Final excerpts from my 2000 Ll.M. thesis, for research purposes of the readers.
x x x.
2. Rules 138, Rules of Court
a. Duties of Attorneys
Section 20, Rule 138 of the Rules of Court enumerates the duties of attorneys, thus:
(a) To maintain allegiance to the Republic of the Philippines and to support the Constitution and obey the laws of the Philippines.
(b) To observe and maintain the respect due to the courts of justice and judicial officers;
(c) To counsel or maintain such actions or proceedings only as appear to him to be just, and such defenses only as he believes to be honestly debatable under the law.
(d) To employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth and honor, and never seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law;
(e) To maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client, and to accept no compensation in connection with his client's business except from him or with his knowledge and approval;
(f) To abstain from all offensive personality and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged;
(h) Never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed;
(i) In the defense of a person accused of crime, by all fair and honorable means, regardless of his personal opinion as to the guilt of the accused, to present every defense that the law permits, to the end that no person may be deprived of life or liberty, but by due process of law. (Sec. 20, Rule 138).
A court may assign an attorney to render professional aid free of charge to any party in a case, if upon investigation it appears that the party is destitute and unable to employ an attorney, and that the services of counsel are necessary to secure the ends of justice and to protect the rights of the party. It shall be the duty of the attorney so assigned to render the required service, unless he is excused therefrom by the court for sufficient cause shown. (Sec. 31, Rule 138).
b. Malpractice; Solicitation of Cases
A member of the bar may be removed or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before the admission to practice, or for a willful disobedience of any lawful order of a superior court, or for corruptly or willful appearing as an attorney for a party to a case without authority so to do. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice. (Sec. 27, Rule 138).
The Court of Appeals or a Court of First Instance may suspend an attorney from practice for any of the causes named in the last preceding section, and after such suspension such attorney shall not practice his profession until further action of the Supreme Court in the premises. (Sec. 28, Rule 138).
Upon such suspension, the Court of Appeals or the Court of First Instance shall forthwith transmit to the Supreme Court a certified copy of the order of suspension and a full statement of the facts upon which the same was based. Upon the receipt of such certified copy and statement, the Supreme Court shall make a full investigation of the facts involved and make such order revoking or extending the suspension, or removing the attorney from his office as such, as the facts warrant. (Sec. 29, Rule 138).
No attorney shall be removed or suspended from the practice of his profession, until he has had full opportunity upon reasonable notice to answer the charges against him, to produce witnesses in his own behalf, and to be heard by himself or counsel. But if upon reasonable notice he fails to appear and answer the accusation, the court may proceed to determine the matter ex parte. (Sec. 30, Rule 138; see also: Rule 139 and 139-A, Rules of Court).
c. Rights of Attorneys to Fair Compensation
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. 24, Rule 138).
However, when an attorney unjustly retains in his hands money of his client after it has been demanded, he may be punished for contempt as an officer of the Court who has misbehaved in his official transactions; but proceedings under this section shall not be a bar to a criminal prosecution. (Sec. 25, Rule 138).
An attorney may retire at any time from any action or special proceeding, by the written consent of his client filed in court. He may also retire at any time from an action or special proceeding, without the consent of his client, should the court, on notice to the client and attorney, and on hearing, determine that he ought to be allowed to retire. In case of substitution, the name of the attorney newly employed shall be entered on the docket of the court in place of the former one, and written notice of the change shall be given to the advance party. (Sec. 26, Rule 138).
A client may at any time dismiss his attorney or substitute another in his place, but if the contract between client and attorney has been reduced to writing and the dismissal of the attorney was without justifiable cause, he shall be entitled to recover from the client the full compensation stipulated in the contract. However, the attorney may, in the discretion of the court, intervene in the case to protect his rights. For the payment of his compensation the attorney shall have a lien upon all judgments for the payment of money, and executions issued in pursuance of such judgment, rendered in the case wherein his services had been retained by the client. (Id.).
Subject to availability of funds as may be provided by the law the court may, in its discretion, order an attorney employed as counsel de oficio to be compensates in such sum as the court may fix in accordance with section 24 of this rule. Whenever such compensation is allowed, it shall be not less than thirty pesos (P30) in any case, nor more than the following amounts: (1) Fifty pesos (P50) in light felonies; (2) One hundred pesos (P100) in less grave felonies; (3) Two hundred pesos (P200) in grave felonies other than capital offenses; (4) Five Hundred pesos (P500) in capital offenses. (Sec. 32, Rule 138. Note the outdated amounts fixed by the Rules).
An attorney shall have a lien upon the funds, documents and papers of his client which have lawfully come into his possession and may retain the same until his lawful fees and disbursements have been paid, and may apply such funds to the satisfaction thereof. He shall also have a lien to the same extent upon all judgments for the payment of money, and executions issued in pursuance of such judgments, which he has secured in a litigation of his client, from and after the time when he shall have the caused a statement of his claim of such lien to be entered upon the records of the court rendering such judgment, or issuing such execution, and shall have the caused written notice thereof to be delivered to his client and to the adverse party; and he shall have the same right and power over such judgments and executions as his client would have to enforce his lien and secure the payment of his just fees and disbursements. (Sec. 37, Rule 138).
3. Jurisprudence on Law Firm Marketing
| . a. Law is Not a Trade The practice of law is not a vested right but a privilege. It is clothed with public interest. A lawyer owes duties not only to his client but also to his in the profession, to the courts, and to the nation. He takes part in one of the most important functions of the state, which is the administration of justice, as an officer of the court. Hence, it is the right and duty of the state to supervise, control and regulate the selection of candidates for admission to the Bar, as well as the exercise of that privilege to assure compliance with the lawyer=s public responsibilities. (Diaz v. Martinez, 119 Phil. 490, 7 SCRA 475 [1963]). The right to practice is not a natural or constitutional right nor an absolute right de jure but is a privilege. The right to practice is not a property. It cannot be assigned or inherited but must be earned by hard study and good conduct. (Ernami Cruz Pano, supra, citing In re, Gibbs, 278 p. 371; In re Manuero, 66 SCRA 245 [1975]; In re ethics, 203 p. 957; In re Miller, 244 p. 376; In re Cliffton, 155 So. 324). Lawyers play an important role in society. Depending on the circumstances, the lawyer may lead in making policy as well as in resolving conflict. He is often a scholar or a philosopher seeking to refine the analysis by which lawyers live, or to propose new solutions for problems new or old. (Id., at p. 43). For the achievement of its objective of dedicated service to society, the ancient and learned profession of law exacts from its members the highest standard of morality. Trusted with the confidential affairs of their clients, attorneys are sworn to subordinate their personal interests to those of the people they represent. They should strive at all times to uphold the honor and maintain the dignity of the legal profession, which is higher than that of the market place. (Id., at p. 44, citing Canon 29, Canons of Professional Ethics; Calo v. Degamo, 20 SCRA 447 (1967). After passing the bar examinations and taking the lawyer=s oath, the lawyer is considered authorized to practice law before all courts in the Philippines. However, the first duty that he has to perform is not to his client, as popularly believed, but to assist in the administration of justice. (Id., pp. 48-49, citing Rule 138, Sec. 20 [b]). As the practice of law is not a right granted to anyone who seek it, it is accorded only to those who meet specific standards of mental and moral fitness. (In re Del Rosario, 52 Phil. 399; In re Gutierrez, 52 O.G. 24). For this reason, failure on the part of the lawyer to maintain a high standard of morality may result in disbarment. (Id., pp. 52-53, citing Belivar v. Sumibol, 16 SCRA 623. Toledo v. Toledo, A.C. no. 266, April 27, 1963). The proscription against lawyer advertising and solicitation of cases lawyers aim to preserve the dignity of the legal profession. A lawyer cannot advertise his talent as a shopkeeper advertises his wares. ( In re: Tagorda, 54 Phil. 37 [1929]; Director of Religious Affairs v. Bayot, 74 Phil. 579 (1944); Rule 138, Sec. 27, RRC; Jayme v. Bualan, 58 Phil. 422). A lawyer is a member of an honorable profession whose primary purpose is to render public service and help secure justice and in which remuneration is a mere incident (Canon 12, Code of Professional Ethics). Such professional consideration makes a lawyer radically different from a shopkeeper, a trader, a manufacturer or a money changer whose primordial aim is private gain and whose principal tool to sell his product or service is advertising . To allow a lawyer to advertise his talent or skill is to commercialize the practice of law, lower the profession in public confidence, and lesser its ability to render efficiently that higher character of service to which every member of the bar is called. (Id.). Advertising inescapably involves self-praise. If competitive advertising among lawyers were permitted, the conscientious and ethical will unavoidably be at the mercy of the braggart. (In Re Rothman, 97 A 2d 627, 39 ALR 2d 1032 [1953]). It will undoubtedly increase lawsuits and needless litigations. (In re Tagorda, supra; Director of Religious Affairs v. Bayot, supra). b. 1917 Code of Professional Ethics Section 21 of the old Code of Civil Procedure, as amended in 1919 by Act 2828, provided that Athe practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice@. Section 27 of Rule 138 of the 1964 Revised Rules of Court maintained the provision. Sections 27 and Section 28 of the 1908 American Bar Association's Code of Professional Ethics and the 1917 Philippine Bar Association=s Code of Professional Ethics were identical in their provisions, to wit: Sec. 27. Advertising, Direct or Indirect. - The most worthy and effective advertisement possible, even for a young lawyer, and especially with his brother lawyers, is the establishment of a well-merited reputation for professional capacity and fidelity to trust. This cannot be forced, but must be the outcome of character and conduct. The publication or circulation of ordinary simple business cards, being a matter of personal taste or local custom, and sometimes of convenience, is not per se improper. But solicitation of business by circular or advertisements, or by personal communications or interviews not warranted by personal relations, is unprofessional. It is equally unprofessional to procure business by indirection through touters of any kind, whether allied real estate firms or trust companies advertising to secure the drawing of deeds or wills or offering retainers in exchange for executorships or trusteeships to be influenced by the lawyer. Indirect advertisement for business by furnishing or inspiring newspaper comments concerning the manner of their conduct, the magnitude of the interest involved, the importance of the lawyer=s position, and all other like self-laudation, defy the traditions and lower the tone of our high calling, and are intolerable.@ Section 28. Stirring Up Litigation, Directly or Through Agents. - It is unprofessional for a lawyer to volunteer advice to bring a lawsuit, except in rare cases where ties of blood, relationship or trust make it his duty to do so. Stirring up strife and litigation is not only unprofessional, but it is indictable at common law. It is disreputable to hunt up defects in titles or other causes of action and inform thereof in order to be employed to bring suit, or to breed litigation by seeking out those with claims for personal injuries or those having any other grounds of action in order to secure them as clients, or to employ agents or runners for like purposes, or to pay or reward directly or indirectly, those who bring or influence the bringing of such cases to his office, or to remunerate policemen, court or prison officials, physicians, hospital attaches or others who may succeed, under the guise of giving disinterested friendly advice, in influencing the criminal, the sick and the injured, the ignorant or others, to seek his professional services. A duty to the public and to the profession devolves upon every member of the bar having knowledge of such practices upon the part of any practitioner immediately to inform thereof to the end that the offender may be disbarred@. Under Sec. 27 of the 1917 Code of Professional Ethics the only methods of lawyer advertising allowed were the business cards and reputable law lists or lawyers= directories. The use of an ordinary simple professional card was permitted. (ABA Opinion No. 11, May 11, 1927). A lawyer engaged in a particular brand of law available to act as an associate of other lawyers in that specific branch of legal service may send to local legal journals a brief dignified announcement of his availability to inform other lawyers in connection therewith. (Canon 46, CPE; ABA Opinion No. 194, April 22,1939). If warranted by personal relations, a lawyer may solicit employment (Canon 27, CPE). The phrase Apersonal relations@ included personal friends and relatives (ABA Opinion No. 7, April 28, 1925). A lawyer may write legal articles for publication in which he gives information upon the law but he should not accept employment from such publication. (Canon 40, CPE. See also: Ruben Agpalo, Legal Ethics. Quezon City, Philippines: University of the Philippines Law Center, 1983 edition, pp. 110-120). In the US, the activity of an association for the purpose of promoting group legal representation, as a mode of collective expression of the beliefs of a social sector and for meaningful access to courts by the members of such sector, was deemed to be protected by the US Constitution (freedom of expression and freedom of association) and could ethically be undertaken. (NACCP v. Button, 371 U.S. 415 (1963); United Transp. Union v. State Bar of Michigan, 401 U.S.576 (1971); United Mines Workers v. Illinois Bar Association, 389 U.S. 217 (1967); Brotherhood of R.R. Trainmen v. Virginia State Bar, 377 U.S. 1 (1961)). Similarly, the offer of legal services to the indigent, even when broadcast over the radio or tendered through circulation of printed matter to the general public, offended no ethical rule. (ABA Opinion No. 148, Nov. 1935).
c. 1988 Code of Professional Responsibility Canon 2, Rule 2.03 of the 1988 Code of Professional Responsibility specifically provides that Aa lawyer shall not do or permit to be done any act designed primarily to solicit legal business@. Canon 3 of the Code further contains specific rules on the subject of lawyer advertising, to wit:
CANON 3 C A LAWYER IN MAKING KNOWN HIS LEGAL SERVICES SHALL USE ONLY TRUE, HONEST, FAIR, 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 C 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 C 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 C 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. (See in general: Ernesto Pineda, Legal and Judicial Ethics. Quezon City: Central Professional Books, Inc, 1995 ed.; Ricardo Teruel, Practical Lawyering in the Philippines. Quezon City: Central Lawbook Publishing Co. Inc., 1997 ed.). The 1988 Code of Professional Responsibility imposes an absolute and total ban on lawyer advertising. It was basically patterned after the circa-1970s ABA Code of Professional Responsibility before the advent of the Bates decision of the US Supreme Court, supra, which had held that an absolute ban against lawyer advertising was a violation of the lawyers= constitutional freedom of commercial speech (First Amendment rights).
Following the US experience in the 1970s, and even in the Philippines at present, there have been bar objections to the rules prohibiting advertising or solicitation. (See, in general: Ernani Cruz Pano, The Judiciary and the Bar, supra). The usual and frequent objection is that advertising or solicitation interferes only with small or solo practitioners, precluding then from making themselves known to prospective clients, while big practitioners or large law firms not only are constantly in the public eye but by because of their social and political connections are able to meet and become intimate with leaders in business as potential clients. It is also argued that legal counsel should be made available to the poor and the least educated and relaxing the restriction on advertising would stimulate an interest in demand for legal assistance from these groups in favor of small law firms and solo practitioners (see, for example: 81 Yale L. J. 1244, et. Seq. , May 1972). There are always honest differences of opinion as to what is ideal or improper advertising or solicitation of business. The line is a question of good faith and good taste. (People ex. Rel. Chicago Bar Ass=n v. Baker, 142 NE 534, 31 ALR 737 [1924]). Prof. Pineda has argued that it is not unprofessional for a lawyer to make known his legal services. However, he must do so only by using true, honest fair, dignified and objective information or state of facts. He must not resort to false and misleading information, and even if known it must not be undignified. (Ernesto Pineda, Legal and Judicial Ethics. Quezon City: Central Professional Books, Inc, 1995 ed., pp. 56-64, citing Canon 3, 1988 CPR). It is important to mention the other relevant provisions of the 1988 Code of Professional Responsibility in respect of a lawyer=s relationship with his clients and with the society in general, to wit: CANON 2 - A LAWYER SHALL MAKE HIS LEGAL SERVICES AVAILABLE IN AN EFFICIENT AND CONVENIENT MANNER COMPATIBLE WITH THE INDEPENDENCE, INTEGRITY AND EFFECTIVENESS OF THE PROFESSION. Rule 2.01 C A lawyer shall not reject, except for valid reasons, the cause of the defenseless or the oppressed. Rule 2.02 C 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 2.04 C A lawyer shall not charge rates lower than those customarily prescribed unless the circumstances so warrant. CANON 7 C A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR. Rule 7.01 C 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 C 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 C 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 9 C A LAWYER SHALL NOT, DIRECTLY OR INDIRECTLY, ASSIST IN THE UNAUTHORIZED PRACTICE OF LAW. Rule 9.01 C 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 C 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 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. CANON 15 C A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENTS. Rule 15.01. C 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 15.03. C 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. C A lawyer may, with the written consent of all concerned, act as mediator, conciliator or arbitrator in settling disputes. Rule 15.05. C 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. C A lawyer shall not state or imply that he is able to influence any public official, tribunal or legislative body. Rule 15.07. C A lawyer shall impress upon his client compliance with the laws and the principles of fairness. Rule 15.08. C 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 C A lawyer shall account for all money or property collected or received for or from the client. Rule 16.02 C 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 C 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 C 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 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. 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 C 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 C 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 C A lawyer shall avoid controversies with clients concerning his compensation and shall resort to judicial action only to prevent imposition, injustice or fraud. Publications in reputable law lists, in manner consistent with the standards of conduct imposed by the canon, of brief biographical and information data, is allowable. Modest announcements in newspapers, periodicals or magazines about the opening of a law office or stating the name of the lawyers and the address of the law frm is not improper. Any self-laudatory statements in newspaper advertisements or professional cards disgrace and abuse the lawyer and his profession. Worse, if the advertisements are affected through the radios and televisions. An advertisement bearing the name of the lawyer, his address, and the remarks Aadvice free@ is an improper solicitation (Pineda, supra, pp. 49-54, citing Bartor v. State Bar of California, 20 Cal. 677). A radio program of a lawyer, advertising, his skills and receiving phone questions about the law and which he answers in the form of legal advice is likewise improper and reprehensible. However, a legal aid program as a public service is allowable.@ (Id.). d. Ulep v. The Legal Clinic, Bar Matter No. 553, June 17, 1993 In Ulep v. The Legal Clinic, Bar Matter No. 553, June 17, 1993, the respondent placed a series of newspaper advertisements, which read as a follows: Secret Marriage? P 560.00 for a valid marriage. Info on Divorce, Absence, Annulment, Visa The Legal Clinic Inc. Please call: 521-0767 521-7232, 522-2041 8:30 A.M. B 6:00 P.M. 7th Flr., Victoria Bldg., U.N. Ave., Manila. Guam Divorce Don Parkinson An attorney in Guam is giving Free Books on Guam Divorce through The Legal Clinic beginning Monday to Friday during office hours. Guam Divorce, Annulment of Marriage, Investigation Problems, Visa Extensions, Quota/Non-Quota, Resident And Special Retiree=s Visa, Declaration of Absence, Remarriage to Filipina Fiancee, Adoption, Advertisement in the Philippines, US/ Foreign Visas for Filipina Spouse/Children. Call Marivic. The Legal Clinic Inc. 7F Victoria Bldg., 429 UN Ave. Ermita, Manila near U.S. Embasy Tel. 521-7232, 521-7251, 522-2041, 521-0767. In its answer to the position, respondent admitted the fact of publication of said advertisements at its instance, but claimed that it was not engaged in the practice of law but in the rendering Alegal support services@ through paralegals with the use of modern computers and electronic machines. Respondent further argued that assuming that the services advertised were legal services, the act of advertising these services should be allowed in the light of the case of Bates and Van O=Steen vs. State Bar of Arizona decided by the US Supreme Court in 1977. The Supreme Court ruled that the then prevailing Philippine ethical standards of the legal progression condemned the lawyers= advertisement of their services. A lawyer cannot, without violating the ethics of his profession, advertise his talents or skills in a manner similar to a merchant advertising his goods. The proscription against advertising of legal services or solicitation of legal business rests on the fundamental postulate that the practice of law is a profession. The Court held that it was undeniable that the advertisement in question was Aa flagrant violation by the respondent of the ethics of the legal profession, it being a brazen solicitation of business from the public@. The Rules of Court expressly provides among other things that Athe practice of soliciting cases at law for the purpose of gain, either personally as thru paid agents or brokers, constitutes malpractice.@ It is Ahighly unethical for an attorney to advertise his talents or skills as a merchant advertise his wares as law is a profession and not a trade. The lawyer degrades himself and his profession who stoops to and adopts the practices of merchants by advertising his services or offering them to the public@. As a member of the Bar, Ahe defiles the temple of justice with mercenary activities as the money-changers of old defiled the temple of Jehovah@. (See also Teruel, supra, pp. 67-69). The Court cited a past survey in the US where the public perception of US lawyers had reportedly deteriorated because of aggressive lawyer advertising in the mass media. The Court also held that Awith the present situation of our legal and judicial systems, to allow the publication of advertisements of the kind used by respondent would only serve to aggravate what is already a deteriorating public opinion of the legal profession whose integrity has consistently been under attack lately by media and the community in general@. The Court held that the 1988 Code of Professional Responsibility did not Aexpressly or impliedly@ allow lawyer advertising of any kind. The Court also held that Aunder the present state of our law and jurisprudence, a corporation cannot be organized for or engage in the practice of law in this country@ and that Athis interdiction, just like the rule against unethical advertising, cannot be subverted by employing some so-called paralegals supposedly rendering the alleged support services@. Speaking of paralegals, the Court held that Ain our jurisdiction the services being offered by private respondent cannot be performed by paralegals@ and that Aonly a person duly admitted as a member of the bar, or hereafter admitted as such in accordance with the provisions of the Rules of Court, and who is in good and regular standing, is entitled to practice law@. The Court held that Awhatever may be its merits@, the matter of the adoption of the US concept of paralegals as an occupation separate from the law profession be adopted in the Philippines is Aa matter for judicial rules or legislative action, and not of unilateral adoption as the respondent has done@. (At present, the Philippines does not have a law or judicial rules on the accreditation or licensing of paralegals). Reputation is the lawyer=s best advertisement. This concept however poses practical competition-related problems to many newly admitted solo practitioners and small and medium law firms. As Teruel, puts it: AReputation is really hard to earn and it takes a great effort and a long time to establish it. Although already earned but eventually lost, it is hard to recover. When destroyed, it is very difficult to rebuild.@ (Teruel, supra, p. 123). e. Practical Marketing Reputation and personal contacts account for 85 percent of the clients= reasons for selecting their lawyers. (Teruel, supra, p. 122-123, citing a 1963 Missouri Bar-Prentice Hall Survey, A Complete Guide to Profitable Law Practice, Vol. I, 1996 ed., p. 9). In the Philippines, case referrals to lawyers emanate from personal recommendations by friends, neighbors, relatives, co-workers, existing clients, other lawyers and professionals, court personnel, law directories, and law journals. (Teruel, supra, pp. 118-121). It is useful for a lawyer to establish and maintain his own local and international professional, business and social networks as part of building his law practice. (Id.). The viability and continuity of the life of law firms depend on the revenues that they generate. The revenues are as high or as low as the number and quality of clients that are attracted to and patronize the firm. Client development tools are the life-blood of the law firms: law firms continue to exist because of the clients patronizing them. (Id., p. 72). Filipino lawyers and law firms faces the conservatism of Philippine legal ethics in the matter of reaching out to the consumers of legal services and giving the consumers factual information on the best available, competitive and cost-effective legal services that they can use. To quote Teruel: Public relations firms are accepted as client development tools in America as no ethical rules are infringed by their use. Although it can be admitted that public relations firms can play an important role in helping the law firm gain the public=s notice, acceptance and confidence, there are very strong ethical constraints for their use in our country. This position is buttressed by Canon 3 of the Code of Professional Responsibility prescribing that: AA lawyer in making known his legal services shall use only true, honest, fair, dignified and objective information or statement of facts.@ Employment of public relations firms is lightly objectionable because under Rule 3.04 B AA 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. Paid advertising is considered a major factor in may lawyers= client development programs. While in the United States of America attorneys can now use a variety of advertising media which may include television, radio, newspapers, magazines, trade publications, telephone book yellow pages, and direct mail, it is very doubtful whether advertising by television and radio would be allowed in Philippines without the lawyers running afoul with the ethics of the profession in the country. While our American brother lawyers can advertise in any manner by whatever means without restraints nor constraints as they wish as Aliberated@ individuals, their Filipino counterparts are still very conservative, cautious and consciously dignified in using advertising as a tool for client development. The press releases of the law firm are marketing tools used by many. News release do not per se result in the acquisition of new clients. However, news releases build law firm awareness, cost very little and improves the image and prestige of the lawyers composing the firm and the firm itself. (Teruel, supra, pp. 62-63, 64-65, 72). That is why the euphemistic cover of social interaction, which is in reality Aface to face selling and cross-selling@, is the favorite client development tool or law firm marketing technique of Filipino lawyers and law firms. (Id., p. 59). As Teruel bluntly puts it, Ain marketing or selling, it is not what you know, but who you know that counts@. He adds that Amost lawyers who know so many people and some who made special efforts to meet them are successful in the practice@. (Id.). In addition, Filipino lawyers and law firms, who can afford the expenses, generate business through any or all of the following subtle methods: political exposure, pro bono involvement in bar associations and in social, civic, academic, fraternal and religious organizations, free legal aid clinics and human rights cases, brochures, law firm stationaries, free legal seminars, free legal lectures, publication of legal articles, newspaper columns, radio-TV talk shows, book writing, free legal newsletters, ethical press releases, charitable activities, law teaching, invitations to prospective clients to attend special social events in the law office, and similar public-relations activities. (Id., p. 72). Some Internet-savvy Filipino lawyers and law firms participate in law-related or public policy-oriented electronic chats, message boards or communities or open their own Internet web pages. A lawyer shall not directly or indirectly assist in the unauthorized practice of law (Canon 9, CPR). He shall not divide or stipulate to divide a fees for legal services with persons not licensed to practice law. (Rule 9.02, CPR). [See also: Pineda, supra, pp. 98-103, citing PAFLU v. Binalbagan Isabela Sugar Co., 42 SCRA 207]. It is thus unethical for a lawyer to split fees with, for example, brokers, adjusters, or accountants. (For further reading, see also: Meriam Defensor-Santiago, Rules of Court Annotated. Quezon City: Central Professional Books, Inc., 1999, annotating Rule 138 and citing Arrieta v. Llosa, 282 SCRA 248 (1997); Bongalonta v. Castielo, 240 SCRA 310 (1995); Maligsa v. 272 SCRA 408 (1997); Ulep v. Legal Clinic, 223 SCRA 378 (1993); Villanueva v. Sta. Ara, 245 SCRA 707(1995; Tan v. Sabandal, 206 SCRA 473 (1992); Roque v. Clemencio, 212 SCRA 618 (1992); Igna v. Javier, 254 SCRA 416 (1996); F. David Ent. v. IBAA, 197 SCRA 516 (1990); IMSC v. Roxas, 256 SCRA 229 (1996); Bautista v. Gonzales, 182 SCRA 151 (1990); Tabillo v. IAC 195 SCRA 28 (1991)]. Moreover, the pragmatic financial and management aspects of the law practice of the Filipino lawyer is bound by the constitutional power of the Supreme Court to admit, control and supervise the Bar, to discipline members of the Bar for unethical acts, to control and reduce the fees of lawyers, where warranted by the circumstances, and to regulate even their private life and behavior insofar as the same may affect their standing in the Bar. [See Rule VIII, 1987 Constitution. See also: Defensor-Santiago, id., pp. 978-1024, citing Sumaoay v. RTC, 215 SCRA 136 (1992); TRB. EUI v. NLRC, 269 SCRA 733 (1997); Radiowealth Finance vs. ICB, 182 SCRA 862 (1990); Lizaro v. Amante, 198 SCRA, (1991); Bautista v. Gonzales, 182 SCRA 151 (1990); Constantino v. Sanchez, 228 SCRA 233 (1993); Manaquil v. Villegas, 189 SCRA 335 (1990); Co v. Bernardino, 285 SCRA 102 (1998); Ngayan v. Tugade, 193 SCRA 779 (1991)]. H. Reiterating the Ethical Doctrines Membership in the bar is a privilege burdened with conditions. One is admitted to the bar for something more than private gain. He becomes an officer of the court and, like the court itself, an instrument or agency to advance the ends of justice. (Manuel V. Moran, Comments on the Rules of Court, Vol. VI. Manila: Pasicola Books Service, 1980 ed., p. 221, citing People ex rel, Karlin v. Culkin, 248 N.Y. 465, 162 N.E. 487, 50 A.L.R. 851). Under Rule 138 of the Rules of Court, a member of the bar may be removed or suspended from his office as attorney by the Supreme Court for deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by season of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a willful disobedience to any lawful order of a superior court, or for corruptly or willfully appearing as as attorney for a party to a case without authority to do so, or for soliciting cases. (Id., pp. 251-252, citing In re Pelacy, 44 Phil. 583). The practice of law is not a matter of right but merely a privilege bestowed upon individuals who are not only learned in the law out who are also known to posses good moral character (Id., citing Tan vs. Sabandal, 206 SCRA 473). It is not a money-making venture (Id., citing Candas v. CA, 164 SCRA 160). Law advocacy is not a capital that yields profits. It is a calling that, unlike mercantile pursuits which enjoy a greater deal of freedom from government interference, is impressed with public interests, to which it is subject to strictl regulation (Id., citing MBTC v. CA, 181 SCRA 377). It is reserved only to those who are academically trained in law and possessed of good moral character not only at the time of their admission to the Bar but even more so thereafter to remain in good standing to practice law. (Id., citing People v. Decana, 176 SCRA 622). (See also: Pineda, supra, pp. 18-19). In an attorney is a public office. He occupies what may be called a quasi- judicial office. He is, figuratively speaking, a priest of justice. [Ruben E. Agpalo, Legal Ethics. Quezon City, Philippines: University of the Philippines Law Center, 1983 ed., citing Re 151, National savings Bank v. Ward, 100 U.S. 195, 25 L. ed. 621 (1880); Berman v. Coakley, 137 NE 667 26 ALR 92 (1923)]. Membership in the bar, an ancient noble fellowship, accords the lawyer with the status of officer of the court and a Aminister of the temple of justice@, a privilege burdened with conditions (Bereguer v. Carranza, 26 SCRA 673; Ledesma v. Climaco, 57 SCRA 473; Atienza v. Evangelista, AC. No. 1517, >Nov. 29, 1977; People ex. rel. Karlin v. Culkin, 248 NY 465, 60 ALR 851 (1928); Lerma v. Climaco, GR 34334, May 12, 1972; In re Almacen, 31 SCRA 562; Surigao Mineral Reservation Board v. Cloribel, Mineral Reservation Board v. Claribel, GR 27072, Jan. 9, 1970; Castaneda, v. Age, GR 28546, July 30, 1975). As an officer of the court, an attorney is subject to the disciplinary authority of the court with respect to his relation to the court as well as to his client. His admission to the practice of law is upon the implied condition that his continued enjoyment of the right conferred is dependent upon his remaining fit and safe to exercise it. (Hilado v. David, 84 Phil. 569 (1949); Berenguen v. Carranza, AC 716, Jan. 30, 1969) Tejan v. Cusi, GK 28899, May 30, 1974; In re Gutierrez, 3663 July 31, 1962; In re Santiago, 70 Phil. 66(1940). His malfeasance, malpractice, misconduct or dereliction of duty justifies the imposition of disciplinary action upon him to preserve the nobility of the legal profession and the sanctity of the administration of justice. (Pineda, supra, pp. 253-285, citing Tan Tek Beng v. David, 126 SCRA 389; Laput v. Remotique, 6 SCRA 45; (In re: Tagorda, 53 Phil. 37; Dir. Of Religion Affairs v. Bayot, 74 Phil. 579; (US v. Nery, 8 Phil. 146; Beltran v. Abad, 132 SCRA 452; Sec. 27, Rule 138). Such acts may include, but not necessarily limited to, solicitation of cases either directly or indirectly thru paid agents or brokers, encroaching upon the business of another lawyer, advertising a lawyer=s skills in a newspaper or publication, and cooperating in illegal practice of law such as the formation of a partnership with a layman. (Id., citing Tan v. David, 126 SCRA 389). Being a quasi-judicial officer, the court always looks into, and closely scrutinizes, the lawyer=s transactions with his client and protects the client from undue disadvantage on account of his situation (Agpalo, supra, pp. 7-9, citing Daroy v. Legaspi, AC 936, July 25, 1975; Hernandez v. Villanueva, 40 Phil. 755 (1920); Hoppe v. Klapperich, 28 NH 2d 780, 173 ALR 819 (1947); Hilado v. David, 84 Phil. 569 (1949). | |
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