Ateneo - Legal Profession Reviewer 502fx

Legal Professions Notes

Vena V. Verga

LEGAL PROFESSION NOTES Atty. Sundiam I. Why am I here in law school? - How to the bar? II. Rights and Priveleges of a Lawyer - Duties and Obligations of a lawyer III. Different fields of Lawyers IV. Integrated Bar of the Philippines Chapter 1: Why am I Here in Law School? How to the Bar? Legal Profession

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is not a trade, not a business, is not a craft, not a profession, but a noble profession. Its basic ideal is to render service and secure justice tot hose who seek its aid. If it has to remain an honorable profession and attain its basic ideals, its should not only master its tenets and municipals but should by their lives accord continuing fidelity to them. Noble profession – even without money you can be compelled by law to render your services Terminology: 1. Lawyer 2. Attorney

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Attorney-at-law  a member of the legal profession

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advocate  advocates something legal; something in court

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attorney-in-fact  may be a lawyer or not  power of attorney – authorized to do a specific act while a person is absent  agent / representative of someone absent barrister  member of the bar counsel counselor / counselor-at-law proctor solicitor

Lawyer class of persons who by license are officers of the court and who are empowered to appear in court to prosecute, and defend, and on whom peculiar duties and responsibilities and liabilities are devolved by law as a consequence o licensed – the bar o empowered – only lawyers are allowed to appear in court

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considered as quasi-judicial officers become officers as they appear in court

Qualifications for ission in the Legal Profession 1. Filipino citizen – can be natural-born or naturalized 2. Must be a resident of the Philippines 3. In oath-taking – must be at least 21 years old 4. No conviction of crime involving moral turpitude 5. No charges in court of crimes involving moral turpitude that are filed or pending against you  crimes involving moral turpitude o all crimes punished under book 2 of the RPC o 1 crime which does not involve moral turpitude – art. 365 reckless imprudence – a quasi-offense; there is no intent to commit the act o not convicted in Philippine courts 6. Submit 3 affidavits presented by 3 respected people o who will attest under oath hat you have good moral character. If you cant submit 3 affidavits of good moral character, you cant take the bar  No need to be charged in court to be disqualified  In bad moral character, no case is needed to be filed in court  It may be a sin against the church, but not against the state o Goes on until death Enumeration of instances ruled as bad moral character by the Supreme Court 1. false statement in your application to take the bar any error will disqualify one from taking the bar 2. Falsification of affidavit of good moral character 3. Impersonation of another person Using another person’s school transcript 4. Conviction and charge of crime of moral turpitude 5. Living of an adulterous life Even if there are no charges against you 6. Entered into a bigamous marriage 7. Involvement in a bar anomaly even if acquitted or absolved. Must prove beyond reasonable doubt 8. unauthorized representation of self as a lawyer

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Legal Professions Notes

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issuance of bouncing checks estafa and against RA 2022 unethical and questionable checks Concealment of a material fact Obtaining credits through concealment of material facts

Educational qualification – 4 years pre law; 4 years law proper the bar the only professional test not under the control of the professional regulation commission It is given by the Supreme Court It is only held in Manila and everyone takes it all at the same time No such thing as partial ing o fail one, fail all; fail one; repeat all o ing: 75% no subject should be below 50%

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can only be taken 3 times, on the 4 th take, must go back to 4th year law school and get a certification (as a refresher course); 7 th take, go back to 4th year again, and so on…

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istrative order by the Supreme Court which will take effect on July 15, 2004; you can only take the bar 5 times, if you fail by that time, you will be forever disqualified o Before 3rd and 5th take, take a refresher course o There will be a board of examiners held on all the 4 Sundays of September in DLSU 8:00 – 12:00 nn and 1:00 – 5:00 pm o 1st Sunday: Political Law and Labor Law

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2nd Sunday: Civil Law and Taxation 3rd Sunday: Commercial Law and Criminal Law

4th Sunday: Remedial Law and Legal Ethics & Practical Exercises all applicants names are published in the newspaper o BEFORE and AFTER the bar o So that anyone who wants to oppose an applicant can still go to the Supreme Court You cannot learn in one night what you must learn in 4 years Name in the application should be the same name in his/her birth certificate Pitfalls in taking the bar: 1. Because of the law school where you came from a. Teachers not good b. Inadequate materials c. Bad foundation 2. Examiners do not know how to express themselves

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Poor penmanship

9. Oath0taking – 4 tickets 10. g the book for attorneys – roll number for life 11. hip in the IBP

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IBP #, date of issue, place of issue  requirement for every pleading filed in Court

Chapter 2: Rights, Privileges, Duties, and Responsibilities of a Lawyer Rights and Privileges 1. To practice law in judicial, quasi-judicial, and istrative tribunals (all courts in the Philippines a. Judicial – regular courts b. Quasi-judicial – NLRC c. istrative – SEC 2. To seek in judgment in every case and set the judicial machinery in motion (as quasi-judicial officers, lawyers are parts of the courts) 3. To seek positions in all courts, prosecution offices, and other legal departments in government offices 4. To enjoy the presumption of regularity (done in good faith) 5. To enjoy immunity from liability so long as he has not materially departed from his character as a quasi-judicial officer 6. A statement made by a lawyer in court, of relevant, pertinent and material to the issue and subject of inquiry is absolutely privileged despite its defamatory tenor and presence of malice 7. Stand up for your right and even in the face of a hostile court or judge because you are allowed great latitude of pertinent comment stand up for your right the bench is the symbol of his authority – respect it 8. in ing the bar, you are a first grade (requires knowledge of the law) civil service eligible second grade – no knowledge of law  in government service 9. As a lawyer, you are seen as a model citizen and a leader in the community 10. As a lawyer, given the privilege of authority to be appointed in executive and legislative positions in the government Duties and Responsibilities 1. Maintain allegiance to and the constitution of the Philippines and obey its laws 2. Maintain respect to the courts the bench on which the judge sits 3. Maintain or counsel only those actions or proceedings you believe are honestly debatable under the laws best aversions are your clients 4. Employ only means that are consistent with truth and honor and never to mislead or make false statements of facts and the law

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Legal Professions Notes

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everything you say is recorded falsus inomnibus – caught lying once, deemed to lie everywhere avoid using dirty tricks subject to criminal liability and disbarment Keep the secrets of your clients client-lawyer privilege communication rules of court – does not allow priests To act accordingly when appearing in courts

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act appropriately in courts with no offensive personality come on time – late: case can be dismissed for failure to prosecute eating gum, reading newspaper, etc 7. not to encourage either the commencement or continuance of an action or delay any man’s cause for corrupt motive or intent knowing that the case has corrupt motive 8. Never to reject for any monetary reason or personal considerations the case of the defenseless or oppressed 9. Regardless of opinion, present the defense of the accused by fair and honorable means that the law permits so that no person may be deprived of life or liberty but by due process of law. can use any means to defend client 10. Don’t delay justice  Subordinate your personal duties and interest to those without you owe the court as a quasi-judicial offer and to your client Chapter 3: Practice of Law and the Different Fields in which I can Engage in  There is no exact definition  Widely Accepted definition o To do any of those acts which are characteristic of the legal profession embracing activities in or out of court which require the application of law, legal principles, practice, or prudence and calls for legal knowledge, training and experience  Can be out of court as long as he applies knowledge of law in what he was doing  Restrictive definition o Practice of law implies customarily or habitually holding one’s self out to the public as a lawyer for compensation as a source of livelihood Three parts 1. Practice of law in the regular courts when you have control and management over the proceedings in court 2. Practice of law before other government agencies other than the courts when present evidence before them and make interpretation and application of the laws

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ex. For the BIR Practice of law outside of the courts and other government agencies when you give legal advice, prepare and execute legal documents and instruments – practice law outside of courts and other government agencies

Who may practice law? (or continue to practice law?)  Any person who has been duly licensed as a member of the bar in accordance with the statutory requirements and is in good and regular standing Statutory a. b. c.

requirements educational (pre-law), moral and other qualifications the bar take your oath

How to remain in good and regular standing?  continuing requirements til death a. remain a member of the integrated bar of the Philippines b. regularly pay all IBP dues and other assessments (depends on the chapter) c. pay privilege tax (on or before Jan 20 of every year) d. faithful observance of the rules and ethics of the legal profession i. continuous good moral character e. continually subject self to the disciplinary control and supervision by the Supreme Court and the IBP Fields of Specialization A. Government Service 1. Member of the Supreme Court a. Nominated by judicial bar council and appointed by the President 2. Member of the Court of Appeals a. 69 ; 23 divisions, 3 in each (1-17 division Manila, 1820 division Cebu. 21-23 division Cagayan De Oro) b. Meet en banc to decide istrative matters c. Cases are raffled – division decides; not decided; there is a special division created with 5 (3 wins), majority is the ponente d. Salary Php 28,000; receive Php 24,000

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Allowance Php 15,000 with 13th month pay i. Plus: Xmas bonus Php 20,000; JDF Php 3,000; Car (Php 5,000/month gasoline, driver and plate #10) RTC Judge a. Workhorse of the judiciary – perform some appellate functions

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Court of 1st instance – where the trial is done c. Salary; bonus; JDF; Plate# 16 Municipal Trial court Judge / Metropolitan Trial Court (city) a. Court in each municipality

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Legal Professions Notes

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b. Plate number 18 Sandiganbayan a. Hears cases which involve public officials b. A trial court heard by a division c. Salaries and privileges same as Court of Appeals Court of Tax Appeals a. Hears cases which only involve tax issues b. A trial court c. Decisions directly appeal able to the Supreme Court

 Appointed by the President, from a list of nominees submitted by the Judicial Bar Council Retire: 5 year lump sum 76 years old onwards: receive salary again every month until you die 7. 8. 9. 10.

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Shariah Courts Jurisdiction to solve controversies of the Koran / Muslim Law Ombudsman Watchdog of government offices Court supervises all courts in the Philippines Judicial bar Council a. Composed of 7 people b. CJ as chairman, Sec as secretary, HRET representative, former SC, representative of Academe, Law professor, Representative of Private Sector Arbiter: National Labor Relation Commission a. Hear cases regarding labor b. Divisions of 3 Commissioner of COMELEC Fiscal a. Lawyer of the People of the Philippines in a minimal case b. Conducts preliminary investigations c. He who files information in Court d. Can be asked to man police precincts e. If promoted: RTC f. Counterpart in the US: district attorney State Prosecutor a. Under the DOJ, appointed by the President from a list of recommendation from the Secretary of DOJ b. Review decisions of provincial prosecutors rendered in preliminary investigations c. Involves high profile cases d. Brought to the province to handle cases of prominent politicians e. Promotion: Court of Appeals Solicitor General The official lawyer of the Republic of the Philippines Government Corporate Council

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the official lawyer of government corporation Executive and Legislative Department Officer of any legal office NBI Agent a lawyer or a A Special investigators Chief of Police -

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controlled

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B. Private Sector / Business Sector 1. Professional notary public a. Can earn more than practicing lawyers b. A lot has been charged with falsification of public documents c. The act of g documents matters – if it is a public document 2. Corporate lawyer a. Lawyer of a corporation who handles its money b. Also the corporate secretary c. Knows the corporation code and deals with the SEC d. Some are already being dealt with the RTC 3. Labor lawyers a. 2 kinds i. for the union / employee – have them understand the law ii. for management – aim: maintain peace b. needs qualities i. diplomacy ii. tactfulness iii. patience c. knows the labor code d. practice with the National Labor Relation Commission and Court of Appeals 4. Tax lawyer a. Unlawful: tax evasion – do not pay taxes (criminal) b. Lawful: Tax avoidance use legal loopholes and apply to the clients apply facts of case to law to avoid taxes – applies statutory construction c. know the tax code d. Court of Tax Appeals and Bureau of Internal Revenue, and Commissioner of Customs 5. Patent Lawyering 6. Real estate lawyering a. May be: i. House counsel 1. hold office in the corporation with a specific salary 2. cannot practice outside 3. employee of the corporation

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Legal Professions Notes

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Retainer counsel 1. have law office outside 2. handle cases as a retained lawyer 3. have agreement Special projects lawyering handles t ventures, etc…

C. Trial Practice (the real McCoy) - going and arguing in court 1. de parte counsel lawyer retained by a party litigant for a fee to prosecute or defend a case for a party litigant 2. de oficio lawyer lawyer appointed by court to defend an indigent defendant / accused on a criminal case or represent a destitute in a civil case Difference: De Parte Counsel De Oficio Lawyer Lawyer Paid Lawyer not paid Client has a choice Client has no choice 3. Counsel of record name and addresses entered in the record of case as designated counsel of litigant and to whom notices are sent notices sent to him binds the client only one sent notices 4. Amicus curiae / Friend of the Court Impartial and experienced attorney invited y the court to appear and help the court in the disposition of intricate issues º big law firms first – to get experience º ments not allowed

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4. per hour fee arrangement Americans like this arrangement but Filipinos don’t like this Americans presume that everybody is honest 5. per appearance fee arrangement everytime you go to court, postponed or not, gets paid province: Php 1,000-1,500 manila: Php 2,000 – 3,000 promotes prolonged cases – one of the reasons of delayed cases 6. acceptance and success fee

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acceptance fee – win or lose  lawyer recover something, get a percentage of it 7. per appearance and success fee everytime go to court, paid win – get percentage 8. acceptance and per appearance fee arrangement 9. acceptance + per appearance + success fee arrangements  if you want to earn, do the American way  law is harder than medicine the law changes everyday by stare decisis you have to go to the supreme court for recent decisions, while for medicine, they are fed by the med reps  In law, you have to be specific has to be accurate – with words, sentences, and punctuations do not be careless when you write

Attorney’s Fees has different styles: Chinese, American, Filipino Some do not prosper due to their mentality (Filipino Culture) Always put agreement in writing Different arrangements: 1. contingent fee agreed upon only in losing cases lawyer not paid anything if case is lost. If won, high percentage of lawyer’s fees reasonable success fee: 20 – 30% higher than regular 2. straight fee arrangements demanded by abogados de campanillas, big lawyers win or lose you have to pay 3. sharing in the property recovered resorted to by provincial lawyers where case involves land a relative of contingent fee

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