Introduction to Legal Ethics Flashcards
What is legal ethics?
Legal Ethics – 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.
Distinguish legal profession from business
- A duty of public service
- A relation, as an “officer of the court”, to the administration of justice involving thorough sincerity, integrity and reliability
- A relation to clients with the highest degree of fiduciary
- A relation to the colleagues at the bar characterized by candor, fairness and unwillingness to resort to current business methods of advertising and encroachment on their practice, or dealing directly with their clients.
What constitutes the practice of law
Any activity in or out of court which requires the application of law, legal principle, practice or procedure and calls for legal knowledge, training and experience. (Cayetano vs Monsod, 201 SCRA 210)
Strictly speaking, the word practice of law implies the customary or habitual holding of oneself to the public as a lawyer and demanding compensation for his services. [People vs. Villanueva 14 SCRA 111
ESSENTIAL CRITERIA DETERMINATIVE OF ENGAGING IN THE PRACTICE OF LAW:
- Habituality- implies customarily or habitually holding oneself out to the public as a lawyer
- Compensation- implies that one must have presented himself to be in the active practice and that his professional services are available to the public for compensation, as a source of his livelihood or in consideration of his said services.
- Application of law, legal principle, practice, or procedure which calls for legal knowledge, training and experience
- Attorney – client relationship
What is PRIVATE PRACTICE
PRIVATE PRACTICE
Private practice is more than an isolated appearance for it consists of frequent or customary actions, a succession of acts of the same kind.
NOTE: An isolated appearance does not amount to practice of law of a public officer if allowed by his superior in exceptional cases.
Is practice of law a right or a prvilage?
The practice of law is not a natural, property or constitutional right but a mere privilege. It is not a right granted to any one who demands it but a privilege to be extended or withheld in the exercise of sound judicial discretion. It is in the nature of a franchise conferred only for merit which must be earned by hard study, learning and good conduct. It is a privilege accorded only to those who measure up to certain rigid standards of mental and moral fitness. Those standards are neither dispensed with nor lowered after admission. The attorney’s continued enjoyment of the privilege conferred depends upon his complying with the ethics and rules of 333the profession.
But practice of law is in the nature of a right. While the practice of law is a privilege, a lawyer cannot be prevented from practicing law except for valid reasons, the practice of law not being a matter of state’s grace or favor. He holds office during good behavior and can only be deprived of it for misconduct ascertained and declared by judgment of the Supreme Court after opportunity to be heard has been afforded him. The state cannot exclude an attorney from the practice of law in a manner or for reasons that contravene the due process or equal protection clause of the Constitution.
Who has the power to regulate the practice of law?
The Constitution [Art. VIII, Sec. 5(5)] vests this power of control and regulation in the Supreme Court. The constitutional power to admit candidates to the legal profession is a judicial function and involves the exercise of discretion. Petition to that end is filed with the Supreme Court as are other proceedings invoking judicial function [In re: Almacen 31 SCRA 562]
The SC acts through a Bar Examination Committee in the exercise of its judicial function to admit candidates to the legal profession. Thus, the Committee is composed of a member of the Court who acts as Chairman and 8 members of the bar who acts as examiners in the 8 bar subjects with one subject assigned to each. [In re Lanuevo, 66 SCRA 245]
What is the power of the Supreme Court in Regulating the practice of law?
The power of the SC to regulate the practice of law includes the authority to:
- Define the term
- Prescribe the qualifications of a candidate to and the subjects of the bar examinations
- Decide who will be admitted to practice
- Discipline, suspend or disbar any unfit and unworthy member of the bar
- Reinstate any disbarred or indefinitely suspended attorney
- Ordain the integration of the Philippine Bar
- Punish for contempt any person for unauthorized practice of law
- Exercise overall supervision of the legal profession
- Exercise any other power as may be necessary to elevate the standards of the bar and preserve its integrity.
What is the power of the legislature in regulating the practice of law?
On the other hand, the LEGISLATURE, in the exercise of its POLICE POWER may, however, enact laws regulating the practice of law to protect the public and promote the public welfare. But the legislature MAY NOT pass a law that will control the SC in the performance of its function to decide who may enjoy the privilege of practicing law and any law of that kind is unconstitutional as an invalid exercise of legislative power.
Who may practice law?
Any person heretofore duly admitted as a member of the bar, or hereafter admitted as such in accordance with the provisions of this rule, and who is in good and regular standing, is entitled to practice law. [Sec. 1, Rule 138]
What are the REQUIREMENTS BEFORE A CANDIDATE CAN ENGAGE IN THE PRACTICE OF LAW?
He must have been admitted to the Bar
a. Furnishing satisfactory proof of educational, moral and other qualification;
b. Passing the bar
c. Taking the Lawyer’s Oath before the SC
A lawyer’s oath signifies that the lawyer in taking such an oath accepts and affirms his ethical obligations in the performance of his duties as a lawyer and signifies likewise his awareness of his responsibilities that he assumes by his admission to the legal profession.
d. Signing the Attorney’s Roll and receiving from the Clerk of Court
of the SC a Certificate of the license to practice
II. After his admission to the bar, a lawyer must remain in good and regular standing, which is a continuing requirement for the practice of law. He must:
a. Remain a member of the IBP (membership therein by every attorney is made compulsory);
b. Regularly pay all IBP membership dues and other lawful assessments, as well as the annual privilege tax;
c. Faithfully observe the rules and ethics of the legal profession; and
d. Be continually subject to judicial disciplinary control.
BASIC REQUIREMENTS FOR ADMISSION TO THE BAR
Under Section 2, 5 and 6, Rule 138, the applicant must be:
1. Citizen of the Philippines;
2. At least 21 years of age;
3. Of good moral character;
(Note: This is a continuing requirement.)
4. 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 Phil. [Sec. 2, Rule 138];
7. Must have complied with the academic requirements;
8. Pass the bar examinations.
What is “moral turpitude”?
Moral Turpitude – imports an act of baseness, vileness or depravity in the duties which one person owes to another or to society in general which is contrary to the usually accepted and customary rule of right and duty which a person should follow.
ACADEMIC REQUIREMENTS FOR THE CANDIDATES
- Must have already earned a Bachelor’s Degree in Arts or Sciences (Pre-law)
- Law Course – completed courses in Civil Law, Commercial Law, Remedial Law, Criminal Law, Public and International Law, Political Law, Labor and Social Legislation, Medical Jurisprudence, Taxation, Legal Ethics. [Sec. 5 and 6, Rule 138]
MAY A NON-LAWYER APPEAR IN COURT?
General Rule: Only those who are licensed to practice law can appear and handle cases in court.
Exceptions:
1. Before the MTC - a party may conduct his case or litigation in person with the aid of an
agent or friend appointed by him. [Sec. 34, Rule 138]
2. Before any court – a party may conduct his litigation personally. But he gets someone to aid him and that someone must be an authorized member of the Bar [Sec. 34, Rule 138]. He is bound by the same rules in conducting the trial of his case. He cannot, after judgment, claim that he was not properly represented.
3. In a criminal case before the MTC – in a locality where a duly licensed member of the Bar is not available, the judge may appoint a non-lawyer who is a resident of that province, of good repute for probity and ability to the accused in his defense. [Sec. 7, Rule 116]
4. Student Practice Rule - A law student who has successfully completed his 3rd year of the regular 4-year prescribed law curriculum and is enrolled in a recognized law school’s clinical legal education program approved by the SC – may appear without compensation in any civil, criminal or administrative case before any trial court, tribunal, board or officer, to represent indigent clients accepted by the Legal Clinic of the school. [Sec. 1, Rule 138-A] The student shall be under the direct supervision and control of a member of the IBP duly accredited by the law school. [Sec. 2]
5. Under the Labor Code – non-lawyers may appear before the NLRC or any Labor Arbiter if they (a) represent themselves; (b) represent their organization or members thereof [Art. 222, PD 442]
6. A non-lawyer may represent a claimant before the Cadastral Court [Sec. 9, Act. No. 2259]
7. Any person appointed to appear for the government of the Philippines in accordance with law [Sec. 33, Rule 138]
