LEGAL COUNSELING By: JRPB
DEFINITION AND TERMS
 Counseling
It 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
It 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
It 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
It 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
It is an instrumentality of the executive
branch of the government vested by law
with jurisdiction to settle and adjudicate
controversy arising from the
interpretation, application and
enforcement of laws or administrative rule
or regulations.
 Arbitration
It is the process of extra judicial settlement
of controversies in the administrative level
before an arbitrator thru the voluntary will
of the parties arising from the violation of
law, administrative rule or regulation.
 Conciliation
It is the extra judicial 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
It is a mutual agreement or understanding
usually reduced into writing entered into
and executed by the party litigants whether
judicially or extrajudicially which serves as
basis for a court judgment.
LEGAL COUNSELING AS AN ESSENTIAL
COMPONENT OF LAWYERING
 Every citizen has a constitutional right to gain
access to courts, but not all citizens of this
country are privileged to appear and defend
their cause before courts of superior
jurisdiction.
 Only those who have been admitted by the
Supreme Court to the practice of law, after
finishing a four-year course in a recognized law
college can only be allowed to appear before
superior courts and quasi-judicial agencies of
the government. Hence, there is a need of
persons who are skilled in law to represent
potential litigants in court.
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IMPORTANCE OF LAWYERS IN SOCIETY
 It has been aptly said that a community cannot
endure without order and that order cannot be
attained without laws to govern the conduct of
individuals. But laws can only be interpreted
by judges, and judges must first be lawyers.
Thus, ultimately, government of laws is in
effect, a government of lawyers.
 A lawyers’ advice and assistance are sought by
the wealthy and the poor; strong and the weak,
honest and dishonest; men and women of all
professions and persuasions and every class of
society. Certainly, lawyers are perpetually
engaged in trying to anticipate, prevent,
mediate, settle or win human disagreements
involving alleged rights recognized at law.
LAW PRACTICE WITOUT LEGAL ETHICS IS
QUACKERY
 Legal ethics is defined as that branch of moral
science which treats of the duties which as
attorney at law owes to his client, to the court,
to the bar and to the public.
 A lawyer must perform within and not without
the bounds of the law.
 A lawyer must obey his own conscience and
not of his client.
WHAT IS PRACTICE OF LAW
 People Vs. Villanueva (G.R. No. L-19450,
May 27, 1965; 14 SCRA 109)
FACTS: Simplicio Villanueva was charged with
the crime of Malicious Mischief, before the
Justice of the Peace Court of said municipality.
The complainant in the same case was
represented by City Attorney Ariston Fule of
San Pablo City, having entered his appearance
as private-prosecutor, after securing the
permission of the Secretary of Justice. The
condition of his appearance as such, was that
every time he would appear at the trial of the
case, he would be considered on official leave
of absence, and that he would not receive any
By: JRPB
payment for his services. The appearance of
City Attorney Fule as private prosecutor was
questioned by the counsel for the accused,
invoking the case of Aquino, et al. vs. Blanco,
et al, 79 Phil. 647 wherein it was ruled that
"when an attorney had been appointed to
the position of Assistant Provincial Fiscal
or City Fiscal and therein qualified, by
operation of law, he ceased to engage in
private law practice." Counsel then argued
that the JP Court in entertaining the
appearance of City Attorney Fule in the case is
a violation of the above ruling. The JP Court
however issued an order sustaining the legality
of the appearance of City Attorney Fule.
ISSUE: WON City Attorney Fule is engaged in
the private practice of law.
RULING: The Court believes that the isolated
appearance of City Attorney Fule did not
constitute private practice, within the
meaning and contemplation of the Rules. Law
practice is more than an isolated appearance,
for it consists in frequent or customary action,
a succession of acts of the same kind. In other
words, it is frequent habitual exercise.
Practice of law to fall within the
prohibition of statute has been
interpreted as customarily or habitually
holding one's self out to the public, as a
lawyer and demanding payment for such
services. The appearance as counsel on one
occasion, is not conclusive as determinative of
engagement in the private practice of law. The
following observation of the Solicitor General
is noteworthy:
"Essentially, the word private practice of law
implies that one must have presented himself to
be in the active and continued Practice of the legal
profession and that his professional services
available to the public for a compensation, as a
source of livelihood or in consideration of his said
services."
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 Cayetano vs. Monsod
FACTS: Atty. Monsod was a nominee for the
position of COMELEC Chair. Atty. Cayetano
questioned the said nomination of Atty.
Monsod because one of the requirements for
the position is that the person must have
practiced law for the last 10 years. Atty.
Monsod is not a lawyer in a law firm.
ISSUE: WON Atty. Monsod was engaged in
the practice of law.
HELD: Practicing law is not limited to the
conduct of cases in court. A person, for a
valuable consideration, engaged in the
practice of advising persons, firms,
associations or corporations as to their rights
under the law or one who appears in a
representative capacity as an advocate in
proceedings is considered practicing law.
 Nonetheless, the conduct 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
and conveyancing.
 One who confers with clients, advices them as
to legal rights and then takes the business to
an attorney and ask the latter to look after the
case in court, is in the practice of 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.
 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 legal school of
learning constitutes practice of law.
INSTANCES NOT CONSIDERED AS PRACTICE
OF LAW
 The gratuitous furnishing of legal aid to the
poor and unfortunates who are in pursuit of
any civil remedy, as a matter of charity, do not
constitute practice of law.
 The search for records of realty to ascertain
what they may disclose without giving any
opinion or advice as to any legal effects of what
is found therefrom, does not constitute the
practice of law.
 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.
 But if such work involves only the clerical
labor of filing the blanks on stereotyped form
or a mere mechanical act of copying a file copy
or finished document, which involves no legal
thing, is not considered practice.
Note: It is important to know whether the act
constitutes practice of law or not, in order to
determine whether the performance of such act, a
lawyer and client relationship has been
established, hence, whether he is entitled to
collect fees for his service.
WHEN A LAWYER-CLIENT RELATIONSHIP
BEGIN
 The moment complainant approached the
then receptive respondent to seek legal advice,
a veritable lawyer-client relationship evolved
between the two. Such relationship imposes
upon the lawyer certain restrictions
circumscribed by the ethics of profession.
Among the burdens of the relationship is that
which enjoins the lawyer, respondent in this
instance, to keep inviolable confidential
 LEGAL COUNSELING By: JRPB
information acquired or revealed during legal
consultations (Hadjula vs. Madianda).
 The moment the complainant approached the
respondent to seek legal advice, the lawyer
client relationship has already established.
Such relationship imposes upon the lawyers
certain restrictions circumscribed by the
ethics of the legal profession to keep inviolate
confidential information acquired or revealed
during the consultations.
 The fact that one is (lawyers in a partnership
or a law firm), at the end of the day, not
inclined to handle the client's case is hardly of
consequence. Of little moment is the fact that
no formal professional engagement follows the
consultation nor would it make any difference
that no contract whatsoever was executed by
the parties to memorialize their relationship.
 A lawyer-client relationship is established at
the very first moment complainant asked
respondent formal advice regarding his
business.
 To constitute professional employment, it is
not essential that the client employed the
attorney professionally.
Q: What is alibi?
A: It is a defense where an accused claims that he
was somewhere else at the time of the commission
of the offense. It is one of the weakest defenses an
accused may avail because of the facility with
which it can be fabricated, just like a mere denial
(People v. Esperanza, G.R. Nos. 139217-24, June 27,
2003). A categorical and positive identification of
an accused, without any showing of ill-motive on
the part of the eyewitness testifying on the matter,
prevails over an alibi (People v. Gingos and
Margote, G.R. No. 176632, Sept. 11, 2007). When
this is the defense of the accused, it must be
established by positive, clear and satisfactory
evidence.
Note: For the defense of alibi to prosper, the
accused must show that: 1. He was somewhere
else; and 2. It was physically impossible for him to
be at the scene of the crime at the time of its
commission. (People v. Gerones, et.al., G.R. No. L-
6595, Oct. 29, 1954)
Note: Mere denial, if unsubstantiated by clear and
convincing evidence, has no weight in law and
cannot be given greater evidentiary value than the
positive testimony of the complaining witness.
Denial is intrinsically weak, being a negative and
self-serving assertion (People v. Rodas, G.R. No.
175881, Aug. 28, 2007).
Q: Is extrajudicial confession a sufficient ground
for conviction?
A: It is not sufficient ground for conviction unless
corroborated by evidence of corpus delicti. (Sec.
3)
Q: What is corpus delicti?
A: It is the actual commission by someone of the
particular crime charged. It refers to the fact of the
commission of the crime, not to the physical body
of the deceased or to the ashes of a burned
building. The corpus delicti may be proven by the
credible testimony of a sole witness, not
necessarily by physical evidence (Rimorin v.
People, G.R. No. 146481, Apr. 30, 2003).
Q: What are the elements of corpus delicti?
A:
1. Proof of the occurrence of a certain event; and
2. A person’s criminal responsibility for the act
(People v. Corpuz, G.R. No. 148919, Dec. 17, 2002).
Note: The identity of the accused is not a
necessary element of the corpus delicti.
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PROOF BEYOND REASONABLE DOUBT
Q: What is meant by reasonable doubt?
A: It is that state of the case which, after the entire
comparison and consideration of all the evidence
leaves the mind of the judge in that condition that
he cannot say that he feels an abiding conviction
to a moral certainty of the truth of the charge.
(People v. Calma, G.R. No. 127126, Sept. 17, 1998)
Q: What does proof beyond reasonable doubt
require?
A: It only requires moral certainty or that degree
of proof which produces conviction in an
unprejudiced mind. It does not mean such degree
of proof as excluding the possibility of error,
produce absolute certainty. (Basilio v. People, G.R.
No. 180597, Nov. 7, 2008)
Q: Must the identity of the accused be proved
beyond reasonable doubt?
A: Yes. When the identity of the accused is not
established beyond reasonable doubt, acquittal
necessarily follows. Conviction for a crime rests on
the strength of the prosecution’s evidence, never
on the weakness of that of the defense.
Note: In every criminal prosecution, the
prosecution must prove two things:
1. The commission of the crime; and
2.The identification of the accused as the
perpetrator of the crime. What is needed is
positive identification made with moral certainty
as to the person of the offender (People v.
Maguing, G.R. No. 144090, June 26, 2003).
PREPONDERANCE OF EVIDENCE
Q: What are the matters that must be taken into
consideration in determining where the
preponderance of evidence lies?
A:
1. All the facts and circumstances of the case;
By: JRPB
2.The witnesses’ manner of testifying, their
intelligence, their means and opportunity of
knowing the facts to which there are testifying;
3. The nature of the facts to which they testify;
4. The probability or improbability of their
testimony;
5. Their interest or want of interest;
6. Their personal credibility so far as the same may
legitimately appear upon the trial; or 7. The
number of witnesses, though the preponderance
is not necessarily with the greater number (Sec. 1,
Rule 133).
SUBSTANTIAL EVIDENCE
Q: What is substantial evidence?
A: It is that amount of relevant evidence which a
reasonable mind might accept as adequate to
justify a conclusion. (Sec. 5)
Q: When is substantial evidence sufficient to
establish a fact?
A: In cases filed before administrative or
quasijudicial bodies, a fact may be deemed
established if it is supported by substantial
evidence.
CLEAR AND CONVINCING EVIDENCE
Q: What are the instances when clear and
convincing evidence is required as quantum of
proof?
A:
1. Granting or denial of bail in extradition
proceedings
2. When proving a charge of bias and
partiality against a judge
3. GR: When proving fraud
XPN: Under Art. 1387 of the New Civil
Code, certain alienations of property are
presumed fraudulent.
4. When proving forgery
5. When proving ownership over a land in
annulment or reconveyance of title
6. When invoking self-defense, the onus is on
the accused-appellant to establish by clear
and convincing evidence his justification
for the killing 7. When proving the
allegation of frame-up and extortion by
 LEGAL COUNSELING By: JRPB
police officers in most dangerous drug
cases
7. When proving physical impossibility for
the accused to be at the crime scene when
using alibi as a defense
8. When using denial as a defense like in
prosecution for violation of the Dangerous
Drugs Act
9. To overcome the presumption of due
execution of notarized instruments
10. When proving bad faith to warrant an
award of moral damages
11. When proving that the police officers did
not properly perform their duty or that
they were inspired by an improper motive
12. When a person seeks confirmation of an
imperfect or incomplete title to a piece of
land on the basis of possession by himself
and his predecessors-in-interest, he must
prove with clear and convincing evidence
compliance with the requirements of the
applicable law
CHAIN OF CUSTODY IN RELATION TO
SECTION 21 OF THE COMPREHENSIVE
DANGEROUS DRUGS ACT OF 2002
Q: What is Chain of Custody Rule in relation to
Sec. 21 of the Comprehensive Dangerous Drugs
Act of 2002?
A: It is a method of authenticating evidence. It
requires that the admission of an exhibit be
preceded by evidence sufficient to support a
finding that the matter in question is what the
proponent claims it to be. It would include
testimony about every link in the chain, from the
moment the item was picked up to the time it is
offered into evidence, in such a way that every
person who touched the exhibit would describe
how and from whom it was received, where it was
and what happened to it while in the witness’
possession, the condition in which it was received
and the condition in which it was delivered to the
next link in the chain. These witnesses would
then describe the precautions taken to ensure that
there had been no change in the condition of the
item and no opportunity for someone not in the
chain to have possession of the same. (Lopez v.
People, G.R. No. 172953, Apr. 30, 2008)
Q: When is there a need to establish a chain of
custody?
A: It is necessary when the object evidence is
nonunique as it is not readily identifiable, was not
made identifiable or cannot be made identifiable,
e.g. drops of blood or oil, drugs in powder form,
fiber, grains of sand and similar objects.
Q: What is the purpose of establishing a chain of
custody?
A: To guaranty the integrity of the physical
evidence and to prevent the introduction of
evidence which is not authentic but where the
exhibit is positively identified the chain of custody
of physical evidence is irrelevant. (Ibid.)
BEST EVIDENCE RULE
a. MEANING OF THE RULE
Q: What is Best Evidence Rule?
A: GR: It provides that when the subject of the
inquiry is the contents of the document, no
evidence shall be admissible other than the
original document itself.
XPNs:
1. When the original has been lost or
destroyed, or cannot be produced in court,
without bad faith on the part of the offeror;
2. When the original is in the custody or
under the control of the party against
whom the evidence is offered, and the
latter fails to produce it after reasonable
notice;
3. When the original consists of numerous
accounts or other documents which cannot
be examined in court without great loss of
time and the fact sought to be established
from them is only the general result of the
whole;
Note: The voluminous records must be
made accessible to the adverse party so that
the correctness of the portion produced or
 LEGAL COUNSELING By: JRPB
summary of the document may be tested
on cross-examination.

4. When the original is a public record in the

custody of a public officer or is recorded in
a public office (Sec. 3)

Note: Where the issue is only as to whether such a

document was actually executed, or exists, or on
the circumstances relevant to or surrounding its
execution, the best evidence rule does not apply
and testimonial evidence is admissible.

Q: When is this applicable?

A: The rule will come into play only “when the
subject of inquiry is the contents of a document.”

CONFESSIONS
Q: Define confession.
A: It is a categorical acknowledgment of guilt
made by an accused of the offense charged or of
any offense necessarily included therein, without
any exculpatory statement or explanation (Sec. 33;
Regalado, Vol. II, p. 764, 2008 ed.).

Note: If the accused admits having committed the

act in question but alleges a justification therefor,
the same is merely an admission. (Ibid.)

Q: What are the classifications of confession?

A:
1. Judicial confession – is one made by the
accused before a court in which the case is
pending and in the course of legal proceedings
therein and, by itself, can sustain conviction. It is
governed by Secs., 1, 3 & 4 of Rule 116.
2. Extrajudicial confession – is one made in any
other place or occasion and cannot sustain a
conviction unless corroborated by evidence of
corpus delicti. It is governed by Sec. 33 of Rule 130.