Chapter 2: Admission to Practice Law ML Bejemino

A. General Principles and Doctrines on the Practice of Law In Cayetano v Monsod, SC defined practice of law as any activity, in or out of the court, which requires the application of law, legal procedure, knowledge, training and experience. The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings and other papers incident to actions and special proceedings, the management of such actions and proceedings on behalf of clients before judges and courts, and in addition, conveying. In general, all advice to clients, and all action taken for them in matters connected with the law incorporation services, assessment and condemnation services contemplating an appearance before a judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy and insolvency proceedings, and conducting proceedings in attachment, and in matters of estate and guardianship have been held to constitute law practice, as do the preparation and drafting of legal instruments, where the work done involves the determination by the trained legal mind of the legal effect of facts and conditions. A lawyer may still be appointed in the judiciary notwithstanding that he never had the opportunity to conduct any actual trial or litigation work.

However, Agpalo pointed out that practice of law is also a right because a lawyer could not be deprived of the right to practice law except for misconduct declared by court after observing due process.

Congress under the 1987 Constitution has no power to regulate admission to the Bar and the practice of law. The power resides in the Supreme Court. However, Agpalo pointed out that the legislature, in the exercise of police power, may enact laws regulating the practice of law to protect the public and promote public welfare, but it may not pass a law that will control the SC in the performance of its function to decide who may be admitted into the practice of law. Bernas also submits that that the matter stays as if the 1935 & 1973 provisions had been re-enacted.

To engage in the practice of law is to do any acts which are characteristics of legal profession. It embraces any activity that requires the application of law, legal principle, practice or procedure and calls for legal knowledge, training and experience. Traditionally, it presupposes the existence of attorney-client relationship, thus, teaching which does not involve the attorney-client relationship cannot be said to be a practice of law.

B. The Practice of Law is not a Right but a Privilege Good moral character is not only a condition precedent but must remain extant. Good moral character of greater importance to the public than legal learning.

Member of Congress is prohibited by the Constitution to personally appear as counsel before any court of justice or electoral tribunal. But it does not specifically prohibit law practice. Practice of law is a privilege since it is limited to persons of good moral character with special qualifications.

C. Who may Practice Law Rule 138, sec. 1, Rules of Court:

1.

Heads of assistants

departments

and

their

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.

2. 3. 4.

Chief of bureaus and their assistants Chairman and members of Comelec Members of Congress with respect to their appearance as counsel Members of Commission on Appointments with regard to their appearance as counsel before any court other than the CA & SC. Judges or other officials or employees of the superior court or of the Office of the Solicitor General, state prosecutors or special counsel in the Dept. of Justice, provincial and city fiscals and their assistants and other attorneys in legal offices of the government.

5.

An absolute pardon on a criminal conviction operates to wipes out the conviction and the offense itself. This constitutes a bar for a disbarment proceeding. But a conditional pardon does not since it only relieves the penal consequences. But if the conviction is due to a professional misconduct, an absolute pardon will not bar the disbarment proceeding.

6.

Good moral character continuing condition membership in the bar.

is

a for

Corporation is not entitled to practice law (only natural person). A corporation cannot practice law because it cannot meet the condition required for practice of law, like taking of oath, becoming an officer of the Court, being subject to a disciplinary power and observing the relationship of trust and confidence between itself and its clients.

Disqualification is intended to preserve the public trust in the public office, avoid the conflict of interests, assure the impartiality in the performance of public functions and thereby promote public welfare. The constitutional prohibition (Art. IV, sec. 14) on members of Congress from appearing as counsel extends to the Sangguniang Panlalawigan.

D. Qualification for Admission Requirements for eligibility to take the bar examinations: (Secs. 2,5 & 6, Rule 138 of the Rules of Court) 1. Citizen of the Philippines

Partnership with non-lawyers void In the formation of partnerships for the practice of law no person should be admitted or held out as practitioner or member who is not a member of the legal profession duly authorized to practice, and amenable to professional discipline. Partnership between lawyers and members of other professions or non-professional persons should not be formed or permitted where any part of the partnership's employment consists of the practice of law. (Canon 33, par. 2 & 3, Canons of Professional Ethics)

2. At least 21 years old (found in Rule

138 but not enumerated in Maams book) 3. 4. 5. Resident of the Philippines Good moral character No charge involving moral turpitude has been filed or pending in any court in the Philippines Studied law for 4 years and has successfully completed all prescribed

The following are the attorneys that cannot practice law:

6.

courses in a law school officially approved and recognizes by the Secretary of Education 7. Before he began to study law, he had satisfactorily completed in an authorized university or college, requiring for admission thereto the completion of a four-year high school course, the course of study

impose upon myself this voluntary obligation without any mental reservation or purpose of evasion. So help me God. The obligations are: 1. Maintain allegiance to the Republic of the Philippines Support its Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein Do no falsehood, nor consent to the doing of any in court Not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same Delay no man for money or malice Conduct myself as a lawyer according to the best of my knowledge and discretion with all good fidelity as well to the courts as to my clients

2.

prescribed therein for a bachelor's degree in arts or sciences with any of the following subjects as major or field of concentration: political science, logic, english, spanish, history and economics.
Filipino citizenship is required to maintain allegiance to the country, support its constitution and obey its laws. Of age (at least 21) is required to assure maturity and discretion. Residency in the country is required to assure that he is readily accessible and available Good moral character is a vital part of the administration of justice

3.

4.

5. 6.

F. Code of Professional Responsibility The Code of Professional Responsibility is to lawyers as the Code of Judicial Conduct is to members of the bench The relationship between a judge and a lawyer must be based on independence and respect. General Rule: only members of the bar can appear in court. Exception: 1. A friend or agent of the party under Sec. 34 of the Rule 138 Law students of law school with a legal assistance program (Student Practice Rule) Parties to a case

E. Administration of Oath A lawyers oath signifies that he accepts and affirms his ethical obligations in the performance of his duties and signifies his awareness of his responsibilities Lawyers Oath: I, __________________, do solemnly swear that I will maintain allegiance to the Republic of the Philippines; I will support its Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein; I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same. I will delay no man for money or malice, and will conduct myself as a lawyer according to the best of my knowledge and discretion with all good fidelity as well to the courts as to my clients; and I

2.

3.

A lawyer must accept a losing criminal case because every accused is presumed innocent and is entitled to a counsel. Maam suggested answer: a lawyer may refuse except when he is called upon to defend a person guilty of an offense.

A lawyer may likewise accept a losing civil case, provided that in so doing, he must not engage in dilatory tactics and must advise his client about the prospects and advantage of setting the case thru a compromise. Maam suggested answer: a lawyer may refuse since in all probability, a losing case has no basis or cause of

action. It is a duty of a lawyer not to promote or sue any groundless, false or unlawful suit, or give aid or consent to the same. A law graduate but has not passed the bar examination may appear and prosecute his case alone before the RTC without the aid of a counsel (Sec. 34, Rule 138, Rules of Court).