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An act of performing any activity pertaining to a bona Why is it important to determine that one is in
fide member of the bar carried out on a habitual or the practice of law?
continuous process, translated into action by means
of giving legal advice, drafting of documents or Practically because we need to know whether you are
appearance in court or any other administrative or entitled to a legal fee or whether you are legitimately
quasi-judicial body, involving the use of faculty or engaged in the practice of law because if you are not,
intelligence of one skilled in law who is entitled to a you can be guilty of violation of our penal laws, i.e.
legal fee . (from the author of the book). usurpation of official functions.
::an act of performing any activity pertaining to a Atty. Monsod was a nominee for the position of
bona fide member of the bar- You must not be a COMELEC Chair. Atty. Cayetano questioned the said
student! You must be a member of good standing of nomination of Atty. Monsod because one of the
the Philippine bar. requirements for the position is that the person must
have practiced law for the last 10 years. Atty. Monsod
::carried out in a habitual or continuous process - Pag is not a lawyer in a law firm.
once molangginawa, nagbigay ng advice,
hindisyamaconsider as a practice of law. There must ISSUE: WON Atty. Monsod was engaged in the
be a pattern of doing things so that we can conclude practice of law.
that an individual is engaged in the practice of law.
HELD:
:: Translated into action by means of giving legal Practicing law is not limited to the conduct of cases in
advice - It must be legal advice. We are talking about court. A person, for a valuable consideration, engaged
the practice of law. You should give possible ways in the practice of advising persons, firms, associations
allowed under the law. For example if somebody or corporations as to their rights under the law or one
comes up to you for advice regarding a philandering who appears in a representative capacity as an
husband, you cannot say nawalanghiyatalaga yang advocate in proceedings is considered practicing law.
husband mo, o sige, ipaputolmo yang credit card
niya! Thats not the legal advice we are talking about.
Instead, you should think of the possible ways or
II.
actions she may pursue under the Family Code. What WHAT IS LEGAL COUNSELING AND
are the ways she can do to protect her children? How WHAT IT IS NOT
can she get support? Etc.
A. Practice of Law is NOT a:
:: Drafting of documents-This is very much a part and
parcel of the practice. Examples are demand letters. 1. Business. The practice of law is not about profit.
:: Appearance in court- Not necessarily. There are a Members of the bar often forget that the practice
lot who are in the practice of law who does not of law is not a money-making venture and law
appear in court. In fact, I know a lot of them but they advocacy is not a capital that necessarily yields
are mostly seniors by now. They find going to court profit. The gaining of livelihood is not the
such a waste of time. They send junior lawyers to file primordial but a secondary consideration ( Burbe
the motions. So where can you find them? In the vs. Atty. Magulta).
golfcourse! You see, you can get into areas of Duty to public service and to the administration
lawyering which does not require going to court. of justice should be the primary consideration of
lawyers.
::or other administrative or quasi-judicial body- so
Lawyer must subordinate personal interest. It is a
that is still practiceof law,appearance before the SEC,
noble calling in which emolument is just a by-
NLRC, or other administrative bodies.
product and the highest eminence may be
attained without making much money.
:: involving the use of faculty or intelligence -
applying all that you have learned and all aspects of
Atty. Angeles: The practice of law is more than just a
your training and education, e.g. statutes, provisions,
1|Bing Datu
Legal Counseling
Basedon the Lectures of Atty. Angeles
III-Manresa 2014-15
business, it is nobler than that. As a lawyer you must and other properties after the break-up becomes
be instrumental to the dispensation of justice. a legal problem as it now involves property
Remember, however, that when you set up a law rights.
office, you must be able to maintain that office. You
must strike a balance between earning to survive the given state of facts - Minimum requirement is to
practice and keeping your practice an honest deal with facts. Avoid hypothetical or theoretical
undertaking, not making profit the primary objective. situations.
Definition: It is the art of giving advice or information Definition: It is a branch of moral science which treats
concerning the solution of a legal problem arising of the duties which an attorney owes to his client, to
from given state of facts and the adoption of the bar, to the court and to the public.
appropriate use of remedies under the law for the
satisfaction and enforcement of a legal obligation A. Duties of a Lawyer
before a judicial or quasi-judicial body. 1. to the client - Ensure that the client is advised of
the progress of the case. More importantly, you must
giving advice or information - It is either be honest, even in your expections of the case ---
preventive or curative. Curative means trying to Does it have a chance? Do not give your client false
remedy the problem without necessarily bringing hope.
the subject matter before the court for
adjudication. 2. to the bar or fellow lawyers - a lawyer is never a
loner, he is part of a community of lawyers. Hence, if
solution of a legal problem - Does not include the Bar Association calls on you for help, if time
social problems (Atty. Angeles talking about the permits and if your resources would allow, you extend
movie of John Lloyd and Bea where everyone is your services to the Bar.
crying). If it is not a legal problem, there is no 3. to the court
legal counseling. HOWEVER, in a case of 4. to the public
common-law partners, who acquired a
condominium, the issue of who owns the condo Code of Professional Ethics
2|Bing Datu
Legal Counseling
Basedon the Lectures of Atty. Angeles
III-Manresa 2014-15
Canon 7: A lawyer shall at all times uphold the make any difference that no contract whatsoever was
integrity and dignity of the legal profession and executed by the parties to memorialize their
support the activities of the Integrated Bar. relationship.
Rule 7.03: A Lawyer shall not engage in conduct A lawyer-client relationship is established at the very
that adversely reflects on his fitness to practice law, first moment complainant asked respondent formal
nor shall he, whether in public or private life, behave advice regarding his business.To constitute
in a scandalous manner to the discredit of the legal professional employment, it is not essential that the
profession. client employed the attorney professionallyon any
previous occasion. It is not necessary that any
As officers of the court, lawyers must not only in fact retainer by paid, promised, or charged; neither is it
be of good moral character but must also be seen to material that the attorney consulted did not afterward
be of good moral character and leading lives in hand the case for which his service had been sought.
accordance with the highest moral standards of the (Burge v Magulta)
community. More specifically, a member of the Bar
and officer of the court is not only required to refrain
from adulterous relationship or the keeping of C. Client's Funds and Property
mistresses but must also so behave himself as to
avoid scandalizing the public by creating the belief Rule 16.01: Lawyers shall hold in trust all moneys of
that he is flouting those standards. Tolosa v Cargo, their clients and properties that may not be in their
Adm. Case No. 2385, March 8, 1989. possession. Office accounting must separate client
funds properly from own funds.
Atty. A: Integrity and dignity of the legal profession is
not only limited to work but involves your personal Lawyers who convert the funds entrusted to them are
life. As lawyers we should be mindful of certain in gross violation of professional ethics and guilty of
things, we cannot totally separate our lives from the betrayal of public confidence. It may be true that a
public. The legal profession sets a high standard lawyer has a lien over the clients' funds but you
because we want to be removed from the multitude cannot unilaterally apply the money given for a
because we perceive our profession as a noble calling different purpose to pay for your own services.
and only people who have strong convictions can
really attain that status. D. Conflict of Interest
B. When does a lawyer-client relationship A lawyer conferring with a prospective client shall
begin? ascertain, as soon as practicable, whether or not the
matter would involve a conflict with another client or
The moment complainant approached the then his personal interest.
receptive respondent to seek legal advice, a veritable
lawyer-client relationship evolved between the two.
Such relationship imposes upon the lawyer certain CANON 15 - A LAWYER SHALL OBSERVE
restrictions circumscribed by the ethics of profession. CANDOR, FAIRNESS AND LOYALTY IN ALL HIS
Among the burdens of the relationship is that which DEALINGS AND TRANSACTIONS WITH HIS
enjoins the lawyer, respondent in this instance, to CLIENTS.
keep inviolable confidential information acquired or
revealed during legal consultations (Hadjula vs.
Rule 15.01 - A lawyer, in conferring with a
Madianda).
prospective client, shall ascertain as soon as
practicable whether the matter would involve aconflict
The moment the complainant approached the
with another client or his own interest, and if so, shall
respondent to seek legal advice, the lawyer-client
forthwith inform the prospective client.
relationship has already established. Such relationship
imposes upon the lawyers certain restrictions
circumscribed by the ethics of the legal profession to Rule 15.02: A lawyer shall be bound by the rule on
keep inviolate confidential information acquired or privilege communication in respect of matters
revealed during the consultations. disclosed to him by a prospective client.
The fact that one is (lawyers in a partnership or a law Atty. Angeles:So, this requires us to be transparent
firm), at the end of the day, not inclined to handle the with our clients. If there is a prospective client, you
client's case is hardly of consequence. Of little have to do your own conflicts check. This is very
moment is the fact that no formal professional important because when something arose as a
engagement follows the consultation nor would it conflict of interest, you may be sued for malpractice.
3|Bing Datu
Legal Counseling
Basedon the Lectures of Atty. Angeles
III-Manresa 2014-15
Rule 15.03: A lawyer shall not represent conflicting A private law firm offers better opportunities. This
interests except by written consent of all concerned could be attained by organizing a law firm among
given after a full disclosure of the facts. your classmates or by joining into a partnership with
some familiar friend lawyers who are well-to-do and
Atty. Angeles:So, if you have a prospective client that financially capable of satisfying the overhead
is too valuable to lose, and you tell your managing
expenses of maintaining a law office. You may
partner about it. What they usually do is to prohibit
access of information of that particular client, and likewise agree with your partners to bring in your old
pinpoint the names of such people who are granted tables, chairs and typewriters from home to open a
access. So that when the clients information leaks, temporary open space, and your old textbooks for a
you already have a list of possible suspects for such small library. And for the payment of office rentals,
leakage. communications, telephone and secretary services,
you may agree to contribute equal amounts ,or take
In the case of Robert West vs Batacan: No
conflicting duties as that is a rule founded on public sufficient amount from the common fund of the office
policy. In all aspects, you have to avoid appearances earnings.
of double duty especially for people who pay us!
C.LEGAL OFFICER IN PRIVATE CORPORATION
Another test of the inconsistency of interests is Joining a corporate law department has its advantage
whether the acceptance of a new relation will prevent
vis--vis other options. For aside from an offer of
an attorney from the full discharge of his duty of
higher salary corporations likewise dole out generous
undivided fidelity and loyalty to his client or invite
suspicion of unfaithfulness or double-dealing in the pecuniary and fringe benefits not usually enjoyed
performance thereof, and also whether he will be from a private law firm. But the disadvantage lies in
called upon in his new relation to use against his first the fact that once a lawyer has stuck up with a
client any knowledge acquired in the previous corporate legal position, he finds it difficult to go into
employment. The first part of the rule refers to cases private law practice later on for fear of losing a higher
in which the opposing parties are present clients
paying job.
either in the same action or in a totally
unrelated case; the second part pertains to those in
which the adverse party against whom the attorney -CORPORATE POLICY
appears is his former client in a matter which is Every corporate law department adopts a system
related, directly or indirectly, to the present by which lawyers work is assigned. As a matter of
controversy. practice, it is the general counsel who makes the
assignment or he may delegate this function to an
associate who is an officer of the corporation with
IV. vast experience in law practice. Anyway, the system
in corporate law departments is much the same as in
OPTIONS FOR A LAWYER
private general practice. The lawyer builds his own
practice by attracting clients who voluntarily come to
A. SOLO PRIVATE PRACTICE him for advice. The important criterion of his success
as a lawyer is the number of clients who seek him out
While a solo practice enjoys he advantage of being and the significance of matters they bring to him. The
his own boss, can regulate the amount of work and is corporate policy must be to comply with the law as
not accountable to anyone except himself, yet not the law department construes it and all officers and
being able to establish a name for himself in his initial other management employees and all of the lawyers
practice, oftentimes finds difficulty in attracting good in the law department must know this to be the
paying clients. Without a strong recommendation case.( Barte citing Omeana, The Business
from a friend or relative who can vouchsafe for the Lawyer)
lawyers dependability and ability to match his skills
with a veteran adversary, or unless the client is a -How do you join a corporate law department?
family friend or a classmate who needs no -Referrals; recruitments
introduction, no client will gamble his rights and -Pluck out of private practice
interests with an inexperienced lawyer.
D. Government Employment
B.ASSOCIATE/PARTNER in PRIVATE LAW FIRM
4|Bing Datu
Legal Counseling
Basedon the Lectures of Atty. Angeles
III-Manresa 2014-15
Biggest single employer of lawyers get stuck up to your job with a well-paying salary,
Ex. If you are a Senator but not a lawyer, out of the you find it difficult to leave the same employment
700M pork barrel they will hire the best lawyers. Make which guarantees your future security like being
sure you get the best minds who do not copy
entitled to a GSIS pension upon retirement. The
speeches which have not yet been delivered before!
You will be guilty of plagiarism. better option therefore for those who intend to
Salary depends on salary grade, but generally high pursue a private law practice is to seek government
assure you of a steady income. But my advice is if employment for the purpose of acquiring
you are looking for a govt position make sure you specialization and experience in specific fields like
have experienced other positions before you go into immigration cases, insurance, tax cases, and labor
govt positions. Make sure its not your 1st job as a cases, and after a stint of say, five years, and you feel
lawyer. Spend 5-10 years. Look at it as a jump off
adequately prepared already to stand on your own
point to other opportunities.
Government employment covers all branches of the feet, then it is time to open a private law office.
government Legis, Exec, Jud
Constitutional Commissions Non- Government Organizations
Dept of Justice mother dept of the prosecution -Advocacy Groups
service -Charitable Organizations
All other departments have their respective legal
departments
Provincial and municipal levels of the government V.
Government-owned and controlled corporation; MAJOR AREAS OF
Government Financial Institutions
No reason for you to be unemployed.
SPECIALIZATION
The Judiciary, which includes the judges from the
MTC all the way to the Supreme Court, the Clerks of A. Transactional/Commercial
Courts, researchers.
Requires the development of knowledge on setting-up
Advantages or initiating a business transaction from the beginning
Steady income; future GSIS pension of the process to closure of the transaction.
Generally not as stressful as private practice Example: Client wants to set-up a family corporation,
Room for advancement in the bureaucracy the lawyer needs to know the sharing of stocks
For couples with young children, wife-lawyer usually amongst the family members if so desired by the
finds government position accommodating to client, the paperwork and government agencies
domestic schedule involved, as well as the tax aspect of business, etc.
o Depends what agency. DFA, DTI high Example client is opening a foreign exchange store;
pressure need to know BSP rules
Develops expertise that may be useful in private Example client has several buildings rented out;
practice lawyers is retainer for this business; a lawyer needs
to know rental law, law on eviction, etc
Disadvantages Example client has a fleet of PUJs; lawyer needs to
Some lawyers are hesitant to get out of their know rules on franchising
comfort zone.
Working in the bureaucracy can be frustrating to This includes:
idealistic lawyers. o Land transaction e.g. buy & sell,
mortgages
COMMENTS from Bartes book: o Estates, succession
o Franchising
o Communications
Joining the government service for a new lawyer has
o Agrarian
its advantages and disadvantages. Of course those
who were already in the service before taking the bar, B. Litigation
simply utilize their profession for further promotion to
higher positions in the offices and agencies in which Lawyer who takes up court litigation as a
they are already in the government before taking the specialization must know the rules of procedure
bar have decided to take up law in order to be and evidence by heart.
Problem of backlog and court cases also spring
entitled to higher salaries once they become lawyers
from the fact that many practitioners are not
who qualify for managerial jobs. The disadvantage prepared to be litigators.
however of joining the government is that once you
5|Bing Datu
Legal Counseling
Basedon the Lectures of Atty. Angeles
III-Manresa 2014-15
Litigation also encompasses modes of alternative file, even if its just for reviewing, you have to have a
dispute resolution. record for what you did for the file. E.g. 1. Read
research material for franchising (Time spent: 1
VI. hour). 2. Drafted opinion letter (Time spent: 30
GENERAL PRACTICE minutes). So that at the end of the month, you can
present to your client what you have done and he
A mix of both litigation and transactional areas of easily sees a chronology of the events. The timeline
law practice in small cities, towns and rural areas
also works as a review for the lawyer himself. You
have to track your work. This includes every pleading,
VII.
communication or conversation done like text
OPENING A LAW OFFICE message or long distance calls, research, etc.
6|Bing Datu
Legal Counseling
Basedon the Lectures of Atty. Angeles
III-Manresa 2014-15
2. Extraordinary Concept
Attorneys fee is an indemnity for Where there is no mention of a special retainer fee in
damages ordered by the court to be the retainers contract, it cannot be presumed that
paid by the losing party in litigation. lawyer waived his right to entitlement of
Basis: 2208 of the Civil Code compensation for services actually rendered in a
Payable to prevailing party, not to the
case in the absence of proof to the contrary.
lawyer, unless the client has agreed that
award shall pertain to the lawyer as
additional compensation or part thereof. The basis for the compensation would be quasi
contract. As embodied in our law, certain lawful,
B. Two Kinds of Retainers Fees voluntary and unilateral acts give rise to the juridical
Operational Retainer (Retaining Fee) relation of qua-contract to the end that no one shall
be unjustly enriched or benefited at the expense of
7|Bing Datu
Legal Counseling
Basedon the Lectures of Atty. Angeles
III-Manresa 2014-15
another. (Articles 1157 and 2142, Civil If case is lost, no payment of fee.
Code)(Traders Royal Bank, supra.) If whats agreed upon is unconscionable,
court may step in to make it reasonable.
C. Guidelines in Ascertaining the Real Worth of Atty.Angeles: There was one case class. It was
a Lawyers Services proven that while the case was going on, the partners
of the firm went into the spa for a facial, a massage,
1. Rule 20.01, Canon 20, Code of Professional pedicure, and manicure, and even beauty products!
Responsibility - A lawyer shall be guided by the They had a lot of visits and these were listed and
following factors in determining his fees: accounted for by their client, which was a SPA clinic.
a) The time spent and the extent of the services So the client said that we already paid you in the
rendered or required; form of services that we gave you. The firm insists,
b) The novelty and difficulty of the questions on the other hand, that the agreement was for
involved; 20Million pesos. The court ruled that the firm cannot
c) The importance of the subject matter; collect anymore. The fee was unconscionable, and
d) The skill demanded; there was already a payment through the services
e) The probability of losing other employment as given, and the products taken from such clinic.
a result of acceptance of the proffered case;
f) The customary charges for similar services and 4. Other Factors
the schedule of fees of the IBP chapter to which Business-like approach in fixing and payment
he belongs; of fees
g) The amount involved in the controversy and Other unexpected incidents
the benefits resulting to the client form the Transportation and representation expenses
service; Appearance fees
h) The contingency or certainty of compensation; Expenses to be incurred in perfecting an
i) The character of the employment, whether appeal
occasional or established; and
j) The professional standing of the lawyer. X.
BUSINESS
2. Contract of Employment
Highly recommended although not
DEVELOPMENT/MARKETING
required FOR LAW PRACTITIONERS
Case of Traders Royal Bank
Maybe express or implied, verbal or Getting your name out there.
written.Anything not in writing can easily be Big law offices have rainmakers, the rest of
denied, so it is recommended to put it in lawyers do not develop their books of business.
writing. Aim for sustainability of practice
If lawyer discharged without cause, o To achieve success in their legal careers
entitled to full compensation. o To promote growth in their law offices
If lawyer discharged with cause, not
entitled to compensation either on the A. Strategies Marketing is a Contact Sport
written contract or on quantum meruit. Pursue profile and confidence building activities;
(e.g. negligence on the part of the e.g. speaking engagements, publishing articles
lawyer, or it was mishandled). Establish targets identify types of work and
Rule above applies when lawyer clients
abandons the case or withdraws Identify 3-4 business activities in a year
without justifiable cause before its o Something lawyers like and does
termination, unless with consent of naturally
client. o Get active in trade organizations
Support execution
3. Contingent Fee Contract Check results vis--vis your financial plan so that
As long as the contract is not tainted with success can be measured
fraud, undue influence, malice or
suppression of facts on the part of the B. Important Considerations
lawyer, terms of the contract shall be Know what your clients value
implemented against the portion of the Know your goals short term and long term
clients property subject of the contract, not Know your resources
only if the suit or litigation ends favorably to
the client. C. Following 4Ps of Marketing
8|Bing Datu
Legal Counseling
Basedon the Lectures of Atty. Angeles
III-Manresa 2014-15
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Legal Counseling
Basedon the Lectures of Atty. Angeles
III-Manresa 2014-15
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III-Manresa 2014-15
6. Time Management Any time before a case is filed and during the
course of the court proceeding, consider
XIII. alternative dispute resolutions with the end in
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III-Manresa 2014-15
view of setting the matter amicably between 8. Names of witnesses and substance of their
parties- exhaustion of administrative remedies, intended testimony
counselling, etc. List of documents or object evidence and their
intended purpose; if these were not identified in
the pre-trial, then they shall not be admissible
during the trial except if allowed by the court for
XIV. good cause shown. (source: lifted from the
CASE PRESENTATION article of Atty. Cesar Tirol)
Suggested format of a pre-trial brief a) Court does not know your case. Hence, case
1. Nature of the case- Brief statement of the must be presented as simply as possible of
cause of the action the issues involved, in a concise manner,
2. Issues of law- brief citation of laws and using appropriate language.
jurisprudence b) Brief should lessen the burden of the
3. Willingness to compromise appellate court in the examination and not
4. Willing to submit to ADR make the task of review difficult.
5. Admission of facts and genuineness of the c) Every argument must be supported by
execution of documents citation of authorities indicating page or
6. Identification of facts remaining and page of the record where such authorities
exclusively for trial are cited and transcript of stenographic
7. Reference of factual issues to a notes, where testimonial or documentary
commissioner evidence can be found.
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