Legal Counseling Group 1

Wednesdays 5:30 PM 7:30 PM Elauria, Maria Carlota

Atty. David Ballesteros Marias, Maria Pacita
February 1, 2017 Peas, Andrea Alexis

CHAPTER 1: INTRODUCTION

A. Definitions and Terms

Counseling is the art of giving advice and information on a particular problem or hypothesis including
the adoption of a course of action to be taken for the solution thereof.
Legal Counseling is the art of giving advice and information concerning the solution of a legal problem
arising from a given state of facts and the adoption of appropriate reliefs or remedies under the law for the
satisfaction and enforcement of a legal obligation before a judicial or quasi-judicial body.
Court of Justice is a judicial body or tribunal created by law vested with jurisdiction or power to hear and
adjudicate litigious conflicts and to award proper reliefs and render judgments based upon the evidence
presented.
Quasi-judicial body is an administrative body or agency belonging to the executive branch of the
government vested with jurisdiction to hear and adjudicate non-litigious cases brought before it by
disputing parties and empowered to enforce its judgments and orders like a court of law and to punish for
contempt.
Administrative body or agency is an instrumentality of the executive branch of the government vested
by law with jurisdiction to settle and adjudicate controversies arising from the interpretation, application
and enforcement of laws or administrative rule or regulation.
Arbitration is the process of extra-judicial settlement of controversies in the administrative level before
an arbitrator through the voluntary will of the parties arising from the violation of law, administrative rule
or regulation.
Conciliation is the extrajudicial process of settling disputes thru the voluntary submission of the parties
before the Barangay Lupon or other administrative body or agency, usually arriving at a compromise
agreement which serves as basis of a court judgment or as a condition precedent to vest jurisdiction to a
court of law.
Compromise agreement is a mutual agreement or understanding usually reduced into writing entered
into and executed by the parties litigants whether judicially or extrajudicially which serves as basis for a
court judgment.

B. Legal counseling as essential component of lawyering

as human relations become more sophisticated and transactional matters multiply, the intervention
of a third impersonal party who is trained in law becomes indispensable to help settle things
since an actual court proceeding is multi-devious, and accompanied with stress and other mental
issues, a wise and prudent person would turn to a lawyer to act as a negotiator, an honest arbitrator
worth his trust and confidence
it doesnt matter whether one is a mere pro-bono lawyer or a well-placed abogado de campanilla
when it comes to the effectiveness of ones arguments; however, before one decides to engage in
actual court litigation, one with a legal problem must not hesitate to consult a lawyer and consider
amicable settlement

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 it is only when amicable settlement has been exhausted that a person should go to court, and a
lawyer who advises his client to rush into litigation is a bad lawyer and probably only motivated by
money
hence, the need for persons skilled in law to represent potential litigants in court
Who can appear before superior courts and quasi-judicial agencies, or before collegiate courts of
superior jurisdiction those admitted by the Supreme Court to the practice of law after finishing
the required four-year course from a recognized law college where Legal Counseling is taught
Who can appear and practice in inferior courts persons of proven probity and ability to prosecute
his case and present evidence according to the Rules of Court

C. Importance of lawyers in society

In the time of Christ, it was said that when St. Paul was in prison, he requested Titus to bring him a
lawyer, and two of the men who claimed Jesus body, Joseph of Arimathea and Nicodemus were
lawyers by profession who used to appear before the Sanhedrin
Two canonized saints, St. Ives of Brittany and St. Fidelis of Suabia were also lawyers and advocates
of the poor
Lawyers are necessary in order to help people of other professions with their legal problems, such
as physicians, engineers, architects, priests, etc.
A government of laws is in effect a government of lawyers, since only lawyers can interpret the law
(judges)
The complexity of the functions of a lawyer places him in peculiar situations of influence in his
continuous contact with all kinds of people and interests, and all classes
He has big responsibilities; litigants look up to him with confidence and hope, and courts and judges
place great reliance on his words and actions
Lawyers are perpetually engaged in trying to anticipate, prevent, mediate, settle or win human
disagreements involving alleged rights recognized at law.

D. Law practice without legal ethics is quackery

LEGAL ETHICS that branch of moral science which treats of the duties which an attorney at law
owes to his client, to the court, to the bar, and to the public
Lawyers whose ulterior motives are money-making are shysters and ambulance chasers who
demean the noble profession and reduce its level to a sidewalk vendor peddling his wares
A lawyer should endeavor to obtain full knowledge of his clients cause before advising thereon,
and to give a candid opinion of the merits and probable result of a pending or contemplated
litigation. Miscarriages of justice even though occasional, admonish lawyers to beware of bold
and confident assurances to clients, especially where the employment may depend upon such
assurance.
Doing whatever means necessary to enable a lawyer to succeed in winning fosters prejudice against
lawyers as a class and deprives them public esteem and confidence
It is improper for a lawyer to assert in argument his personal belief in his clients innocence or in
the justice of his case.
A lawyer who is a politician should not smear the legal profession with his political propaganda and
premature campaigning for presidential ambitions
The lawyer owes entire devotion to the interest of his client, warm zeal in the maintenance and
defense of his rights and the exertion of his utmost learning and ability, to the end that nothing
be taken or be withheld from him, save by the rules of law legally applied

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 No fear of judicial disfavor or public unpopularity should restrain the lawyer from the full discharge
of his duty, but the great trust of the lawyer is to be performed within and not without the bounds
of the law (no fraud or chicanery). He must obey his own conscience and not that of his client.
The demand for lawyers is still high today and there is no truth that there is an oversupply of
lawyers, only that only a few outstanding lawyers are engaged in active practice, with the majority
settling for lesser work

E. What is considered practice of law?

There is no hard and fast criterion as to what practice of law connotes.
People vs. Villanueva: Practice of law customarily or habitually holding himself out to the public
as a lawyer, and demanding payment for such service. The appearance as counsel on one occasion
is not conclusive. Preparing documents and rendering legal services are within the term.
o However, the occasional drafting of simple deeds and other instruments, when not
conducted as an occupation, has been held not to constitute the practice of law.
Practice of law is not limited to the conduct of cases in court, but includes the preparation of
pleadings and other papers incident to actions and special proceedings, the drawing of deeds and
other instruments and conveyancing.
Other acts constituting practice of law:
o Conferring with clients, advising them of legal rights and taking the business to an attorney
to ask the latter to look after the case in court
o Rendering an opinion as to the proper interpretation of a statute and receiving pay for it
o 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
involved the use of skill and intellect by a legal mind trained and schooled in a legal school
of learning
Acts not constituting practice of law:
o The gratuitous furnishing of legal aid to the poor and unfortunate who are in pursuit of any
civil remedy, as a matter of charity
o The search for records of realty to ascertain what they may disclose without giving any
opinion or advice as to the legal effects of their contents
o Only clerical labor of filling the blanks on stereotyped form or a mere mechanical act of
copying from a file copy or finished document, which involves no legal thing
Importance of determining what is practice of law to determine whether in the performance of
such act, a lawyer-client relationship has been established, and such whether a lawyer is entitled to
collect fees for his services
o Also applicable to an action for usurpation of official functions against one who falsely
represents himself as a lawyer
Humble opinion of author, Barte: that one who has acquired sufficient knowledge through self-
study or experience with legal work, etc., drafting documents and legal contracts with the use of
books written by lawyers and collects reasonable fees for such, may be allowed though not
considered practice of law
An advocate of the law must have skills of psychology, human relations, arbitration, and have
integrity to command respect from his clients and opponents (but there are bad eggs in politics
the author seems to see certain lawyer-politicians in a bad light regarding ethics as they are
engaged in graft and corruption, and he believes they must be purged from the Roll of Attorneys)

F. When not to accept a case

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 If the client has 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;
If the sole ground is that it has nuisance value for purposes of settlement
o Reason: Because this would demean your stature and reputation.
When to accept a case:
o 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.
o A Lawyer appointed by the court to assist an accused in his defense has no right to refuse
an employment which is allowable in a civil case.
REASON: A lawyer, as an officer of the court, 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.

G. Extent of the lawyers authority and advice

To choose the proceedings he will institute on behalf of the client
To choose the witnesses he will present in court
Can make admissions of fact but not of law
To advice client to submit to amicable settlement if, in the honest and well-studied opinion of the
lawyer in the light of the evidence on hand, our procedural laws and jurisprudence, the prospect of
success in a court battle is slim.
Lawyer has control only with respect to the procedural aspect of the case.
o The final decision should come from the client.
o However, the lawyer should not allow himself to be dictated by the client by the capacity
of the latter to pay the former.
Lawyer must be frank with his client in explaining that his case will not prosper in court.
o Lawyer must be ready to substantiate his opinion on this matter based on his (1) legal
knowledge and (2) experience.
Lawyer has implied authority to enter or take dismissal, discontinuance or non-suit, which does not
bar the bringing of another suit on the same cause of action.
o REASON:
Admissions in pleadings, though made by the lawyer without the knowledge of the
client, can be used against the latter.
Denial that they were authorized cannot be heard.
Lawyers bind their clients by the mistakes committed by the former in matters of procedure, except
for honest mistakes.
o May be a ground for new trial IF it is shown that the incompetency of the lawyer is so
serious that client is prejudiced and was prevented from fairly presenting his case.
No prejudice if client will proceed administratively or in damages against the lawyer
due to misconduct.
May only bind his client for the following, provided special authorization (special power of
attorney) from him is present:
o Entering into an agreement compromising and settling the rights of the client
o Releasing a security
o Extending the time of payment
o Releasing a guarantor
o Accepting an uncertified check

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 Cannot proceed against their clients with respect to the losses he may incur by reason of his clients
fault or negligence
o REASON: It is considered damnum absque injuria
o damnum absque injuria
loss or injury which does not give rise to an action for damages against the person
causing it
a loss or injury in the legal sense
that is without such breach of duty as is redressible by legal action.

CASE: Villaflores vs. Limos Extent of the lawyers authority and advice
Virginia Villaflores vs Atty. Sinamar E. Limos (A.C. No. 7504, November 23, 2007)

FACTS: Complainant Virginia Villaflores is the party defendant in a civil case, which later on had an
unfavorable judgment. The appeal was initially handled by the Public Attorneys Office. Since the Court of
Appeals required herein Complainant to file her appellants brief, she hired the services of Respondent Atty.
Sinamar Limos with an acceptance fee of P20,000.00 in addition to P2,000.00 for miscellaneous expenses.

Thereafter, Complainant received a copy of the Resolution from the Court of Appeals, dismissing her appeal
for failure to file her brief within the reglementary period. The former tried to speak with the latter but after
several unsuccessful attempts, still to no avail. Hence, she acquired services of another lawyer, which the
latter agreed. When complainant tried to retrieve the records of her case from Respondent, the latter
allegedly refused to talk to her. Hence, Complainant filed a complaint for Disbarment against Respondent
due to gross negligence and dereliction of duty. Respondent denied such allegation and claimed that it is
the fault of Complainant for not informing the former of the exact date of receipt of the Notice to File
Appellants Brief to determine the reckoning period of the 45-day period filing.

ISSUE: Whether or not failure of Complainant to inform the date of receipt of the said Notice exempts
Respondent from liability.

HELD: NO. Respondent violated Rule 18.03 of the Code of Professional Responsibility stating that, (a) lawyer
shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render
him liable. A lawyer should serve his client in a conscientious, diligent and efficient manner, and he should
provide a quality of service at least equal to that which lawyers generally would expect of a competent
lawyer in a like situation.

Respondent, being the counsel, should appreciate the importance of complying with the reglementary
period more than her client. She should not have depended entirely on the information given by the client
or at the time the latter wished to give it. She should have inquired and taken more control over her clients
case.

Also, it is evident that Respondent is negligent for until the time Complainant is retrieving the case records
from the latter, which was beyond the 45-day reglementary period, no appellants brief has been prepared.

Hence, the Supreme Court affirmed the Resolution of the IBP Board of Governors for the suspension of
Respondent for three (3) months and the return of P22,000.00 to Complainant as the amount Respondent
received from the latter.

CASE: Cayetano vs. Monsod What constitutes practice of law?

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Renato Cayetano vs Christian Monsod, et al. (GR No. 100113, September 3, 1991)

FACTS: Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position of
Chairman of the COMELEC in a letter received by the Secretariat of the Commission on Appointments on
April 25, 1991.

Petitioner opposed the nomination because allegedly Monsod does not possess the required qualification
of having been engaged in the practice of law for at least ten years.

The 1987 Constitution provides in Section 1 (1), Article IX-C:

There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be
natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of
age, holders of a college degree, and must not have been candidates for any elective position in the
immediately preceding -elections. However, a majority thereof, including the Chairman, shall be members
of the Philippine Bar who have been engaged in the practice of law for at least ten years.

On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as Chairman of
the COMELEC. On June 18, 1991, he took his oath of office. On the same day, he assumed office as Chairman
of the COMELEC.

Challenging the validity of the confirmation by the Commission on Appointments of Monsod's nomination,
petitioner as a citizen and taxpayer, filed the instant petition for certiorari and Prohibition praying that said
confirmation and the consequent appointment of Monsod as Chairman of the Commission on Elections be
declared null and void.

Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of 1960 with
a grade of 86-55%. He has been a dues paying member of the Integrated Bar of the Philippines since its
inception in 1972-73. He has also been paying his professional license fees as lawyer for more than ten
years.

ISSUE: Whether or not respondent qualifies for the position of Chairman of the COMELEC regarding his
practice of law?

HELD: YES. Practice of law means any activity, in or out of court, which requires the application of law, legal
procedure, knowledge, training and experience. "To engage in the practice of law is to perform those acts
which are characteristics of the profession. Generally, to practice law is to give notice or render any kind of
service, which device or service requires the use in any degree of legal knowledge or skill."

Interpreted in the light of the various definitions of the term Practice of law". particularly the modern
concept of law practice, and taking into consideration the liberal construction intended by the framers of
the Constitution, Atty. Monsod's past work experiences as a lawyer-economist, a lawyer-manager, a lawyer-
entrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both the rich and the
poor verily more than satisfy the constitutional requirement that he has been engaged in the practice
of law for at least ten years.

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