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GAYYA, LORENZO LUIGI T.

(4B)
Legal Counseling and Social Responsibility
Essay

Problem Areas in Legal Counseling Today


Tempering the clients expectations

Law students are taught, and law practitioners are reminded, that a good lawyer
is one who is ethical and who upholds the rule of law. But for the rest, a good lawyer is
one who wins, period. When a person has a legal problem, he engages the services of
a lawyer and expects the latter to solve the problem, and anything less is considered
unsatisfactory. Thus, one challenge lawyers must address is keeping their clients
expectations in check. There must be a conscious effort on the part of lawyers to make
their clients understand that they will not always have their way, and that they should
always keep open minds to alternatives that may be best given the circumstances.

It is thus advisable for a lawyer, after having a firm grasp of the facts and
situation of his client, to present to his client all available options on how to approach
the case, specifying the pros and cons of each. Likewise, the lawyer must be ever
candid to the client with respect to the possibilities and scenarios they may end up with
as they work the case. For instance, suppose that a person engaged the services of a
lawyer to assist him in collecting P1 million from his debtor. It may be improper,
although not legally wrong, for the lawyer to just outright send a demand letter followed
by a collection suit. Instead, the lawyer should try to propose other options such as loan
restructuring, or, if a case was already filed, entering into a compromise agreement.

The same is true in criminal cases. The accused, especially those with money,
hire lawyers expecting them to secure their acquittal. Worse, some accused who are
actually guilty seem to think that lawyers have magic wands they can use to relieve
them from the consequences of their crimes. Law students have probably gotten used
to their friends jesting, Pare, pag ako nakasuhan at nakulong, ikaw nang bahala sakin
ah. It may seem to be an innocuous joke, but it actually represents how most people
see lawyers. An accused must understand that his lawyer is not there for the sole
purpose of having him acquitted. The lawyers role in criminal cases is 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.1

1
Rule 138, Sec. [i], Rules of Court
How far should a lawyer go in assisting a client?

This is still related to the preceding topic. Because of clients high expectations,
lawyers, especially those who are still new and out to make a name for themselves,
may be pressured to do everything to appease their clients wishes, even if it means
transgressing legal and ethical boundaries. After all, lawyers reputation is built through
consistent success in handling cases and, of course, the good word of their former
clients. For many lawyers, that may be enough incentive to brush aside from time to
time the first canon of the Code of Professional Responsibility: A lawyer shall uphold
the constitution, obey the laws of the land and promote respect for law and legal
processes.

If a client asks the lawyer to bribe someone to facilitate a certain transaction,


should the lawyer follow his clients instruction? Suppose a case is already lost and
execution is already underway and yet the client insists on filing several dilatory
motions, should the lawyer accede? There are some of the dilemmas a lawyer faces
every once in a while. Of course, it is easy to go by idealism and just say that the lawyer
should never tolerate their clients illicit desires. But that is not always the case in reality
where there is a constant tug of war between the lawyers primary duty to society, on
one hand, and the lawyers fidelity to his client who will pay him and would put up a
good word for him, on the other.

Lawyers should thus be reminded that they are not mere tools for the attainment
of their clients wishes. They are there to assist their clients in availing of legal channels
to protect their rights and interests.

Meanwhile, it may not be fair to put all the blame on the client. Lawyers are
sometimes the ones guilty of offering advices to pursue an illegal or unethical course of
action to which the clients may unwittingly oblige.

What constitutes an illegal advice?

Rule 1.02 of the Code of Professional Responsibility says that a lawyer should
not counsel or abet activities aimed at defiance of the law or at lessening confidence in
the legal system. The American Bar Associations Model Code of Professional
Responsibility has a similar provision: A lawyer shall not counsel or assist his client in
conduct that the lawyer knows to be illegal or fraudulent.2 A question may then be
asked: What is the yardstick in determining whether a certain conduct or activity is
illegal or not for purposes of Rule 1.02? It is easy when it comes to conduct which is

2
DR 7-102, Model Code of Professional Responsibility
patently unlawful such as bribery, falsification or other crimes defined by statute, but it
may not be so for other forms of conduct. For instance, may a lawyer validly advise his
client to willingly violate a contractual agreement or renege on the same in bad faith?
This matter is tackled in an article titled How Far May A Lawyer Go in Assisting a Client
in Legally Wrongful Conduct?3 by Professor Geoffrey C. Hazard, Jr., one of the most
prominent figures in legal ethics in the US. Professor Hazard proposes that there is a
violation of the lawyers duty not to counsel or assist his client in an illegal or fraudulent
conduct if the following elements concur: (1) The client is engaged in a course of
conduct that violates the criminal law or is an intentional violation of a civil obligation,
other than failure to perform a contract or failure to sustain a good faith claim to
property; (2) The lawyer has knowledge of the facts sufficient to reasonably discern that
the client's course of conduct is such a violation; and (3) The lawyer facilitates the
client's course of conduct either by giving advice that encourages the client to pursue
the conduct or indicates how to reduce the risks of detection, or by performing an act
that substantially furthers the course of conduct4. Professor Hazard, however, posed the
following questions at the end of the article:

Should lawyers have a privilege to provide assistance


to clients of a kind that could not lawfully be provided by
persons who are not lawyers? Should the license to practice
law not only allow lawyers to provide assistance requiring
professional legal judgment, but also permit them to provide
assistance that otherwise would constitute complicity in an
intentional tort or crime? This author thinks not; the inquiry,
however, goes on.5

Lawyers should thus exercise prudence in the counseling and advising their
clients to the end that they would not be promoting a violation of the law.

3
Geoffrey C. Hazard Jr., How Far May A Lawyer Go in Assisting a Client in Legally Wrongful Conduct?, 35 U. Miami
L. Rev. 669 (1981) Available at: http://repository.law.miami.edu/umlr/vol35/iss4/3
4
Ibid.
5
Ibid.