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The Dynamism of Legal Ethics in the Practice of the Legal Profession

 

By:

 

Dean  ED VINCENT S. ALBANO

College of Law

University of Perpetual Help

Biñan, Laguna

 

I.              The Practice of Law

 

The practice of law is a sacred and noble profession. It is limited to the persons of good moral character with special qualifications duly ascertained and certified. (Prieto vs. Corpuz, et al., A.C. No. 6517, December 6, 2006).

 

II.            Purpose of disbarment/suspension

 

The purpose of a proceeding for disbarment is to protect the administration of justice by requiring that those who exercise this important function be competent, honorable and reliable.

 

It is immaterial that the complainant is in pari delicto because the purpose of disbarment proceedings is to purge the law profession of unworthy members. (Zaguirre vs. Castillo, 398 SCRA 658; 465 SCRA 520 (2005); Chan vs. Pizarro, 467 SCRA 1 [2005]).

 

III.           Effect of Affidavit of Desistance

 

Bautista v. Bernabe

482 SCRA 1 [2006]

 

In administrative proceedings against lawyers, the complainant’s desistance or withdrawal is unavailing.

 

IV.          Requirement of due process

 

Nava v. Sorsogon

421 SCRA 1 [2004]

 

      Formal investigation is a mandatory requirement in disbarment proceedings (Uytengco III vs. Baduel, 477 SCRA 621 [2005]).

 

Frias v. Bautista Lozada

A.C. No. 6656, May 4, 2006

 

      The defense of prescription does not lie in administrative proceedings against lawyers.

 

V.           Grounds for Disbarment or Suspension of a Lawyer

 

1.    Deceit

Cham vs. Atty. Edilberto D. Pizarro

A.C. No. 5499, August 16, 2005

 

A lawyer was subjected to disciplinary action for selling a non-disposable land of the public domain. He violated his oath not to do falsehood and misrepresentation to the buyer-complainant.

 

Co vs. Bernardino, 285 SCRA 102 [1998]

Lao vs. Medel, 405 SCRA 227 [2003]

 

For a lawyer to be dealt with by the Supreme Court, the transaction entered into need not be in the performance of professional services. It can be in his private capacity.

 

Professional honesty and honor are not to be expected as the accompaniment of dishonesty and dishonor in other relations.

 

Case references:

 

Santos vs. Atty. Maria Vivane

Cacho-Calicdan, September 19, 2006

 

2.    Malpractice

 

Nakpil vs. Atty. Carlos J. Valdes

March 4, 1998

 

A lawyer violated the trust and confidence of the client when he represented conflicting interest. He represented the creditors when his accounting firm prepared and computed the claims of the creditors while his law firm represented the estate.

 

Case references:

 

Buted vs. Hernando, 203 SCRA 1

Maturan vs. Gonzales, March 12, 1998

 

Conflict of interest

(Pormento vs. Pontevedra, March 31, 2005)

 

A lawyer has to disclose to his client all the circumstances of his relations to the parties in connection with the controversy which might influence the client in the selection of counsel.

 

It is unprofessional to represent conflicting interests except by express consent of all concerned given after full disclosure of the facts.

 

Tests to determine if there is conflicting interests:

 

1.            If the acceptance of the new retainer will require the attorney to do anything 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 thru their connection;

2.            Whether the acceptance of a new relation will prevent an attorney from 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.

 


Reason for prohibition

 

The reason for the prohibition is found in the relation of attorney and client, which is one of trust and confidence of the highest degree. A lawyer becomes familiar with all the facts connected with his client’s case. He learns from his client the weak points of the action as well as the strong ones. Such knowledge must be considered sacred and guarded with care. No opportunity must be given him to take advantage of his client’s secrets. A lawyer must have the fullest confidence of his client. For, if the confidence is abused, the profession will suffer by the loss thereof.

 

The prohibition applies however slight such adverse interest may be (Nakpil vs. Valdes, 286 SCRA 758).

 

The essence of the rule is to maintain inviolate the client’s confidence or to refrain from obtaining anything which will injuriously affect in any matter in which he previously represented him.

 

3.            Grossly immoral conduct

 

Emma Dantes vs. Atty. Crispin Dantes

A.C. No. 6488, September 22, 2004

 

The wife complained that her husband was a philanderer, having illicit relationship with two women. He was disbarred. A lawyer must demonstrate that he or she has good moral character and should behave in accordance with the standards.

 

Case references:

 

Barrientos vs. Daarol, 218 SCRA 30

Toledo vs. Toledo, 7 SCRA 757

Obusan vs. Obusan, 128 SCRA 485

Terre vs. Terre, July 3, 1992

Santos vs. Tan, 196 SCRA 16

 

St. Louis Univ. Laboratory High School Faculty & Staff vs. Atty. Dela Cruz, A.C. No. 6010, August 28, 2006

 

Disbarment should never be decreed where any lesser penalty could accomplish the end desired; hence, the penalty of two years suspension was more appropriate.

 

A lawyer got married again after his failed marriage. He never absconded his obligations to his first wife and child. After the annulment of his second marriage, he remained celibate. He was humble enough to offer no defense save for his lone and declaration of his commitment to his wife and child. (Conjuangco vs. Palma, 438 SCRA 306; 462 SCRA 310 [2005]).

 

 

 

 

 

 

 

 

 

 

Zaguirre vs. Castillo

398 SCRA 658 [2003]

465 SCRA [2005]

 

4.            Conviction of a crime involving moral turpitude

 

a.            In the Matter of Disbarment Proceedings vs. Narciso Jaranillo, 101 Phil. 323

 

A lawyer was disbarred for having been convicted of estafa.

 

b.         In Re: Dalmacio delos Angeles, 106 Phil. 1

 

A lawyer was convicted of the crime of bribery. He was disbarred.

 

Case references:

 

In Re: Disbarment of Rodolfo Pajo, 203 Phil. 79

In Re: Atty. Isidro Vinzons, 126 Phil. 96

Barrios vs. Atty. Francisco Martinez, A.C. No. 4885,   November 12, 2004

 

5.            Violation of the Lawyer’s Oath

 

a.            Judge Ubaldino Larucon vs. Atty. Ellis Jacoba, A.C. No. 5921, March 10, 2006

 

In his motion, the lawyer stated:

 

The judgment is an “abhorrent nullity”, “legal monstrosity”, “horrendous mistake”, “horrible error”, “an insult to the judiciary”, and “an anachronism in the judicial process”.

 

The lawyer was suspended. The language exceeded the vigor required of a lawyer to defend ably his client’s cause.

 

b.            Almendrez vs. Atty. Minervo Langit, A.C. No. 7057, July 25, 2006

 

A lawyer was suspended for having appropriated the rental deposits for his client in an ejectment suit.

 

c.            Suspension from the Practice of Law in the Territory of Guam of Atty. Leon G. Maquera, 435 SCRA 417

 

A lawyer who was suspended from the practice of law abroad may likewise be sanctioned in the Philippines for infraction he committed abroad. (Velez vs. De Vera, A.C. No. 6697, July 25, 2006).

 

6.            Willful disobedience to any lawful order of a superior court

 

a.            People vs. Dalusog, 62 SCRA 540;

Luzon Mahogany Timber Ind., Inc. vs. Castro, 69 SCRA 384;

People vs, Medina, 62 SCRA 253;

Geeslin vs. Navarro, 185 SCRA 230

 

 

7.            Willfully appearing as attorney for any party without authority

 

(Sec. 27, Rule 138, Rules of Court; Atty. Edilberto D. Pizarro, A.C. No. 5499, August  16, 2005)

 

a.            Porac Trucking Corp. vs. CA, 202 SCRA 674; Garrido vs. Quisumbing, 28    

           SCRA 614

 

A lawyer was suspended from the practice of law in appearing for a party defendant without authority.

 

A judge may require a lawyer to prove that he is authorized to appear for a client.

 

b.            Mercado vs. Ulay, 187 SCRA 720

 

A lawyer is presumed to be properly authorized to represent any cause in which he appears.

 

VI.          Reinstatement after suspension or disbarment

 

a.            In Re: Petition to Take the Lawyer’s Oath of Arthur Cuevas, Jr., January 27, 1988

 

A new lawyer was allowed to take his oath after his discharge from probation without any infraction of the conditions. He was given the benefit of the doubt.

 

b.            Fernandez vs. Grecia, June 17, 1993

 

The act of stealing the exhibits can be treated as an unlawful and dishonest act of a lawyer, a violation of his bounden duty to uphold the Code of Professional responsibility.

 

Zaldivar vs. Gonzales, 166 SCRA 316

 

A lawyer who was suspended was reinstated after cleansing himself. He used intemperate and unfair criticism against the Supreme Court in gross violation of the duty of respect to the courts.

 

Petition for Leave to Resume Practice of Law, Benjamin Dacanay, B.M. No. 1678, December 17, 2007. He was allowed subject to compliance with requirements of the Rules, especially so that he became a Canadian citizen later. He has to reacquire his Filipino citizenship and apply for a permit to practice law.

 

 

VII.     Misuse of Procedure; effect.

 

 

a.)  Forum Shopping and its effects.

 

2.            Concept

 

There is forum shopping when as a result of an adverse opinion in one forum, a party seeks favorable opinion, other than by appeal or certiorari in another.

 

 

 

 

3.            Cases

 

Syjuco vs. Castro

G.R. No. 70403, July 7, 1989

 

A lawyer was held solidarily liable with his client for delaying the administration of justice for almost a quarter of a century. This is the origin of forum shopping.

 

Masinsin vs. Albano

G.R. No. 86421, May 31, 1994

 

For resorting to forum shopping, a lawyer was warned that a repetition of the same act will be dealt with more severely.

 

Forunda vs. Atty. Arnold Guerrero

480 SCRA 201 [2006]

 

While lawyers owe their entire devotion to the interest of their clients’ right, they should not forget that they are, first and foremost, officers of the court, bound to exert every effort to assist in the speedy and efficient administration of justice. In this case, a lawyer was suspended due to forum shopping.

 

Bong Siong Yao vs. Atty. Leonardo Aurelio

485 SCRA 553

 

Lawyers cannot be allowed to exploit their profession for the purpose of exacting vengeance or as a tool for instigating hostility against any person – most especially against a client or former client.

 

 

 

Huibona vs. Concepcion, et al.

G.R. No. 153785, August 31, 2006

 

The filing of multiple petitions constitutes abuse of court processes which degrades the administration of justice, wreaks havoc upon orderly judicial procedure and adds to the congestion of the heavily burdened dockets of the courts.

 

Case references:

 

Balaoing vs. Calderon, 221 SCRA 533

Kalilid Wood Industries Corp. vs. CA, 197 SCRA 735

Eternal Gardens Memorial Park vs. CA, August 5, 1998

PRC vs. CA, G.R. No. 117817

PRC vs. Nitafan, G.R. No. 110437, July 9, 1998

Aldez Realty, Inc. vs. CA, 212 SCRA 623

 

b.)  Hierarchy of Courts

 

As a matter of policy, direct resort to the Supreme Court will no longer be entertained unless the redress cannot be obtained in the appropriate lower courts, and exceptional and compelling circumstances, such as in the case of involving national interest and those of serious implications, justify the availment of the extraordinary remedy of the writ of certiorari, calling for the exercise of its primary jurisdiction. (Yee vs. Bernabe, 487 SCRA 385 [2006]).

 

 

c.) Doctrine of Procedural Void

 

As a rule, there can be no appeal from an interlocutory order, except if a party is caught in a procedural void. (Go vs. CA, G.R. No. 128954, October 8, 1998). In this case, a suit for ejectment was pending when an action to declare the title of the plaintiff null and void was filed. A motion to suspend the ejectment case granted, but the Supreme Court said, no. Appeal was made and it was treated as a special civil action for certiorari.

 

Case references:

 

Gachon vs. Devera, et al., G.R. No. 116695, June 20, 1997 where the Supreme Court ruled that a motion for extension of time to file answer is not proper in the Summary Procedure. It is dilatory.

 

Lucas vs. Fabros

A.M. No. MTJ-99-1226, January 31, 2000

 

As a rule, a motion for reconsideration is not proper in the Rule on Summary Procedure. The exception is if the order is merely interlocutory.

 

d.)  Complex remedies cannot be availed of

 

People vs. Sandiganbayan

491 SCRA 185 [2006]

Prosecution cannot simultaneously avail of the remedies of special civil action for certiorari, petition for review on certiorari or appeal in civil cases. The remedies are exclusive.

 

Nuñez vs. GSIS Family Bank, et al.

G.R. No. 163988, November 17, 2005

 

An appeal under Rule 45 and at the same time as a special civil action for certiorari under Rule 65 of the Rules of Court is frowned upon. They are mutually exclusive and not alternative; not successive.

 

VII.         DUTIES

 

a.)  Rule 11.05 Code of Professional Responsibility

 

A lawyer shall submit grievances against a judge to the proper authorities.

 

An administrative complaint is not an appropriate remedy where judicial recourse is still available.

 

A letter complaint was filed with the Office of the Chief Justice charging a member of the CA with having “transacted” in favor of the respondents in a labor case, issued a TRO without conducting a hearing, and without requiring the posting of a bond. The complainants did not file a motion for reconsideration of the resolution issuing the TRO. (Rondain, et al. vs. Associate Justice Eloy R. Bello, etc., A.M. No. CA-05-43, July 8, 2005, citing De Guzman vs. Pamintuan, 405 SCRA 22 [2003]).

 

The judgment or order of a collegiate court, like the CA, whose members reached a collective judgment, cannot be the subject of a charge of misconduct or unethical behavior against a single member of the CA. (Rondain vs. Bello, supra). It cannot prosper if proferred against a solitary member.

 

b.)  Duty as officer of the Court

 

An officer of the court has the duty to uphold the dignity and authority of the courts and to promote confidence in the fair administration of justice. (In Re: Letter dated February 21, 2005 of Atty. Noel S. Sorreda, A.M. No. 05-03-04-SC, July 22, 2005). The lawyer’s first duty is not to his client, but to the administration of justice to which his client’s case is wholly subordinate. His conduct ought to and must be scrupulously observant of law and ethics.

 

Mercado vs. Security Bank Corp.

G.R. No. 160445, February 16, 2005

 

A lawyer was punished for contempt and fined in the amount of P50, 00.00 considering the gravity of his offense. While feigning to be searching for truth on whether Chief Justice Davide indeed exerted “tremendous pressure” to the ponente of a case, he repeatedly hum, hated him and the judiciary in the most loutish and insolent manner. He accused him of doing an “unthinkable”, “ungodly” and “malicious act” of depriving his family of their basic fundamental rights in the protection of their property. He further said, “There is no justice in our courts, the Supreme Court particularly. (See also: In Re: Laurela, 148 SCRA 382).

 

Dalisay vs. Mauricio, Jr.

479 SCRA 307 [2006]

 

c.)  Change of Theory

 

A party should decide early what version he is going to advance – a change of theory in the latter stage of the proceedings is objectionable, because it is contrary to the rules of fair play, justice and due process. If anything has been achieved by the lawyer’s inconsistencies, it is his dishonesty.

 

Balaoing vs. Calderon

A.M. No. RTJ-90-530; Balaoing vs. Maliwanag, A.M. RTJ-676

April 27, 1993

 

A lawyer was disbarred because of penchant for filing administrative charges against judges in whose sala he had pending cases whenever the latter rendered decisions or issued orders adverse to his client.

 

d.)          Delay in the administration of justice

 

Republic vs. Vicente G. Lim

G.R. No. 161656, June 29, 2005

 

The State acquired and used a parcel of land in Cebu, to become the Lahug Airport more than 50 years ago. It has not paid the owner. Yet, the rule is that the title to the property expropriated shall pass from the owner to the expropriator only upon full payment of the just compensation. The State was the one that resorted to a series of remedies to delay the payment. Consequently, it was ruled that if the government fails to pay the just compensation within 5 years from the finality of the judgment in the expropriation proceedings, the owners have the right to recover possession of their property.

 

Equatorial Realty, Inc. vs. Mayfair Theaters, Inc.

G.R. No. 106063, November 21, 1996

 

A person, not a party to a contract may not file an action for annulment because of lack of privity. The appropriate remedy is rescission. (See also: Parañaque Kings Enterprises, Inc. vs. CA, G.R. No. 111538, February 26, 1997).

 

 

 


PCGG vs. SB & LUCIO TAN, ET AL.

G.R. NOS. 151809-12, APRIL 12, 2005

 

            In 1976, General Banking Corp. encountered financial difficulties, that despite various loans or financial support extended to it, it incurred daily over-drawings of its current account with the CB. It failed to recover from its financial woes despite emergency loans extended by the CB, hence, it was declared insolvent by the CB, and ordered its liquidation. A public bidding was conducted and Lucio Tan submitted the highest bid. Subsequently, former Solicitor General Estelito Mendoza filed a petition with the CFI (RTC) of Manila praying for assistance and supervision of the court in the bank’s liquidation.

 

            In 1986, with the EDSA I that toppled the Marcos government, the PCGG was created. In 1987, the PCGG filed with the SB a complaint for reversion, reconveyance, restitution, accounting and damages against Lucio Tan, et al., docketed as Civil Case No. 0005. In connection therewith, the PCGG issued several writs of sequestration on properties allegedly acquired by defendants by taking advantage of their close relationship and influence with Marcos.

 

            Tan, et al. filed petitions for certiorari, prohibition and injunction with the Supreme Court to nullify the writs issued by the PCGG. The cases were referred to the SB and docketed as Civil Case Nos. 0096-0099. The parties were represented by former Solicitor General Mendoza who then resumed his private practice. In 1991, PCGG filed motions to disqualify Mendoza as counsel in Civil Case Nos. 0005 and 0096-0099. The ground relied upon was that he actively intervened in the liquidation of Genbank which was subsequently acquired by Lucio Tan and became Allied Bank. His intervention consisted of advising the CB on the procedure to bring about the Bank’s liquidation and appeared as counsel for the CB in connection with the petition. The motions were based on Rule 6.03 of the Code of Professional Responsibility prohibiting former government lawyers from accepting engagement or employment in connection with any matter in which he intervened while in said service.

 

            On April 22, 1991, the SB issued an order denying the motion to disqualify Mendoza in Civil Case No. 0005 ruling that PCGG failed to prove the existence of an inconsistency between his former function as Solgen and his employment as counsel of Lucio Tan. It ruled that Mendoza did not take a position adverse to that taken on behalf of the CB when he was Solgen and that his appearance was beyond the one-year prohibited period under RA 6713, Sec. 7(b) prohibiting former public officials from practicing their profession in connection with any matter before the office he used to be with within one year from his resignation, retirement or separation from public office.

 

            In connection with Civil Case Nos. 0096-0099, the SB denied the motions citing the same reasons in Civil Case No. 005, hence, a petition for certiorari and prohibition was filed by the PCGG alleging that the SB acted with grave abuse of discretion amounting to lack or excess of jurisdiction in denying the motions to disqualify Mendoza. The core of the issue is whether the intervention of Mendoza was substantial or innocuous. Decide.

 

Held:

            The intervention of Mendoza was not substantial or significant but only innocuous because it merely consisted of drafting, enforcing or interpreting government or agency procedures, regulations or laws, or briefing abstract principles of law. The reasons relied upon are the following:

 

1)    The petition in the special proceedings (CC No. 005) was a mere initiatory pleading; hence, he signed it as then Solgen.

 

2)    The record is arid as to the actual participation of Mendoza as it was in slumberville for a long time. The petition merely sought to ask for the assistance of the court in the liquidation of Genbank. The principal role of the court is to assist the CB in determining the claims of creditors. The participation of the Solgen was not that of the usual court litigator protecting the interest of the government. (PCGG vs. SB & Lucio Tan, et al., G.R. Nos. 151809-12, April 12, 2005).

 

Q – Does this case represent adverse interest aspect of Rule 6.03? Explain.

 

Answer: No, because Solgen Mendoza had no adverse interest problem when he acted as Solgen in SP. Proc. 107812 and later as counsel of Mr. Tan in Civil Case No. 0005 and Case Nos. 0096-0099 before the SB.

 

The Congruent interest aspect of Rule 6.03.

 

Q – What does the term “matter” mean in Rule 6.03? Explain.

 

Answer: It is any discreet, isolatable act as well as identifiable transaction or conduct involving a particular transaction and specific party, and not merely an act of drafting, enforcing or interpreting government or agency procedures, regulations, laws or briefing abstract principles of law. (PCGG vs. SB, et al., supra.).

 

Q – PCGG insisted that Mr. Mendoza is disqualified to handle the case because he intervened in the closure of Genbank by advising the CB on how to proceed with said bank’s liquidation and even filed the petition for its liquidation. CB officers conferred with him and furnished him documents to aid him in filing the petition. Are these acts included within the concept of “matter” under Rule 6.03? Explain.

 

Answer: No, because the procedure is given in black and white in RA 265, Section 29.

 

            The matter involved in the liquidation of Genbank is entirely different from the matter involved in the sequestration of the stocks owned by Lucio Tan in Allied Bank. The case does not involve the liquidation of the bank. Whether the shares of stocks of Allied Bank are ill-gotten is far removed from the issue of the liquidation of the Bank. In short, the legality of the liquidation of Genbank is not an issue in the sequestration case; hence, Rule 6.03 cannot apply to Mendoza. (PCGG vs. SB, et al., supra.).

 

Q – What does the term intervention mean? Explain.

 

Answer: There are two meanings of the term. Under the first interpretation, “intervene” includes participation in a proceeding even if the intervention is irrelevant or has no effect or little influence. Under the second interpretation, “intervene” only includes an act of a person who has the power to influence the subject proceedings. The second meaning is more appropriate to give to the word “intervention” under Rule 6.03 of the Code of Professional Responsibility in light of its history. The evils sought to be remedied by the Rule do no exist where the government lawyer does an act which can be considered as innocuous such as “xxx drafting, enforcing or interpreting government or agency procedures, regulations or laws, or briefing abstract principles.

 

            In short, the intervention cannot be insignificant and unsubstantial. The intervention of Mendoza was insignificant and innocuous. He is not therefore, disqualified. (PCGG vs. SB, et al., supra.).

 

Q – Are there any disadvantages if Rule 6.03 would be interpreted strictly so as to disqualify former government lawyers from handling cases where they intervened while in government irrespective of the extent of the intervention? Explain.

 

Answer: Yes, even if it is admitted that the rule is an attempt to upgrade the ethics of lawyers in government. There are however considerations to take into, like:

 

1)    The rule was not interpreted to cause chilling effect on government recruitment of able legal talent. At present, it is difficult for government to match compensation offered by the private sector and it is unlikely that it will be able to do so or to reverse the situation. The observation is not inaccurate that the only card that the government may play to recruit lawyers is have them defer present income in return for the experience and contacts that can later be exchanged for higher income in private practice. Rightly, Judge Kaufman said that the sacrifice of entering government service would be too great for most men to endure should ethical rules prevent them from engaging in the practice of a technical specialty which they devoted years in acquiring and cause the firm with which they become associated to be disqualified. Indeed, “to make government service more difficult to exit can only make it less appealing to enter”.

 

2)    To interpret Rule 6.03 strictly would allow other party litigants as a litigation tactic to harass opposing counsel and deprive a client of the right to choose a competent legal representation. It may be used to bludgeon an opposing counsel.

 

3)    A strict interpretation of the rule would affect the independence of lawyers in government. An individual who has the security of knowing that he/she can find a job upon leaving the government is free to work vigorously and challenge official conduct. An employee who lacks this assurance does not enjoy such freedom. The position of a Solgen should be endowed with a great degree of independence. Any distinction of the independence of the Solgen will have a corrosive effect on the rule of law.

 

The disqualification may deprive him of the right to exercise his profession. It may extend to the members of his law firm. Such former government lawyers may stand in danger of becoming lepers in the legal profession. (PCGG vs. SB, et al., supra.).

 

Q – Should the congruent interest prong of Rule 6.03 of the Code of Professional Responsibility be subjected to prescriptive period or be made retroactive? Explain.

 

Answer: It should not be retroactive. Note that the Rule has not yet been adopted by the IBP when Mendoza was the Solgen, hence, it should not be given retroactive effect.

 

            It should have proscriptive period otherwise, it would be used to bludgeon a lawyer, harass him and results in deprivation of a client of a lawyer of his choice. It may result in having a former government lawyer a leper in the legal profession. (PCGG vs. SB, et al., supra.).

 

Q – State the basic rule in resolving a motion to disqualify a lawyer. Explain.

 

Answer: In evaluating a motion to disqualify a lawyer, courts are not bound by stringent rules. There is room for consideration of the combined effect of a party’s right to counsel of his own choice, an attorney’s interest in representing a client, the financial burden on a client of replacing disqualified counsel, and any tactical abuse underlying a disqualification proceeding. (PCGG vs. SB, et al., supra.).

 

Q – What is the nature of an order denying a motion to disqualify a lawyer? Explain.

 

Answer: An order denying a motion to disqualify counsel is final and, therefore, appealable. The issue of whether or not a lawyer should be disqualified from representing a client is separable from, independent of and collateral to the main issues in a case. In short, it is separable from the merits. Clearly, a petition for certiorari is dismissible. (PCGG vs. SB, et al., supra.).

 

Q – If it is final, then, will res judicata lie to bar similar motions to disqualify a lawyer? Explain.

 

Answer: Yes. To rule otherwise is to encourage the risk of inconsistent judicial rulings on the basis of the same set of facts, and this should not be countenanced. Public policy, judicial orderliness, economy of judicial time and the interest of litigants, as well as the peace and order of society, all require that stability should be accorded judicial rulings and that controversies once decided shall remain in repose, and that there be an end to litigation. (PCGG vs. SB, et al., supra.).

 

Dissenting Opinion of Justice Callejo.

 

Q – It was suggested that the prohibition under Rule 6.03 of the Code of Professional Responsibility is not perpetual but merely lasts for 5 years based on the Civil Code and that the practice of law is a property right protected by the Constitution. Is the contention correct? Explain.

 

Answer: No, otherwise, it would mean that after five years from the termination of the attorney-client relationship, all lawyers would be able to represent an interest in conflict with that of the former client and that they would no longer be bound by the rule on privileged communication.

 

            It bears to emphasize that the law is not trade nor a craft but a profession, a noble profession at that.

 

            The practice of law is a profession, a form of public trust, the performance of which is entrusted only to those who are qualified and who possess good moral character. If the respect of the people in the honor and integrity of the legal profession is to be retained, both lawyers and laymen must recognize and realize that the legal profession is a profession and not a trade, and that the basic ideal of that profession is to render public service and secure justice for those who seek its aid. It is not a business, using bargain counter methods to reap large profits for those who conduct it. From the profession standpoint, it is expressive of three ideals – organization, learning and public service. The gaining of a livelihood is not a professional but a secondary consideration. The professional spirit – the spirit of public service – constantly curbs the urge of that instinct.

 

            The law as a profession proceeds from the basic premise that membership in the bar is a privilege burdened with conditions and carries with it the responsibility to live up to its exacting standards and honored traditions. A person enrolled in its ranks is called upon to aid in the performance of one of the basic purposes of the state – the administration of justice. That the practice of law is a profession explains why lawyers repute and of eminence welcome their designation as counsel de oficio, as an opportunity to manifest to the concept that law is a profession.

 

            The law must be thought of as ignoring commercial standards of success. The lawyer’s conduct is to be measured not by the standards of trade and counting house but by those of his profession. The Code of Professional Responsibility, particularly the ethical rule against advertising or solicitation of professional employment, rests on the fundamental postulate that the practice of law is a noble profession. (PCGG vs. SB, et al., supra.).

 

Q – State the characteristics of the legal profession which distinguishes it from business. Explain.

 

Answer: The primary characteristics which distinguish the legal profession from business are: (a) “a duty of public service of which emolument is a by-product, and in which one may attain the highest eminence without making much money”, (b) “a relation as officer of the court to the administration of justice involving thorough sincerity, integrity, and reliability”, (c) “a relation to client in the highest degree fiduciary”, and (d) “a relation to 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”.

 

            These characteristics make the law a noble profession, and the privilege to practice it is bestowed only upon individuals who are competent intellectually, academically and morally. Its basic ideal is to render service and to secure justice for those who seek its aid. If it has to remain a noble and honorable profession and attain its ideal, those enrolled in is ranks should not only master its tenets and principles but should also, by their lives, accord continuing fidelity to them. And because they are the vanguards of the law and the legal systems, lawyers must at all times conduct themselves in their professional and private dealings with honesty and integrity in a manner beyond reproach. (PCGG vs. SB, et al., supra.).

 

Q – How do you characterize the relationship between a lawyer and his client? Explain.

 

Answer: The relation of attorney and client is one of trust and confidence of the highest order. It is highly fiduciary in nature and demands utmost fidelity and good faith.

 

            …A lawyer becomes familiar with all the facts connected with his client’s case. He learns from his client the weak points of the action as well as the strong ones. Such knowledge must be considered sacred and guarded with care. No opportunity must be given him to take advantage of the client’s secrets.

            The rule is a rigid one designed not alone to prevent the dishonest practitioner from fraudulent conduct as well as preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties, and to protect him from unfounded suspicion of professional misconduct. The question is not necessarily one of the rights of the parties but adherence to proper professional standards. An attorney should not only keep inviolate his client’s confidence but should likewise avoid the appearance of treachery and double-dealing. (PCGG vs. SB, et al., supra.).

 

Q – What is the true test in determining a conflict of interest in the representation by a lawyer? Explain.

 

Answer: The test to determine whether there is a conflict of interest in the representation is probability not certainty of conflict. (Nakpil vs. Valdes, 286 SCRA 758 [1998]; PCGG vs. SB, et al., supra.).

 

Q – Is the proposition that a profession, trade or calling a property right that is protected by the constitution absolute? Explain.

 

Answer: No. The proposition that “a profession, trade or calling is a property right within the meaning of our constitutional guarantees” is not unqualified. In JMM Promotion and Management, Inc. vs. Court of Appeals, 260 SCRA 319, it was ruled that a profession, trade or calling is a property within the meaning of our constitutional guarantees. One cannot be deprived of the right to work and the right to make a living because these rights are property rights, the arbitrary and unwarranted deprivation of which normally constitutes an actionable wrong.

 

            Nevertheless, no right is absolute, and the proper regulation of a profession, calling, business or trade has always been upheld as a legitimate subject of a valid exercise of the police power by the state particularly when their conduct affects either the execution of legitimate governmental functions, the preservation of the State, the public health and welfare and public morals. According to the maxim, sic utere tuo it alienum non laedas, it must of course be within the legitimate range of legislative action to define the mode and manner in which every one may so use his own property so as not to pose injury to himself or others.

 

            In any case, where the liberty curtailed affects at most the rights of property, the permissible scope of regulatory measures is certainly much wider.

 

            Under the foregoing, the perpetual application of Rule 6.03 is clearly a valid and proper regulation. (PCGG vs. SB, et al., supra.).

Q – For whom is the Code of Professional Responsibility designed? Explain.

 

Answer: The Code of Professional Responsibility is not designed for Holmes’ proverbial “bad man” who wants to know just how many corners he may cut, how close to the line he may play, without running into trouble with the law. Rather, it is drawn for the “good man” as a beacon to assist him in navigating an ethical course through the sometimes murky waters of professional conduct. (PCGG vs. SB, et al., G.R. No. 151809-12, April 12, 2005, J. Callejo, dissenting opinion).

 

Q – How should the Code of Professional Responsibility be applied by the Court? Explain.

 

Answer: The court should apply the Code of Professional Responsibility and provide an ethical compass to lawyers who, in the pursuit of the profession, often find themselves in the unchartered sea of conflicting ideas and interests. There is certainly, without exception, no profession in which so many temptations beset the path to swerve from the line of strict integrity; in which so many delicate and difficult questions of duty are continually arising. The Code of Professional Responsibility establishes the norms of conduct and ethical standards in the legal profession and the Court must not shirk from its duty to ensure that all lawyers live up to its provisions. Moreover, the Court must not tolerate any departure from the “straight and narrow” path demanded by the ethics of the legal profession and enjoin all lawyers to be like Caesar’s wife – to be pure and appear to be so. (Abragan vs. Rodriguez, 380 SCRA 93 [2001]; PCGG vs. SB, et al., supra.).

 

Q – Under the law creating the Sandiganbayan, its decisions and final orders shall be appealable to the Supreme Court. May a special civil action for certiorari be filed to question an order of the SB denying a motion to disqualify a lawyer from appearing before it? Explain.

 

Answer: Yes, because such law, PD 1606, Sec. 7 as amended by RA 7975 does not preclude resort to the Supreme Court by way of petition for certiorari under Rule 65 of the Rules of Court of orders or resolutions of the Sandiganbayan. The special civil action of certiorari may be availed of where there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law.

 

In a motion to disqualify a lawyer from appearing in a case, the remedy of appeal is not available because the denial of its motion to disqualify a counsel is an interlocutory order; hence, not appealable. The word “interlocutory” refers to “something intervening between the commencement and the end of a suit which decides some point or matter, but is not a final decision of the whole controversy”. (Tambaoan vs. CA, 365 SCRA 359). An interlocutory order does not terminate nor does it finally dispose of the case; it does not end the task of the court in adjudicating the parties’ contentions and determining their rights and liabilities as against each other but leaves something yet to be done by the court before the case is finally decided on the merits. (PCGG vs. SB, et al., citing Serapio vs. SB, 396 SCRA 443; San Miguel Corp. vs. SB, 340 SCRA 289 [2000]).

 

Q – Does the restriction against a public official from appearing as counsel on a matter he intervened when he was in government temporary? Explain.

 

Answer: No. The restriction against a public official from using his public position as a vehicle to promote or advance his private interests extends beyond his tenure on certain matters in which he intervened as a public official. Rule 6.03 makes this restriction specifically applicable to lawyers who one held public office. A plain reading of the rule shows that the interdiction (1) applies to a lawyer who once served in the government, and (2) relates to his accepting “engagement or employment in connection with any matter in which he had intervened while in said service.” (PCGG vs. SB, et al., supra.).

 

Q – What is the revolving door theory on representation of a client by former government lawyers? Explain.

 

Answer: The “revolving door” theory is the process by which lawyers temporarily enter government service from private life then leave it for large fees in private practice, where they can exploit information, contacts, and influence garnered in government service. (PCGG vs. SB, et al., citing Wolfman, Modern Legal Ethics, [1986], p. 456).

 

Q – What are the two theories on the disqualification of former government lawyers in representing a client on a matter in which they intervened when they were in office? Explain.

 

Answer: They are the adverse-interest conflict and the congruent-interest representation conflict.

 

            In the “adverse-interest conflict” a former government lawyer is enjoined from representing a client in private practice is the matter is substantially related to a matter that the lawyer dealt with while employed by the government and if the interests of the current and former clients are adverse. It must be observed that the “adverse-interest conflict” applies to all lawyers in that they are generally disqualified from accepting employment in a subsequent representation if the interests of the former client and the present client are adverse and the matters involved are the same or substantially related. On the other hand, in “congruent-interest conflict”, the disqualification does not really involve a conflict at all, because it prohibits the lawyer from representing a private practice client even if the interests of the former government client and the new client are entirely parallel. The “congruent-interest representation conflict”, unlike the “adverse-interest conflict”, is unique to former government lawyers. (PCGG vs. SB, et al.)

 

Q – It was contended that by merely advising the CB in the liquidation of Genbank, Mendoza’s intervention or participation was insignificant. Is this correct? Why?

 

Answer: No. By advising the CB on the procedure to bring about the liquidation of Genbank and more significantly, by filing the petition for assistance in its liquidation, he clearly intervened in the liquidation and its subsequent acquisition by Tan. That he did not participate in the decision of the CB to liquidate Genbank is immaterial. Rather, it was his participation in the proceedings taken subsequent to such declaration like giving advice to the CB on how to proceed with the liquidation and his filing of the petition that constitutes intervention as to place him within the contemplation of the Rule. To intervene means to enter or appear as an irrelevant or extraneous feature or circumstance; to occur, fall or come between points of time or events; to come in or between by way of hindrance or modification: INTERPOSE; to occur or lie between two things.

 

Q – State the rationale for the congruent-interest representation conflict? Explain.

 

Answer: The rationale for the “congruent-interest representation conflict” doctrine has been explained, thus:

 

The rationale for disqualification is rooted in a concern with the impact that any other rule would have upon the decisions and actions taken by the government lawyer during the course of the earlier representation of the government. Both courts and commentators have expressed the fear that permitting a lawyer to take action in behalf of a government client that later could be to the advantage of private practice client would present grave dangers that a government lawyer’s largely discretionary actions would be wrongly influenced by the temptation to secure private practice employment or to favor parties who might later become private practice clients…

 

 

 


THE ROLE OF THE FREEDOM OF EXPRESSION IN THE RELATIONSHIP BETWEEN THE LAWYER AND THE COURT

ITS LIMITATION AND EFFECTS.

 

 

I.          INTRODUCTION

 

            It is said that it is better to have an irresponsible press than to have a timid press because the press is a catalyst of public opinion. The right to criticize public acts, even judicial conduct, is guaranteed by the Constitution but it must be exercised with responsibility. It has been said that to say that lawyers must at all times uphold and respect the law is to state the obvious. Considering that of all classes of professions, lawyers are most sacredly bound to uphold the law, (Ex parte Wall, U.S. 265; cited in Malcolm Legal and Judicial Ethics, p. 214), it is imperative that they live by the law.

 

II.         Constitutional basis of the freedom of expression

 

“No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people to peaceably assemble and petition the government for redress of grievances.” (Article III, Sec. 4, 1987 Constitution).

 

III.        Code of Ethics of Lawyers

 

Canon 11      A lawyer shall observe and maintain the respect due to the courts and to the judicial officers and should insist in similar conduct by others.

 

Rule 11.03    The lawyer shall abstain from scandalous, offensive or menacing language or behavior before the courts.

 

Rule 11.04    A lawyer shall not attribute to a Judge motive not supported by the record or have no materiality to the case.

 

IV.          Cases

 

Judicial conduct maybe criticized.

 

            The guarantee of free speech and a free press include the right to criticize judicial conduct. The administration of law is a matter of vital public concern. If the people cannot, criticize a judge in the same manner as any public officer, public opinion will be effectively muzzled. Attempted terrorization of public opinion on the part of the judiciary would be tyranny of the basest soil. (U.S. vs. Bustos, 37 Phil. 731).

 

Official acts and conduct may be criticized.

 

            In U.S. v. Bustos, 37 Phil. 731, it was said that complete liberty to comment on the official acts of public men is like a scalpel in the case of free speech. The incision of its probe relieves the abscesses of officialdom. Men in the public life may suffer from unjust accusation, but the wound is assuaged by balm of a clear conscience. Men have the right to attack, rightly or wrongly, the policy of a public official, with every argument which ability can find or ingenuinely innervate. They may show, by arguments good or bad, such policy to be injurious to the individual and to society.

 

Limitations on the right to criticize policies or official acts.

 

            While people can criticize, the law does not permit them to falsely impeach the motives, attack honesty, blacken the virtue, or injure the reputation of that official. Men may argue, but they may not traduce. Man may differ, but hey may not, for that reason, falsely charge dishonesty. Men may look at policies from different points of view, and see them in different lights, but they may not, on that account falsely charge criminally, lack virtue, bad notions, or corrupt heart and mind. Men may falsely charge that policies are bad, but they cannot falsely charge that men are bad. (U.S. vs. Contreras, 23 Phil. 513).

 

* * * *

 

            A newspaper reporter or editor who published an inaccurate account of a closed-door investigation of a judge may be cited for contempt.

 

In In Re: Lozano vs. Quevedo, 54 Phil. 801, the Supreme Court said:

 

“The rule is well-established that newspaper publications tending to impede, obstruct, embarrass, or influence the courts in the administration of justice in attending a suit or proceeding constitute criminal contempt which is summarily punishable by the courts. The rule is otherwise after the case is ended. IT is also regarded as an interference with the work of the courts to publish any matter which their policy requires should be kept private, as for example the secrets of the jury room, or proceedings in camera.” (6 R.C.L., pp. 508-515).

 

 

The Organic Act wisely guarantees freedom of speech and of the press. This constitutional right must be protected in its fullest extent. The court has heretofore given evidence of its tolerant regard for charges under the Libel Law which come dangerously close to its violation. We shall continue in this chosen path. The liberty of the citizens must be preserved in all of its completeness. But license or abuse of liberty of the press and of the citizen should not be confused with liberty in its true sense. As important as is the maintenance of an unmuzzled press and the free exercise of the rights of the citizen is the maintenance of the independence of the judiciary. Respect for the judiciary cannot be had if persons are privileged to scorn a resolution of the court adopted for good purposes and if such persons are to be permitted by subterranean means to diffuse inaccurate accounts of confidential proceedings to the embarrassment of the parties and the courts. (See also In Re: Sotto, 82 Phil. 575).

 

            A lawyer may be dealt with in contempt if he publishes false statements relative to the Court’s action on a pending case or otherwise indulging in speculation or conjecture or airing illicit information.

 

            His act cannot be justified under the freedom of the press and the right of the people to information on matters of public concern.

 

            While his rights are guaranteed, a publication, however, relating to judicial action in a pending case which tends to impede, embarrass or obstruct the court and constitutes a clear and present danger to the administration of justice is not protected by the guaranty of press freedom.

 

 

            What is fundamental is the principle of confidentiality of all actuations of, or records or proceedings before a court in a pending action, which are not essentially public in character. As far as the proceedings are concerned, those confidential matters include, among others, raffling of cases, deliberations and discussions of the en banc or the division, drafts or decisions and resolutions agreed upon by the members in consultation.  (In Re: Atty. Emiliano Jurado, Jr., Adm. Matter No. 90-5-2373, July 12, 1990).

 

A lawyer may be guilty of indirect contempt of court for uttering statements aimed at influencing and threatening the Court in deciding in favor of the constitutionality of the Plunder Law.

 

            The Supreme Court said that the judiciary, as he branch of government tasked to administer justice, to settle justiciable controversies or disputes involving enforceable and demandable rights, and to afford redress of wrongs for the violation of said right, (Copez vs. Roxas 17 SCRA 756) must be allowed to decide cases independently, free of outside influence or pressure. An independent judiciary is essential to the maintenance of democracy, as well as of peace and order in society. Further, maintaining the dignity of courts and enforcing the duty of citizens to respect them are necessary adjuncts to the administration of justice. (Weston vs. Commonwealth, 77  SE 2d 405, 409 (1953).

 

            Thus, Rule 71, Section 3 (d) of the Revised Rule of the Court authorizes the courts to hold liable for criminal contempt a person guilty of conduct that is directed against the dignity or authority of the court, or of an act obstructing the administration of justice which tends to bring the court into disrepute or disrespect. (People vs. Godoy, 243 SCRA 64 (1995).

 

             Respondents cannot justify his contemptuous statements – asking the Court to dispel rumors that if would declare the Plunder law unconstitutional, and stating the a decision declaring it as such was basically wrong and would not be accepted by the people – as utterances protected by his right to freedom of speech.

 

             Indeed, freedom of speech includes the right to know and discuss judicial proceedings, but such right does not cover statements aimed at undermining the Court’s integrity and authority, and interfering with the administration of justice. Freedom of speech is not absolute, and must occasionally be balanced with the liberty of speech and of the press, for they tend to destroy the very foundation of good order and as well-being in society by obstructing the course of justice. (State vs. Morcil, 16 Ask 384).

 

 Clearly, respondents’ utterances pressuring the Court to rule in favor of the constitutionality of the Plunder law or risk another series of mass actions by the public cannot be construed as falling within the ambit of constitutionally protected speech, because such statements are not fair criticism of any decision of the Court, but obviously are threats made against it to force the Court to decide the issue in a particular manner, or risk earning the ire of the public. Such statements show disrespect not only for the Court but also for the judicial system as a whole, tend to promote distrust and undermine public confidence in the judiciary, by creating the impression that the Court cannot be trusted to resolve cases impartially and violate the right of the parties to have their case tried fairly by an independent tribunal, uninfluenced by public clamor and other extraneous influences. (Nestle Phils. Case).

 

 

It is respondent’s duty as an officer of the court, to uphold the dignity and authority of the courts and to promote confidence in the fair administration of justice (In Re: Sotto) and in the Supreme Court as the bulwark of justice and democracy. Respondent’s utterances as quoted above, while the case of Estrada vs. Sandiganbayan was pending consideration by the Court, belies his protestation of good faith but were clearly made to mobilized public opinion and bring pressure on the court. (Atty. Leonard de Vera, A.M. No. 01-2-03-SC, July 29, 2002). 

 

In his Explanation submitted to the Court, respondent De Vera admitted to have made said statements but denied to have uttered the same ‘to degrade the Court, to destroy public confidence in it and to bring it into disrepute.” He explained that he was merely exercising his constitutionally guaranteed right to freedom of speech. 

 

The Court found the explanation unsatisfactory and held that the statements were aimed at influencing and threatening the Court to decide in favor of the constitutionality of the Plunder Law.

 

The ruling cannot serve as a basis to consider respondent de Vera immoral. The act for which he was found guilty of indirect contempt does not involve moral turpitude.

 

Can this pronouncement be used to disqualify him from running for Governor in the IBP? No.      

 

 In Tak Ng v. Republic of the Philippines cited in Villaber v. Commission on Elections, the Court defines moral turpitude as an “act of baseness, vileness, or depravity in the private and social duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man, or conduct contrary to justice, honesty, modesty or good morals.” The determination of whether an act involves moral turpitude is a factual issue and frequently depends on the circumstances attending the violation of the statute.

 

In this case, it cannot be said that the act of expressing one’s opinion on a public interest issue can be considered as an act of baseness, vileness or depravity. Respondent De Vera did not bring suffering nor cause undue injury or harm to the public when he voiced his views on the Plunder Law. Consequently, there is no basis for petitioner to invoke the administrative case as evidence of respondent De Vera’s alleged immorality. (In Re: Petition to Disqualify Atty. De Vera, etc., Garcia, et al. vs. Atty. Leonard de Vera, et al., A. C. No. 6052, December 11, 2003).

 

A lawyer was sanctioned for conduct unbecoming when he claimed that the Justices committed acts of political partnership.

 

Canon 11 of the Code of professional Responsibility mandates that a lawyer should observe and maintain the respect due to the courts and judicial officers and, indeed, should insist on similar conduct by others. In liberally imputing sinister and devious motives and questioning the impartially, integrity, and authority of the members of the Court the lawyers has only seceded in seeking to impede, obstruct and pervert the dispensation of justice.

 

The attention of Atty. Paguia has also been called to the mandate of rule 13.02 of the Code of Professional Responsibility prohibiting a member of the Bar from making such public statements on a case that may tend to arouse public opinion for or against a party. Regrettably, Atty. Paguia has persisted in ignoring the Court’s well-meant admonition.

 

            On the 7th September 2003 issue of the Daily Tribune, Atty. Paguia wrote to say –

                                                                                    

 

“What is the legal effect of that violation of President Estrada’s right to due process of law? It renders the decision in Estrada vs. Arroyo unconstitutional and void. The rudiments of fair play were not observed. There was no fair play since it appears that when president Estrada filed his petition, Chief Justice divide and his fellow justices had already committed to the other party – GMA – with a judgment already made and waiting to be formalized after the litigants shall have undergone the charade of a formal hearing. After the justices had authorized the proclamation of GMA as president, can they be expected to voluntarily admit the unconstitutionality of their own act?”

 

 

            Unrelentingly, Atty. Paguia has continued to make public statements of like nature.

 

            The Court has already warned Atty. Paguia, on pain of disciplinary sanction, to become mindful of his grave responsibilities as a lawyer and as an officer of the Court. Apparently, he has chosen not to at all take heed. He was suspended indefinitely from the practice of law. (Estrada vs. Sandiganbayan, et.al., G.R. No. 159486-88, November 25, 2003).

 

            After Atty. Raul Gonzales was stripped of his power of investigation as Tanodbayan pursuant to the 1987 Constitution, he hurled several attacks at the Supreme Court through the media. He was suspended on the basis of the same.

 

            Gonzales is entitled to the constitutional guarantee of free speech. No one seeks to deny him that right, least of all, the Supreme Court. What he seemed unaware of is that freedom of speech and expression, like all constitutional freedoms, is not absolute and that freedom of expression needs occasion to be adjusted to and accommodated with the requirements of equally important public interests. One of these fundamental public interests is the maintenance of the integrity and orderly functioning of the administration of justice. There is no animosity between free expression and the integrity of the system of administering justice. For the protection and maintenance of freedom of expression itself can be secured only within the context of a functioning and orderly system of dispensing justice, within the context, in other words, of viable independent institutions for delivery of justice which are accepted by the general community. As Mr. Justice Frankfurter puts it; “x x x A free press is not to be preferred to an independent judiciary, nor an independent judiciary to a free press. Neither has primacy over the other, both are indispensable to a free speech.” (Zaldivar vs. Sandiganbayan and Raul Gonzales, G.R.  Nos. 74690-707 and 80578, Feb. 1, 1989).

 

             Atty. Gonzales cannot invoke his right to expression as a lawyer.

 

            A lawyer’s right to free expression may have been more limited than that of a layman. A lawyer, acting in a professional capacity, may have fewer rights of free speech than would a private citizen. Neither the right of free speech nor the right to engage in political activities be construed or extended as to permit any such liberties to a member of the Bar. A layman may, perhaps, pursue his theories of free speech or political activities until he runs a foul of the penalties of libel or slander, or into some infraction of the statutory law. A member of the bar can, and will, be stopped at the point where he infringes the Canons of Ethics, and if he wishes to remain a member of the bar, he will conduct himself in accordance therewith. (Zaldivar vs. SB, G.R. Nos. 79690-707; Zaldivar vs. Gonzales, G.R. No. 80578, Oct. 7, 1988).

 

            Suspension for subjecting the Supreme Court justice to threats.

 

            In the case of In Re: Wenceslao Laureta, 148 SCRA 382 (1987), a lawyer was suspended indefinitely.

 

            A letter individually addressed to some justices of the Supreme Court is not covered by the constitutional right to “privacy of communication” when the same pertain to their exercise of judicial functions.

 

            To subject the threat and ordeal of investigation and prosecution, a judge, more so a member of the Supreme Court for official acts done by him in good faith and in the regular exercise of official duty and judicial functions is to subvert and undermine that very independence of the judiciary, and subordinate the judiciary to the executive. “For it is a general principle of the highest importance to the proper administration of justice that a judicial officer exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself. Liability to answer to everyone who might feel himself aggrieved by the action of the judge would be inconsistent with the possession of this freedom, and would destroy that independence without which no judiciary can be either respectable or useful”. (Bradley vs. Fisher, 80 U.S. 335).

 

            To allow litigants to go beyond the Court’s resolution and claim that the members acted ‘with deliberate bad faith” and rendered an “unjust resolution” in disregard or violation of the duty of their high office to act upon their own independent consideration and judgment of the matter at hand would be destroy the authenticity, integrity and conclusiveness of such collegiate acts and resolutions and to disregard utterly the presumption of regular performance of official duty. To allow such collateral attack would destroy the separation of powers and undermine the role of the Supreme Court as the final arbiter of all justiciable disputes.

 

Limitations on right to criticize.

 

            Like any other right, the right of a lawyer to comment on or criticize the decision of a judge or his actuation is not unlimited. “It is the cardinal condition of all such criticism that it shall be bona fide, and shall not spell over the walls of decency and propriety. A wide chasm exists between fair criticism, on the other hand, and abuse and slander of courts and judges on the other”. A publication in or outside of court tending to impede, obstruct, embarrass or influence the courts in administering justice in pending suit, or to degrade the courts, destroy public confidence in them or bring them in any way into disrepute, whether or not there is a pending litigation, transcends the limits of fair comment. Such publication or intemperate and unfair criticism is a gross violation of the lawyer’s duty to respect the courts. It is a misconduct that subjects to disciplinary action. (In re Almacen, 31 SCRA 562; In Re Gomez, 43 Phil. 376).

 

 

            Moreover, where by law or resolution of the Supreme Court proceedings, such as disciplinary actions against judges and lawyers, must be conducted in secret or considered confidential for the proper administration of justice until their final adjudication, they should not be given publicity by the press. And no one may publicly comment thereon during their pendency. For as important as the maintenance of an unmuzzled press and the free exercise of the rights of the citizens is the preservation of the independence of the judiciary. Respect for the judiciary cannot be adopted for good purpose and if such persons are to be permitted by subterranean means to diffuse inaccurate accounts of confidential proceedings to the embarrassment of the parties and the courts. (In re Lozano, 54 Phil. 801; In re Abistado, 57 Phil. 668).

 

Right and duty of lawyer to criticize courts.

 

            The rule is not, however, intended to prevent or preclude criticism of the judicial acts of a judge. For the guarantees of free speech and a free speech and a free press include the right to criticize the judicial conduct. The administration of the law is a matter of vital public concern. Whether the law is wisely or badly enforced is, therefore, a fit subject for proper comment. If the people cannot criticize a judge the same as any other public official, public opinion will be effectively muzzled. Attempted terrorization of public opinion on the part of the judicial officer would be tyranny of the basest sort. The sword of Damocles in the hands of a judge does not hand suspended over the individual who dares to assert his prerogative as a citizen and to stand up bravely before any official. The people are not obliged to speak of the conduct of their officials in whispers or with bated breath in a free government, but only in a despotism. (U.S. vs. bustos, 37 Phil. 731).

 

            As a citizen and officer of the court, a lawyer is expected not only to exercise the right but also to consider it his duty to expose the shortcomings and indiscretions of courts and judges. “Criticism of the courts has, indeed, been an important part of the traditional work of the lawyer. In the prosecution of appeals, he points out the errors of lower courts. In articles written for law journals he dissects with detachment the doctrinal pronouncement of courts and fearlessly lays bare for all to see the flaws and inconsistencies of the doctrines”. (In re Almacen, 31 SCRA 562).

 

            For no “class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartially or integrity of judges than members of the bar. They have the best opportunities for observing and forming correct judgment. They are in constant attendance in the courts. x x x. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained, (Ex Parte Steinman, 40 Rep. 641; In re Almacen).

 

            Courts and judges are not sacrosanct. They should expect critical evaluation of their performance. For like the executive and the legislative branches, the judiciary is rooted in the soil of democratic society and nourished by the periodic appraisal of citizens whom it should serve. (In re Almacen; Austria vs. Masaquel, 20 SCRA 1247).

 

 

The doctrine of fair comment.

     

            In Borjal vs. CA, et al., G.R. No. 126466, January 14, 1999; 301 SCRA 1, it was said that fair commentaries on matter of public interest are privileged and constitute a valid defense in an action for libel or slander. The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judiciary proved, and every false imputation is directed against a public reason in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts.

 

Limitations and effects of the Right to Criticize Judicial Acts.

 

            The freedom of expression rights cannot be a good defense whenever a lawyer unduly criticizes the courts. Neither does the doctrine of qualified privilege communications and fair criticism. The reason is that, such a freedom is not a license to malign anyone.

 

            Hence, lawyers have been suspended even as they invoked such freedom.

 

1.    In Montecillo vs. Gica, 60 SCRA 243 (1974), a lawyer was suspended until further orders from the Court for alleging that the Justices knowingly rendered unjust judgment. He alleged that they acted with intent and malice, if not with gross ignorance of the law in disposing of the case in his client.

 

2.    In re Almacen, 31 SCRA 562, a lawyer was suspended for having exceeded the boundaries of fair criticisms.

 

3.    In Paragas vs. Cruz, 14 SCRA 809, a lawyer was suspended because of derogatory statements in his Motion for Reconsideration.

 

4.    In In re Sotto, 82 Phil.  595, a lawyer was held in contempt despite his avowals of good faith and his invocation of the constitutional guarantee of freedom of speech.

 

5.    In Salcedo vs. Hernandez, 61 Phil. 724, Atty. Vicente Francisco was dealt with in contempt for presuming that the Court is so devoid of the sense of justice.

 

             In Zaldivar vs. Gonzales, 166 SCRA 316, Atty. Gonzales was suspended because of charges that the Supreme Court deliberately rendered an erroneous and unjust decision, necessarily implying that the Justices betrayed their oath of office, merely to wreak vengeance upon him. This was considered as constituting the grossest kind of disrespect for the court. Such statements debase and degrade the Supreme Court and the entire system of administration of justice.

 

            As Mr. Frunkfurter put it:

 

            A free press is not to be preferred to an independent judiciary, nor an independent judiciary to a free press. Neither has primacy over the other; both are indispensable to a free society.

 

            The freedom of the press in itself presupposes an independent judiciary through which that freedom may, if necessary, be vindicated. And one of the potent means for assuring judges their independence is a free press.

 

           


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