C. Por nivel de formación
IV. Población desempleada
IV.2. Población desempleada y tasa de paro por colectivos específicos en las Comunidades Autónomas Españolas
IV.2.4. Población parada y tasa de paro por nivel de formación
(NOT NECESSARILY A PUBLIC OFFICER ALTHOUGH ALL LAWYERS ARE OFFICERS OF THE COURT)
• ACTS PUNISHED:
a.
Causing damage to client (prejudice is essential) either 1. by any malicious breach of professional duty, or 2. by inexcusable negligence or ignorance.b.
Revealing any of the secrets of his client learned by him in his professional capacity (damage notnecessary)
c.
Undertaking the defense of the opposing party of the 1st client and/or having received confidentialinformation from the latter and without the latter’s consent (damage not necessary)
Note: When the attorney acts with malicious abuse of his employment or inexcusable negligence or ignorance, there
must be damage to his client.
Under the rules on evidence, communications made with prospective clients to a lawyer with a view to engaging his professional services are already privileged even though the client-lawyer relationship did not eventually materialize because the client cannot afford the fee being asked by the lawyer. The lawyer and his secretary or clerk cannot be examined thereon.
That this communication with a prospective client is considered privileged, implies that the same is confidential. Therefore, if the lawyer would reveal the same or otherwise accept a case from the adverse party, he would already be violating Article 209. Mere malicious breach without damage is not violative of Article 209; at most he will be liable administratively as a lawyer, e.g., suspension or disbarment under the Code of Professional Responsibility.
Illustration:
B, who is involved in the crime of seduction wanted A, an attorney at law, to handle his case. A received confidential information from B. However, B cannot pay the professional fee of A. C, the offended party, came to A also and the same was accepted.
A did not commit the crime under Article 209, although the lawyer’s act may be considered unethical. The client- lawyer relationship between A and B was not yet established. Therefore, there is no trust to violate because B has not yet actually engaged the services of the lawyer A. A is not bound to B. However, if A would reveal the confidential matter learned by him from B, then Article 209 is violated because it is enough that such confidential matters were communicated to him in his professional capacity, or it was made to him with a view to engaging his professional services.
Here, matters that are considered confidential must have been said to the lawyer with the view of engaging his services. Otherwise, the communication shall not be considered privileged and no trust is violated.
Illustration:
A went to B, a lawyer/notary public, to have a document notarized. A narrated to B the detail of the criminal case. If B will disclose what was narrated to him there is no betrayal of trust since B is acting as a notary public and not as a counsel. The lawyer must have learned the confidential matter in his professional capacity.
Several acts which would make a lawyer criminally liable:
(1) Maliciously causing damage to his client through a breach of his professional duty. The breach of professional duty must be malicious. If it is just incidental, it would not give rise to criminal liability, although it may be the subject of administrative discipline;
(2) Through gross ignorance, causing damage to the client; (3) Inexcusable negligence;
(4) Revelation of secrets learned in his professional capacity;
(5) Undertaking the defense of the opposite party in a case without the consent of the first client whose defense has already been undertaken.
Note that only numbers 1, 2 and 3 must approximate malice.
A lawyer who had already undertaken the case of a client cannot later on shift to the opposing party. This cannot be done.
Under the circumstances, it is necessary that the confidential matters or information was confided to the lawyer in the latter’s professional capacity.
It is not the duty of the lawyer to give advice on the commission of a future crime. It is, therefore, not privileged in character. The lawyer is not bound by the mandate of privilege communication if he reports such commission of a future crime. It is only confidential information relating to crimes already committed that are covered by the crime of betrayal of trust if the lawyer should undertake the case of opposing party or otherwise divulge confidential information of a client.
Under the law on evidence on privileged communication, it is not only the lawyer who is protected by the matter of privilege but also the office staff like the secretary.
The nominal liability under this article may be constituted either from breach of professional duties in the handling of the case or it may arise out of the confidential relation between the lawyer and the client.
Breach of professional duty
Tardiness in the prosecution of the case for which reason the case was dismissed for being non-prosecuted; or tardiness on the part of the defense counsel leading to declaration of default and adverse judgment.
Professional duties – Lawyer must appear on time. But the client must have suffered damage due to the breach of professional duty. Otherwise, the lawyer cannot be held liable.
If the prosecutor was tardy and the case was dismissed as non-prosecuted, but he filed a motion for reconsideration which was granted, and the case was continued, the lawyer is not liable, because the client did not suffer damage. If lawyer was neglectful in filing an answer, and his client declared in default, and there was an adverse judgment, the client suffered damages. The lawyer is liable.
Breach of confidential relation
Revealing information obtained or taking advantage thereof by accepting the engagement with the adverse party. There is no need to prove that the client suffered damages. The mere breach of confidential relation is punishable. In a conjugal case, if the lawyer disclosed the confidential information to other people, he would be criminally liable even though the client did not suffer any damage.
The client who was suing his wife disclosed that he also committed acts of unfaithfulness. The lawyer talked about this to a friend. He is, thus, liable.
Article 210 DIRECT BRIBERY
• ELEMENTS:
b. That the offender accepts an offer or promise or receives a gift or present by himself or through another
c.
That such offer or promise be accepted or gift/present received by the public officer (mereagreement consummates the crime)
1.
with a view to committing some crime (delivery of consideration is not necessary) or2.
in consideration of an execution of an act which does not constitute a crime, but the act must be unjust (delivery of consideration is necessary), or3. to refrain from doing something which is his official duty to do
d. That the act which the offender agrees to perform or which he executes be connected with the performance of his official duties
Bribery refers to the act of the receiver and the act of the giver is corruption of public official.
•
For purposes of this article, temporary performance of public functions is sufficient to constitute a person a public officer.•
A private person may commit this crime only in the case in which custody of prisoners is entrusted to him• Applicable also to assessors, arbitrators, appraisal and claim commissioners, experts or any other person performing public duties
• Cannot be frustrated, only attempted or consummated.
Direct bribery may be committed only in the attempted and consummated stages because, in frustrated felony, the offender must have performed all the acts of execution which would produce the felony as a consequence. In direct bribery, it is possible only if the corruptor concurs with the offender. Once there is concurrence, the direct bribery is already consummated. In short, the offender could not have performed all the acts of execution to produce the felony without consummating the same.
Actually, you cannot have a giver unless there is one who is willing to receive and there cannot be a receiver unless there is one willing to give. So this crime requires two to commit. It cannot be said, therefore, that one has performed all the acts of execution which would produce the felony as a consequence but for reasons independent of the will, the crime was not committed.
It is now settled, therefore, that the crime of bribery and corruption of public officials cannot be committed in the frustrated stage because this requires two to commit and that means a meeting of the minds.
Illustrations:
(1) If the public official accepted the corrupt consideration and turned it over to his superior as evidence of the corruption, the offense is attempted corruption only and not frustrated. The official did not agree to be corrupted.
If the public officer did not report the same to his superior and actually accepted it, he allowed himself to be corrupted. The corruptor becomes liable for consummated corruption of public official. The public officer also becomes equally liable for consummated bribery.
(2) If a public official demanded something from a taxpayer who pretended to agree and use marked money with the knowledge of the police, the crime of the public official is attempted bribery. The reason is that because the giver has no intention to corrupt her and therefore, he could not perform all the acts of execution.
Be sure that what is involved is a crime of bribery, not extortion. If it were extortion, the crime is not bribery, but robbery. The one who yielded to the demand does not commit corruption of a public officer because it was involuntary.
• Bribery exists when the gift is:
a. voluntarily offered by a private person
b. solicited by the public officer and voluntarily delivered by the private person
c. solicited by the public officer but the private person delivers it out of fear of the consequences should the public officer perform his functions (here the crime by giver is not corruption of public officials due to involuntariness)
•
Actual receipt of the gift is not only if acts constitutes a crime necessary. An accepted offer or promise of a gift is sufficient. However, if the offer is not accepted, only the person offering the gift is liable for attempted corruption of a public officer•
The gift must have a value or capable of pecuniary estimation. It could be in the form of money, property or services• If the act required of the public officer amounts to a crime and he commits it, he shall be liable for the penalty corresponding to the crime in addition to the penalty for bribery
In direct bribery, consider whether the official act, which the public officer agreed to do, is a crime or not.
If it will amount to a crime, it is not necessary that the corruptor should deliver the consideration or the doing of
the act. The moment there is a meeting of the minds, even without the delivery of the consideration, even without the public officer performing the act amounting to a crime, bribery is already committed on the part of the public officer. Corruption is already committed on the part of the supposed giver. The reason is that the agreement is a conspiracy involving the duty of a public officer. The mere agreement is a felony already.
If the public officer commits the act which constitutes the crime, he, as well as the corruptor shall be liable also for that other crime.
Illustrations:
(1) If the corruptor offers a consideration to a custodian of a public record to remove certain files, the mere agreement, without delivery of the consideration, brings about the crime of direct bribery and corruption of public official.
If the records were actually removed, both the public officer and the corruptor will in addition to the two felonies above, will also be liable for the crime committed, which is infidelity in the custody of the public records for which they shall be liable as principals; one as principal by inducement, the other as principal by direct participation.
(2) A party litigant approached the court’s stenographer and proposed the idea of altering the transcript of stenographic notes. The court stenographer agreed and he demanded P 2,000.00.
Unknown to them, there were law enforcers who already had a tip that the court stenographer had been doing this before. So they were waiting for the chance to entrap him. They were apprehended and they said they have not done anything yet.
Under Article 210, the mere agreement to commit the act, which amounts to a crime, is already bribery. That stenographer becomes liable already for consummated crime of bribery and the party who agreed to give that money is already liable for consummated corruption, even though not a single centavo is delivered yet and even though the stenographer had not yet made the alterations.
If he changed the transcript, another crime is committed: falsification.
The same criterion will apply with respect to a public officer who agrees to refrain from performing his official duties. If the refraining would give rise to a crime, such as refraining to prosecute an offender, the mere agreement to do so will consummate the bribery and the corruption, even if no money was delivered to him. If the refraining is not a crime, it would only amount to bribery if the consideration be delivered to him.
If it is not a crime, the consideration must be delivered by the corruptor before a public officer can be prosecuted
for bribery. Mere agreement, is not enough to constitute the crime because the act to be done in the first place is legitimate or in the performance of the official duties of the public official.
Unless the public officer receives the consideration for doing his official duty, there is no bribery. It is necessary that there must be delivery of monetary consideration. This is so because in the second situation, the public officer actually performed what he is supposed to perform. It is just that he would not perform what he is required by law to perform without an added consideration from the public which gives rise to the crime.
The idea of the law is that he is being paid salary for being there. He is not supposed to demand additional compensation from the public before performing his public service. The prohibition will apply only when the money is delivered to him, or if he performs what he is supposed to perform in anticipation of being paid the money.
Here, the bribery will only arise when there is already the acceptance of the consideration because the act to be done is not a crime. So, without the acceptance, the crime is not committed.
• The third type of bribery and prevaricacion (art 208) are similar offenses, both consisting of omissions to do an act required to be performed. In direct bribery however, a gift or promise is given in consideration of the omission. This is not necessary in prevaricacion
Distinction between direct bribery and indirect bribery
Bribery is direct when a public officer is called upon to perform or refrain from performing an official act in exchange for the gift, present or consideration given to him.
If he simply accepts a gift or present given to him by reason of his public position, the crime is indirect bribery. Bear in mind that the gift is given "by reason of his office", not "in consideration" thereof. So never use the term “consideration.” The public officer in Indirect bribery is not to perform any official act.
Note however that what may begin as an indirect bribery may actually ripen into direct bribery. Illustration:
Without any understanding with the public officer, a taxi operator gave an expensive suiting material to a BLT registrar. Upon receipt by the BLT registrar of his valuable suiting material, he asked who the giver was. He found out that he is a taxi operator. As far as the giver is concerned, he is giving this by reason of the office or position of the public officer involved. It is just indirect bribery
If the BLT registrar calls up his subordinates and said to take care of the taxis of the taxi operator so much so that the registration of the taxis is facilitated ahead of the others, what originally would have been indirect bribery becomes direct bribery.
Bribery (210) Robbery (294) When the victim has committed a crime and gives
money/gift to avoid arrest or prosecution. When the victim did not commit a crime and he is intimidated with arrest and/or prosecution to deprive him of his personal property.
Victim parts with his money or property voluntarily. Victim is deprived of his money or property by force or intimidation.
Robbery should be distinguished from Bribery where a law enforcer, say a policeman, extorts money from a person, employing intimidation and threatening to arrest the latter if he will not come across with money may be guilty of Robbery (Article 294, par. 5) or Bribery (Article 210). If the victim actually committed a crime, and the policeman demanded money so he will not be arrested, the crime is Bribery. But if no crime has been committed and the policeman is falsely charging him of having committed one, threatening to arrest him if he will not come across with some consideration, the crime is Robbery.
Article 211 INDIRECT BRIBERY
• ELEMENTS:
a. That the offender is a public officer. b. That he accepts gifts.
c. That the said gifts are offered to him by reason of his office. • The gift is given in anticipation of future favor from the public officer
Indirect bribery, the public officer receives or accepts gifts, money or anything of value by reason of his office. If there is only a promise of a gift or money, no crime is committed because of the language of the law which uses the phrase “shall accept gifts.”
• There must be clear intention on the part of the public officer to take the gift offered and consider the property as his own for that moment. Mere physical receipt unaccompanied by any other sign, circumstance or act to show such acceptance is not sufficient to convict the officer
The Supreme Court has laid down the rule that for indirect bribery to be committed, the public officer must have performed an act of appropriating of the gift for himself, his family or employees. It is the act of appropriating that signifies acceptance. Merely delivering the gift to the public officer does not bring about the crime. Otherwise it would be very easy to remove a public officer: just deliver a gift to him.
• There is no attempted or frustrated indirect bribery