Duty of counsel of record | Summons (RULE 14) | CIVIL PROCEDURE

Below is a detailed, methodical discussion on the duty of counsel of record in relation to Summons under Rule 14 of the Rules of Court in the Philippines. This write-up integrates the relevant rules, jurisprudence, and ethical considerations that every practicing lawyer should be aware of.

I. Overview of Summons (Rule 14)

  1. Definition and Purpose

    • Summons is the legal process by which the court acquires jurisdiction over the person of the defendant.
    • It notifies the defendant that an action has been commenced against them, and it informs them of the necessity to appear and answer.

  2. Modes of Service

    • Personal Service: The default mode; summons must be tendered directly to the defendant.
    • Substituted Service: Allowed when personal service cannot be effected within a reasonable time for justifiable reasons; e.g., leaving copies at the defendant’s residence with a person of suitable age and discretion.
    • Service by Publication: In exceptional circumstances (e.g., when the whereabouts of the defendant is unknown and cannot be ascertained by diligent inquiry or when the defendant is a non-resident not found in the Philippines), summons may be served by publication, with leave of court.

  3. Effect of Improper Service

    • If service of summons is invalid or defective, the court does not acquire jurisdiction over the person of the defendant. Any resulting judgment could be deemed void as against that particular defendant.
    • Defendants may file a motion to dismiss or raise the improper service as a defense if they have not otherwise submitted to the court’s jurisdiction.

II. Counsel of Record: General Concept

  • The “counsel of record” is the attorney recognized by the court as the legal representative of a party. Once an attorney has entered his or her appearance, the court (and opposing counsel) will primarily serve that attorney with subsequent pleadings and notices.
  • However, summons is distinct from notices and subsequent court processes. The principle is that an attorney’s representation arises upon or after the defendant’s formal participation in the proceedings, but summons is what compels the defendant’s initial participation (and is thus served on the defendant, not on the lawyer, except in certain exceptional cases where an attorney has a special authority to receive summons).

III. Duty of Counsel of Record Regarding Summons

A. No Implied Authority to Receive Summons

  1. Default Rule

    • The Supreme Court has consistently held that a counsel of record does not automatically have authority to receive summons on behalf of a party.
    • Valid service on the defendant generally demands personal service upon the defendant or substituted service at the defendant’s residence or principal office, as the case may be.

  2. Exceptions

    • If the counsel expressly and specifically has a special power of attorney (or an equivalent authority recognized under the corporation’s by-laws or a board resolution) authorizing him/her to receive summons on behalf of the client, then service upon the counsel may constitute valid service upon the defendant.
    • Such authorization must be clear and unequivocal, typically in writing and duly notarized or indicated in official corporate records (for juridical entities).

  3. Rationale

    • The law presumes that an action is commenced by giving notice directly to the defendant so that they can decide whether or not to appear in court.
    • Unless there is explicit authority for the attorney to receive the summons, the defendant’s fundamental right to notice is safeguarded by requiring personal or substituted service upon the defendant themselves.

B. Duty to Verify Proper Service

  1. Defense of Improper Service

    • If the defendant (client) comes to the attorney after receiving a summons (or upon learning of a case in some other manner), the counsel’s duty is to examine the facts of service—to ensure that the summons was properly served in compliance with Rule 14.
    • If counsel discovers defects in the manner of service, the counsel should promptly file the appropriate motion to dismiss or raise the defense of lack of jurisdiction over the person of the defendant in a motion or in the answer, as provided under the Rules of Court.

  2. Ensuring the Defendant’s Actual Notice

    • Upon being engaged, counsel must ensure the client is aware of the complaint, the allegations, and the period within which to respond. Even if service is regular, it is the counsel’s responsibility to advise the client on the next procedural steps (e.g., filing an answer or a motion to dismiss).

  3. Raising Jurisdictional Objections

    • A counsel who fails to question defective summons or improper service waives that defense if it is not raised at the earliest opportunity. The duty is to protect the client’s interest by invoking the defense in a timely manner, otherwise the court will be deemed to have acquired jurisdiction over the person when the defendant voluntarily appears.

C. Duty of Candor to the Court

  • An attorney must act with candor, honesty, and fairness toward the court. If counsel knows the defendant was never served properly, it is unethical to allow the proceedings to continue without raising the jurisdictional objection.
  • Conversely, if the attorney represents the plaintiff, the attorney must ensure that the addresses provided to the court for service are accurate and updated, and must assist in effecting proper service. It is unethical to mislead the court into believing that a valid service of summons has been achieved when it has not.

IV. Ethical Obligations Tied to Summons

  1. Canon of Professional Responsibility

    • Canon 10: “A lawyer owes candor, fairness and good faith to the court.” This includes disclosures regarding the correctness of addresses for service of summons.
    • Canon 18: “A lawyer shall serve his client with competence and diligence.” Part of diligence is ensuring that procedural rules concerning summons are followed strictly and that defenses tied to defective summons are properly raised or waived as circumstances dictate.
    • Canon 19: “A lawyer shall represent his client with zeal within the bounds of the law.” This includes scrutinizing the validity of the summons and safeguarding the client’s rights from the onset of litigation.

  2. Avoiding Conflicts of Interest

    • A counsel must not aid in deliberately evading service of summons while simultaneously appearing in court to represent the client. Such conduct can be perceived as sharp practice or even professional misconduct, depending on the circumstances.

  3. Prompt Communication

    • The attorney must promptly inform the client of all material developments, including the service of summons (if the client truly has not received a copy) and the consequences of non-appearance.
    • Failure to inform the client that the case has commenced can be a breach of professional responsibility and lead to disciplinary action.

V. Practical Points and Jurisprudence

  1. Actual Appearance or Filing of Pleadings

    • Even if there is a defect in service of summons, once the defendant (through counsel) voluntarily appears and seeks affirmative relief from the court—e.g., files an Answer without questioning jurisdiction—such appearance is equivalent to service of summons and cures the defect. (See Capuz v. Court of Appeals, G.R. No. 92602)
    • Thus, the duty of counsel is to consider, before taking any step other than a “special appearance,” whether to raise the defense of lack of jurisdiction over the person due to defective service.

  2. Specific Authorization Cases

    • Case law highlights that lawyers who receive summons without the requisite special authority cannot bind their clients. The Supreme Court has struck down judgments where the only attempt at service was upon an attorney with no authority to receive summons.
    • For corporate defendants, the Supreme Court often requires proof of a board resolution or a secretary’s certificate designating the attorney to receive summons on the corporation’s behalf. Absent such proof, the corporation is deemed not validly served.

  3. Evasion of Service

    • Attempts by defendants to evade service of summons do not exonerate a lawyer’s ethical obligation. If a client instructs the lawyer to hamper the serving officer or provide misleading addresses, the lawyer must refuse to engage in unethical conduct and must ensure procedural fairness is respected.

  4. Amendments to the Rules

    • The 2019 Amendments to the Rules of Civil Procedure clarified some points on service by email and other electronic means for subsequent pleadings and notices, but summons to commence a civil action (especially for the defendant’s first notice) still generally requires personal, substituted, or by publication under Rule 14. The counsel of record’s role, insofar as receiving the “initial summons,” remains subject to the rule that special authority is needed.

VI. Summary of Duties

  1. Verify Valid Service

    • Check if the summons was properly served on the defendant (if you represent the defendant), or ensure that the correct address and procedure were used (if you represent the plaintiff).

  2. Raise Jurisdictional Objections Timely

    • If service is defective, move to dismiss for lack of jurisdiction over the person or otherwise raise that objection in a timely manner. This prevents waiver.

  3. Obtain Special Authority if Accepting Summons for Client

    • If the client wants the attorney to receive the summons on their behalf, secure a written authorization, typically a special power of attorney or, for corporations, an appropriate board resolution or secretary’s certificate.

  4. Maintain Ethical Standards

    • Act with candor, avoid misleading the court or counsel, and promptly inform your client of any legal process served or attempted.

  5. Avoid Unnecessary Technicalities

    • While safeguarding the client’s rights is paramount, an attorney should not engage in dilatory tactics or abuse technicalities. The duty is to uphold justice within the confines of procedural due process.

VII. Conclusion

Under Rule 14 of the Rules of Court, the service of summons is a foundational step in acquiring jurisdiction over the defendant. Counsel of record plays a critical role by ensuring either:

  • That the defendant (client) is properly informed of the summons and that any defect in service is timely raised, or
  • That, if representing the plaintiff, the summons is properly served so as to validly bring the defendant under the court’s jurisdiction.

The lawyer must always act with competence, diligence, and integrity, guided by both the procedural rules and the canons of professional responsibility. Proper awareness and vigilance regarding the rules on summons protect the rights of both parties and uphold the orderly administration of justice.

Disclaimer: This content is not legal advice and may involve AI assistance. Information may be inaccurate.

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