Topics to be discussed: July 2, 2022 (Saturday) 1. Definition and elements of the practice of law. TERESITA P. FAJARDO, Complainant, v. ATTY. NICANOR C. ALVAREZ, Respondent. A.C. No. 9018, April 20, 2016 The case of Cayetano vs. Monsod (201 SCRA 210) has defined the practice of law as "any activity in and out of court which requires the application of law, legal principle, practice or procedure and calls for legal knowledge, training and experience." People vs. Villanueva (14 SCRA 111) says "it implies the customary or habitual holding of oneself to the public as a lawyer and demanding compensation for his fees." Practicing law doesn't only mean lawyering in the traditional sense. Writing about law as well as teaching it also comes under the definition of "practice of law." Essential Criteria The following indicators must be present to prove that a lawyer is practicing law: 1.) Habituality Customarily holding oneself out to the public as a lawyer. This doesn't mean that lawyers who work in a corporation's legal department aren't practicing law; they are. The corporation, as a juridical person, engages the services these lawyers. 2.) Compensation The lawyer must be in active practice and his professional services are available to the public with the corresponding fees. This includes the lawyer's salary if he works in a government office or the legal department of a private entity. 3.) Application The lawyer must apply his knowledge, training and skills in the practice of his profession. 4.) Attorney-Client Relationship There is a professional relationship between the lawyer and his client. That includes his employment status. Hadjula v. Atty. Roceles Madianda The moment complainant approached the then receptive respondent to seek legal advice, a veritable lawyer-client relationship evolved between the two. Such relationship imposes upon the lawyer certain restrictions circumscribed by the ethics of the profession. As we said in Burbe v. Magulta,6 – A lawyer-client relationship was established from the very first moment complainant asked respondent for legal advise regarding the former's business. To constitute professional employment, it is not essential that the client employed the attorney professionally on any previous occasion. It is not necessary that any retainer be paid, promised, or charged; neither is it material that the attorney consulted did not afterward handle the case for which his service had been sought. It a person, in respect to business affairs or troubles of any kind, consults a lawyer with a view to obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces with the consultation, then the professional employments is established. Likewise, a lawyer-client relationship exists notwithstanding the close personal relationship between the lawyer and the complainant or the non-payment of the former's fees. 2. Nature and characteristics of the practice of law. Basic characteristics of practice of law a. Practice of law is not a matter of right but merely a privilege It is bestowed upon individuals who are not only learned in the law but who are also known to posses good moral character Tan v. Sabandal b. Practice of law is not a money making venture c. Practice of law cannot be assigned or inherited, but must be earned by hard study and good conduct d. Practice of law is a privilege burdened with conditions e. Practice of law contemplates a succession of acts of the same nature habitually or customarily holding one’s self to the public as a lawyer. f. It is reserved only for those who are academically trained in law and possessed of good moral character g. Practice of law is a noble profession and not a business 3. Who are entitled to practice law? RULE 138 Attorneys and Admission to Bar Section 1. Who may practice law. — Any person heretofore duly admitted as a member of the bar, or hereafter admitted as such in accordance with the provisions of this rule, and who is in good and regular standing, is entitled to practice law. 4. What are the requirements to be admitted to the practice of law? Section 2. Requirements for all applicants for admission to the bar. — Every applicant for admission as a member of the bar must be a citizen of the Philippines, at least twenty-one years of age, of good moral character, and resident of the Philippines; and must produce before the Supreme Court satisfactory evidence of good moral character, and that no charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines. Section 5. Additional requirements for other applicants. — All applicants for admission other than those referred to in the two preceding section shall, before being admitted to the examination, satisfactorily show that they have regularly studied law for four years, and successfully completed all prescribed courses, in a law school or university, officially approved and recognized by the Secretary of Education. The affidavit of the candidate, accompanied by a certificate from the university or school of law, shall be filed as evidence of such facts, and further evidence may be required by the court. No applicant shall be admitted to the bar examinations unless he has satisfactorily completed the following courses in a law school or university duly recognized by the government: civil law, commercial law, remedial law, criminal law, public and private international law, political law, labor and social legislation, medical jurisprudence, taxation and legal ethics. Aguirre v. Rana True, respondent here passed the 2000 Bar Examinations and took the lawyer’s oath. However, it is the signing in the Roll of Attorneys that finally makes one a full-fledged lawyer. The fact that respondent passed the bar examinations is immaterial. Passing the bar is not the only qualification to become an attorney-at-law.8 Respondent should know that two essential requisites for becoming a lawyer still had to be performed, namely: his lawyer’s oath to be administered by this Court and his signature in the Roll of Attorneys. 1âwphi 1 In re Argosino In allowing Mr. Argosino to take the lawyer's oath, the Court recognizes that Mr. Argosino is not inherently of bad moral fiber. On the contrary, the various certifications show that he is a devout Catholic with a genuine concern for civic duties and public service. The Court is persuaded that Mr. Argosino has exerted all efforts to atone for the death of Raul Camaligan. We are prepared to give him the benefit of the doubt, taking judicial notice of the general tendency of youth to be rash, temerarious and uncalculating. We stress to Mr. Argosino that the lawyer's oath is NOT a mere ceremony or formality for practicing law. Every lawyer should at ALL TIMES weigh his actions according to the sworn promises he makes when taking the lawyer's oath. If all lawyers conducted themselves strictly according to the lawyer's oath and the Code of Professional Responsibility, the administration of justice will undoubtedly be faster, fairer and easier for everyone concerned. 5. What is legal counseling? Legal counselling is defined as the art of giving advice and information concerning the solution of a legal problem arising from a given state of facts and the adoption of appropriate reliefs or remedies under the law for the satisfaction and enforcement of a legal obligation before a judicial or quasi-judicial body. 6. Importance of legal counseling. There is a need of persons who are skilled in law to represent potential litigants in court. 7. Four (4) fold duties of a lawyer. a. b. c. d. Duty to society or the public Duty to the court Duty to the legal profession or his colleagues Duty to client 8. Basis of duties of lawyers. Section 20, Rule 138 Section 20. Duties of attorneys. — It is the duty of an attorney: (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; (g) Not to encourage either the commencement or the continuance of an action or proceeding, or delay any man's cause, from any corrupt motive or interest; (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. 9. Importance of lawyers in the society. Lawyers as guardians of the law play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship with and function in our legal system. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct. Canon 7 provides that, “A lawyer shall at all times uphold the integrity and dignity of the legal profession…” 10. Why the need to regulate the legal profession? 11. Who can regulate the legal profession? Supreme Court, Phil Const. Article VIII, Section 5(5) 1. Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. Cases: Pimentel v. LEB – case of unconstitutionality of Philsat, as well as certain provisions of RA 7662 In re Cunanan – Bar flunkers 12. When not to accept a case? “Don’t take a case unless you believe in it.” 13. Scope of lawyer’s advice and control A lawyer can only act on matters which his/her client has explicitly given his/her authority to, through a Special Power of Attorney. The lawyer has control only on the procedural aspect of the case. The decision on whether to litigate or not, enter into a compromise agreement or not, or whether to take an appeal should come from the client. 14. Options to pursue the law practice. Solo private practice What to do. You are on your own. You need to buy all the needed equipments Government service i. Litigation ii. Documentary **Note that the national government may or may not have a legal department. They may outsource thru a private firm or thru the OSG. Public Attorney’s Office, DOJ – for marginalized representation **good for early practice Joining a firm Corporate legal department Model to solve legal problems: Identify the problem Identify the relevant and material facts Identify the potential/possible issues Review/check relevant ethical guidelines What law needs to be applied or is applicable? To whom should you consult? Book, research, practitioner, colleagues Consider the possible courses of action Consequences of each course of action Decide between the possible courses of action Document it Cases: In re Medado, BM 2540, September 24, 2013 – Recent cases which did not allow lawyers to sign Patrick and Richard Caronan – July 12, 2016, AC 11316 Jon De Ysasi III v. NLRC, G.R. No. 104599 March 11, 1994 - Role of lawyers in society April 20, 2016, AC 7110, Tulio v. Atty Buhangin AC 9119, March 12, 2018 Cortez v. Atty. Cortez -reasonable fees, Art. 111 Labor Code attorney’s fees 10% Ordinary and extraordinary attorney’s fees. Lawyer cannot get the extraordinary fees, it belongs to the litigant. Legal profession is not a business, payment is only incidental. Reason why lawyer cannot claim: 1. He is already paid. Concept of unjust enrichment. He will be paid twice. 2. Quantum meruit- Canon 20, CPR 1. Time spent and 2. Novelty and difficulty 3. Skill demanded 4. Possibility of losing Feliciano vs. Atty. Lozada, AC No. 7593, March 11, 2015 Suspended lawyer cannot practice law, absolutely. 1965, People vs. Villanueva – isolated appearances in court constitutes practice of law Phil Lawyers Assoc. vs. Agrava, 1959 case, GR No. L-12426 Question: What happens when a lawyer gives a wrong advice, is the lawyer liable? Legal malpractice – error that may be avoided if the attorney exercised Edquibal v. Ferrer, Jr. – AC No. 5687 Standard of care Canon 18 – type of diligence Legal counselling – what is the importance of the lawyer *Advising people – the client, a juridical or natural person. *Facilitate decision making in certain critical matters. Facilitating and influencing. Solve and recommend courses of action and present alternative causes of action. *Counselling can be a preparation or planning for litigation. Role is to structure and prepare client for litigation. *Client may seek advice with different subject matters. To provide an overview. Process of counselling Two functions To help client to talk, to explore and to understand his case. Not only the facts but also the thoughts and feelings, the decision in the mind of the client. To help the client to decide, on his own, as to the solution. Whether to file or not to file with the client. It is important that you have to interview the client. What are the fundamental purpose? 1. You need to gather facts. Primary and main function. 2. Identifying the legal problem 3. Documents that need to be prepared. And the information that needs to be considered. Steps in client interview – initial client interaction 1. Establishing the intent. 2. General information at the initial meeting – means that there is a determination of the concerns for which the client is seeking legal advice 3. Basic difficulties which the client is confronted 4. Client wanting to know what will be the probable likely outcome. Predict the positive and negative consequences. Advantages and disadvantages. Weighing. And presenting to the client the best and most appropriate solution. Concept of ego threat – people will withhold information that may threaten them. The feeling of the client Case threat – client believing that when they reveal the information, it will be detrimental to the case. Role expectation – they will feel that its normal and part of behavior that is appropriate Ethnic Barrier – information she can freely share to some but not to others Trauma – they tend to block information that they don’t want to speak Perceived irrelevancy – there is no need for the information because for them its not relevant Greater need- they would tell you what they need more. How to counter threats. Being emphatic and understandable. Need to tell them that you will not judge them. Putting oneself in the shoes of another. Recognition. Altruistic appeal. There is a higher value beyond self interest. Last issue. Different types of listening. Passive or active listener Passive listening – during the interview 3 types. Being silent, or non-committal acknowledgement. Open ended questioning Active listening- not only listening but also forming questions in your brain. Critical thinker Empathize with your client Different type Open ended – allows clients to provide information willingly (ie. Is there other occurrence, etc), based on recall and freeflow given by the client Disadvantages a. wil give irrelevant information Leading – you know the answer already, leading the client, Going to miss some of the details Yes or no – allowed in court, simply asking the client yes or no, there are disad similar Narrow – lawyers wanting to ask question on specific details Similar Type of exam, essay type. Coverage is all of topics covered.
