MEMORANDUM

TO: Atty. Concepcion L. Jardeleza

FROM: Franco Luis G. Lopez

DATE: August 10, 2020

RE: Modifications in the Code of Professional Responsibility

“[L]aw, without equity, though hard and disagreeable, is much more

desirable for the public good, than equity without law: which would make
every judge a legislator, and introduce most infinite confusion.” – William
Blackstone1

FACTS:

In Abragan v. Rodriguez2, the Court noted the innate difficulty of being in

the legal profession. They likened the never-ending dilemma lawyers face to
an unchartered sea of conflicting ideas and interests. After all, there is
perhaps no profession in which so many temptations beset the path to
swerve from the line of strict integrity; in which so many delicate and
difficult questions of duty are continually arising. 3

Furthermore, this is to say nothing of how lawyers are expected to conduct

themselves in society, the difficulty of the profession notwithstanding. Only
those who are “competent, honourable and reliable” may practice the
profession of law4, for every lawyer must pursue “only the highest standards
in the practice of his calling5.

1 th
1 Commentaries on the Laws of England 62 (4 ed. 1770)
2
380 SCRA 93 (2001)
3
Foreword of Chief Justice Manuel V. Moran in Malcolm, Legal and Judicial Ethics
4
Noriega v. Sison, 125 SCRA 293 (1983)
5
Court Administrator v. Hermoso, 150 SCRA 269 (2001)

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The immense difficulty and the great expectation that the profession entails
are the reasons the Code of Professional Responsibility (CPR) was written.
It is the ethical compass to lawyers who, in the pursuit of the profession,
often find themselves in the aforesaid uncharted sea 6

Agpalo7 defines the canons in the CPR as the “overarching rules” or “meta-
rules” to be observed by a lawyer in the practice of his profession. It is there
to establish the norms of conduct and ethical standards in the legal
profession8.

However, despite the 22 Canons, further subdivided into their own specific
rules, all of which define what is expected of the lawyer to do and abstain
from in the performance of his duties, the Code of Professional
Responsibility may benefit from clearer and more substantiated guidelines.
Jurisprudential and textual analysis can hint at the possibility for abuse of
certain ambiguous Canons that leave too much discretion to a judicial officer,
much to the unwarranted detriment of the lawyer and his fundamental rights.

QUERIES:

I. Can we reconcile the reinforcement of a lawyer‟s fundamental liberties

and the protection of the Court as a constitutional institution?

II. What changes can we introduce to the Code of Professional

Responsibility to further a lawyer‟s fundamental liberties?

6
Id. at 2
7
Ruben E. Agpalo, Comments on the Code of Professional Responsibility and the Code of Judicial Conduct
3 (2004)
8
PCGG v. Sandiganbayan, G.R. Nos. 151809-12 (2005)

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DISCUSSION:

I. Yes, we can reinforce a lawyer’s fundamental liberties without denigrating

the protection afforded to the court as a constitutional institution.

In Zaldivar v. Sandiganbayan9, the Court noted that a lawyer‟s right to free

expression is more limited than that of a layman. A member of the bar‟s
freedom of speech ends where he infringes the CPR, and will risk losing his
membership in the bar if he doesn‟t conduct himself in accordance therewith.

However, this limitation should not be construed as a prescriptive statement,

but rather a descriptive one. For a lawyer shall uphold the Constitution10, he
not only has a right, but a duty, to freely express his criticisms against any
act of injustice within the Judiciary. In U.S. v. Bustos11, the Court clarified
that the guarantees of free speech include the right to criticize judicial
conduct. Attempted terrorization of public opinion on the part of a judicial
officer would be tyranny of the basest sort.

However, while a lawyer‟s fidelity to the CPR and his duty to decry acts of
injustice seem to be separate concepts, it appears that vagueness in the Code
of Professional Responsibility allows latitude for some judicial officers to
conflate rightful criticism against them with a violation of the Canons.

The case of In Re: Letter of the UP Law Faculty 12 is instructive of this

conflation. The Court held that the UP Law Faculty‟s act of publishing an
article13 directed against former Associate Justice Mariano C. Del Castillo‟s
alleged act of plagiarism14 violated Canons 1, 11, and 13 of the CPR. This is
in spite of the fact that the publication was made in good faith. The

9
G.R. Nos. 79690-707 (1988)
10
Canon 1, Code of Professional Responsibility
11
37 Phil. 731 (1918)
12
A.M. No. 10-10-4-SC (2011)
13
Restoring Integrity: A Statement by the Faculty of the University of the Philippines College of Law on the
Allegations of Plagiarism and Misrepresentation in the Supreme Court
14
In the matter of the charges of plagiarism, etc., against Associate Justice Mariano C. Del Castillo, A.M.
No. 10-7-17 SC (2011)

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respondent law professors were reminded to give due respect to the Court
and to avoid offensive language that tend to influence the Court or to
denigrate its administration.

The contents of the letter, even if read in deep scrutiny, do not reveal any
motive to “‟impute sinister and devious motives‟ or „question the
impartiality, integrity, and authority of the members of the Court;15”, so as to
warrant a violation of Canon 11 of the CPR. However, the rationale for their
violations revolves on their supposed “lack of respect” for the Court:

“For, membership in the Bar imposes upon a person obligations and

duties which are not mere flux and ferment. His investiture into the
legal profession places upon his shoulders no burden more basic,
more exacting and more imperative than that of respectful behavior
toward the courts. He vows solemnly to conduct himself "with all
good fidelity x x x to the courts;" and the Rules of Court constantly
remind him "to observe and maintain the respect due to courts of
justice and judicial officers." The first canon of legal ethics enjoins
him "to maintain towards the courts a respectful attitude, not for the
sake of the temporary incumbent of the judicial office, but for the
maintenance of its supreme importance."16 (Underscoring Supplied)

The problem is not that the Court, or any other judicial officer, demands for
respect, but the latitude within which the term can be interpreted. A string of
words may be considered respectful by one judicial officer, but disrespectful
by another. After all, as Justice Harlan put forth in Cohen v. California17 ,
one man‟s vulgarity is another man‟s lyric.

15
Sandiganbayan v. Paguia, G.R. No. 159486-88 (2003)
16
Id. at 12
17
403 US 15 (1971)

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The aforesaid are but one of many instances where leaving too much to the
judicial officer‟s interpretation, while inadvertent, still poses a threat to both
a lawyer‟s fundamental liberties and the potency of the Code of Professional
Responsibility. Therefore, by introducing modifications in the CPR, we are
not sacrificing the protection afforded to judicial institutions in reinforcing a
lawyer‟s freedoms. Rather, it is precisely through the modifications that we
strengthen the institutions by reinforcing liberties. When the Canons are
made clearer, the uncharted sea of conflicting ideas and interests will be
easier to travel.

II. Canon 11must define what constitutes “respect” owed to the courts; Rule
13.01 must define what constitutes “extraordinary” attention; and Rule
20.01 must substantiate the factors that determine a lawyer’s fees;

Canon 11 of the Code of Professional Responsibility states that a lawyer

shall observe and maintain the respect due to the courts and to judicial
officers and should insist on similar conduct by others.

However, because every judicial officer is a different person, with

corresponding disparate value systems and emotional thresholds, “respect”
can vary from one interpretation to another. Therefore, there is need to
specify certain factors in determining respect of the court.

Rule 8.2(a) of the American Bar Association‟s Model Rules of Professional

Conduct18 is a helpful model:

(a) A lawyer shall not make a statement that the lawyer knows to be
false or with reckless disregard as to its truth or falsity concerning the
qualifications or integrity of a judge, adjudicatory officer or public
legal officer, or of a candidate for election or appointment to judicial
or legal office.

18
American Bar Association, American Bar Association Model Rules of Professional Conduct (1983)

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As can be gleaned from the above provision, what a lawyer shouldn‟t do or
say is clear and definite. It does not talk of a subjective matter as respect, but
outlines specific courses of action that warrant a violation of the integrity of
the court.

Rule 13.01 of the Code of Professional Responsibility states that a lawyer

shall not extend extraordinary attention or hospitality to, nor seek
opportunity for cultivating familiarity with Judges.

The provision is ambiguous in the sense that it does not define extraordinary
attention or hospitality. Every lawyer has a different personality—ordinary
attention given by one lawyer can be extraordinary attention give by another.
The Rule fails to capture or specify what specific actions there are to gain
undue favor from a judge.

Rule 8.2 (e)(f) of the American Bar Association‟s Model Rules of

Professional Conduct19 is a helpful model:

It is professional misconduct for a lawyer to:

(e) State or imply an ability to influence improperly a government

agency or official or to achieve results by means that violate the Rules
of Professional Conduct or other law;

(f) Knowingly assist a judge or judicial officer in conduct that is a

violation of applicable rules of judicial conduct or other law;

19
Id. at 18

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As can be gleaned from the above provision, what a lawyer should abstain
from doing with respect to his relations with a judge or judicial officer is
specified: he is neither to state nor imply an ability to improperly influence,
and he isn‟t to knowingly assist a judge or judicial officer in conduct that is a
violation of the law. It does not simply talk of extraordinary attention, but
attention that has negative consequences to the dignity of the legal
profession.

Lastly, Rule 20.01 states the factors20 a lawyer should use as guidance for
determining his fees. However, especially with the advent of modern
technology, particularly in data computation, these factors can benefit from a
quantifiable revision. Particularly, the probabilities in Rule 20.01(e)(h) can
be subject to a baseline statistical metric, so as to have a uniform valuation;
the skill demanded can be subject to a standard matrix that corresponds each
service with each skill required; among other things.

Updating Rule 20.01 this way is in keeping with Canon 2 of the CPR, which
states that a lawyer shall make his legal services available in an efficient and
convenient manner compatible with the independence, integrity and
effectiveness of the profession.

Since modern technology has provided us with the wherewithal to ask for
fees with more accuracy, it is our duty to make the necessary adjustments, in
service of the greater interest, and in upholding the integrity of the legal
profession.

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(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.