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Legal Ethics essential component of law practice

Legal Ethics is defined as that branch of moral science which treats of the duties which as attorney-atlaw owes to his client, to the court, to the bar, and to the public. The sources of Legal Ethics in this jurisdiction are: the Constitution, Rules of Court, decisions of the Supreme Court and the Court of Appeals, decisions of the United States Supreme Court, Article 1491 of the Civil Code (RA 386), Article 209 of the Revised Penal Code, Article 2208 of the new Civil Code dealing with attorneys fees, treatises and legal writings. Needless for us to disagree that as life on earth has multiplied a million-fold and has become more complex, human problems have also multiplied and have become more complicated. Hence, the demand for more lawyers has turned acute, thereby making the Filipino litigant vulnerable to the mercy of unscrupulous practitioners. Anyway, there is no truth to the statement that we have an oversupply of lawyers in this country. However, only few outstanding and good lawyers engage in active law practice. The majority of the rank-and-file members of the bar are either employed in the government or private sector, or settle for a less challenging job of researcher or devote their time in private business. Nevertheless, whether it is by choice or by accident, the lawyer still occupies a position of leadership in any field of endeavor, whether in Congress or in corporate holdings, in banking and in almost every agency or instrumentality of the government, the lawyer always hugs the limelight and sits at the helm. In fact, the only branch of our Republican form of government, the judiciary, has by and large, been consigned to the exclusive patronage of lawyers. This is so because no one can be appointed to the bench unless he must first be a lawyer. What is Considered Practice of Law? There is no exact definition of the phrase practice of law. What would be considered practice of law depends upon each particular act and attendant circumstances. The Supreme Court however, had in many cases held, that law practice is more than an isolated appearance, for it consists of frequent or customary actions, a succession of acts of the same kind. One is said to be engaged in the practice of law if he is customarily or habitually holding himself out to the public as a lawyer, and demanding payment for such services. The appearance of counsel on one occasion is not conclusively determinative of engagement in the practice of law. Preparing documents and rendering legal services are within the term practice of law. However, the occasional drafting of simple deeds and other legal instruments when not conducted as an occupation has been held not constitute the practice of law. The practice of law is not limited to the conduct of cases in court. It includes the preparation of pleadings and other papers incident to actions and special proceedings, the drawing of deeds and other instruments of conveyancing. One who confers with clients, advises them as to their legal rights and then takes the business to an attorney and asks the latter to look after the case in court, is in the practice in law. Rendering an opinion

as to the proper interpretation of a statute and receiving pay for it, is to that extent, considered practice of law. What is not Considered Practice of Law? On the other hand, the gratuitous furnishing of legal aid to the poor and unfortunates who are in pursuit of any civil remedy, as a matter of charity, does not constitute practice of law. The mere search for records of realty to ascertain what they may disclose without giving any opinion or advice as to the legal effects of what may be found, does not constitute the practice of law. Also an ordinary preparation and drafting of legal instruments which involves the determination by a trained legal mind of the legal effects of facts and conditions, or whenever such acts involve the use of skill and intellect by a legal mind trained and schooled in a legal school of learning constitutes practice of law. But if such work involves only the clerical labor of filling in the blanks on stereotyped form or a mere mechanical act of copying from file copy or finished document which involves no legal thing, is not considered legal practice. It is important to know if an act constitutes a practice of law because it will be the basis of determining whether by the performance of such act a lawyer and client relationship had been established so as to entitle the lawyer to the payment of his fees. It may also be the basis of filing an action for usurpation of official functions against one, who not being a member of the bar duly licensed to practice law by the Supreme Court, represents himself as a lawyer to the public and performs acts pertaining to a lawyer by means of deception to the prejudice of the bar and the public. Professional Responsibility There is more to law practice however than just opening and developing a law office and winning office cases. In the conduct of lawyering an officer of the court must always be guided by a sense of professional responsibility. An advocate of law therefore must be equipped with a vast knowledge in psychology, an expert in human relations, a skillful arbitrator on the bargaining table, an actor if you may, and above all a man of integrity whose words commands respect and authority not only from his clients but also from his clients adversaries in order to be an effective legal counselor. When not to accept a case One cardinal advice to the lawyer by the way is: Dont take a case unless you believe in it. This advice may seem at first blush impractical when the new lawyer needs cases and is faced with increasing expenses; but in the long run, this advice produces dividends in the building of a good reputation and a successful practice. Of course, this does not involve ones belief as to whether or not a client is guilty, since you still have the duty to see to it that he is given the full benefits of the law and all the legal defenses he is entitled to. But if the client has really no cause of action or defense at all, but merely seeks your legal services to delay and buy time, to obstruct justice and harass the court or the adverse party and you ought to know this as a counselor-at-law, then you should not accept the case. Likewise,

do not accept a case on the ground solely that it has nuisance value for purposes of settlement, for this would demean your stature and reputation. On the other hand, if you believe that a case is a worthy cause, though unpopular or difficult it may be, then do the best you can, for the lawyer is bound to protect the rights of his client the best he can. A different dictum however, should be observed when one is appointed as attorney de oficio in a criminal proceeding. For once the lawyer is appointed by the court to assist an accused in his defense, the right to refuse an employment that is allowable in a civil case cannot apply, because as an officer of the court a lawyer cannot disobey a lawful order of the court, much less refuse to defend a defenseless defendant on pains of being punished for contempt of court. Scope of lawyers advice and control But whether or not a lawyer should advise his client to submit to arbitration or compromise agreement, will all depend on the lawyers honest and sound judgment subject to the clients final word. The better judgment is towards advising your client to submit to amicable settlement, when in your honest opinion in the light of the evidence on hand, the prospect of winning a court battle is remote. Much of this judgment will depend on the lawyers knowledge of our procedural laws, because even if he is knowledgeable, in the substantive provisions of the law, if he takes the wrong step in their application or formulates a wrong theory, his case is already doomed even before he drafts the first pleading. Be it also remembered that a lawyer has control only with respect to the procedural aspect of the case. The final decision on whether to litigate or not, or to enter into a compromise or not, or whether or not to take an appeal or not, should come from the client. But in even in the matter of whether to take an appeal or not, whether or not to litigate at all, or whether to enter a plea of guilty or not in a criminal case, or to prosecute a malicious suit or to pursue an illegal course of action, the lawyer should not allow himself to be dictated by the client simply because the latter can afford to pay him the highest fees. He must be frank with his client in explaining that his case will not prosper in court and be ready to substantiate his opinion on this matter based on his legal knowledge and experience. Extent of lawyers authority The canons of professional responsibility and accepted norms in legal advocacy recognize the lawyers authority to choose the proceedings he will institute and the witnesses he will present in court. He can make admissions of fact but not of law. Thus, it has been held by admissions in pleadings though made by the attorney without the knowledge of the party, can nevertheless be used as evidence against him, and cannot be heard to deny that they were authorized. The lawyer has implied authority to enter or take dismissal, discontinuance or nonsuit, which does not bar the bringing of another suit on the same cause of action. Inversely, parties-litigants are bound by the mistakes committed by their lawyers in matters of procedure. Thus, mistakes by a lawyer as to the competency of a witness, or the sufficiency, or whether a certain evidence is relevant or not, or whether the defense he had chosen is proper or not, in the

introduction of certain evidence or witnesses, or in argumentation, of what pleading to file in court, or what theory should be adopted, are all mistakes of procedure and they bind the client, except for honest mistakes. These mistakes cannot be utilized as grounds for new trial unless it is shown that the incompetency of counsel is so serious that his client is prejudiced and was prevented from fairly presenting his case. This of course is without prejudice on the part of the client to proceed against the lawyer in damages or administratively on the ground of misconduct. BEGINNING A LAW PRACTICE A. Prefatory Statement A new lawyer who has just hurdled the bar examinations has several options to pursue in order to start a law practice, among which are: (1) solo private practice; (2) assistant or associate or partner in a private law firm; (3) legal officer in corporate law department; and (4)government employment. (1) Solo private practice With the exception of those who have started apprenticeship practice with a private law firm, or have undergone undergraduate legal aid training before Municipal courts before taking the bar, a new lawyer often encounters difficulty in going into solo practice. With a precarious clientele and an unstable income to lean on during the first years of maiden practice, a solo practitioner who practically starts from scratch, will be unable to meet the soaring cost of office rentals, travel, and representation expenses and other overhead expenses. Hence, his first years of practice will be marginal if not able to yield beneficial results. While a solo practitioner enjoys the advantage of being his own boss and is not accountable to anyone except himself, yet not being able to establish a name for himself in his initial practice, oftentimes finds difficulty in attracting good paying clients. Without a strong recommendation from a friend or relative who can vouch-safe for the lawyers dependability and ability to match his skills with a veteran adversary, or unless the client is a family friend or a classmate who needs no introduction, no client will gamble his rights and interests with an inexperienced lawyer. (2) Assistant or associate in a private law firm A private law firm offers better opportunities. This could be attained by organizing a law firm among your classmates or by joining into a partnership with some familiar friend lawyers who are well-to-do and financially capable of satisfying the overhead expenses of maintaining a law office. You may likewise agree with your partners to bring in your old tables, chairs and typewriters from home to open a temporary office space, and your old textbooks for a small library. And for the payment of office rentals, communications, telephone and secretarial services, you may agree to contribute equal amounts, or to take sufficient amount from the common fund of the office earnings. In the beginning, though, each aspect of the partnership may be agreed upon verbally; nevertheless it is advisable

that the partnership agreement be reduced to writing as the partnership expands and progresses to avoid future misunderstanding. (3) Joining a corporate law department Joining a corporate law department has its advantage vis--vis other options. For aside from an offer of higher salary corporations likewise dole out generous pecuniary and fringe benefits not usually enjoyed from a private law firm. But the disadvantage lies in the fact that once a lawyer has stuck up with a corporate legal position, he finds it difficult to go into private law practice later on for fear of losing a higher paying job. This is also true with respect to a young lawyer who enters government service. The better option is to try a brief stint with the governmental branch where you can develop an expertise or specialization in a certain field like for example in the Bureau of Internal Revenue or Securities and Exchange Commission or Land Registration Office for not exceeding five years. After having acquired a specialization or training therefrom you may shift to a big law firm which demands the expert knowledge and craft of an assistant. But even after joining a big law firm, you must see to it that you do not get stuck up with such law firm. As soon as you feel you that you have acquired sufficient training and experience therefrom, it is time for you to go and open your own law office as solo private practitioner or in partnership with your lawyer friends under the name of the partnership. (4) How a corporate law department operates Salaried lawyers in these departments do legal work for their respective employers, and this is generally permissible in this jurisdiction. Some companies permit their salaried lawyers to engage in private practice during off-hours, others do not. The demands of their regular jobs are so great and their local connections so limited that even when permitted, few corporate counsels do much in the way of private practice. Formal law department structure has a single lawyer as administrative head of the department, almost invariably a senior law partner with the title of general counsel. Frequently, he is also a director and officer of the corporation, often carrying the added title of vice-president. As general counsel, he normally reports to the president of the company. In all but very small department, there is some kind of formal sectioning

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