DEL ROSARIO, MARIAN B.
LEGAL ETHICS April 9, 2020
What is the nature of the relation of attorney and client?
Nature/Characteristics of attorney-client relationship
1. Strictly personal – Prohibits the delegation of work without the
client’s consent
2. Highly confidential
a. Communication made in the course of lawyers professional
employment; and
b. Communication intended to be confidential.
3. Fiduciary
a. Hold in trust all moneys and properties of his client that may
come into his possession;
b. When a lawyer enforces a charging lien against his client, the
relationship is terminated; and
c. An attorney cannot represent
adverse interest unless the parties consent to the representation
after full disclosure of facts
Based on the Canons, extract the basic/general rules governing the
attorney-client relationship .
General Rules protecting the attorney-client relationship
1. Best effort must be exerted by the attorney to protect his client’s
interest;
2. The attorney must promptly account for any fund or property
entrusted by or received for his client;
3. An attorney cannot purchase his client’s property or interest in
litigation;
4. The privacy of communications shall at all times upheld;
5. An attorney cannot represent a party whose interest is adverse to
that of his client even after the termination of the relation
Is a written contract indispensable to prove lawyer-client
relationship?
The absence of a written contract will not preclude a finding that
there is a professional relationship. Documentary formalism is not an
essential element in the employment of an attorney; the contract may
be express or implied.
It is sufficient to establish the professional relation, that the
advice and assistance of an attorney is sought and received in any
matter pertinent to his profession. An acceptance of the relation is
implied on the part of the attorney from his acting on behalf of his
client in pursuance of a request from the latter (Hirach Bros. and Co.
v. R. E. Kennington Co., 88 A. L. R., 1. cited in Hilado v. David, G.R.
No. L-961, September 21, 1949).
Canon 14
1. What are the duties of a lawyer as enunciated in Canon14 and the
rules under it?
CANON 14 - A lawyer shall not refuse his services to the needy.
Rule 14.01 - A lawyer shall not decline to represent a person solely
on account of the latter's race, sex. creed or status
of life, or because of his own opinion regarding the
guilt of said person.
Rule 14.02 - A lawyer shall not decline, except for serious and
sufficient cause, an appointment as counsel de
officio or as amicus curiae, or a request from the
Integrated Bar of the Philippines or any of its
chapters for rendition of free legal aid.
2. What are the permissible grounds for a lawyer to refuse to accept
to represent an indigent client?
Rule 14.03 - A lawyer may not refuse to accept representation
of an indigent client unless:
(a) he is not in a position to carry out the work effectively or
competently;
(b) he labors under a conflict of interest between him and the
prospective client or between a present client and the
prospective client.
Grounds of refusal of appointment to be a Counsel de Oficio (other)
1. Too many de officio cases assigned to the lawyer (People v.
Daeng, G.R. No. L-34091, January 30, 1973);
2. Conflict of interest (Rule 14.03, b, CPR);
3. Lawyer is not in a position to carry out the work effectively or
competently (Rule 14.03, a, CPR);
4. Lawyer is prohibited from practicing law by reason of his
public office which prohibits appearances in court;
5. Lawyer is preoccupied with too many cases which will spell
prejudice to the new clients;
6. Health reasons; and
7. Extensive travel abroad.
3. What is the standard of conduct that a lawyer must observe with
respect to a non-paying client?
Rule 14.04 - A lawyer who accepts the cause of a person
unable to pay his professional fees shall observe the same
standard of conduct governing his relations with paying
clients.
4. A lawyer accused of a criminal offense has asked you to handle
his
defense. After going over his narration of the incident that gave
rise
to the case and the available evidence related thereto, you
strongly
believe that he is guilty as charged. Should you agree to defend
him? Why?
Yes.
Rule 14.01 of the Code of Professional Responsibility
provides that a lawyer shall not decline to represent a person
solely on account of the latter's race, sex, creed or status of life,
or because his own opinion regarding the guilt of the said
person. It is not the duty of the lawyer to determine whether
the accused is guilty or not, but the judge’s. Besides, in a
criminal case, the accused is presumed innocent, and he is
entitled to an acquittal unless his guilt is proven beyond
reasonable doubt. The role of the lawyer is to see to it that his
constitutional right to due process is observed.
5. Atty. D’s was engaged as defense counsel by Mr. B. In the course
of the proceedings in the case, Atty. D filed a motion to withdraw
as counsel without Mr. B’s consent. Is Atty. D’s motion legally
tenable?
NO. Atty. D’s motion is not legally tenable. Sec 26, Rule
138 of the Rules of Court, provides that an attorney may
retire at any time from any action or proceeding, by the written
consent of his client filed in court. A lawyer may also retire at
any time from any action or proceeding, without the consent of
the client, should the court, on notice to the client and attorney,
and on hearing, determine that he ought to be allowed to retire.
Being an officer of the court in whose favour a lawyer owes
the duty to assist in administering justice, he may not withdraw
or be permitted to withdraw as counsel in a case if such
withdrawal will work injustice to a client or frustrate the ends of
justice. (Finch vs Wallberg Dredging Co.)
Among the fundamental rules of ethics is the principle that
an attorney who undertakes to conduct an action impliedly
stipulates to carry it to its conclusion. He is not at liberty to
abandon it without reasonable cause. A lawyers right to
withdraw from the case before its final adjudication arises only
from the client ‘s written consent or from the court’s approval of
his petition to withdraw based on a good cause. (Orcino vs
Gaspar)
Mr. B should not be deprived of his counsel’s
representation, absent such consent from the client.
6. What is the duty of the Court under the rules of court when a
party (in a civil and criminal case) is not represented by a
counsel?
In civil cases Section 21, Rule 3 of Rules of Court provides
that A party may authorized to litigate his action, claim or
defense as an indigent if the court, upon an ex parte application
and hearing, is satisfied that the party is one who has no money
or property sufficient and available for food, shelter and basic
necessities for himself and his family.
In criminal cases Sec 6, Rule 116 of the Rules of Court ,
provides for the Duty of court to inform accused of his right to
counsel. — Before arraignment, the court shall inform the
accused of his right to counsel and ask him if he desires to have
one. Unless the accused is allowed to defend himself in person or
has employed a counsel of his choice, the court must assign a
counsel de officio to defend him.
Section 31, Rule 138, of the Rules of Court - Attorneys for
destitute litigants. — A court may assign an attorney to render
professional aid free of charge to any party in a case, if upon
investigation it appears that the party is destitute and unable to
employ an attorney, and that the services of counsel are
necessary to secure the ends of justice and to protect the
rights of the party. It shall be the duty of the attorney so
assigned to render the required service, unless he is excused
therefrom by the court for sufficient cause shown.
7. What parameter should the Court observe when appointing a
lawyer as counsel de officio?
Section 7, Rule 116 of the Rules of Court. Appointment of
counsel de oficio. — The court, considering the gravity of the
offense and the difficulty of the questions that may arise,
shall appoint as counsel de oficio only such members of the
bar in good standing who, by reason of their experience and
ability, can competently defend the accused.
8. What if there is no lawyer befitting your answer in No. 7 available
in a certain locality?
Under Sec 7 of the same Rule states that if in localities where
such members of the bar are not available, the court may
appoint any person, resident of the province and of good repute
for probity and ability, to defend the accused.
9. Is the Court justified to appoint a counsel de officio to an accused
who is represented by a counsel de parte but deliberately made
himself scarce during the trial?
The duty of the court to appoint a counsel de
oficio for the accused who has no counsel of choice and desires
to employ the services of one is mandatory only at the time
of arraignment. No such duty exists where the accused has
proceeded to arraignment and then trial with a counsel of his
own choice. Worth noting, when the time for the presentation of
evidence for the defense arrived, and the defendant appeared by
himself alone, the absence of his counsel was
inexcusable. (Libuit vs People, GR No. 154363, Sept 13, 2005)
In the present case, since the accused was represented by
counsel de parte at the arraignment and trial, the trial court
could not be deemed duty-bound to appoint a counsel de
oficio during the trial of his case. The deliberate absence of the
accused’s counsel was sufficient legal basis for the trial court to
order waiver of the defense’ right to cross- examine the
prosecution witness, or the striking from the records of his direct
testimony, or the waiving of the presentation of defense’
evidence and thereafter render judgment upon the evidence
already presented, as the case maybe. In fact, the deliberate
failure to appear of accused's counsel at the trial may
even be taken as a deliberate attempt to delay the court's
proceedings.
At the most, the appointment of a counsel de oficio in
a situation like the present case would be discretionary with
the trial court, which discretion will not be interfered with in
the absence of grave abuse. (Sayson vs People and CA, GR No.
L-51745, Oct 28, 1988)
But the promulgation of the Revised Guidelines For
CONTINUOUS Trial Of Criminal Cases (III-Procedure, 13.
Trial, b, A.M. No.15-06-10-SC) is sufficient justification to
quote “Absence of counsel de parte. -In the absence of the
counsel de parte, the hearing shall proceed upon appointment by
the court of a counsel de oficio.”
10. May a lawyer accept a losing civil case?
Yes. A lawyer may also accept a losing civil case, provided
that, in so doing, he must not engage in dilatory tactics and
must advise his client about the prospects and advantage of
settling the case through a compromise to the extent of
representing indigents, defenseless and the oppressed.
11. Who are considered indigent clients or pauper litigants under the
rules of court?
In civil cases Section 21, Rule 3 of the Rules of Court
provides that a party may authorized to litigate his action, claim
or defense as an indigent if the court, upon an ex
parte application and hearing, is satisfied that the party is one
who has no money or property sufficient and available for
food, shelter and basic necessities for himself and his
family.
Further, in Sec. 19, Rule 141 of the Rules of Court.
Indigent litigants exempt from payment of legal fees. - Indigent
litigants (a) whose gross income and that of their
immediate family do not exceed an amount double the
monthly minimum wage of an employee and (b) who do
not own real property with A FAIR MARKET VALUE AS
STATED IN THE CURRENT TAX DECLARATION of more than
THREE hundred thousand (P300,000.00) pesos shall be
exempt from the payment of legal fees.
12. How is a party allowed to litigate as an indigent?
Section 21, Rule 3 of the Rules of Court Indigent party. — A
party may be authorized to litigate his action, claim or defense
as an indigent if the court, upon an ex parte application and
hearing, is satisfied that the party is one who has no money or
property sufficient and available for food, shelter and basic
necessities for himself and his family.
Such authority shall include an exemption from payment of
docket and other lawful fees, and of transcripts of stenographic
notes which the court may order to be furnished him. The
amount of the docket and other lawful fees which the indigent
was exempted from paying shall be a lien on any judgment
rendered in the case favorable to the indigent, unless the court
otherwise provides.
Any adverse party may contest the grant of such authority
at any time before judgment is rendered by the trial court. If the
court should determine after hearing that the party declared as
an indigent is in fact a person with sufficient income or property,
the proper docket and other lawful fees shall be assessed and
collected by the clerk of court. If payment is not made within the
time fixed by the court, execution shall issue or the payment
thereof, without prejudice to such other sanctions as the court
may impose.
13. What are lawyers specifically required to render under Bar
Matter
No. 2012, February 10, 2009? Who are exempted as provided
under BM?
SECTION 5 of BM No. 2012 provides for the Requirements
under the PROPOSED RULE ON MANDATORY LEGAL AID
SERVICE FOR PRACTICING LAWYERS to wit;
(a) Every practicing lawyer is required to render a minimum
of sixty (60) hours of free legal aid services to indigent
litigants in a year. Said 60 hours shall be spread within a
period of twelve (12) months, with a minimum of five (5) hours
of free legal aid services each month. However, where it is
necessary for the practicing lawyer to render legal aid service for
more than five (5) hours in one month, the excess hours may be
credited to the said lawyer for the succeeding periods.
For this purpose, a practicing lawyer shall coordinate with
the Clerk of Court for cases where he may render free legal aid
service. He may also coordinate with the IBP Legal Aid
Chairperson of the IBP Chapter to inquire about cases where he
may render free legal aid service. In this connection, the IBP
Legal Aid Chairperson of the IBP Chapter shall regularly and
actively coordinate with the Clerk of Court.
The practicing lawyer shall report compliance with the
requirement within ten (10) days of the last month of each
quarter of the year.
(b) A practicing lawyer shall be required to secure and obtain a
certificate from the Clerk of Court attesting to the number of
hours spent rendering free legal aid services in a case.
The certificate shall contain the following information:
(i) The case or cases where the legal aid service was
rendered, the party or parties in the said case(s) for whom the
service was rendered, the docket number of the said case(s) and
the date(s) the service was rendered.
(ii) The number of hours actually spent attending a
hearing or conducting trial on a particular case in the court or
quasi-judicial body.
(iii) The number of hours actually spent attending
mediation, conciliation or any other mode of ADR on a particular
case.
(iv) A motion (except a motion for extension of time to file
a pleading or for postponement of hearing or conference) or
pleading filed on a particular case shall be considered as one (1)
hour of service.
The Clerk of Court shall issue the certificate in triplicate,
one (1) copy to be retained by the practicing lawyer, one (1)
copy to be retained by the Clerk of Court and one (1) copy to be
attached to the lawyer's compliance report.
(c) Said compliance report shall be submitted to the Legal Aid
Chairperson of the IBP Chapter within the court’s jurisdiction.
The Legal Aid Chairperson shall then be tasked with immediately
verifying the contents of the certificate with the issuing Clerk of
Court by comparing the copy of the certificate attached to the
compliance report with the copy retained by the Clerk of Court.
(d) The IBP Chapter shall, after verification, issue a compliance
to the concerned lawyer. The IBP Chapter shall also
submit the compliance reports to the IBP’s NCLA for recording
and documentation. The submission shall be made within forty-
five (45) days after the mandatory submission of compliance
reports by the practicing lawyers.
(e) Practicing lawyers shall indicate in all pleadings filed
before the courts or quasi-judicial bodies the number and
date of issue of their certificate of compliance for the
immediately preceding compliance period. Failure to disclose
the required information would cause the dismissal of the
case and the expunction of the pleadings from the
records.
(f) Before the end of a particular year, lawyers covered by the
category under Section 4(a)(i) and (ii), shall fill up a form
prepared by the NCLA which states that, during that year, they
are employed with the government or incumbent elective
officials not allowed by law to practice or lawyers who by law are
not allowed to appear in court.
The form shall be sworn to and submitted to the IBP
Chapter or IBP National Office together with the payment of an
annual contribution of Two Thousand Pesos (P2,000). Said
contribution shall accrue to a special fund of the IBP for the
support of its legal aid program.
(g) Before the end of a particular year, lawyers covered by the
category under Section 4(a)(iii) shall secure a certification from
the director of the legal clinic or of the concerned NGO or PO to
the effect that, during that year, they have served as supervising
lawyers in a legal clinic or actively participated in the NGO’s or
PO’s free legal aid activities. The certification shall be submitted
to the IBP Chapter or IBP National Office.
(h) Before the end of a particular year, lawyers covered by the
category under Section 4(a)(iv) shall fill up a form prepared by
the NCLA which states that, during that year, they are neither
practicing lawyers nor covered by Section (4)(a)(i) to (iii). The
form shall be sworn to and submitted to the IBP Chapter or IBP
National Office together with the payment of an annual
contribution of Four Thousand Pesos (P4,000) by way of support
for the efforts of practicing lawyers who render mandatory free
legal aid services. Said contribution shall accrue to a special fund
of the IBP for the support of its legal aid program.
(i) Failure to pay the annual contribution shall subject the
lawyer a penalty of Two Thousand Pesos (P2,000) for that year
which amount shall also accrue to the special fund for the legal
aid program of the IBP.
SECTION 4. Definition of Terms. - For purposes of this Rule:
(a) Practicing lawyers are members of the Philippine Bar who
appear for and in behalf of parties in courts of law and quasi-
judicial agencies, including but not limited to the National Labor
Relations Commission, National Conciliation and Mediation
Board, Department of Labor and Employment Regional Offices,
Department of Agrarian Reform Adjudication Board and National
Commission for Indigenous Peoples. The term "practicing
lawyers" shall exclude:
(i) Government employees and incumbent elective officials
not allowed by law to practice;
(ii) Lawyers who by law are not allowed to appear in court;
(iii) Supervising lawyers of students enrolled in law student
practice in duly accredited legal clinics of law schools and
lawyers of non-governmental organizations (NGOs) and
peoples’ organizations (POs) like the Free Legal Assistance
Group who by the nature of their work already render free
legal aid to indigent and pauper litigants and
(iv) Lawyers not covered under subparagraphs (i) to (iii)
including those who are employed in the private sector but
do not appear for and in behalf of parties in courts of law
and quasi-judicial agencies.
14. Give a brief overview of RA No. 9999 (Free Legal Assistance Act)
The Act shall guarantee free legal assistance to the poor
and ensure that every person who cannot afford the services of a
counsel is provided with a competent and independent counsel
preferably of his/her own choice, if upon determination it
appears that the party cannot afford the services of a counsel,
and that services of a counsel are necessary to secure the ends
of justice and protect of the party.
The free legal services to be performed by a lawyer refers
to any activity which requires the application of law, legal
procedure, knowledge, training and experiences which shall
include, among others, legal advice and counsel, and the
preparation of instruments and contracts, including appearance
before the administrative and quasi-judicial offices, bodies and
tribunals handling cases in court, and other similar services as
may be defined by the Supreme Court.
For purposes of availing of the benefits and services as
envisioned in this Act, a lawyer or professional partnership shall
secure a Certification issued by, among others, the PAO, the DOJ
and other accredited association by the Supreme Court shall be
submitted to the Bureau of Internal Revenue (BIR) for purposes
of availing the tax deductions as incentives as provided for in
this Act and to the DOJ for purposes of monitoring.
Section 5 of the Act provides that lawyers giving free legal
services, shall be entitled to an allowable deduction from the
gross income, the amount that could have been collected for the
actual free legal services rendered or up to ten percent (10%) of
the gross income derived from the actual performance of the
legal profession, whichever is lower: Provided, That the actual
free legal services herein contemplated shall be exclusive of the
minimum sixty (60)-hour mandatory legal aid services rendered
to indigent litigants as required under the Rule on Mandatory
Legal Aid Services for Practicing Lawyers, under BAR Matter No.
2012, issued by the Supreme Court.
Canon 15
1. What is required by the canon of a lawyer in relation to his
dealings
with his client?
CANON 15 of the CPR requires a lawyer to observe candor,
fairness and loyalty in all his dealings and transactions
with his clients.
2. A lawyer must ascertain, upon conferring with a prospective
client,
whether there is possible conflict of interest with an existing
client
or his own interest.
a.) How is conflict of interest best defined in relation of conflict
attorney-client relationship?
A lawyer represents conflicting interests when in behalf of
one of the clients, it is his duty to contend for that which duty to
another client requires him to oppose. ( Artizuela vs Maderazo,
A.C. No. 4354, April 22, 2002)
b.) What is the rationale for the prohibition to represent a client
where there is conflict of interest? What is the test of
conflict?
(Santos vs Beltran, A.C. No. 5858, Dec 11, 2013)
An attorney owes his client undivided allegiance. Because
of the highly fiduciary nature of the attorney-client relationship,
sound public policy dictates that a lawyer be prohibited
from representing conflicting interests or discharging
inconsistent duties. He may not, without being guilty of
professional misconduct, act as counsel for a person whose
interest conflicts with that of his present or former client.
Indeed, good faith and honest intention on the part of the erring
lawyer does not make this rule inoperative. 21
3 Tests to Determine the Existence of Conflict of Interest
1. Conflicting Duties-There is conflict of interest when a lawyer
represents inconsistent interests of two or more opposing
parties. "whether or not in behalf of one client, it is the lawyer’s
duty to fight for an issue or claim, but it is his duty to oppose it
for the other client. In brief, if he argues for one client, this
argument will be opposed by him when he argues for the other
client."
2. Use of Prior Knowledge Obtained- This rule covers not
only cases in which confidential communications have been
confided, but also those in which no confidence has been
bestowed or will be used. Also, there is conflict of interests if the
acceptance of the new retainer will require the attorney to
perform an act which will injuriously affect his first client in any
matter in which he represents him and also whether he will be
called upon in his new relation to use against his first client any
knowledge acquired through their connection.
3. Invitation of Suspicion -Another test of the inconsistency of
interests is whether the acceptance of a new relation will prevent
an attorney from the full discharge of his duty of undivided
fidelity and loyalty to his client or invite suspicion of
unfaithfulness or double dealing in the performance thereof. 19
c.) If a possible conflict of interest is ascertained, what is the
concomitant duty of the lawyer?
As stated under Rule 15.01, Canon 15, of the CPR - 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.
d.) Is it required that a lawyer be a counsel of record of the party
whose interest is in conflict with the prospective client for the
prohibition to apply?
Being a counsel-of-record of the other party is not a
requisite to be guilty of representing conflicting interests.
To be guilty of representing conflicting interests, a
counsel-of-record of one party need not also be counsel-of-
record of the adverse party. He does not have to publicly hold
himself as the counsel of the adverse party, nor make his efforts
to advance the adverse party's conflicting interests of record ---
although these circumstances are the most obvious and
satisfactory proof of the charge. It is enough that the counsel
of one party had a hand in the preparation of the pleading
of the other party, claiming adverse and conflicting
interests with that of his original client. To require that he
also be counsel-of-record of the adverse party would punish only
the most obvious form of deceit and reward, with impunity, the
highest form of disloyalty (Artezueza v. Atty. Maderazo, A.C. No.
4354, April 22, 2002).
e.) Would a gap of 8 years from the time the lawyer-client relation
with the first client and the time the lawyer-client relationship
with a new client transpired remove the relationships from the
ambit of conflict of interest? Would the termination of the
previous engagement change your answer?
No. The lawyer's highest and most unquestioned duty is to
protect
the client at all hazards and costs even to himself. The
protection given to the client is perpetual and does not
cease with the termination of the litigation, nor is it
affected by the client's ceasing to employ the attorney
and retaining another, or by any other change of relation
between them. It even survives the death of the client
(Samson v. Atty. Era, A.C. No. 6664, July 16, 2013).
Termination of relation of attorney and client provides no
justification for a lawyer to represent an interest adverse to or in
conflict with that of the former client. Neither may he do
anything injurious to his former client nor use against former
client any knowledge or information gained.
Reason: client’s confidence, once reposed, cannot be divested
by the expiration of professional employment.
3. What is the so-called privileged communication as contained in
Rule
15.02?
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.
A privileged communication is one that refers to
information transmitted by voluntary act of disclosure between
attorney and client in confidence and by means of which, in so
far as the client is aware, discloses the information to no third
person other than one reasonably necessary for the transmission
of the information or the accomplishment of the purpose for
which it was given.
4. What is the duty of a lawyer when advising a client as pronounced
under Rule 15.05?
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.
5. Rule on the conduct of:
a.) A lawyer who assures a client that he could facilitate the
release of a detained person through his connections in
the
judiciary in exchange for money.
Clearly, the lawyer violates Rule 15.06 of the CPR which
provides that a lawyer shall not state or imply that he is
able to influence any public official, tribunal or legislative
body.
This rule is known as INFLUENCE-PEDDLING. It is improper
for a lawyer to show in any way that he has connections and can
influence any tribunal or public official, judges, prosecutors,
congressmen and others, especially so if the purpose is to
enhance his legal standing and to entrench the confidence of the
client that his case or cases are assured of victory.
b.) A lawyer who advises his client to evade payment of taxes.
He violates Rule 15.07 which states that a lawyer shall impress
upon his client compliance with the laws and the principles of
fairness.
His office does not permit violation of law or any manner of fraud
or chicanery. He swore, upon his admission to the practice, to
uphold the cause of justice, obey the law, and do no falsehood.
There is nothing in the duty to a client which makes it necessary
for a lawyer to swear to that which is false, to disregard the
truth and defy the clear purpose of the law, or to obtain for his
client something to which he is not justly and fairly entitled.
Canon 16
1. What is the duty of a lawyer with respect to money or properties
of
the client that may come to his possession?
Canon 16. A Lawyer shall hold in trust all money’s and
Properties of his client that may come into his
possession.
Rule 16.01. A lawyer shall account for all money or property
collected or received for or from the client.
Rule 16.02. A lawyer shall keep the funds of each client
separate and apart from his own and those of others
kept by him.
Rule 16.03. A lawyer shall deliver the funds and property to
his
client when due or upon demand. However, he shall
have a lien over the funds and may apply so much
thereof as may be necessary to satisfy his lawful fees
and disbursements, giving notice promptly thereafter
to his client. He shall also have a lien to the same
extent on all judgments and executions he has
secured
for his client as provided for in the Rules of Court.
Rule 16.04. A lawyer shall not borrow money from his client
unless the client’s interests are fully protected by the
nature of the case or by independent advice. Neither
shall a lawyer lend money to a client except when,
in the interest of justice, he has to advance necessary
expenses in a legal matter he is handling for the
client.
2. Atty. X received P 400,000.00 from the losing party as satisfaction
For the favourable judgment in a collection of sum of money
which
he handled for his client. The client owes him P 100,000.00 in
attorney’s fees. May Atty. X apply portion of the P400,000.00 to
settle his unpaid Attorney’s fees?
Rule 16.03. A lawyer shall deliver the funds and property to
his
client when due or upon demand. However, he shall
have a lien over the funds and may apply so much
thereof as may be necessary to satisfy his lawful fees
and disbursements, giving notice promptly thereafter
to his client. He shall also have a lien to the same
extent on all judgments and executions he has
secured
for his client as provided for in the Rules of Court.
A lawyer is not entitled to unilaterally appropriate his
client’s money for himself by the mere fact alone that the client
owes him attorney’s fees. ( Rayos vs Hernandez, G.R. No.
169079, Feb. 12, 2007)
A counsel has no right to retain or appropriate unilaterally
as lawyer’s lien any amount belonging to his client which may
come into his possession (Cabigao v. Rodrigo, 57 Phil. 20).
NOTE: While this rule provides that the lawyer has the right to
retain the funds of his client as may be necessary to satisfy his
lawful fees and disbursements known as attorney’s lien and his
lien to the same extent on all judgments and executions he has
secured for his client called charging lien, he is still duty bound
to render an accounting of his client’s funds and property which
may come into his possession in the course of his professional
employment In the application of attorney’s lien, a lawyer shall
give notice to his client otherwise, the same might be construed
as misappropriation which may subject him to disciplinary action
(Antiquiera, 2007).
3. What is the presumption when a lawyer fails to account for money
received for his client? May a lawyer be punished for doing so?
When a lawyer collects or receives money from his client
for a particular purpose (such as for filing fees, registration fees,
transportation and office expenses), he should promptly account
to the client how the money was spent. If he does not use the
money for its intended purpose, he must immediately return it to
the client. His failure either to render an accounting or to
return the money (if the intended purpose of the money
does not materialize) constitutes a blatant disregard of
Rule 16.01 of the Code of Professional Responsibility.
Moreover, a lawyer has the duty to deliver his client's
funds or properties as they fall due or upon demand. His failure
to return the client's money upon demand gives rise to the
presumption that he has misappropriated it for his own
use to the prejudice of and in violation of the trust
reposed in him by the client. It is a gross violation of general
morality as well as of professional ethics; it impairs public
confidence in the legal profession and deserves punishment.
(Trenas vs People, G.R. No. 195002, January 25, 2012 )
The failure of an attorney to return the client’s
money upon demand gives rise to the presumption that he
has misappropriated it for his own use to the prejudice and
violation of the general morality, as well as of professional
ethics; it also impairs public confidence in the legal profession
and deserves punishment. In short, a lawyer’s unjustified
withholding of money belonging to his client, as in this case,
warrants the imposition of disciplinary action. ( Rayos vs
Hernandez, G.R. No. 169079, Feb. 12, 2007)
4. Atty. X misappropriated an amount of P 1,000.00 from the money
received for the client, can the client charge Atty. X
administratively?
Rule 16.01. A lawyer shall account for all money or property
collected or received for or from the client.
Yes. Lawyers who convert the funds entrusted to them are in
gross violation of professional ethics and are guilty of betrayal of public
confidence in the legal profession. Those who are guilty of such
infraction may be disbarred or suspended from the practice of law.
(Adrimisin vs Javier, A.C. No. 2591, Sept. 8, 2006)
5. Why must a lawyer keep the funds and properties of each client
separate from his own and those of others kept by him?
Rule 16.02, Canon 16 A lawyer shall keep the funds of each
client separate and apart from his own and those of others kept by
him.
Failure of the lawyer to account all the funds and property of his
client which may come into his possession would amount to
misappropriation which may subject him to disbarment on the ground
of grave misconduct or a criminal prosecution for estafa under Art.
315, par. 1(b) of the RPC.
6. Why is a lawyer prohibited from:
a.) lending money to his client;
Rule 16.04, Canon 16 of the CPR provides that a lawyer
shall not borrow money from his client unless the client's interest
are fully protected by the nature of the case or by independent advice.
Neither shall a lawyer lend money to a client except, when in the
interest of justice, he has to advance necessary expenses in a legal
matter he is handling for the client.
The prohibition from lending is intended to assure the
lawyer’s independent professional judgment, for if the lawyer
acquires a financial interest in the outcome of the case, the free
exercise of his judgment may be adversely affected.
b.) borrowing money from his client?
A lawyer’s act of asking a client for a loan, as what respondent
did, is very unethical. It comes within those acts considered as abuse
of client’s confidence. The canon presumes that the client is
disadvantaged by the lawyer’s ability to use all the legal maneuverings
to renege on her obligation (Frias v. Lozada, A.C. NO. 6656, December
13, 2005),
7. Article 1491 of the Civil Code prohibits lawyer from purchasing
property of a client under litigation. What are the essential
requisites for the prohibition to apply? Name some instances
when the prohibition would not apply.
Article 1491. The following persons cannot acquire by purchase, even
at a public or judicial auction, either in person or through the
mediation of another:
(5) Justices, judges, prosecuting attorneys, clerks of superior and
inferior courts, and other officers and employees connected with the
administration of justice, the property and rights in litigation or levied
upon an execution before the court within whose jurisdiction or
territory they exercise their respective functions; this prohibition
includes the act of acquiring by assignment and shall apply to lawyers,
with respect to the property and rights which may be the object of any
litigation in which they may take part by virtue of their profession;
*The prohibition applies to properties subject of litigation to the
persons disqualified by virtue of this provision. It applies during the
pendency of litigation involving the property. Such as when the
property is subject to the judicial action of the judge or a lawyer, who
by virtue of his profession, takes part on the purchase of the property.
As a rule, a lawyer is not barred from dealing with his client but
the business transaction must be characterized with utmost honesty
and good faith. Business transactions between an attorney and his
client are disfavored and discouraged by the policy of the law. Hence,
courts carefully watch these transactions to assure that no advantage
is taken by a lawyer over his client. This rule is founded on public
policy for, by virtue of his office, an attorney is in an easy position to
take advantage of the credulity and ignorance of his client. Thus, no
presumption of innocence or improbability of wrongdoing is considered
in an attorney's favor. (Nakpil vs Valdez, A.C. No. 2040, March 4, 1998)
