Blog Lecture No. 53: Disbarment and Suspension of Attorneys

Sorry class I took so long to lecture again. If you have been following my continuing saga, you know I did not have the heart to lecture recently. But I finally found a lecture topic that stirred up my cold passions…

Don’t worry, this lecture will more than make up for everthing… because it’s long.

On what grounds can a lawyer be disbarred or suspended?

According to Section 27, Rule 138 of the Revised Rules of Court:

SEC. 27. Disbarment or suspension of attorneys by Supreme Court, grounds therefor.—A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, 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 admission to practice, or for a wilful disobedience 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.

The disbarment or suspension of a member of the Philippine Bar by a competent court or other disciplinatory agency in a foreign jurisdiction where he has also been admitted as an attorney is a ground for his disbarment or suspension if the basis of such action includes any of the acts hereinabove enumerated.

The judgment, resolution or order of the foreign court or disciplinary agency shall be prima facie evidence of the ground for disbarment or suspension. (As amended by SC Res. dated Feb. 13, 1992.)

Hey! That’s too damn long! Can you simplify it for me?

Of course. A lawyer can be discipline on the following grounds:

1. Deceit,
2. Malpractice,
3. Other gross misconduct in such office,
4. Grossly immoral conduct,
5. Conviction of a crime involving moral turpitude,
6. Any violation of the oath which he is required to take before admission to practice,
7. Wilful disobedience appearing as an attorney for a party to a case without authority so to do

What is deceit?

This is behavior which is dishonest and/or fraudulent, where the truth is altered to intentionally mislead and deceive another party, for example, a lawyer telling a prospective client that he can win a legally unwinnable case.

What is malpractice?

It is improper or unethical conduct or unreasonable lack of skill by a holder of a professional or official position, for example, a lawyer neglecting to file an appeal within the time allowed by the rules, if the neglect is inexcusable or even deliberate (because the other party paid him to drop the appeal by this technicality). As the rules state, solicitation of clients is malpractice in the Philippines.

What is a crime involving moral turpitude?

Moral turpitude is conduct contrary to honesty and good morals. Therefore, a lawyer convicted of a crime involving such may be a ground for suspension or disbarment. Examples of such crimes are estafa, falsification, perhaps concubinage and adultery.

What is the procedure to disbar or suspend a lawyer in the Philippines?

It is found in Rule 139 and 139-B of the Revised Rules of Court, I will replicate it for you verbatim below:

Rule 139
DISBARMENT OR SUSPENSION OF ATTORNEYS

SECTION 1. Motion or complaint.—Proceedings for the removal or suspension of attorneys may be taken by the Supreme Court on its own motion or upon the complaint under oath of another in writing. The complaint shall set out distinctly, clearly, and concisely the facts complained of, supported by affidavits, if any, of persons having personal knowledge of the facts therein alleged and shall be accompanied with copies of such documents as may substantiate said facts.

SEC. 2. Service or dismissal.—If the complaint appears to merit action, a copy thereof shall be served upon the respondent, requiring him to answer the same within ten (10) days from the date of service. If the complaint does not merit action, or if the answer shows to the satisfaction of the Supreme Court that the complaint is not meritorious, the same shall be dismissed.

SEC. 3. Investigation by Solicitor General.—Upon the issues raised by the complaint and answer, or upon failure of the respondent to answer, the case shall be referred to the Solicitor General for investigation to determine if there is sufficient ground to proceed with the prosecution of the respondent. In the investigation conducted by the Solicitor General, the respondent shall be given full opportunity to defend himself, to produce witnesses on his own behalf, and to be heard by himself and counsel. However, if upon reasonable notice, the respondent fails to appear, the investigation shall proceed ex parte.

SEC. 4. Report of the Solicitor General.—Based upon the evidence adduced at the hearing, if the Solicitor General finds no sufficient ground to proceed against the respondent, he shall submit a report to the Supreme Court containing his findings of fact and conclusion, whereupon the respondent shall be exonerated unless the court orders differently.

SEC. 5. Complaint of the Solicitor General. Answer of respondent.—If the Solicitor General finds sufficient ground to proceed against the respondent, he shall file the corresponding complaint, accompanied with all the evidence introduced in his investigation, with the Supreme Court, and the respondent shall be served by the clerk of the Supreme Court with a copy of the complaint with direction to answer the same within fifteen (15) days.

SEC. 6. Evidence produced before Solicitor General available.—The evidence produced before the Solicitor General in his investigation may be considered by the Supreme Court in the final decision of the case, if the respondent had an opportunity to object and cross-examine. If in the respondent’s answer no statement is made as to any intention of introducing additional evidence, the case shall be set down for hearing, upon the filing of such answer or upon the expiration of the time to file the same.

SEC. 7. Commissioner to investigate and recommend. Rules of evidence.—Upon receipt of the respondent’s answer, wherein a statement is made as to his desire to introduce additional evidence, the case shall be referred to a commissioner who, in the discretion of the court, may be the clerk of the Supreme Court, a judge of the Regional Trial Court, or an attorney-at-law for investigation, report, and recommendation. The Solicitor General or his representative shall appear before the commissioner to conduct the prosecution. The respondent shall be given full opportunity to defend himself, to produce additional evidence in his own behalf, and to be heard by himself and counsel. However, if upon reasonable notice the respondent fails to appear, the investigation shall proceed ex parte. The rules of evidence shall be applicable to proceedings of this nature.

SEC. 8. Report of commissioner and hearing.—Upon receipt of the report of the commissioner, copies of which shall be furnished the Solicitor General and the respondent, the case shall be set down for hearing before the court, following which the case shall be considered submitted to the court for its final determina­tion.

SEC. 9. Procedure in Court of Appeals or Regional Trial Court.—As far as may be applicable, the procedure above outlined shall likewise govern the filing and investigation of complaints against attorneys in the Court of Appeals or in Regional Trial Court. In case of suspension of the respondent, the judge of Regional Trial Court or Justice of the Court of Appeals shall forthwith transmit to the Supreme Court a certified copy of the order of suspension and a full statement of the facts upon which same is based.

SEC. 10. Confidential.—Proceedings against attorneys shall be private and confidential, except that the final order of the court shall be made public as in other cases coming before the court.

RULE 139-B

DISBARMENT AND DISCIPLINE OF ATTORNEYS

SECTION 1. How Instituted.—Proceedings for the disbar­ment, suspension, or discipline of attorneys may be taken by the Supreme Court motu proprio, or by the Integrated Bar of the Philippines (IBP) upon the verified complaint of any person. The complaint shall state clearly and concisely the facts complained of and shall be supported by affidavits of persons having personal knowledge of the facts therein alleged and/or by such documents as may substantiate said facts.

The IBP Board of Governors may, motu proprio or upon referral by the Supreme Court or by a Chapter Board of Officers, or at the instance of any person, initiate and prosecute proper charges against any erring attorneys including those in the government service: Provided, however, That all charges against Justices of the Court of Appeals and the Sandiganbayan, and Judges of the Court of Tax Appeals and lower courts, even if lawyers are jointly charged with them, shall be filed with the Supreme Court: Provided, further, That charges filed against Justices and Judges before the IBP, including those filed prior to their appointment in the Judiciary, shall immediately be forwarded to the Supreme Court for disposition and adjudication. (As amended by Bar Matter No. 1960, May 1, 2000.)

Six (6) copies of the verified complaint shall be filed with the Secretary of the IBP or the Secretary of any of its chapters who shall forthwith transmit the same to the IBP Board of Governors for assignment to an investigator.

A. PROCEEDINGS IN THE INTEGRATED BAR OF THE PHILIPPINES

SEC. 2. National Grievance Investigators.—The Board of Governors shall appoint from among IBP members an Investigator or, when special circumstances so warrant, a panel of three (3) investigators to investigate the complaint. All Investigators shall take an oath of office in the form prescribed by the Board of Governors. A copy of the Investigator’s appointment and oath shall be transmitted to the Supreme Court.

An Investigator may be disqualified by reason of relationship within the fourth degree of consanguinity or affinity to any of the parties or their counsel, pecuniary interest, personal bias, or his having acted as counsel for either party, unless the parties sign and enter upon the record their written consent to his acting as such Investigator. Where the Investigator does not disqualify himself, a party may appeal to the IBP Board of Governors, which by majority vote of the members present, there being a quorum, may order his disqualification.

Any Investigator may also be removed for cause, after the hearing, by the vote of at least six (6) members of the IBP Board of Governors. The decision of the Board of Governors in all cases of disqualification or removal shall be final.

SEC. 3. Duties of the National Grievance Investigator.—The National Grievance Investigators shall investigate all complaints against members of the Integrated Bar referred to them by the IBP Board of Governors.

SEC. 4. Chapter assistance to complainant.—The proper IBP Chapter may assist the complainants) in the preparation and filing of his complaint(s).

SEC. 5. Service or dismissal.—If the complaint appears to be meritorious, the Investigator shall direct that a copy thereof be served upon the respondent, requiring him to answer the same within fifteen (15) days from the date of service. If the complaint does not merit action, or if the answer shows to the satisfaction of the Investigator that the complaint is not meritorious, the same may be dismissed by the Board of Governors upon his recom­mendation. A copy of the resolution of dismissal shall be furnished the complainant and the Supreme Court which may review the case motu proprio or upon timely appeal of the complainant filed within 15 days from notice of the dismissal of the complaint.

No investigation shall be interrupted or terminated by reason of the desistance, settlement, compromise, restitution, withdrawal of the charges, or failure of the complainant to prosecute the same.

SEC. 6. Verification and service of answer.—The answer shall be verified. The original and five (5) legible copies of the answer shall be filed with the Investigator, with proof of service of a copy thereof on the complainant or his counsel.

SEC. 7. Administrative counsel.—The IBP Board of Governors shall appoint a suitable member of the Integrated Bar as counsel to assist the complainant or the respondent during the investigation in case of need for such assistance.

SEC. 8. Investigation.—Upon joinder of issues or upon failure of the respondent to answer, the Investigator shall, with deliberate speed, proceed with the investigation of the case. He shall have the power to issue subpoenas and administer oaths. The respondent shall be given full opportunity to defend himself, to present witnesses on his behalf, and be heard by himself and counsel. However, if upon reasonable notice, the respondent fails to appear, the investigation shall proceed ex parte.

The Investigator shall terminate the investigation within three (3) months from the date of its commencement, unless extended for good cause by the Board of Governors upon prior application.

Willful failure to refusal to obey a subpoena or any other lawful order issued by the Investigator shall be dealt with as for indirect contempt of court. The corresponding charge shall be filed by the Investigator before the IBP Board of Governors which shall require the alleged contemnor to show cause within ten (10) days from notice. The IBP Board of Governors may thereafter conduct hearings, if necessary, in accordance with the procedure set forth in this Rule for hearings before the Investigator. Such hearing shall as far as practicable be terminated within fifteen (15) days from its commencement. Thereafter, the IBP Board of Governors shall within a like period of fifteen (15) days issue a resolution setting forth its findings and recommendations, which shall forthwith be transmitted to the Supreme Court for final action and if warranted, the imposition of penalty.

SEC. 9. Depositions.—Depositions may be taken in accordance with the Rules of Court with leave of the investigators).

Within the Philippines, depositions may be taken before any member of the Board of Governors, the President of any Chapter, or any officer authorized by law to administer oaths.

Depositions may be taken outside the Philippines before a diplomatic or consular representative of the Philippine Govern­ment or before any person agreed upon by the parties or designated by the Board of Governors.

Any suitable member of the Integrated Bar in the Place where a deposition shall be taken may be designated by the Investigator to assist the complainant or the respondent in taking a deposition.

SEC. 10. Report of Investigator.—Not later than thirty (30) days from the termination of the investigation, the Investigator shall submit a report containing his findings of fact and recom­mendations to the IBP Board of Governors, together with the stenographic notes and the transcript thereof, and all the evidence presented during the investigation. The submission of the report need not await the transcription of the stenographic notes, it being sufficient that the report reproduce substantially from the Investigator’s personal notes any relevant and pertinent testimonies.

SEC. 11. Defects.—No defect in a complaint, notice, answer, or in the proceeding or the Investigator’s Report shall be considered as substantial unless the Board of Governors, upon considering the whole record, finds that such defect has resulted or may result in a miscarriage of justice, in which event the Board shall take such remedial action as the circumstances may warrant, including invalidation of the entire proceedings.

SEC. 12. Review and decision by the Board of Governors.

(a) Every case heard by an investigator shall be reviewed by the IBP Board of Governors upon the record and evidence transmitted to it by the Investigator with his report. The decision of the Board upon such review shall be in writing and shall clearly and distinctly state the facts and the reasons on which it is based. It shall be promulgated within a period not exceeding thirty (30) days from the next meeting of the Board following the submittal of the Investigator’s Report.

(b) If the Board, by the vote of a majority of its total membership, determines that the respondent should be suspended from the practice of law or disbarred, it shall issue a resolution setting forth its findings and recommendations which, together with the whole record of the case, shall forthwith be transmitted to the Supreme Court for final action.

(c) If the respondent is exonerated by the Board or the disciplinary sanction imposed by it is less than suspension or disbarment (such as admonition, reprimand, or find) it shall issue a decision exonerating respondent or imposing such sanction. The case shall be deemed terminated unless upon petition of the complainant or other interested party filed with the Supreme Court within fifteen (15) days from notice of the Board’s resolution, the Supreme Court orders otherwise.

(d) Notice of the resolution or decision of the Board shall be given to all parties through their counsel. A copy of the same shall be transmitted to the Supreme Court.

B. PROCEEDINGS IN THE SUPREME COURT

SEC. 13. Supreme Court Investigators.—In proceedings initiated motu proprio by the Supreme Court or in other proceedings when the interest of justice so requires, the Supreme Court may refer the case for investigation to the Solicitor General or to any officer of the Supreme Court or judge of a lower court, in which case the investigation shall proceed in the same manner provided in sections 6 to 11 hereof, save that the review of the report of investigation shall be conducted directly by the Supreme Court.

SEC. 14. Report of the Solicitor General or other Court designated Investigator.—Based upon the evidence adduced at the investigation, the Solicitor General or other Investigator designated by the Supreme Court shall submit to the Supreme Court a report containing his findings of fact and recommendations together with the record and all the evidence presented in the investigation for the final action of the Supreme Court.

C. COMMON PROVISIONS

SEC. 15. Suspension of attorney by Supreme Court.—After receipt of respondent’s answer or lapse of the period therefor, the Supreme Court, motu proprio, or at the instance of the IBP Board of Governors upon the recommendation of the Investigators, may suspend an attorney from the practice of his profession for any of the causes specified in Rule 138, Section 27, during the pendency of the investigation until such suspension is lifted by the Supreme Court.

SEC. 16. Suspension of attorney by the Court of Appeals or a Regional Trial Court.—The Court of Appeals or Regional Trial Court may suspend an attorney from practice for any of the causes named in Rule 138, Section 27, until further action of the Supreme Court in the case.

SEC. 17. Upon suspension by Court of Appeals or Regional Trial Court, further proceedings in Supreme Court.—Upon such suspension, the Court of Appeals or a Regional Trial Court 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 receipt of such certified copy and statement, the Supreme Court shall make a full investigation of the case and may revoke, shorten or extend the suspension, or disbar the attorney as the facts may warrant.

SEC. 18. Confidentiality.—Proceedings against attorneys shall be private and confidential. However, the final order of the Supreme Court shall be published like its decisions in other cases.

Again, that’s too long! Can you break it down just in case I want to file charges against my lawyer?

Sure. Briefly, the procedure is:

A. For proceedings through the Integrated Bar:

1. Filing of the complaint
2. Assignment of Investigator
3. Service to Respondent lawyer
4. Answer
5. Investigation proceedings
6. Investigator to report on findings and recommendation
7. Review and Decision of IBP Board of Governors
8. Referral and prosecution in the Supreme Court (if for suspension or disbarment)
9. Judgment and Imposition of sanctions by Supreme Court, if any.

B. For Proceedings in the Supreme Court

1. Motu Propio referral of Supreme Court to Solicitor General (or any court officer or judge)
2. Same procedure as in nos. 3 to 6 above.
3. Referral to Supreme Court.
4. Judgment and Imposition of sanctions, if any.

C. Suspension by Regional Trial Court or Court of Appeals

This is somewhat like a “preventive suspension” where these courts can, for cause, suspend a lawyer, until further action by the Supreme Court as stated above. So to the lawyers, don’t cross your “favorite” judges or justices too much as they can actually suspend you for a long time… depending on how fast the Supreme Court disposes your case.

Next blog lecture: Discipline of Judges/Justices

4 Comments

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4 responses to “Blog Lecture No. 53: Disbarment and Suspension of Attorneys

  1. Tony

    Is an assistant district attorney, who is married and committing adultery with a woman who is also married, violating an ethics issue by the State bar or the District Attorney’s office? This attorney and woman are both in the process of a divorce, but they are currently living together with the woman’s daughter. This ADA has been divorced before and has a history of court hearings having to do with his children’s custody, child support, protective orders, temporary restraining orders, etc. He also has used one or more aliases in the past. I’d like to know if this is a violation of the code of ethics.

    This type of immoral turpitude is a reflection on the D.A. and his hiring judgment, and discredits the D.A.s office. What action can be taken against this ADA?

    P.S. There is proof of all claims made.

  2. dianne

    is a conviction by court necessary before a lawyer is disbarred or suspended?

    can’t the IBP do this. i thought this organization was established to protect the integrity of the law profession in the Philippines; thus, giving this organization an authority for suspending or maybe a disbarment of a lawyer?

    just asking..

  3. Is it legal for the clerk of court of a certain division of the Supreme Court of the Philippines to DENY WITH FINALITY a motion for reconsideration for review based solely on his or her own understanding of the case?
    Please enlighten me… I read from COURT RECORD AND GENERAL DUTIES OF CLERKS AND STENOGRAPHERS xxx Rule 136 sec. 4. Issuance by clerk of process- The clerk of the Supreme Court shall issue under the seal of the court all ordinary writs and process incident to the pending cases, the issuance of which does not involve the exercise of functions appertaining to the court or judge only, and may under the direction of the court or judge, make out and sign letters of administration, appointments of guardians, trustees, and receivers, and all writs and process issuing from the court.xxx
    Am I right to say that the clerk of court violated this provision when he or she on her own decided the merits of the petition? If he or she was proven guilty could be reprimanded or remove from being member of the BAR?
    Thank you very much.

  4. rai

    ei! this one’s a very helpful post.. especially for an undergraduate who’s taking intro to law like me..

    an saya lng kxe.. ,clauses were treated to fit any layman’s understanding.. nice job!

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