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LEGAL PROFESSION 2007 Justice Edgardo F.

Sundiam

I.

CHAPTER ONE: WHY ARE YOU HERE? TO BECOME A LAWYER. HOW TO PASS THE BAR EXAM.

A. LEGAL PROFESSION It is not a trade nor a craft but a NOBLE profession. Its basic ideal is to render service and secure justice to seek its aim. If it has to remain an honorable profession and attain its basic ideals, those enrolled in it should not only master its tenets and principles but should by their lives accord continuing fidelity to them. Word NOBLE distinguishes it from all other professions. As a member of his honorable profession, you must be an example of what is right.

B. Members of legal profession are called LAWYERS / ATTORNEY. Attorney at Law vs. ATTORNEY IN FACT latter is not necessarily a lawyer, but is merely given special power of attorney or acts for/agent of the principal Lawyers are also called: o o o o o ADVOCATES advocate a cause / argue for something BARRISTERS members of the bar COUNSEL/ COUNSELOR AT LAW gives advice PROCTOR SOLICITOR In Philippines, only Solicitor General used

LAWYERS o class of persons who by license are OFFICERS OF THE COURT and who are empowered to appear, prosecute and defend; and on whom peculiar duties, responsibilities and liabilities are devowed by law as a consequence officer of the court = QUASIJUDICIAL OFFICER (part of judiciary) without them, parties are deprived of due process

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C. QUALIFICATIONS FOR ADMISSION TO LEGAL PROFESSION 1. FILIPINO CITIZEN (Natural-born or Naturalized)

2. RESIDENT of the Philippines 3. Must be AT LEAST 21 years old 4. No conviction of charge pending of a CRIME involving MORAL TURPITUDE MORAL TURPITUDE All crimes defined and penalized by Book 2 of the RPC except Article 365 (quasi-crime / reckless imprudence) 5. Should not have a lack of GOOD MORAL CHARACTER a. Simple affidavit filed before SC is enough to prove bad moral character b. Good moral character must exist entire lifetime, not just at the onset of bar examination c. 3 affidavits of good moral character to be executed by 3 different characters of prominence must be attached to the application d. Cases of Bad Moral Character: i.Failure to answer truthfully false statements in bar application ii.Falsification of bar affidavits / false certificate of GMC iii.Bar applicant did not graduate from law school / Impersonation iv.Crime involving moral turpitude (charge/pending) v.Living under adulterous/bigamous marriage vi.Involvement in bar anomaly (cheating, regardless off whether you are later on acquitted) vii.Unauthorized practice of law viii.Issuing a bouncing check (unethical and questionable business practice) ix.Obtaining credits hen concealment of material facts 6. EDUCATIONAL QUALIFICATION: 4 years pre-law / Bachelor of Law degree 7. PASSING THE BAR unique compared to all other professional exams. How so? a. Passing average of 75% - compute an average of 8 subjects based on weight provided a grade of no less then 50% is obtained for each subject b. Weight Remedial Law / Lowest Legal Ethics c. Failure to pass bar due to only one subject means you have to take all 8 exams again. i.Bar can be taken 3 times; If one still fails on the 3rd attempt, he/she

must go back to 4th year Law School ii.Strike 5 bar cannot be taken more than a total of 5 times d. Bar exam is given by Supreme Court, the highest court in the land, and is conducted only once every year (September for 4 Sundays) e. Unlike other exams given in different places in the Philippines, the bar exam is given in only one venue = De La Salle University, Taft f. 8 Bar subjects: i.Political and International Law - 15% ii.Labor and Welfare Legislation - 10% iii.Civil Law - 15% iv.Taxation 10% v.Mercantile Law - 15% vi.Criminal Law - 10% vii.Remedial Law 20% viii.Legal ethics and Practical Exercise - 5% g. Names of bar candidates are published in newspaper before and after the exam. (So cases against any barrister guilty of bad moral character can be filed) h. 3 pitfalls in the Bar: 1. Poor Law School foundation Ill equipped, many working students 2. Lack of facility in expression poor English foundation, lack of knowledge in logic/reasoning 3. BAD PENMANSHIP dirty papers are not entertained; papers are hurriedly checked; evaluators have no patience to try an decipher handwriting

II.

CHAPTER TWO: RIGHTS, PRIVILEGES AND DUTIES

A. RIGHTS AND PRIVILEGES 1. To practice law in judicial (all regular courts in the land), quasi-judicial (i.e. NLRC) or administrative tribunals

2. To sit in every case and set the judicial machinery in motion (Lawyer = Officer of the Court) 3. To seek positions in all courts, prosecution officers and other legal departments of government offices 4. Enjoy presumption of regularity All you can say or do is presumed to be regular / correct. Presumption until disputed remains. 5. Immune from liability from the parties or your client so long as you did not materially depart from your character as a quasi-judicial officer. Can client sue his own counsel? Case to case basis 6. Your statements, if relevant, pertinent and material to the subject of inquiry, are absolutely privileged regardless of their defamatory tenor and presence of malice A lawyer is exempt only for statements uttered in court / written in pleadings 7. Stand up for your right even in the face of a hostile court because you are allowed great latitude of pertinent authority 8. You are a first or second grade Civil Service eligible. Lawyers need not present civil service eligibility (automatic qualification) Civil Service Exam must be taken otherwise No security of tenure in government service when one is not civil service eligible Deemed to be second-level service eligible if position occupied does not require knowledge of the law

9. Being a lawyer, you are deemed to be a leader in a community. Your opinion counts a lot when problems arise in the community. Always well respected 10. You will have the advantage to be appointed in Executive and Legislative departments of the government A good part of such work requires good knowledge of law B. DUTIES, OBLIGATIONS AND RESPONSIBILITIES 1. Maintain allegiance to and support the Philippine Constitution and obey its laws. 2. Maintain respect to the courts. Bench on which a judge sits is the symbol of his office Judge carries with him the power of direct and indirect contempt

3. Maintain of counsel only such actions or proceedings as you believe are honestly debatable under the law. 4. Employ only those means that are consistent with honor and truth, and never to

mislead or make false statements of facts and the law. When a court catches you lying on one point, court can hold that you lie on all points. Never try to use machinations contrary to honesty, decency and basic ethics Subject not only of contempt but disbarment

5. Keep the secrets of your clients. Lawyer-Client privileged communication

6. A court hearing is a formal proceeding that must be respected. Proper attire No offensive personality in the court room

7. Do not encourage the commencement and continuance of action or delay of any persons case for corrupt motive or personal interest. Obligation to court to attend hearing so as not to obstruct machinery of justice

8. Never reject for any monetary reason or personal consideration the cause or the case of the defenseless or the oppressed. Must serve justice to those who seek your aid Court can say you are in contempt

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 o law 10. Subordinate your personal duties and interest to those which you owe the court and your client.

III.

CHAPTER THREE: SPECIALIZATION / FIELDS OF LEGAL PROFESSION

A. What is practice of Law? Under its broad description, it means doing any of those which are characteristic of the legal profession embracing activities IN OR OUT OF COURT which require the application of law, legal principle, practice or procedure and call for legal knowledge, training and expertise Does not refer only to lawyers arguing in court Many positions in government require a certain number of years as a practitioner of law Restrictive Description: implies customarily or habitually holding oneself out to the public as a lawyer for compensation as a means or source of livelihood

1. May be before the courts (Trial/Litigation Lawyer) Regular Courts = RTC, MTC, CA, SC, CTA., Sandiganbayan

2. In practice before other government agencies other than the courts Interpretation and application of the laws

3. Practice of law outside the courts and outside government agencies i.e. legal advice and notarization

B. Who may practice Law? Any person who has been duly licensed as a member of the bar in accordance with the statutory requirements and who is in good an regular standing Statutory Requirements: o o o Educational, moral and other qualifications Must pass the bar Take your oath

Good and Regular Standing o Remain a member of the IBP (official organization of lawyers in the Phils. Created by law in 1973) Regularly pay all IBP dues and assessments (yearly fee of P500 keep receipt!) Pay occupation tax (on or before January 20) / privilege tax (PTR = P75) Faithful observance of the rules and ethics of the legal profession

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Continually be subjected to disciplinary control of the SC and IBP GOOD MORAL CHARACTER

C. DIFFERENT FIELDS/ENDEAVORS IN LEGAL PROFESSION (SPECIALIZATION) I.GOVERNMENT SERVICE A. SUPREME COURT Highest court of the land (Padre Faura, Ermita) Chief Justice (highest government position) Salary is almost P100K/month Compulsory retirement age is 70 years

B. COURT OF APPEALS 2nd highest court of the land 69 CA justices (3 divisions of 23 justices) Workhorse of the appellate courts Salary is P70-80K/month

C. REGIONAL TRIAL COURT Workhorse of trial courts Decision of MTCs must first be appealed to them Formerly called Court of First Instance Each province/city has at least 1 RTC Salary is P60-70K/month

D. MUNICIPAL/METROPOLITAN TRIAL COURT City Court Municipal Circuit Trial Court (2 municipalities joint together) Jurisdiction over Crim cases (penalty no greater than 6 yrs. Imprisonment) Exclusive jurisdiction over ejectment cases Salary is P50-60K/month

SPECIAL COURTS CREATED BY LAW E. SANDIGANBAYAN

Primarily a trial court w/ jurisdiction limited to public officials committing graft and corruption 15 justices (5 divisions of 3 justices each) Also appellate court Same salary as CA

F. COURT OF TAX APPEALS Jurisdiction limited to tax cases / trial courts 3 divisions of 3 justices Same salary as CA and SB

G. SHARIAH COURTS Jurisdiction covers only violation of Muslim laws (Mindanao) Same rank as RTC

Peculiar advantage of being a member of the Philippine Judiciary = RETIREMENT PAY (Provided you have 20 years of government service, 5 years of which in the judiciary, you get a check with the amount of a 5-year lump sum + amount for accrued leaves) H. NATIONAL LABOR RELATIONS COMMISSION (NLRC) I. 3 commissioners each division Same rank as RTC judge Decisions are appealable to CA

COMELEC Commissioner has fixed term f 7 years

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OMBUDSMAN Guardian of government overseeing public officials

K. SECURITY AND EXCHANGES COMMISSION (SEC) L. JUDICIAL BAR COUNCIL 7 members: SC Chief Justice, Sec of Justice, HR member, retired SC justice, member of IBP, law professor, private sector rep

M. STATE PROSECUTOR Sedfrey Ordonez: change fiscal to prosecutor

Decides whether case is triable prima facie / recommend to RTC/MTC Powerful in Criminal cases (can dismiss cases petition or relief = Sec of Justice) Representative of the Philippines Sent to handle prosecution in the provinces Studies appeals when DOJ is too busy

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PUBLIC ATTORNEYS OFFICE (PAO) Paid by government Head is a lady (Mercedita Acosta) Agency of government under DOJ Free legal service

O. SOLICITOR GENERAL Official counsel/lawyer of the State (Legaspi Village, Makati) Counsel when one sues any instrumentality of government Mental worth

P. GOVERNMENT CORPORATE COUNSEL Lawyer when GOCCs (at elast 60% Fil-owned) are sued (i.e. NAWASA, SSS, GSIS)

Q. EXECUTIVE/LEGISLATIVE DEPARTMENTS R. LEGAL OFFICER government offices S. NBI AGENT must either be a lawyer or CPA (S.I. special investigator) T. POLICE FORCE (Chief of Police)

II.PRIVATE SECTOR A. NOTARY PUBLIC Notarization transforms a private document into a public document Apply w/ RTC in respective area of practice

B. BUSINESSMAN/WOMAN C. CORPORATE LAWYER

practice must be done in Metropolitan areas

D. LABOR LAWYER patience and tact are necessary virtues for management (company) or employees (union); deal w/ rank and file

E. TAXATION LAWYER tax evation vs. avoidance (technicalities for exemption)

F. PATENT LAWYER G. REAL ESTATE LAWYERS/BROKER H. SPECIAL PROJECT LAWYERING i.e. ZTE deal I. HOUSE COUNSEL client pays a retainer fee (fixed monthly amount regardless of whether or not you a re asked to handle anything) J. TRIAL/LITIGATION LAWYER - represent in Court K. SOLO PRACTICE should not advertise; evaluate all cases prior to accepting (feasibility study)