Cortez, Elizabeth Joy Espiritu, Nadine Salmasan, Ivan Japeth

De Leon, Beatrice Reyes, Luigi

DEFINITION OF TERMS
Counseling – 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

Legal Counseling – 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 – 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 – 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 judgment and orders like a court of law and
to punish for contempt

Administrative Body or Agency – an instrument of the executive branch of government, vested

by law with jurisdiction to settle and adjudicate controversy arising from the interpretation,
application, and enforcement of laws or administrative rules or regulations.

Arbitration – the process of extrajudicial 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 – the extrajudicial process of settling disputes through the voluntary submission of
the parties before the Barangay Lupon or other administrative bodies or agencies, usually
arriving at a compromise agreement which serves as basis of a court of judgment or as a
condition precedent to vest jurisdiction to a court of law

Compromise Agreement – a mutual agreement or understanding usually reduced into writing

entered into and executed by the parties litigants whether judicially or extrajudicially which
serves as a basis for a court judgment

Legal Ethics – that branch of moral science which treats the duties which an attorney-at-law
owes to his client, to the court, to the bar, and to the public.

Practice of Law – In Cayetano v. Monsod, the practice of law is said to mean “any activity, in
or out of court, which requires the application of law, legal procedure, knowledge, training and

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Cortez, Elizabeth Joy Espiritu, Nadine Salmasan, Ivan Japeth
De Leon, Beatrice Reyes, Luigi

experience. To engage in the practice of law is to perform acts which are usually performed by
members of the legal profession.”

LEGAL COUNSELING AS ESSENTIAL COMPONENT OF LAWYERING

- The intervention of a third impersonal party who is trained in law, when there appears to
be no hope for conciliation becomes indispensable, thus the need for lawyers.
- Pro-bono members of the legal profession are those who are willing to accept a case on
a contingent basis
- An abogado de campanilla is a colloquial term for those lawyers who are well-known or
sought after
- Lawyers must not advise their client to bring their problems to court right away, without
the process of mediation. Those who do so, may not be good lawyers
- A citizen who is confronted with a legal problem should not be timid to first consult a well-
meaning lawyer even if he is holding office is inside his modest residence
- Only those who have been admitted by the Supreme Court to the practice of law can he
be allowed to appear before a court and such person must be of proven probity and
competence to prosecute a case

IMPORTANCE OF LAWYERS IN SOCIETY

- We have a diverse society composed of men and women of multifarious calling and
vocations each specializing in his own field of endeavor but even those who specialize in
medicine, architecture, engineering, etc. are helpless when it comes to solving their legal
problems
- 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 the individuals. But laws can only be
interpreted by judges, and judges must first be lawyers. Thus, ultimately, government of
laws is in effect government of lawyers
- The complexity of the functions of a lawyer places him in peculiar situations of influence
in his continuous contact with great variety of people and interests
- Fortunes, lives, and temporal happiness of citizens are freely entrusted into a lawyer’s
hands. Litigants look up to lawyers with confidence and hope while courts and judges
place great reliance on bis words and actions
- Lawyers are perpetually engaged in trying to anticipate, prevent, mediate, settle or
win human disagreements involving alleged rights recognized by law

LAW PRACTICE WITHOUT LEGAL ETHICS IS QUACKERY

- Legal Ethics is 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

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Cortez, Elizabeth Joy Espiritu, Nadine Salmasan, Ivan Japeth
De Leon, Beatrice Reyes, Luigi

- “A lawyer should endeavor to obtain full knowledge of his client’s cause before advising
thereon, and he is bound to give a candid opinion of the merits and probable result of a
pending or contemplated litigation.”
- It is the duty of every lawyer to do whatever may enable him to succeed in winning his
client’s cause
- It is improper for a lawyer to assert in his argument his persona” belief in his client’s
innocence or in the justice of his cause
- A lawyer who is a politician should not smear the legal profession with his political
propaganda and premature campaigning
- A 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
- In a judicial forum, the client is entitled to the benefit of any and every such remedy and
defense
- The great trust of the lawyer is to be performed within and not without the bounds of the
law
- A lawyer must obey his own conscience and not that of his client

WHAT IS CONSIDERED PRACTICE OF LAW

- There is no hard and fast rule as to what constitutes the practice of law
- It consists of frequent and customary actions, a succession of acts of the same kind. One
who is customarily or habitually holding himself out to the public as a lawyer, and
demanding payment for such service. Preparing documents and rendering legal services
are within the term practice of law (People vs. Villanueva, GR No.L-19450, May 27, 1965)
- Occasional drafting of simple deeds and other instruments when not conducted as an
occupation, has been held not to constitute the practice of law
- It is not confined or limited to the conduct of cases in court. It includes preparation of
pleadings and other papers incident to actions and special proceedings, the drawing of
deeds and other instruments and conveyancing. It includes giving advises as to their legal
rights, rendering and opinion as to the proper interpretation of a statute and receiving pay
for it.
- However, gratuitous furnishing of legal aid to the poor and the unfortunates in pursuit of
any civil remedy does not constitute practice of law.
- The importance of knowing whether one is engaged in the practice of law is to determine
whether a lawyer-client relationship have been established, it may also serve as basis for
filing an action for usurpation of official duty against one
- In the conduct of lawyering, an officer of the court must always be guided by a sense of
professional responsibility
- An advocate of the law must be equipped with vast knowledge in psychology, an expert
on human relations, a skillful arbitrator at the bargaining table although as a matter of fact,
not all lawyers are gifted with such expertise and skill, and above all a man of integrity

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Cortez, Elizabeth Joy Espiritu, Nadine Salmasan, Ivan Japeth
De Leon, Beatrice Reyes, Luigi

whose word commands respect and authority not only from his clients, but also from his
client’s adversaries in order to be an effective counselor at law

WHEN NOT TO ACCEPT A CASE

- “Donʼt take a case unless you believe in it.”
- For instance that if a 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 to harass the court
or the adverse party and you ought know this as a counselor-at-law
- Donʼt accept a case on the ground solely that is has “nuisance value” for purposes of
settlement, for this would demean your stature and reputation
- If you believe that a case is a worthy cause, though unpopular or difficult, you must still
do the best you can.
- When one is appointed as an attorney de oficio, one cannot disobey a lawful order of the
court much less refuse to defend a defenseless defendant on pains of being punished for
contempt

EXTENT OF THE LAWYERʼS AUTHORITY AND ADVICE

- The Canons of Professional Responsibility and accepted norms in legal advocacy
recognize the lawyerʼs authority to choose the proceedings he will institute in behalf of his
client, as well as the witnesses he will present in court.
- A lawyer can make admissions of fact and not of law
- Whether or not the lawyer should advise his client to submit to arbitration or compromise
agreement, will depend on the lawyerʼs honest and sound judgment subject to the clientʼs
final word (much of this judgment would depend on the lawyerʼs knowledge of our
procedural rules and jurisprudence)
- 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 agreement or not, or
whether to take an appeal, should come from the client.
- In the matter of whether to litigate or not in a criminal case, or to prosecute a malicious
suit or to pursue an illegal cause 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
- The lawyer must be frank with bis 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
- The 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
- Parties-litigants are bound by the mistakes committed by their lawyers in matters of
procedures, except for honest mistakes

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Cortez, Elizabeth Joy Espiritu, Nadine Salmasan, Ivan Japeth
De Leon, Beatrice Reyes, Luigi

- An attorney cannot bind his client by entering into an agreement compromising and
settling the rights of his client without special authorization through a special power of
attorney
- While it is true that the client can sue his counsel for damages for recovery of whatever
losses he has incurred by reason of his lawyerʼs negligence, the lawyer cannot proceed
against his client with respect to the losses he may have incur by reason of his clientʼs
fault or negligence it being considered damnum absque injuria (that kind of lossor 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)
- As provided for in Villaflores v. Limos:
o Lawyer failed to file client’s brief on time which caused the client to file a disbarment
complaint against Atty. Limos
o 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. By agreeing to be
his client’s counsel, he represents that he will exercise ordinary diligence or that
reasonable degree of care and skill having reference to the character of the
business he undertakes to do, to protect the client’s interests and take all steps or
do all acts necessary therefor, and his client may reasonably expect him to
discharge his obligations diligently.
o The failure of respondent to file the appellant’s brief for complainant within the
reglementary period constitutes gross negligence in violation of the Code of
Professional Responsibility.
o Respondent is reminded that the practice of law is a special privilege bestowed
only upon those who are competent intellectually, academically and morally. This
Court has been exacting in its expectations for the members of the Bar to always
uphold the integrity and dignity of the legal profession and refrain from any act or
omission which might lessen the trust and confidence of the public.
o Atty. Limos was suspended for 6 months

CAYETANO vs. MONSOD

FACTS:
Respondent Monsod was nominated by Pres. Cory Aquino to the position of Chairman of the
Comelec. Petitioner Cayetano opposed the nomination alleging that Monsod does not possess
the required qualification of having been engaged in the practice of law for at least 10 years as
required under Sec. 1, Article, IX-C, 1987 Constitution which provides that:
SECTION 1. (1) 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

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Cortez, Elizabeth Joy Espiritu, Nadine Salmasan, Ivan Japeth
De Leon, Beatrice Reyes, Luigi

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.

COA confirmed the nomination of Monsod as. Chairman of Comelec. He then took his oath of
office and on the same day, he assumed office. Challenging the validity of the confirmation by
the COW of Monsodʼs nomination, Cayetano, as citizen and taxpayer, filed a petition for certiorari
and prohibition praying that said confirmation and the consequent appointment of Monsod as
chairman of Comelec be declared null and void.

ISSUE:
WON respondent Monsod have been engaged in the practice of law for at least 10 years, thus
making him qualified to be the chairman of Comelec

RULING: YES.
As held in the case of Philippine Lawyerʼs Association vs. Agrava:
“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 on behalf
of clients before judges and courts. In general, all advice to clients and all actions taken for them
in matters connected with the law incorporation services, assessment and condemnation
services contemplating and appearance before a judicial body, as well as 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 constitute law practice.

Atty. Monsodʼs past work experiences as a lawyer-economist, a lawyer-manager, a lawyer-

entrepreneur of industry, a lawyer-negotiator of contracts, 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 10 years.

It is well settled that when the appointee, as in this case, and all other legal requirements are
satisfied, the Commission has no alternative but to attest to the appointment in accordance with
the Civil Service Law. The Commission has no authority to revoke an appointment. To do so
would be am encroachment on the discretion vested upon the appointing authority. An
appointment is essentially within the discretionary power of whomsoever it is vested, subject to
the only condition that the appointee should possess the qualifications required by law.

Appointing process in a regular appointment as in the case at bar involves 4 stages:

1. Nomination
2. Confirmation by the COA

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Cortez, Elizabeth Joy Espiritu, Nadine Salmasan, Ivan Japeth
De Leon, Beatrice Reyes, Luigi

3. Issuance of a commission (upon submission by the COA of its certificate of confirmation,

the President issues the permanent appointment), and
4. Acceptance (ex. Oath takin, posting of bond)

The power of COA to give its consent to the nomination of Monsod as the Chairman of Comelec
is mandated by Sec. 1(2), Sub-Article C, Art. IX, 1987 Constitution. We should not lose sight of
the fact that Monsod is a lawyer, a member ofthe Philippine Bar, who has been
practicing law for over 10 years. It is different from the acts of persons practicing law, without
first becoming lawyers.

Monsodʼs confirmation implicitly determined that he possessed the necessary qualifications as

required by law. The judgment rendered by the Commission in the exercise of such an
acknowledged power is beyond judicial interference EXCEPT only upon a clear showing of grave
abuse of discretion amounting to lack or excess of jurisdiction.

In the instance case, there is no occasion for the exercise of the Courtʼs corrective power, since
no abuse, much less a grave abuse of discretion, that would amount to lack or excess of
jurisdiction and would warrant the issuance of the writs prayed for.

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