T IPOS DE PREGUNTAS

house. Five days later, Hansel was made a co- respondent (together with Gretel) in a complaint for trespass to dwelling filed by the Joli Bank’s lawyers before the Makati Fiscal’s Office. Discuss the propriety of the act of Joli Bank’s lawyers, considering that all lawyers are mandated to conduct themselves with courtesy, fairness and candor toward their professional colleagues and to avoid harassing tactics against opposing counsel.

A: Considering that there was a restraining order

issued by the Court of Appeals, it was proper for Gretel to take steps to maintain possession of his residence with the assistance of Hansel as a lawyer.

It was not proper for Joli Bank’s lawyer to file an action for trespass to dwelling against Gretel and lawyer Hansel. Canon 8 of the CPR provides that a lawyer shall conduct himself with fairness and candor towards his professional colleagues and shall avoid harassing tactics against opposing counsel. (1989 Bar Question)

Q: Cite some instances of disrespectful language. A:

1. Categorizes the SC decision as false, erroneous and illegal (Suo v. Cloribel, A.M.

No. 01-1-15-RTC, July 10, 2003)

2. Description of judges attitude as “unjust, hostile, vindictive and dangerous”

(Cornejo v. Judge Tan, G.R. No. L-2217, Mar. 23, 1950)

3. Stating that “justice is blind and also deaf and dumb” (In Re: Almacen, G.R. No. L-

27654, Feb. 18, 1970)

4. Attributing to the SC acts of dismissing judges “without rhyme and reason” and disbarring lawyers “without due process”

(Zaldivar v. Gonzales, G.R. Nos. 79690-707, Feb. 1, 1989)

5. Calling an adverse counsel as “bobo” or using the word “ay que bobo” in reference to the manner of offering evidence.

(Castillo v. Padilla Jr., A.M. No. 2339, Feb. 1984); and

6. Any other analogous cases.

Note: Any undue ill-feeling between clients should

demeanor toward each other. While lawyers owe entire devotion to the interests of their clients, their office does not permit violation of the laws or any manner of fraud or chicanery. (Reyes v. Chiong, Jr.,

A.C. No. 5148, July 2003)

Any kind of language which attacks without foundation the integrity of the opposing counsel or the dignity of the court may be stricken off the record or may subject a lawyer to disciplinary action. A lawyer who uses intemperate, abusive, abrasive or threatening language portrays disrespect to the court, disgraces the Bar and invites the exercise by the court of its disciplinary poers. (In re: Gomez, 43

Phil. 376, 1922).

The lawyer’s arguments, whether written or oral, should be gracious to both the court and opposing counsel and be of such words as may be properly addressed by one gentleman to another. (National

Security Co. v. Jarvis, 278 U.S. 610)

Q: In the pleadings and motions filed by Tiongco, he described Atty. Deguma as a love crazed Apache, a horned spinster, man-hungry virago and female bull of an Amazon who would stop at nothing to injure defendant if only to please and attract her client. Tiongco claims that she, as a lawyer in the Public Attorney’s Office, is using the PAO as a marriage bureau for her benefit. Is the language employed by Tiongco improper and unethical?

A: Yes. The Code of Professional Responsibility

provides in Canon 8 that a lawyer shall conduct himself with courtesy, fairness, and candor toward his professional colleagues, and shall avoid harassing tactics against opposing counsel. Rule 8.01 provides that a lawyer shall not in his professional dealings, use language which is abusive, offensive or otherwise improper while Rule 11.03 provides that a lawyer shall abstain from scandalous, offensive or menacing language before the courts. Thus, Tiongco is warned accordingly. (Tiongco Yared v. Ilarde, G.R. No.

114732, Aug. 1, 2000)

Note: Lack of want of intention is no excuse for the disrespectful language employed. Counsel cannot escape responsibility by claiming that his words did not mean what any reader must have understood them as meaning. (Rheem of the Philippines v.

Ferrer, G.R. No. L-22979, January 27, 1967)

A lawyer’s language should be forceful but dignified, emphatic but respectfulas befitting an advocate and in keeping with the dignity of the legal profession. (In re: Climaco, A.C. No. 134-J,

January 21, 1974). Rule 8.01, Canon 8,CPR – A lawyer shall not,

in his professional dealings, use language which is abusive, offensive or otherwise improper.

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Note: Although the Canon that the Rule implements pertains to a lawyer’s dealings with his fellow lawyers, the Rule is generally worded to apply to anyone in the wider context of a lawyer’s professional dealings, including his or her clients and witnesses. (CPR Annotated, PhilJA)

Note: A person without a retained lawyer is a legitimate prospective client for any lawyer whom he approaches for legal services. But, as soon as he had retained one and had not dismissed the retained counsel, efforts of on the part of another lawyer to take him as client constitutes an act of encroaching upon the employment of another lawyer.

A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel much less should he undertake to negotiate or compromise the matter with him, but should deal with his counsel.

Exceptions:

1. A lawyer may properly interview any witness or prospective witness or prospective witness for the opposing side in any civil or criminal action without the consent of opposing counsel or party. 2. Any person who seeks relief against an

unfaithful or neglectful lawyer may approach another lawyer for proper advice and assistance. Any advice or assistance extended after proper verification is not encroaching upon the business of another lawyer for such act is justified under the circumstances. Q: Myrna, in a case for custody of children against her husband, sought advice from Atty. Mendoza whom she met at a party. She informed Atty. Mendoza that her lawyer, Atty. Khan, has been charging her exorbitant appearance fees when all he does is move for postponements which have unduly delayed the proceedings; and that recently, she learned that Atty. Khan approached her husband asking for a huge amount in exchange for the withdrawal of her Motion for Issuance of Hold Departure Order so that he and his children can leave for abroad.

Is it ethical for Atty. Mendoza to advise Myrna to terminate the services of Atty. Khan and hire him instead for a reasonable attorney’s fees? A: Such advice would be unethical. A lawyer shall

conduct himself with courtesy, fairness and candor towards his professional colleagues

(Canon 8, CPR). Specifically, he should not

directly or indirectly encroach upon the professional employment of another lawyer (Rule

8.02, CPR).

Q: What should Atty. Mendoza do about the information relayed to him by Myrna that Atty. Khan approached her husband with an indecent proposal?

A: He can advice her to terminate the services of

Atty. Khan and/or file an administrative case against Atty. Khan. It is the right of any lawyer, without fear or favor, to give proper advice and assistance to those seeking relief against unfaithful or neglectful counsel (Rule 8.02, CPR).

(2006 Bar Question)

Q: You are the counsel of K in his action for specific performance against DEV, Inc., a subdivision developer which is represented by Atty. L. Your client believes that the president of DEV Inc., would be willing to consider an amicable settlement and your client urges you to discuss the matter with DEV Inc., without the presence of Atty. L whom he consider to be an impediment to an early compromise. Would it be alright for you to negotiate the terms of the compromise as so suggested above by your client?

A: No. Rule 8.02, Canon 8 of the Code of

Professional Responsibility provides that “a lawyer shall not, directly or indirectly, encroach upon the professional employment of another lawyer.” Canon 9 of the Code of Professional Ethics is more particular. “A lawyer should not in any way communicate upon the subject of the controversy with a party represented by counsel, much less should he undertake to negotiate or compromise the matter with him but should deal only with his counsel.” In the case of Likong v.

Lim, A.C. No. 3149, August 17, 1994, a lawyer was

suspended for negotiating a compromise agreement directly with the adverse party without the presence and participation of her counsels. (1997 Bar Question)

4. NO ASSISTANCE IN UNAUTHORIZED PRACTICE OF LAW Rule 8.02, Canon 8, CPR – A lawyer shall not,

directly or indirectly, encroach upon the professional employment of another lawyer; however, it is the right of any lawyer, without fear or favor, to give proper advice and assistance to those seeking relief against unfaithful or neglectful counsel. (1995, 1997, 2001, 2005, 2006 Bar Questions)

Note: Public policy requires that practice of law be limited only to those individuals found duly qualified in education and character.

Purpose: To protect the public, the court, the client and the bar from the incompetence or dishonesty of those unlicensed to practice law and not subject to the disciplinary control of the court.

Q: Sanchez alleged that the complaint against him and the supporting affidavits were subscribed and sworn to before Tupas, the Clerk of Court, who is not a member of the IBP and therefore engaged in unauthorized practice of law. Is Tupas as Clerk of Court authorized to administer oath?

A: The term "clerk of courts" in the Section 41 of

the Administrative Code as amended is used as a general term. The intention of the law is to authorize all clerks of court regardless of whether they are clerks of the Metropolitan Trial Courts, Municipal Trial Court and Municipal Circuit Trial Courts, to administer oaths on matter involving official business. As Clerk of Court of MCTC, Tupas has the authority to administer oath of affidavits of parties and witnesses which are to be filed in court. (Sanchez v. Tupas, A.M. OCA IPI No. 03-

1687-P, Mar. 1, 2004)

Note: A lawyer is prohibited from allowing an intermediary to intervene in the performance of his professional obligation.

Note: The act of pretending or assuming to be an attorney or an officer of the court and acting as such without authority is punishable with contempt of court. (Rule 71, sec 3(e), RRC)

Q: What is the reason for the rule?

A: The qualifications to be a lawyer is personal

and the bar is an exclusive group of professionals who possess the requisite classifications and for

whom defined functions are reserved. To delegate the functions would violate the rationale behind reserving defined functions exclusively for those who are admitted to the bar.

The rationale of law in reserving defined functions to those who are admitted to the bar is to protect the public, the court, the client and the bar from the incompetence or dishonesty of those unlicensed to practice law and not subject to the disciplinary control of the court.

Although the authority of a lawyer to represent a client cannot be delegated to an unqualified person, it does not follow however that the

retained lawyer is automatically authorized to make such delegation to a qualified person because a client-lawyer relationship is personal. (CPR Annotated, PhilJA)

Q: Lorenzo is a lawyer but is suspended in the