Anda di halaman 1dari 23

Lawyer's Oath

I, do solemnly swear that I will maintain allegiance to the Republic of the Philippines, I will support the Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein;

I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any

groundless, false or unlawful suit, or give aid nor consent to the same; I will delay no man for money or malice, and will conduct myself as a lawyer according to the best of my knowledge and discretion, with all good fidelity as well to the courts as to my clients; and I impose upon myself these voluntary obligations without any mental reservation or purpose of evasion. So help me God. 1

1 Form 28- Attorney’s Oath, Rules of Court, Rex Publishing Company, 2008 ed. p. 585

INTRODUCTION

Lawyering is not a trade or business. It is a noble profession whose duty includes upholding the Constitution and obeying the laws of the land. However, it is of no secret that like other professions, it is also a means of livelihood to many members of the bar. It is this so-called conflict between duty and occupation that brings an endless balancing of interests of an honourable lawyer and a clever entrepreneur.

This paper would like to explain what rules lawyers adhere to in order to be truthful and ethical in their practice without sacrificing the livelihood aspect of their profession.

Included in this paper are the common issues that affects solicitation of legal services. Sample bar examination questions and as well as some cases pertaining to this unethical act.

Solicitation

is

defined

as

a

petition

for

request,

enticement

or

allurement . While Legal services refers to an act of giving helpful activity

regarding legal matters. 2

When one solicits, it means that a person do some acts which would tend to attract somebody to what that person would like to have . Applying this concept to legal services, the idea of soliciting would pertain to the means that a lawyer do in order to gain profit by attracting the legal need of a potential client. Of course, what is being talked about here is the unethical aspect of soliciting legal services. Part of this paper therefore, is to also explain the ethical way of soliciting legal services.

Also at the end of this paper is the answer to the question: what would be the consequence of practicing an unethical act of soliciting legal services. This would pertain to the penalty that a lawyer could face if ever he do acts in the nature of unethical solicitation which are violative of their lawyer’s oath of upholding the Constitution and obeying the laws of the land.

BRIEF HISTORY OF LEGAL ETHICS

It is of no secret that our code of ethics in the legal profession came from foreign laws. Notably it was based on the American Bar Association’s Canons of Professional Ethics in 1908. This was adopted in the Philippines in 1917. Eventually the Philippines created its own code of professional ethics to lawyers

2 Dictionary.reference.com/browse/service

which was named as the Code of Professional Responsibility promulgated on June 21, 1988. 3 This is what is commonly known today as the CPR.

CHARACTERISTICS WHICH DISTINGUISHES THE LEGAL PROFESSION FROM BUSINESS

How does then the legal profession differs from business?

Here are the characterisctics which distinguishes the legal profession from business.

In the legal profession, one should always consider the presence of the following with respect to the legal profession:

  • 1. A duty of public service, of which the emolument is a by-product, and in which one may sustain the highest eminence without making much money;

  • 2. A relation as an “officer of the court” to the administration of justice involving thoroughsincerity, integrity, and reliability;

  • 3. A relation to clients in the highest degree of fiduciary;

  • 4. A relation to colleagues at the bar characterized by candor, fairness, and unwillingness toresort to current business methods of advertising and encroachment on their practice or dealing directly with their clients. 4

SOURCES OF PHILIPPINE LEGAL ETHICS

Another factor in determining the relationship of the legal profession to that of a business are the laws that governs legal ethics. Among the list below are the bases of legal ethics in the Philippines which may be a used as a support for researching cases about solicitation for legal services:

  • 1. Rules of Court

  • 2. Code of Professional Responsibility

3 E. Pineda, Legal Ethics, Pg. 2-3

4

LEGAL & JUDICIAL ETHICS REVIEWER BY: RENE CALLANTA , p. 14

3.

Supreme Court Decisions

  • 4. Statutes (ex. Civil Code, Art. 1491 [5])

  • 5. Constitution (Art. 8, Sec.5 [5]) 5

The primary basis for the creation of the code of legal ethics for lawyers in the Philippines is Art. 8, Sec. 5[5] of the 1987 Constitution which provides that:

“The Supreme Court shall have the following powers: x x x Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.”

This power to promulgate rules concerning the practice of law is now embodied under the current 1997 Rules of Court. At the beginning of the said Rules of Court are these words:

“Pursuant to the provisions of section 5 (5) of Article VIII of the Constitution, the Supreme Court hereby adopts and promulgates the following rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged.”

Also in addition to this, as mentioned earlier, the ethical rules being followed by lawyers today is based on the Code of Professional Responsibility which was promulgated by the Supreme Court on June 21, 1988.

DISCUSSION

APPLICABLE LAWS

In the discussion for solicitation for legal services, it is important to note the specific rules under the Code of Professional Responsibility which applies to this topic. These rules are based on the lawyer’s oath cited in the first page of

5 E. Pineda, Legal Ethics. p.2

this paper. To be reminded, the following quotation from the lawyer’s oath shall serve to aid the reader’s memory with regard to solicitation for legal services. The lawyer’s oath says:

x x x I will not wittingly or willingly promote or sue any groundless, false or unlawful suit, or give aid nor consent to the same; I will delay no man for money or malice x x x”

At the outset, the following are the applicable rules under the Rules of Court

Rule 138- ATTORNEYS AND ADMISSION TO THE BAR

Sec. 20 Duties of attorney. - It is the duty of an attorney: (g) Not to encourage either the commencement or the continuance of an action or proceeding or delay any man’s cause, from any corrupt motive or interest; xxx

Sec. 24 Compensation of attorneys; agreement as to fees- An attorney shall be entitled to have and recover from his client no more than a reasonable compensation for his services, with a view to the importance of the subject matter of the controversy, the extent of the services rendered, and the professional standing of the attorney. No court shall be bound by the opinion of attorneys as expert witnesses as to the proper compensation, but may disregard such testimony and base its conclusion on its own professional knowledge. A written contract for services shall control the amount to be paid therefor unless found by the court to be unconscionable or unreasonable.

Sec. 27 Disbarment or suspension of attorneys by Supreme Court; grounds therefor. – A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit , malpractice xxx. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice.

Rule 141- LEGAL FEES

Sec. 12. Notaries

Under the rules of listed:

the Code of Professional Responsibility, the following are

CANON 1- A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and legal processes.

Rule 1.01- A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

Rule 1.03.A lawyer shall not, for any corrupt motive or interest, encourage any suit or proceeding or delay in a man’s cause.

CANON 2- A lawyer shall make his legal services available in an efficient an convenient manner compatible with the independence, integrity and effectiveness of the profession.

Rule 2.03.A lawyer shall not do or permit to be done any act designed

∑ Rule 2.03.A lawyer shall not do or permit to be done any act designed
∑ Rule 2.03.A lawyer shall not do or permit to be done any act designed ∑

primarily to solicit legal business.

Rule 2.04.A lawyer shall not charge rates lower than those customarily prescribed, unless the circumstances so warrant.

CANON 3- A lawyer in making known his legal services shall use only true, honest, air, dignified and objective information or statement of facts.

Rule 3.01- A lawyer shall not use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement or claim regarding his qualifications or legal services.

Rule 3.04- A lawyer shall not pay or give anything of value to representatives of the mass media in anticipation of, or in return for, publicity to attract legal business.

CANON 9- A lawyer shall not, directly or indirectly, assist in the unauthorized practice of law.

Rule 9.02- A lawyer shall not divide or stipulate to divide a fee for legal services with persons not licensed to practice law, except:

  • a. Where there is a pre-existing agreement with a partner or associate that, upon the latter’s death, money shall be paid over a reasonable period of time to his estate or to the persons specified in the agreement; or

  • b. Where a lawyer undertakes to complete unfinished legal business of a deceased lawyer; or

c.

Where

a

lawyer

or

law

firm

includes

non-lawyer

employees

in

a

retirement plan, even if the plan is based in whole or in part, on a profit sharing arrangement.

EXPLANATION AND EXAMPLE OF CASES

As analyzed by the authors of this paper and based on the above-cited canons and rules, the ethical standards that lawyers should be cautious to when it comes to solicitation of legal services may be categorized into four:

  • 1. Using deceptive qualifications or legal services

  • 2. Soliciting by means of assistance of others

  • 3. Advertising legal services

  • 4. Charging lower legal rates

  • 5. Misrepresenting as to a lawyer’s connection with a law firm

  • 6. Using the media to attract legal services

Each of these category would be discussed below together with the relevant cases.

I. Using deceptive qualifications or legal services

Here are some cases which pertains to a deceptive act of a lawyer in order to solicit legal services as lifted from the books of Dean Ernesto Pineda and Dean Rufus Rodriguez. Some of the synopsis of the cases are also adopted for clearer understanding of the application of soliciting business in the legal profession.

CASE ONE

Synopsis: Respondent, in deceiving the complainant by assuring her that he could give her visa and travel documents and that despite spurious documents nothing untoward would happen, is guilty of violating Canon 1 of the Code of Professional Responsibility

SEBASTIAN vs. CALIS 314 SCRA 1

FACTS: Complainant alleged she was referred to the respondend Atty. Calis who promised to process all necessary documents required for complainant’s trip to the USA for a fee of P150,000.

Upon arrival at the Singapore International Airport, complainant was apprehended by the Singapore Airport Official for carrying spurious travel documents. Complainant contacted the respondent. From September 6 to 9, 1994, complainant was detained at Singapore.

The complainant was deported to the Philippines and respondent fetched her from the airport and brought her to his residence. Complainant then demanded for the return of her money.

HELD: Respondent is guilty of gross misconduct by engaging in unlawful, dishonest, immoral or deceitful conduct contrary to Canon1, of the Code of Professional Responsibility. Respondent deceived the complainant by assuring her that he could give her visa and travel documents; that despite spurious documents nothing untoward would happen. All for material gain. 6

The above cited case is a clear indication that in order to solicit legal services, the lawyer here apparently misled the respondent into believing that he could bring her out of the country without processing the valid documents.

CASE TWO

IN RE: TAGORDA 53 Phil 37

Facts/Held: Atty. Tagorda distributed cards where he advertised that:

“As a notary public, he can execute for you a deed of sale for the purchase of land as required by the cadastral office, can renew lost documents of young animals, can make your application and final requisites for your homestead, and execute any kind of affidavit. As a lawyer, he can help you collect your loans, altogether long overdue, as well as any complaints for or against you. He offers free consultation and is willing to help the poor.”

He was suspended 7

  • 6 R. Rodriguez, The Fundamentals of Legal and Judicial Ethics, ed. p. 46 (2004)

  • 7 Same, p. 86

II. Soliciting by means of assistance of others.

CASE ONE

Synopsis: For engaging in the practice of soliciting cases and for the purpose of gain through paid agents or brokers, respondent attorney is reprimanded.

TAN TEK BENG vs. DAVID 126 SCRA 389

FACTS: The issue in this case is whether the disciplinary action should be taken against the lawyer David for not giving Tan Tek Beng, a non – lawyer, one – half of the attorney’s fees received by David from the clients supplied by Tan Tek Beng. There agreement reads:

“Dear Mr. Tan:

In compliance with your request, I am now putting into writing our agreement xxx:

“1. On all commissions or attorney’s fees that we shall receive from our clients by virtue of the collection that we shall be able to effect on their accounts, we shall divide fifty-fifty. x x x 2. I shall not deal directly with out clients without your consent.

Very truly yours,

TIMOTEO A. DAVID”

HELD: We hold that the said agreement is void because it was tantamount to

malpractice which is the practice of soliciting cases at law for the purpose of

gain, either

personally or through paid agents or brokers.”(Sec. 27, Rule 138,

Rules of Court) 8

It is clear in this case that the use of agents in soliciting legal services is prohibited by law and therefore unethical. This is no different from the notary publics that most people see under train stations or those who are practicing dubious notary in Recto Avenue in Manila. It must be noted that in order for a notary public to notarize, there is a need for the notarial book of a lawyer where he puts entries there and that the affiant should personally appear before him. Unfortunately, this is not strictly followed in actual practice. There are a lot of lawyers who do this kind of modus operandi in order to gain money. Of course, this is unethical because the practice of law is not a business.

8 Same, p. 66

This is further elucidated Responsibility which provides that:

in Rule

9.02

of

the Code

of Professional

Rule 9.02- A lawyer shall not divide or stipulate to divide a fee for legal services with persons not licensed to practice law, except:

  • a. Where there is a pre-existing agreement with a partner or associate that, upon the latter’s death, money shall be paid over a reasonable period of time to his estate or to the persons specified in the agreement; or

  • b. Where a lawyer undertakes to complete unfinished legal business of a deceased lawyer; or

  • c. Where a lawyer or law firm includes non-lawyer employees

in

a

retirement plan, even if the plan is based in whole or in part, on a profit

sharing arrangement.

III. Advertising legal services

Another

issue

in

soliciting

legal

services

are the misleading

advertisements by some lawyers in order to solicit legal services. Such actions brings dishonor to the nobility of the legal profession.

CASE ONE

Synopsis: For advertising his services in connection with his candidacy as provincial board member of the province of Isabela, and in requesting that his services be disseminated in all meetings and social gatherings, respondent attorney is suspended for one month.

IN RE: LUIS B. TAGORDA 53 Phil 37

FACTS: The respondent lawyer, Atty. Tagorda , a member of the provincial board of Isabela, admits that in the last general elections he made use of a card written in Spanish and Ilocano, which, in translation, reads as follows:

“LUIS B. TAGORDA”Attorney; Notary Public; CANDIDATE FOR THIRD MEMBER, Province of Isabela. (NOTE.-As notary public, he can execute for your a deed of sale for the purchase of land as required by the cadastral office; can renew lost documents of your animals; can make new lost documents of your animals; x x x)

HELD: x x x Solicitation of business by circulars or advertisements, or by personal communications or interviews not warranted by personal relations, is

unprofessional, and the commission of offenses of this character amply justifies permanent elimination from the bar. x x x 9

CASE TWO

THE DIRECTOR OF RELIGIOUS AFFAIRS vs. BAYOT 74 Phil 579

FACTS: The respondet Atty. Bayot is charged with malpractice for having published an advertisement in the Sunday Tribune of June 13, 1943, which reads follows:

“Marriage license promptly secured thru our assistance & the annoyance of delay or publicity avoided if desired, and marriage arranged to wishes of parties. Consultation any matter free for the poor. Everything confidential. xxx”

HELD: It is undeniable that the advertisement in question was a flagrant violation by the respondent of the ethics of his profession, it being a brazen solicitation of business from the public. xxx. It is highly unethical for an attorney

CASE THREE

ULEP VS.THE LEGAL CLINIC 223 SCRA 378

FACTS: Petitioner prays this Court to order the respondent to cease and desist from issuing the following advertisements:

“SECRET MARRIAGE? P560.00 for a valid marriage. Info on DIVORCE, ABSENCE, ANNULMENT. VISA. THE LEGAL CLINIC, INC. x”

x x

9 Same, p. 69

HELD: The Supreme Court enjoined the said corporation from issuing or causing the publication or dissemination of any advertisement in any form which is of the same or similar tenor and purpose of as above.

These advertisements are contrary to Rule 2.03 and Rule 3.01 of the Code of Professional Responsibility.

The prime incorporator, major stockholder and proprietor of the Legal Clinic, Inc. being a member of the Philippine Bar is reprimanded with a stern warning not to repeat the same or similar act. 10

It can be gleaned from the above cases that false advertisements to solicit legal services are probably the most common of the unethical solicitation of legal services. At this point, the authors of this paper would like to call the reader’s attention regarding the websites of big law firms in the country. Without mentioning any names of the law firms, the authors have found out that whenever one would go to the websites of these law firms, their expertise are displayed in their websites. Are these not tantamount to solicitation of legal services also? The authors believe that they are because there seems to be a hidden intent on the part of these law firms to solicit business by stating what their expertise are. For example, in a law firm in Makati, their website would provide that they are entertaining tax cases, mining cases and intellectual property cases. If this is continued, what would then happen to the small law firms? It is believed and as will be discussed later that the best advertisement of a law firm would be by word of mouth. This would be discussed later.

IV. Charging lower legal rates

As there seems to be a rarity of actual cases decided by the Supreme Court regarding this matter, the discussion on this topic would pertain to Rule 2.04 of the Code of Professional Responsibility which provides that:

Rule 2.04- A lawyer shall not charge rates lower than those customarily prescribed unless the circumstances so warrant.

The idea of prohibiting lawyers in charging lower rates is to discouraged the marketing of legal services at a lower rate in order to attract more services and thereby gain more profit. Again, this is another act of treating the duty of a lawyer as a business. To regulate the proper fees to a lawyer, Rule 138, Sec. 24 provides for a standard by which a lawyer should charge his client. The rule provides:

10 E. Pineda. Legal Ethics. 2009 ed., p.80

“Sec. 24 Compensation of attorneys; agreement as to fees- An attorney shall be entitled to have and recover from his client no more than a reasonable compensation for his services, with a view to the importance of the subject matter of the controversy, the extent of the services rendered, and the professional standing of the attorney. No court shall be bound by the opinion of attorneys as expert witnesses as to the proper compensation, but may disregard such testimony and base its conclusion on its own professional knowledge. A written contract for services shall control the amount to be paid therefor unless found by the court to be unconscionable or unreasonable.”

Corollary to this are the fees charged by a notary public as cited under Rule 141, Sec. 12 of the Rules of Court. This could be a proper subject of amendment because of its seemingly low rates but, nevertheless, the Rule provides for the standard to follow in charging notarial fees. The Rule provides:

“Sec. 12. Notaries.- No notary public shall charge or receive for any service rendered by him any fee, remuneration or compensation in excess of those expressly prescribed in the following schedule:

  • a. For protests of drafts, bills of exchange, or promissory notes for non-

acceptance or non-payment, and for notice thereof, ONE HUNDRED (P100) PESOS;

  • b. For the registration of such protest and filing or safekeeping of the

same, ONE HUNDRED (P100);

  • c. For authenticating powers of attorney, ONE HUNDRED PESOS;

  • d. For sworn statement concerning correctness of any account or other

document, ONE HUNDRED PESOS;

  • e. For each oath or affirmation, ONE HUNDRED PESOS;

  • f. For receiving evidence of indebtedness to be sent outside , ONE

HUNDRED PESOS;

  • g. For issuing a certifiedcopy of all or part of his notarial register or

notarial records, for each page, ONE HUNDRED PESOS;

  • h. For taking depositions, for each page, ONE HUNDRED PESOS; and

  • i. For acknowledging other documents not enumerated in this section,

ONE HUNDRED PESOS.”

In practice, the notarial fees mentioned above seems to be lower than most lawyers are asking from their clients. It would be proper if this policy would be reviewed so as not to burden those who have less in life.

  • V. Misrepresenting as to a lawyer’s connection with a law firm

There is a need to include in the discussion of unethical solicitation of legal services the practice of some lawyers who in order to solicit more clients and in making known their

legal services commit misrepresentations as to their connection to a law firm. Put it differently some lawyers manage to use the famous name of a deceased partner in a law firm without indicating such status. Others manage to use foreign law firms in their pursuit to solicit legal business. Still other lawyers would also take advantage of their position in public office to aid them in soliciting legal services. All these acts is not encouraged by our rules in legal ethics.

The pertinent rules for this category of unethical practice of soliciting legal services are the following:

CANON 3- A lawyer in making known his legal services shall use only true, honest, air, dignified and objective information or statement of facts.

Rule 3.01-

A lawyer shall

not use or permit

the

use

of any

false,

fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement or claim regarding his qualifications or legal services.

Rule 3.02.In the choice of a firm name, no false, misleading or assumed name shall be used. The continued use of the name of deceased partner is permissible provided that the firm indicates in all its communications that said partner is deceased.

Rule 3.03Where a partner accepts public office, he shall withdraw from the firm and his name shall be dropped from the firm name unless the law allows him to practice law concurrently.

Thus, if a group of lawyers would like to establish a law firm, they cannot use a false name or include in their partnership name the name of a person who is not a lawyer. It does not mean that if a person is well-known he could just be included in their firm name just to falsely misrepresent that they can be trusted. Also if a partner died, there should be an indication that such partner died in their firm name. This is usually done by placing some marks above the name of the deceased partner such as a cross or an asterisk. If a Filipino lawyer is also using the name of a foreign law firm, he is likewise prohibited by law to practice under the name of such a firm. A good case for this one is the case of Dacanay vs. Baker & McKenzie.

CASE ONE

Dacanay vs. Baker & Mckenzie 136 SCRA 349

Respondent Vicente A. Torres, using the letterhead of Baker & McKenzie, which contains the names of ten lawyers, asked Rosie Clurman for the release of 87 shares of Cathay Products International, Inc. To H.E., Gabriel, a client.

Attorney Dacanay, in his reply denied any liabality of Clurman to Gabriel, he requested that he be informed whether the lawyer of Gabriel is Baker & McKenzie “and if not, what is the purpose in using the letterhead of another law office, “Not having received any reply, he filed the instant complaint ( Sec. 1 Rule 138 Rules of Court)

Filipino lawyers cannot practice law under the name of a foreign law firm.

Another act of unethical practice of soliciting legal services is the act of some elected lawyers that when elected to public positions they allow their name to be used in a law firm while they are still in office.

This act is prohibited under RA 7160, Section 90

Name of partner should be dropped from the firm name when he accepts public office. If a partner in a law firm has accepted a public office, his name shall be removed from the firm name. Exception : If the law allows him to practice law concurrently while holding the position such asSanggunian members are subject to certain restrictions.

VI. Using the media to attract legal services

Sometimes, the more a lawyer is exposed to the media, the public is more inclined to get the services of that lawyer. This is perhaps on the false notion that that lawyer can readily help whatever legal predicament they are facing. They do not know, that each lawyer has some expertise. No lawyer has an expert knowledge on every legal subject. That is the reason why a lawyer needs to build a reputation through words of mouth about his legal competence to a particular topic. While it is true that exposure to the public would know the legal expertise of a lawyer. This is not always the case. There is a bigger danger as to the giving of legal advice of some lawyers when they are not really an expert in that field. All they could give are general ideas which of course the ordinary person does not really understand thoroughly. The act of giving legal advice in televisions should be regulated by the Supreme Court as this could violate the ethical practice of soliciting legal services.

The pertinent canon for this rule would be:

CANON 3- A lawyer in making known his legal services shall use only true, honest, air, dignified and objective information or statement of facts.

Rule 3.04- A lawyer shall not pay or give anything of value to representatives of the mass media in anticipation of, or in return for, publicity to attract legal business.

This canon refers to all kinds of media. The fastest rising means of advertising legal services at this point would be the internet. In the Philippines though, since not all households get access to the internet, still the most popular means of soliciting legal services through the media would still be the radio and the television. However, the giving of a legal advice in good faith in different should not be completely abhorred. \

COMMON TYPES OF SOLICITATION OF LEGAL SERVICES

Included in this discussion are the common types of solicitation of legal services

  • A. BARRATRY

    • B. It is the offense of frequently exciting and stirring up quarrels and suits, either at law or otherwise. The person who engages in barratry is called a barretor or barrator. 11

    • C. MAINTENANCE It is the intermeddling of an uninterested party to encourage a lawsuit. It is a taking in hand,a bearing up or upholding or quarrels or sides, to the disturbance of the common right. 12

    • D. AMBULANCE CHASING It is the lawyer’s act of chasing an ambulance carrying the victim of an accident for the purpose of talking to the said victim or relatives and offering his legal services for the filing of a case against the person who caused the accident. 13

The main purpose of prohibiting the above types of unethical practice of soliciting legal services is not to stir up litigations. There are many cases already that courts hear every day. Hundreds yet are to be decided by the Supreme Court with finality. It would be a dishonor on the part of a lawyer to encourage lawsuits just for him to gain money at the expense of our courts.

Furthermore, it would be encouraging evil to instigate a law suit against a person if he is innocent. The suit would take his time, money and even affects his health. This is what is avoided by the rules in legal ethics.

TYPES OF ADVERTISING OR SOLICITATION NOT PROHIBITED

  • 11 D. Funa, Legal and Judicial Ethics with Bar Examination Quesitons, p. 45 12 D. Funa, Legal and Judicial Ethics with Bar Examination Quesitons, p. 45

  • 13 E. Pineda, Legal Ethics, p. 64

The best advertisement for a lawyer is a well-deserved reputation for competence, honesty and fidelity to private trust and public duty.

In the case of

Ulep vs.

Legal Clinic 223 SCRA 378, it stated there

the

following allowable kind of advertisement of a lawyer:

1.PUBLICATION IN A LAW LIST-Publication of reputable law lists, in a manner consistent with the standards of conduct imposed by the canons, or brief biographical and informative data.

2.CALLING CARDS- The use of ordinary simple professional card. The card contain only a statement of his name, the name of the law firm which he is connected with, address, telephone no., and special branch of law practiced.

3.ANNOUNCEMENT IN OPENING A LAW FIRM- Publication or a public announcement of the opening of a law firm or of changes in the partnership, associates, firm name or office address, being for the convenience of the profession.

BAR EXAMINATION QUESTIONS

1. Why is law a profession and not a trade? (2006 Bar)

Law is a profession and not a trade because its basic ideal is to render public service and secure justice for those who seek its aid. The gaining of a livelihood is only a secondary consideration

2. .

Explain the axiom “The practice of law is noble profession, not a business.

(1975 Bar Exam) The practice of law is a noble profession and not a business because it treats of the most important interests of man, namely: life, liberty and property. The lawyer’s first duty is to maintain good administration of justice. In maintaining the causes confided to him, he should delay no man for money or malice. He should not reject for any personal reason the causes of the defenseless and the oppressed. Pecuniary rewards are but a secondary importance. The profession of law is more a mission than a business profession and therefore its object is not material reward but promote the administration of justice; hence, where a lawyer in the pursuit of his calling finds conformity with professional ethics difficult, he should other vocation.

3.

Immediately after a mine explosion, an attorney in behalf of the law from

went at once to the scene of the disaster . In competition with other lawyers, he personally solicited the disaster victims and their kins to put up their claim through his lawn frim on the basis of a contingent fee. Is the cinduct of the lawyer proper? Why? [1977 Bar exams]

The

act

of

the

lawyer

unethical and improper

constitutes

champertous

contract which is

  • 4. May a lawyer advertise his profession? Explain? [1977 Bar exams]

A lawyer may not advertise his profession. Standard of profession condemn a lawyer who advertises his talents in a manner similar to a merchant advertising his goods. Solicitation, in order to be proper should be compatible with the dignity of the legal profession. If made in modest and decorous manner, it would bring no injury to the lawyer or to the bar.

The use of professional cards carrying the name of the lawyer, his title, his office and his residence maybe proper. Announcements in periodicals or magazines regarding the opening of a law office or the foundation of a law partnership containing only names and addresses are proper.

  • 5. A new lawyer has a political ambition to become a Governor of this province.

So he put up a big sign board at his law office with these inscriptions – Ätty. X,

practicing lawyer and notary public. Especializing in criminal law at nominal fee. Prepares and notarize legal papers and conveyance free of charge. ” Has he committed any infraction of professional Ethics? Explain. [1979 Bar exam]

Yes, when he advertises himself as “specializing in criminal law” he engages in self-laudation which is offensive to the dignity of the law profession; and when he further announces that his fees in criminal cases are nominal and his notarial services free he displaced a brand of solicitation which is highly unprofessional. It also has the effect of destroying the honor of a noble profession and lowering its standards.

  • 6. “The ‘X’ Chapter of the Integrated Bar of the Philippines render legal

assistance through its members, free of charge, to any person who is without means to enforce or defend a right, Any such person may call at the Chapter Office at (address) during office hours for consultation.”

a. If a notice as written above were to be posted in a conspicuous place for the general public to see, would such posting constitute solicitation? defend your answer.

If the legal assistance to indigent litigants is announced in the name of the chapter of the IBP, it is not improper solicitation. As a matter of fact, it is the duty and obligation of the IBP chapter to set-up legal aid office.

b. Suppose that in the above notice the reference to the IBP is deleted. Instead, the name of a particular lawyer is what appears. Would it make a difference to your previous answer? Explain. [1980 bar exams]

However, if the notice does not include the reference of the IBP chapter and only the name of the particular lawyer appears, it might constitute as unethical solicitation.

7. A Justice of the Supreme Court, while reading a newspaper one weekend, saw the following advertisement:

ANNULMENT OF MARRIAGE Competent Lawyer Reasonable Fee Call 221 – 2221 Mondays to Fridays 8:00 a.m. to 5:00 pm

The following session day, the Justice called the attention of his colleagues and the Bar Confidant was directed to verify the advertisement. It turned out that the number belongs to Attorney X, who was then directed to explain to the Court why he should not be disciplinary dealt with for the improper advertisement.

Attorney X, in his answer, averred that (1) the advertisement was not improper because his name was not mentioned in the ad; and (2) he could not be subjected to disciplinary action because there was no complaint against him.

Rule on Attorney X’s contention. [2003 bar exams]

1. The advertisement is improper because it is a solicitation of legal business and is tantamount to self-praise by claiming to be a competent lawyer. The fact that his name is not mentioned does not make the advertisement proper. His identity can easily be determined by calling the telephone number stated.

2. A complaint is not necessary to initiate a disciplinary action. Section 1, Rule 139-B of the Rules of Court, disciplinary action against a lawyer maybe initiated by the Supreme Court Motu Propio.

8. Determine whether the following advertisements by an attorney are ethical or unethical. Write “Éthical” or “Unethical, as the case may be, opposite each letter and explain.

  • A. A calling card, 2”x 2”in size, bearing his name in bold print, office,

residence and e-mail addresses, telephone and facsiline numbers.

ETHICAL- a lawyer, in making known his legal services shall use only true, honest, dignified, and objective information or statement of facts.

  • B. A business card, 3”x 4”

with his photo, 1”x 1 “ in size.

in size, indicating the aforementioned data

UNETHICAL- the size of the card and the inclusion of the lawyer’s photo in it smacks of commercialism

  • C. A pictonal press release in a broadsheet newspaper made by the

attorney showing him being congratulated by the attorney showing him being for winning a multi-million damage suit against the company in the Supreme Court.

UNETHICAL- a lawyer should not resort to indirect advertisements, such as procuring his photograph to be published in a newspaper in connection with the case he is handling. He should not pay or give something of value to representatives of the mass media in anticipation of, or return of, publicity to attract legal business.

  • D. The same press release made by his client in a tabloid.

ETHICAL- the lawyer can no longer be held responsible for the action of his client. However, it would be unethical if he knew about his client’s intention to publish and he did not stop it.

  • E. A small announcement in BALITA, a tabloid in Filipino, that the

attorney is giving free legal advice for September 2002. [2002 Bar exams]

UNETHICAL- the announcement in a newspaper that he will give free legal advice to indigents is a form of self-praise.

9. Facing disciplinary charges for advertising as a lawyer, Atty. A argues that although the calling card of his businessman friend indicates his law office and his legal specially, the law office is located’s store. Decided. [2001 Bar]

This appears to be a circumvention of the prohibition on improper advertising. There is no valid reason why the lawyer’s businessman friend should be handling out calling cards which contains the lawyer’s law office and legal specialty, even if his office is located in his friend’s store. What makes it more objectionable is the statement of his supposed legal specialty.

10. A lawyer advertised in the newspaper the following.

“Can secure annulment of your marriage promptly. Expert in legal separation cases. Consult anytime.”

Is the advertisement proper?

NO. A lawyer in making known his legal services should not use any false fraudulent, misleading, deceptive, undignified or self-laudatory statements regarding his qualifications and legal services. The claim that he can secure annulment of marriage promptly is false and misleading and his claim that he is an expert in legal separation is self-laudatory. Advertisement constitutes improper solicitation and violates the sanctity of the institution of marriage which the state should protect.

  • 11. Atty. B, C and D recently inaugurated their law partnership. Among the

invited guests were clients, business executive and government officials including a few members of the judiacy. Photographs were taken during the inaugural affair which the law firm subsequently caused to be published in major newspaper dailies. Was there anything ethically wrong in what the partnership had done? [ 1997 Bar Exam]

The act of causing photographs of the inaugural affair published in major newspaper dailies violates the following rules of the CPR

Rule 2.03.A lawyer shall not do or permit to be done any act designed

“Can secure annulment of your marriage promptly. Expert in legal separation cases. Consult anytime.” Is the
“Can secure annulment of your marriage promptly. Expert in legal separation cases. Consult anytime.” Is the

primarily to solicit legal business.

Rule 3.01- A lawyer shall not

use or permit

the use

of any false,

fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement or claim regarding his qualifications or legal services.

  • 12. A businessman is looking for new retainer. He approached you and asked

for your schedule of fees or charges. He informed you of the professional fees he

is presently paying his retainer, which is actually lower than your rates. He said that if your rates are lower, he would engage your services.

Will you lower your rates in order to get the client? Explain. [2005 Bar exam]

NO, I would not.

Rule 2.04. provides that A lawyer shall not charge rates lower than those customarily prescribed, unless the circumstances so warrant.

This is aimed against the practice of cut-throat competition which is not in keeping with the principle that the practice of law is a noble profession and not a trade. 13. You are the managing partner of the law firm. A foreign airline compay, recently granted rights by the Civil Aeronotics Board at NAIA, is scouting for a law firm which could handle its cases in htr Philippines and provide legal services to the company and its personnel. After discussing with you the extent of the legal services your law firm is prepared to render, the general manager gives you letter-proposal from another law firm in which its time-billing rates and professional fees for various legal services are indicated. You are asked to submit a similar letter-proposal stating your firms proposed fees. The airline company’s general manager also tells you that, if your proposal fees would at least be 25 percent lower than those, proposed by the by the other firm, you will get the company’s legal business. How would you react to the suggestion? [1997 Bar exams]

  • I will emphasize to the general manager that the practice of law is a profession

and not a trade. Consequently, I will not propose a lower fee just for the sake of competing with another firm, because such practice smacks of commercialism.

Rule 2.04. provides that A lawyer shall not charge rates lower than those customarily prescribed, unless the circumstances so warrant.

  • I would charge fees that would be reasonable under the circumstances.

CONCLUSION

Penalty

The penalty for an improper solicitation of legal services is provided by the following rule:

Rule 138, Sec. 27 Disbarment or suspension of attorneys by Supreme Court; grounds therefor. – A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit , malpractice xxx. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice.

It is clear therefore in this case that an act of unethical solicitation of legal services constitutes malpractice and therefore may subject an erring lawyer from disbarment.

-End-

REFERENCES

  • 1. 1987 Philippine Constitution

  • 2. 1997 Rules of Court

  • 3. Code of Professional Ethics

  • 4. Ernesto Pineda, Legal Ethics

  • 5. Dennis B. Funa, Legal and Judicial Ethics with bar examination questions

  • 6. Rufus Rodrigues, Legal Ethics

  • 7. Agpalo, Legal Ethics

  • 8. Answers to Bar examination questions in legal ethics and practical exercises, 1975 to 2007.