why confidentiality is present in a disbarment proceeding
- Free from extraneous influence or interference
- Protect the personal and profession reputation of the attorney
- Deter from the press from publishing charges based thereon
T/F. Confidentiality in a disbarment proceeding is a waivable right
True. See Villalon v. IAC
T/F. Desistance or withdrawal of an admin complaint will deprive the Court from proceeding with the matter
False. See Presado v. Judge Genova
T/F. The withdrawal of an admin complaint exonerates the respondent-lawyer
False. A case of suspension or disbarment will proceed regarding of the lack of interest of the complainant. The petitioner is NOT the direct party, but rather the Court
T/F. Res ipsa loquitur applies to judges or disbarment of lawyers.
True. No need for a formal investigation if the injury or the misconduct clearly appears. See Uy v. Mercado
