Question: May a lawyer abandon his legal duties and excuse himself on the grounds of “too many responsibilities?”
Elmer Canoy, complainant v. Atty. Jose Max Ortiz, respondent A.C. No. 5485 March 16, 2005
Facts: This is a case wherein complainant Elmer Canoy accused his former counsel, Atty. Jose Max Ortiz of misconduct and malpractice. In 1998, Canoy filed a complaint for illegal dismissal against his former employer,Coca Cola Bottlers Philippines, and was represented in said case by Atty. Ortiz. Canoy, explained Ortiz, was one of his indigent clients, in that it was the latter’s practice since commencing his practice of law to cater to indigent and law-income clients. In the labor case against CCBP filed with the National Labor Relations Commission, the labor arbiter ordered the parties to submit their respective petition papers. Canoy submitted all the necessary documents and records to Atty. Ortiz for the preparation of the position paper. Canoy made several follow-ups with the office of his attorney, said visits were unfruitful until it came to his knowledge on 2000, upon inquiring with the NLRC itself, that his complaint was already dismissed way back in 1998 for failure to prosecute because the parties did not submit their position papers. Atty. Canoy further claimed that Atty. Ortiz never informed him about the status of his case nor of the fact that he failed to submit the position paper. In his Comment, Atty. Ortiz admitted to not being able to submit the position paper because the period within which to file it lapsed already, with arbiter already dismissing the case, but reasoned out that his election as a Councilor of Bacolod City made him very preoccupied with his functions. His duties as a public servant and a lawyer are “beyond physical limitation”, said Atty. Ortiz, so he had to withdraw from his other cases. He also claimed of not being able to remember whether he immediately informed Canoy of the dismissal of the case, but recalled of Canoy conveying that he already has a lawyer to handle the case. Hence, his office did not insist on refiling the case. Atty Ortiz also pointed out that the dismissal of Canoy’s complaint was without prejudice.
Issue: Whether or not Atty. Ortiz is guilty of misconduct and malpractice
Ruling:Upon investigation of the case, the Integrated Bar of the Philippinesconcluded that clearly “Atty. Ortiz failed to exercise the degree of competence and diligence required of him in prosecuting his client” and recommended that Atty. Ortiz be reprimanded. The Supreme Court, however, finds the recommended penalty of the IBP too lenent and instead suspended Atty. Ortize from the practice of law for one month, in lieu of the
admonition or reprimand. According to the Court, Atty Ortiz several canons and rules in the Code of Professional Responsibility. Specifically, Atty. Ortiz was guilty of violating Rule 18.03 of the Code, which states, “A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable,” on account of his failure to file the position paper on time, tantamount to neglecting a legal mater
entrusted to him. That the case was dismissed without prejudice does not mitigate his liability. Further, Ortiz also violated Rule 22.02, which states,“A laywer shall withdraw his services only for good cause and upon notice appropriate in the circumstances.” Therefore, even if Atty. Ortiz was justified in terminating his services due to his elective position, he should have coordinated with the new council of Canoy and turned over to the latter all papers and property which the Client is entitled and should have cooperated with his successor in the orderly transfer of the matter, as per Rule 22.02.
And while were are on the subject of ethics, the following lawyer commercials do not comply with the standards of the profession:
The Supreme Court admonishes all practitioners to adhere to the Code of Professional Responsibility.
CODE OF PROFESSIONAL RESPONSIBILITY
(Promulgated June 21, 1988)
CHAPTER I. THE LAWYER AND SOCIETY
Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.Rule 1.02 - A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system.
Rule 1.03 - A lawyer shall not, for any corrupt motive or interest, encourage any suit or proceeding or delay any man's cause.
Rule 1.04 - A lawyer shall encourage his clients to avoid, end or settle a controversy if it will admit of a fair settlement.
Rule 2.01 - A lawyer shall not reject, except for valid reasons, the cause of the defenseless or the oppressed.Rule 2.02 - In such cases, even if the lawyer does not accept a case, he shall not refuse to render legal advice to the person concerned if only to the extent necessary to safeguard the latter's rights.
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.
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 a deceased partner is permissible provided that the firm indicates in all its communications that said partner is deceased.
Rule 3.03 - Where a partner accepts public office, he shall withdrawal from the firm and his name shall be dropped from the firm name unless the law allows him to practice law currently.
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.
Rule 6.01 - The primary duty of a lawyer engaged in public prosecution is not to convict but to see that justice is done. The suppression of facts or the concealment of witnesses capable of establishing the innocence of the accused is highly reprehensible and is cause for disciplinary action.Rule 6.02 - A lawyer in the government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties.
Rule 6.03 - A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he had intervened while in said service.
CHAPTER II. THE LAWYER AND THE LEGAL PROFESSION
Rule 7.01 - A lawyer shall be answerable for knowingly making a false statement or suppressing a material fact in connection with his application for admission to the bar.Rule 7.02 - A lawyer shall not support the application for admission to the bar of any person known by him to be unqualified in respect to character, education, or other relevant attribute.
Rule 7.03 - A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.
CANON 8 - A LAWYER SHALL CONDUCT HIMSELF WITH COURTESY, FAIRNESS AND CANDOR TOWARDS HIS PROFESSIONAL COLLEAGUES, AND SHALL AVOID HARASSING TACTICS AGAINST OPPOSING COUNSEL.
Rule 8.01 - A lawyer shall not, in his professional dealings, use language which is abusive, offensive or otherwise improper.Rule 8.02 - A lawyer shall not, directly or indirectly, encroach upon the professional employment of another lawyer, however, it is the right of any lawyer, without fear or favor, to give proper advice and assistance to those seeking relief against unfaithful or neglectful counsel.
CANON 9 - A LAWYER SHALL NOT, DIRECTLY OR INDIRECTLY, ASSIST IN THE UNAUTHORIZED PRACTICE OF LAW.
Rule 9.01 - A lawyer shall not delegate to any unqualified person the performance of any task which by law may only be performed by a member of the bar in good standing.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:chanroblesvirtuallawlibrary
(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 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 agreement.
CHAPTER III. THE LAWYER AND THE COURTS
Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the doing of any in Court; nor shall he mislead, or allow the Court to be misled by any artifice.Rule 10.02 - A lawyer shall not knowingly misquote or misrepresent the contents of a paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved.
Rule 10.03 - A lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice.
CANON 11 - A LAWYER SHALL OBSERVE AND MAINTAIN THE RESPECT DUE TO THE COURTS AND TO JUDICIAL OFFICERS AND SHOULD INSIST ON SIMILAR CONDUCT BY OTHERS.
Rule 11.01 - A lawyer shall appear in court properly attired.Rule 11.02 - A lawyer shall punctually appear at court hearings.
Rule 11.03 - A 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 motives not supported by the record or have no materiality to the case.
Rule 11.05 - A lawyer shall submit grievances against a Judge to the proper authorities only.
CANON 12 - A LAWYER SHALL EXERT EVERY EFFORT AND CONSIDER IT HIS DUTY TO ASSIST IN THE SPEEDY AND EFFICIENT ADMINISTRATION OF JUSTICE.
Rule 12.01 - A lawyer shall not appear for trial unless he has adequately prepared himself on the law and the facts of his case, the evidence he will adduce and the order of its proferrence. He should also be ready with the original documents for comparison with the copies.Rule 12.02 - A lawyer shall not file multiple actions arising from the same cause.
Rule 12.03 - A lawyer shall not, after obtaining extensions of time to file pleadings, memoranda or briefs, let the period lapse without submitting the same or offering an explanation for his failure to do so.
Rule 12.04 - A lawyer shall not unduly delay a case, impede the execution of a judgment or misuse Court processes.
Rule 12.05 - A lawyer shall refrain from talking to his witness during a break or recess in the trial, while the witness is still under examination.
Rule 12.06 - A lawyer shall not knowingly assist a witness to misrepresent himself or to impersonate another.
Rule 12.07 - A lawyer shall not abuse, browbeat or harass a witness nor needlessly inconvenience him.
Rule 12.08 - A lawyer shall avoid testifying in behalf of his client, except:chanroblesvirtuallawlibrary
(a) on formal matters, such as the mailing, authentication or custody of an instrument, and the like; or(b) on substantial matters, in cases where his testimony is essential to the ends of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel.
CANON 13 - A LAWYER SHALL RELY UPON THE MERITS OF HIS CAUSE AND REFRAIN FROM ANY IMPROPRIETY WHICH TENDS TO INFLUENCE, OR GIVES THE APPEARANCE OF INFLUENCING THE COURT.
Rule 13.01 - A lawyer shall not extend extraordinary attention or hospitality to, nor seek opportunity for cultivating familiarity with Judges.Rule 13.02 - A lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party.
Rule 13.03 - A lawyer shall not brook or invite interference by another branch or agency of the government in the normal course of judicial proceedings.
CHAPTER IV. THE LAWYER AND THE CLIENT
Rule 14.01 - A lawyer shall not decline to represent a person solely on account of the latter's race, sex. creed or status of life, or because of his own opinion regarding the guilt of said person.Rule 14.02 - A lawyer shall not decline, except for serious and sufficient cause, an appointment as counsel de officio or as amicus curiae, or a request from the Integrated Bar of the Philippines or any of its chapters for rendition of free legal aid.
Rule 14.03 - A lawyer may not refuse to accept representation of an indigent client if:chanroblesvirtuallawlibrary
(a) he is not in a position to carry out the work effectively or competently;(b) he labors under a conflict of interest between him and the prospective client or between a present client and the prospective client.
Rule 14.04 - A lawyer who accepts the cause of a person unable to pay his professional fees shall observe the same standard of conduct governing his relations with paying clients.
CANON 15 - A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENTS.
Rule 15.01. - A lawyer, in conferring with a prospective client, shall ascertain as soon as practicable whether the matter would involve a conflict with another client or his own interest, and if so, shall forthwith inform the prospective client.Rule 15.02.- A lawyer shall be bound by the rule on privilege communication in respect of matters disclosed to him by a prospective client.
Rule 15.03. - A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts.
Rule 15.04. - A lawyer may, with the written consent of all concerned, act as mediator, conciliator or arbitrator in settling disputes.
Rule 15.05. - A lawyer when advising his client, shall give a candid and honest opinion on the merits and probable results of the client's case, neither overstating nor understating the prospects of the case.
Rule 15.06. - A lawyer shall not state or imply that he is able to influence any public official, tribunal or legislative body.
Rule 15.07. - A lawyer shall impress upon his client compliance with the laws and the principles of fairness.
Rule 15.08. - A lawyer who is engaged in another profession or occupation concurrently with the practice of law shall make clear to his client whether he is acting as a lawyer or in another capacity.
CANON 16 - A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND PROPERTIES OF HIS CLIENT THAT MAY COME INTO HIS PROFESSION.
Rule 16.01 - A lawyer shall account for all money or property collected or received for or from the client.Rule 16.02 - A lawyer shall keep the funds of each client separate and apart from his own and those of others kept by him.
Rule 16.03 - A lawyer shall deliver the funds and property of his client when due or upon demand. However, he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client. He shall also have a lien to the same extent on all judgments and executions he has secured for his client as provided for in the Rules of Court.
Rule 16.04 - A lawyer shall not borrow money from his client unless the client's interest are fully protected by the nature of the case or by independent advice. Neither shall a lawyer lend money to a client except, when in the interest of justice, he has to advance necessary expenses in a legal matter he is handling for the client.
CANON 17 - A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM.
Rules 18.01 - A lawyer shall not undertake a legal service which he knows or should know that he is not qualified to render. However, he may render such service if, with the consent of his client, he can obtain as collaborating counsel a lawyer who is competent on the matter.Rule 18.02 - A lawyer shall not handle any legal matter without adequate preparation.
Rule 18.03 - A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable.
Rule 18.04 - A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the client's request for information.
CANON 19 - A LAWYER SHALL REPRESENT HIS CLIENT WITH ZEAL WITHIN THE BOUNDS OF THE LAW.
Rule 19.01 - A lawyer shall employ only fair and honest means to attain the lawful objectives of his client and shall not present, participate in presenting or threaten to present unfounded criminal charges to obtain an improper advantage in any case or proceeding.Rule 19.02 - A lawyer who has received information that his client has, in the course of the representation, perpetrated a fraud upon a person or tribunal, shall promptly call upon the client to rectify the same, and failing which he shall terminate the relationship with such client in accordance with the Rules of Court.
Rule 19.03 - A lawyer shall not allow his client to dictate the procedure in handling the case.
CANON 20 - A LAWYER SHALL CHARGE ONLY FAIR AND REASONABLE FEES.
Rule 20.01 - A lawyer shall be guided by the following factors in determining his fees:chanroblesvirtuallawlibrary
(a) the time spent and the extent of the service rendered or required;(b) the novelty and difficulty of the questions involved;
(c) The importance of the subject matter;
(d) The skill demanded;
(e) The probability of losing other employment as a result of acceptance of the proffered case;
(f) The customary charges for similar services and the schedule of fees of the IBP chapter to which he belongs;
(g) The amount involved in the controversy and the benefits resulting to the client from the service;
(h) The contingency or certainty of compensation;
(i) The character of the employment, whether occasional or established; and
(j) The professional standing of the lawyer.
Rule 20.02 - A lawyer shall, in case of referral, with the consent of the client, be entitled to a division of fees in proportion to the work performed and responsibility assumed.Rule 20.03 - A lawyer shall not, without the full knowledge and consent of the client, accept any fee, reward, costs, commission, interest, rebate or forwarding allowance or other compensation whatsoever related to his professional employment from anyone other than the client.
Rule 20.04 - A lawyer shall avoid controversies with clients concerning his compensation and shall resort to judicial action only to prevent imposition, injustice or fraud.
CANON 21 - A LAWYER SHALL PRESERVE THE CONFIDENCE AND SECRETS OF HIS CLIENT EVEN AFTER THE ATTORNEY-CLIENT RELATION IS TERMINATED.
Rule 21.01 - A lawyer shall not reveal the confidences or secrets of his client except;
(a) When authorized by the client after acquainting him of the consequences of the disclosure;(b) When required by law;
(c) When necessary to collect his fees or to defend himself, his employees or associates or by judicial action.
Rule 21.02 - A lawyer shall not, to the disadvantage of his client, use information acquired in the course of employment, nor shall he use the same to his own advantage or that of a third person, unless the client with full knowledge of the circumstances consents thereto.Rule 21.03 - A lawyer shall not, without the written consent of his client, give information from his files to an outside agency seeking such information for auditing, statistical, bookkeeping, accounting, data processing, or any similar purpose.
Rule 21.04 - A lawyer may disclose the affairs of a client of the firm to partners or associates thereof unless prohibited by the client.
Rule 21.05 - A lawyer shall adopt such measures as may be required to prevent those whose services are utilized by him, from disclosing or using confidences or secrets of the clients.
Rule 21.06 - A lawyer shall avoid indiscreet conversation about a client's affairs even with members of his family.
Rule 21.07 - A lawyer shall not reveal that he has been consulted about a particular case except to avoid possible conflict of interest.
CANON 22 - A LAWYER SHALL WITHDRAW HIS SERVICES ONLY FOR GOOD CAUSE AND UPON NOTICE APPROPRIATE IN THE CIRCUMSTANCES.
Rule 22.01 - A lawyer may withdraw his services in any of the following case:chanroblesvirtuallawlibrary
(a) When the client pursues an illegal or immoral course of conduct in connection with the matter he is handling;(b) When the client insists that the lawyer pursue conduct violative of these canons and rules;
(c) When his inability to work with co-counsel will not promote the best interest of the client;
(d) When the mental or physical condition of the lawyer renders it difficult for him to carry out the employment effectively;
(e) When the client deliberately fails to pay the fees for the services or fails to comply with the retainer agreement;
(f) When the lawyer is elected or appointed to public office; and
(g) Other similar cases.
Rule 22.02 - A lawyer who withdraws or is discharged shall, subject to a retainer lien, immediately turn over all papers and property to which the client is entitled, and shall cooperative with his successor in the orderly transfer of the matter, including all information necessary for the proper handling of the matter.