The case of Cayetano vs. Monsod (201 SCRA 210) has defined the practice of law as "any activity in and out of court which requires the application of law, legal principle, practice or procedure and calls for legal knowledge, training and experience." People vs. Villanueva (14 SCRA 111) says "it implies the customary or habitual holding of oneself to the public as a lawyer and demanding compensation for his fees."

Practicing law doesn't only mean lawyering in the traditional sense. Writing about law as well as teaching it also comes under the definition of "practice of law."

Essential Criteria

The following indicators must be present to prove that a lawyer is practicing law:

1.) Habituality

Customarily holding oneself out to the public as a lawyer. This doesn't mean that lawyers who work in a corporation's legal department aren't practicing law; they are. The corporation, as a juridical person, engages the services these lawyers.

2.) Compensation

The lawyer must be in active practice and his professional services are available to the public with the corresponding fees. This includes the lawyer's salary if he works in a government office or the legal department of a private entity.

3.) Application

The lawyer must apply his knowledge, training and skills in the practice of his profession.

4.) Attorney-Client Relationship

There is a professional relationship between the lawyer and his client. That includes his employment status.

Primary Characteristics of the Legal Profession

1.) A duty of public service

2.) A relation, as an officer of the court, to the administration of justice involving thorough sincerity, integrity and reliability

3.) A relation to the clients with the highest fiduciary degree

4.) A relation to other lawyers characterized by candor, fairness and unwillingness to resort to current business methods of advertising and encroaching on their practice or dealing directly with their clients

Basic Terms in Legal Ethics

Legal Ethics

A branch of moral science covering the attorney's duties to the court, clients, colleagues in the profession and the public. It is the sum total of all the principles of morality and refinement governing the conduct of every member of the Bar.

Attorney-at-Law

A licensed officer of the court who is empowered to appear, prosecute and defend and consequently has peculiar duties, liabilities and responsibilities developed by law.

Counsel/Attorney de Officio

A lawyer appointed by the court to adequately defend the accused.

Attorney Ad Hoc

A lawyer appointed by the court to defend an absentee defenadant.

Attorney of Record

A lawyer whose name must appear in the permanent records and files of the case, in its pleadings or appearance docket.

Amicus Curiae

"Friend of the court." (Plural: amici curiae.) A lawyer consulted by the court (or any of the parties) for his opinions on the issues of the case. If it's a bar association that appears before the court as amici curiae, it's called amicus curiae par excellence.

Judicial Ethics, Canon 6: Competence and Diligence

So now we come to the last of the 6 Canons of Judicial Conduct, the one that talks of competence and diligence.

A judge's duties are to be considered superior to all his other activities. This doesn't only include the actual duties in court, but the those related to the court's operations as well. All their duties, including delivery of reserved decisions must be performed effectively, fairly and with reasonable promptness and cannot engage in conduct that is incompatible with the diligent discharge of their duties (sec. 1-2, 5 & 7.)

A judge is required to maintain and enhance his knowledge of the law and must take advantage of the training opportunities made available to him. In particular, he is required to make himself aware of international law with an emphasis on changes in the trends in human rights (sec. 3-4.)

Proper decorum and order must be maintained by the judge in all proceedings in court. He must be courteous, patient, dignified and attentive to the witnesses, parties, lawyers, his staff and all others he deals with in an official capacity. Furthermore, he is required to demand similar conduct of said people towards those under their influence and control (sec. 6.)

Judicial Ethics, Canon 5: Equality

Canon 5 declares that all are equal before the courts as far as treatment is concerned. Judges consequently are required to make themselves aware of the different facets of society. Race, religion, marital status, sexual orientation and so on shall be taken into consideration. Consequently, a judge can't say or do anything that shows bias to any person or group on irrelevant grounds while in the performance of his official duties. A judge will therefore discharge his duties while giving appropriate consideration to all people he encounters when doing his job (sec. 1-3.)

Court staff and other persons under the judge's influence and control are prohibited from differentiating between parties to a suit on any irrelevant ground. Lawyers are likewise prohibited by word or deed to show bias on irrelevant grounds in court proceedings; relevant grounds, therefore are the exception. The judge is charged with enforcing such conduct in court (sec. 4-5.)

Judicial Ethics, Canon 4: Propriety

Impropriety, as well as its appearances, must be avoided by the judge at all times since judges are considered subjects of public scrutiny. They are consequently required to freely and willingly accept restrictions that the ordinary person would consider a burden (sec. 1-2.)

In their personal relations with other law practitioners, judges have to avoid situations that make them exhibit favoritism or partiality. Consequently, they can't let let other lawyers (or their clients) make use of their homes or to receive other lawyers. (sec. 3, 5.)

They can't take part in a case where any family member of theirs is a lawyer of a party or is associated in any way to the case. They can't use or lend the prestige of their office for their own private interests as well as those of their families or of anyone else. Also, they can't allow other people to convey an impression that someone is in a position to influence them improperly in the performance of their duties. They must be informed of their personal fiduciary financial interests as well as those of their family's. Furthermore, judges, their families and staff can't accept gifts, loans, bequests in relation to done in connection with their duties. A judge may, however, accept gifts or tokens, etc. if they aren't perceived to be a threat to the judge's impartiality and independence (sec. 4, 7-8, 13-15.)

They are entitled to freedom of speech, belief, assembly, etc. but have to conduct themselves in a manner that preserves the dignity and impartiality of the judicial office. Thus, they can form or join associations of judges or participate in organizations representing the interests of judges. (sec. 6, 12.)

Confidential information acquired by a judge in his official capacity can't be used for any other purpose related to their official duties. They're also not allowed to practice law privately while still in office (sec. 9, 11.)

The following (sec. 10) are acceptable to the conduct of a judge:

1.) Teach law or lecture on related matters

2.) Appear at public hearings before official bodies with regard to matters of law, the administration of justice or related matters

3.) Engage in other activities so long as they don't interfere with the judge's duties and mar the dignity of his office

Judicial Ethics, Canon 3: Impartiality

The impartiality of a judge shouldn't only refer to the decision he makes in a case, but also the process with which he will arrive at the decision. The judge is expected to do his duty without fear, prejudice or bias and therefore can't make comments that might affect the outcome of the case he is hearing. He is also required to avoid or minimize participation in events or occasions which can disqualify them from hearing cases. This extends to the judge's public demeanor (sec 1-4.)

Sec. 5 gives a list of instances where the judge is required to disqualify (inhibit) himself. The list isn't exclusive:

1.) If the judge has actual bias, prejudice in favor of a party to the case or personal knowledge of the evidentiary facts disputed upon during the proceedings.

2.) If he used to be a lawyer or material witness of one of the parties in the same case.

3.) If he or a member of his family has an economic interest in the outcome of the case.

4.) If he was once an executor, administrator, guardian or trustee of a party to the case or if a former associate was a counsel to one of the parties or served as a witness.

5.) If the case is on appeal and the judge hearing the case is the same judge who ruled on it when it was still in a lower court.

6.) If the judge is related to a party within the 6th civil degree or to the party's counsel within the 4th civil degree.

7.) The judge knows that his wife or child has a financial interest as an heir, creditor, legatee, fiduciary, etc. in the subject matter of the case, a party to the case or any interest that could be affected by the case itself.

Remember, this list isn't exclusive.

Once inhibited, the judge has to disclose the basis for his inhibition. This inhibition, however, can be disregarded if he, the parties and their lawyers all agree in writing that the reason for inhibition is immaterial and insubstantial. This agreement is incorporated into the record of the case (sec. 6.)

Judicial Ethics, Canon 2: Integrity

Canon 2 is the shortest of the 6 canons of the New Code of Judicial Conduct. It consists of only 3 sections and talks about integrity.

A judge is expected to maintain an irreproachable conduct. This irreproachable conduct must also be perceived by a normal person. Justice is not merely to be done; it must also be perceived to be done. The behavior and conduct of the judge is aimed at helping the people keep faith in the judicial institution.

The judge, consequently must not hesitate to take the appropriate disciplinary action against court personnel or lawyers displaying unprofessional conduct.

Judicial Ethics, Canon 1: Independence

The New Code of Judicial Conduct, AM 03-05-01-SC, was promulgated on April 27, 2004, published on May 3, 2004 and took effect on June 1, 2004. It came as a result of a meeting of chief justices from around the world at the Hague on November 25-26, 2002. The purpose of the new code is to strengthen the independence an impartiality of the Philippine judiciary. The code is divided into 6 parts, called canons. We will examine each one of them, starting with Canon 1.

Canon 1 is entitled "Independence." It defines judicial independence as a prerequisite to the rule of law and a fundamental guarantee to a fair trail. Judges are therefore required to personify independence in both its personal and institutional aspects.

Judges are required to exercise their functions independently on the basis of their own assessment of facts and knowledge of the law. They're not allowed to rely on the opinions of other judges and must be free from outside influence, pressure, threats (whether direct or indirect,) and can't have any "inappropriate connections" with and be influenced by the executive and legislative branches of government and must also appear to be free from these influences (sec. 1-2, 5.)

Judges can't allow family, social or other relationships to influence their conduct or judgment. The prestige of the judicial office can't be lent or used for the private interests of other people and neither can it be used to make certain people think that they're favored by a judge (sec. 4.)

Judges are required to be independent in relation to society as a whole as well as in relation to the parties in the cases they handle. Consequently, they're not allowed to influence the outcome of a case in another court or administrative agency (sec. 3, 6.)

Furthermore, judges are expected to display and promote high standards of judicial conduct and uphold the safeguards necessary for the performance of their duties. The aim is to maintain the judiciary's operational and institutional independence as well as maintain the public's confidence in the judiciary (sec. 7-8.) 

The Lawyer's Oath

I (Name) of (Place of birth) do solemnly swear that I will maintain allegiance to the Republic of the Philippines; I will support its 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 nor 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 court as to my clients; and I impose upon myself these voluntary obligations without any mental reservation or purpose of evasion. So help me God.

Violation of this oath can lead to a lawyer's disbarment.

Ecumenical Prayer for the Courts

This prayer is said in Philippine courts at the beginning of every day.  I have posted it here since, besides being part of the study material, everybody ought to be conscious of the workings of a higher power regardless of creed. It's also part of giving the courts a conscience.

Almighty God, we stand in Your Holy Presence as our Supreme Judge. We humbly beseech You to bless and inspire us so that what we think, say and do will be in accordance with Your will.

Enlighten our minds, strengthen our spirit and fill our hearts with fraternal love, wisdom and understanding, so that we can become effective channels of truth, justice and peace.

In our proceedings today, guide us in the path of righteousness for the fulfillment of Your greater glory.

Amen.

Jurisdiction

Do not underestimate this post! It can save you a lot of money and help you find out if your lawyer can be trusted or not!

The case of Zamora vs. CA (183 SCRA 279) defines jurisdiction as "the power to hear, try and decide a case." If the court has no jurisdiction, the case isn't in its control. While jurisdiction is the power to hear and decide a case, procedure is the manner or process of hearing and deciding a case. There are 4 kinds of jurisdiction:

1.) As to cases tried: General (all cases) and limited (specific cases.)

2.) As to nature of cause: Original (where the case began) and appellate (when brought to a higher court for review; higher courts won't entertain problems unless the lower courts can't solve them first -but there are exceptions, like habeas corpus.)

3.) As to extent of exercise: Exclusive (limited to a particular court) and concurrent (when different courts can try the same subject matter at the same time and place; the court whose jurisdiction was first called on takes over the case and the other courts won't touch it.)

4.) As to situs: territorial (limited to the area) and extra-territorial (extends beyond the territorial limits.)

Jurisdiction falls into 2 groups: civil and criminal. The kinds of jurisdiction have their respective places within the 2 groups. ex. Family courts, Sandiganbayan etc.)  For jurisdiction of the court to be valid it must have jurisdiction over the parties to the case, jurisdiction over the subject matter (it must be mentioned in the complaint,) jurisdiction over the res (property) and jurisdiction over the issue.

Civil Jurisdiction

In civil cases, it's the law at the time that governs the subject matter of the case. Jurisdiction over the subject matter can be questioned by the defendant (or by the court, on its own initiative) any time, even after judgment becomes final except if there's estoppel. The plaintiff (the complaining party) comes under the jurisdiction of the court when he sues the defendant. The defendant comes under the court's jurisdiction only if summons were properly served on him or if he appears in court voluntarily. The defendant can question the court's jurisdiction, but only at the proper time -and if he doesn't he waives the right to question the jurisdiction.) Jurisdiction over the res happens when the property in question is seized, either actually or constructively. Jurisdiction over the issue comes either through the parties' consent or through their pleadings. Also, payment of the docket fees (with certain exceptions) completes the jurisdiction of the court to hear the case.

Now for the specifics:

1.) First-level courts (MTC, MeTC, MTCC, MCTC)

Exclusive Original

All cases where the value in question is Php300,000.00 or less (or Php400,000.00 or less in Metro Manila;) Inclusion and exclusion of voters; Cases on real property (or any interest in them) valued at Php20,000.00 or less (Php50,000.00 or less in Metro Manila;) Provisional remedies in principal actions within their jurisdiction; those covered by the Rules on Summary procedure (like Forcible Entry and Unlawful Detainer;) and, all other civil cases except probate ones where the maximum claim of the plaintiff is Php100,000.00 (Php200,000.00 in Metro Manila) not including interest and costs.

Delegated

The SC may designate it to hear land cases with no controversy or, if there is a controversy, the value is Php100,000.00 or less.

Special

Habeas corpus cases or applications of bail if there's no RTC judge.

2.) The RTC

Exclusive Original

If the action has no pecuniary estimation (no money involved;) if the real property (or interest in it) is higher than Php20,000.00 (Php50,000.00 in Metro Manila;) All cases where the value in question is higher than Php300,000.00 (Php400,000.00 in Metro Manila;) Family court cases; cases that aren't in the exclusive jurisdiction of any court or quasi-judicial body; Civil actions and special proceedings falling within the exclusive original jurisdiction of the Juvenile and Domestic Relations Court and the Court of Agrarian Relations as now provided by law; and, all other cases where the value of the property in question is higher than Php300,000.00 (Php400,000.00 in Metro Manila) not including damages, costs, attorney's fees, etc.

Concurrent

With the SC: cases involving ambassadors, public ministers and consuls. With the SC and CA: issuance of writs of certiorari, prohibition, quo warranto, mandamus and injunction against lower courts. With the Insurance Commissioner: claims with a maximum of Php100,000.00.

Special

Certain branches may be designated by the SC to try exclusively criminal cases, juvenile and domestic violence cases, agrarian cases, urban land reform cases  not in the jurisdiction of any quasi-judicial body and other special cases in the interest of justice.

Appellate

All cases decided by the lower courts in their territorial jurisdiction.

3.) The CA

Exclusive

Cases for the annulment of an RTC judgment

Concurrent

With the SC: petitions for certiorari, mandamus and prohibition against the RTC, NLRC and quasi-judicial agencies. With the SC and RTC: petitions of certiorari, prohibition and mandamus against the lower courts and other bodies and petitions for habeas corpus and quo warranto.

Appellate

All final judgments, decisions, etc. of the RTC and quasi-judicial agencies except those under the exclusive appellate jurisdiction of the SC mentioned in the law and constitution.

4.) The SC

Exclusive Original

Petitions for certiorari, prohibition and mandamus against the CA, COMELEC, COA and Sandiganbayan.

Concurrent

With the CA: petitions for certiorari, prohibition and mandamus against the RTC, quasi-judicial agencies and NLRC (for NLRC and quasi-judicial agencies, this must first go to the CA.) With the CA and RTC: petitions for certiorari, prohibition and mandamus against lower courts and petitions for habeas corpus and quo warranto. With the RTC: Actions against ambassadors, public ministers and consuls.

Appellate

On appeal or certiorari, review, reverse revise, affirm or modify the following: errors or questions of law; cases where the penalty is reclusion perpetua or higher; where the jurisdiction of a lower court is questioned; the legality of taxes, tolls, imposts, assessments or related penalties; or any case where the constitutionality or validity of a treaty, law order, agreement, proclamation, instruction or presidential decree is questioned.

Criminal Jurisdiction

There are only 3 requisites for acquiring jurisdiction: over the subject matter, which is determined by the facts in the complaint; over the territory, which is where the crime was committed, generally (there are exceptions;) and, over the accused which either happens through arrest or voluntary appearance in court by either posting bail, filing a motion to quash or appearing at arraignment or entering trial. The exceptions to jurisdiction over territory are the following:

1.) The crime is committed in a moving plane, ship, train or private vehicle passing through several territories (any of the territories can be the place of trial.)

2.) Cases of piracy, which is an international crime and can be tried anywhere in the world.

3.) Libel cases.

4.) If the SC orders a transfer to prevent injustice.

5.) Complex or continuing crimes (the place may be where the accused is found and the venue is where any part of the crime was committed; for a complex crime, the court with the jurisdiction to impose the highest penalty for the crime.)

6.) Where the law provides

The specifics are:

1.) The SC

All cases where only errors or questions of law are involved; automatic review of criminal cases where reclusion perpetua is imposed by the RTC or Sandiganbayan (we don't have the death penalty anymore;) all criminal cases from the RTC or Sandiganbayan whose penalties are life imprisonment or reclusion perpetua and those which, even if they're not punished with those penalties, came from the same occurrence or were committed by the accused on the same occasion.

2.) The CA

Appeals from the RTC, including cases of automatic review.

3.) The Sandiganbayan

Violations of the Anti-graft Law and other offenses committed by public officials in relation to their office if their salary grade is G 27 or higher and over private individuals collaborating with these officials as principals, accomplices or accessories.

4.) The RTC

Criminal cases whose penalty exceeds 6 years' imprisonment regardless of the fine; but if the penalty is only a fine, if it's more than Php4,000.00; crimes where the accused is a public official or private individual working with him with a salary grade lower than G 27, or if the crime wasn't committed in relation to the office of the official; family courts cases; and, all cases decided by the first-level courts.

5.) The First-level courts (MTC, MCTC, MTCC, MeTC)

All violations of city and municipal ordinances committed within their jurisdictions; all crimes punishable by imprisonment of 6 years or less, regardless of fine and other penalties or if the penalty is only a fine that is Php4,000.00 or less; crimes involving damage to property through criminal negligence regardless of the fine; and, all offenses where the accused is a public official with salary grade less than G 27 or any private person collaborating with him, or if the crime wasn't committed in relation to his office.

Also the first-level courts can entertain applications for bail if there are no RTC judges present.

Arrest Quotas and Planting of Evidence

Here's a story a professor of mine, a judge, told in class of an unpleasant experience he had when still a prosecutor.

A case from another prosecutor was transferred to his office. It involved a violation of the Dangerous Drugs Act. A Man had been arrested in a boarding house and the police confiscated some marijuana hidden in a sock in a locked room that belonged to his brother-in-law.

When he saw the man in court, something didn't seem right. Besides the fact that the man's pregnant wife was also present, he felt a certain discomfort. It was as if something told him that this man was innocent. He told the judge that he felt he could not prosecute the case against the man and even asked the PAO lawyer defending him to request a reinvestigation of the case. The PAO lawyer refused.

An extension was granted and the next month, he saw the man's wife in court with a newborn baby. Sometime later, a new PAO lawyer was appointed to defend the man. This new lawyer welcomed my professor's suggestion and requested the court to order a reinvestigation. The new investigation's results horrified and angered my professor.

This was what came out: the man had come all the way from Bukidnon to collect some money his brother-in-law owed him. When he arrived at the boarding house it was nighttime and his brother-in-law was somewhere else. The door to the latter's room was locked. The landlady decided to let him sleep in the living room of the boarding house while waiting for his brother-in-law to arrive. In the dead of night, the police arrived; a complete raiding team. With the man as the only person in sight, they arrested him and forced the door of the brother-in-law's room open. Witnesses then reported one of the policemen take something from his pocket, put it in a sock, toss it into a corner and pretend to pick it up. The witnesses, who were all boarders, were told by the police to tell the prosecution later that the man was arrested for violating the Dangerous Drugs Act an marijuana was found in the brother-in-law's room.

My professor was furious. He called the arresting officers to his office and demanded why they planted the marijuana. One of them replied that they had to make the arrest in order to meet their regular arrest quota. The officers later pleaded with him not to break their dirty secret out and suggested that he ask for a dismissal of the case. My professor berated and browbeat them. Planting of evidence is a crime.

The findings of the reinvestigation were presented in court. The case was dismissed. My professor later apologized profusely to the man and even offered to prosecute the policemen who arrested him. The man refused the offer and went back to Bukidnon.

I wrote this down because I believe that it is not enough to simply discuss this matter in law class. I believe everybody should be more aware of this matter. Remember, the police are public servants; they are supposed to enforce the law, not break it. They cannot be allowed to commit abuses against their masters. Who are their masters? Art. 2., Sec. 1 of the 1987 Constitution gives us the answer: The Philippines is a democratic and republican state. Sovereignty resides in the people and all government authority emanates from them.