Ateneo - Legal Profession Reviewer

8/9/2019 Ateneo - Legal Profession Reviewer

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Legal Professions Notes Vena V. Verga

LEGAL PROFESSION NOTESLEGAL PROFESSION NOTES

Atty. SundiamAtty. Sundiam

I. Why am I here in law school?

- How to pass the bar?II. Rights and Priveleges of a Lawyer- Duties and Obligations of a lawyer

III. Different fields of LawyersIV. Integrated Bar of the Philippines

Chapter 1: Why am I Here in Law School? How to Pass the Bar?

Legal Profession

- is not a trade, not a business, is not a craft, not a profession, but a noble

profession. Its basic ideal is to render service and secure justice tot hosewho seek its aid. If it has to remain an honorable profession and attainits basic ideals, its members should not only master its tenets and

municipals but should by their lives accord continuing fidelity to them.Noble profession even without money you can be compelled by law to render

your services

Terminology:1. Lawyer2. Attorney

3. Attorney-at-law a member of the legal profession

4. attorney-in-fact may be a lawyer or not

power of attorney authorized to do a specific act while aperson is absent

agent / representative of someone absent

5. advocate advocates something legal; something in court

6. barrister member of the bar7. counsel8. counselor / counselor-at-law9. proctor10. solicitor

Lawyer- class of persons who by license are officers of the court and who are

empowered to appear in court to prosecute, and defend, and on whompeculiar duties and responsibilities and liabilities are devolved by law as aconsequence

o licensed pass the bar

o empowered only lawyers are allowed to appear in court

o considered as quasi-judicial officers

o become officers as they appear in court

Qualifications for admission in the Legal Profession1. Filipino citizen can be natural-born or naturalized2. Must be a resident of the Philippines3. In oath-taking must be at least 21 years old4. No conviction of crime involving moral turpitude5. No charges in court of crimes involving moral turpitude that are filed or

pending against you

crimes involving moral turpitudeo all crimes punished under book 2 of the RPC

o 1 crime which does not involve moral turpitude art. 365

reckless imprudence a quasi-offense; there is no intent tocommit the act

o not convicted in Philippine courts6. Submit 3 affidavits presented by 3 respected people

o who will attest under oath hat you have good moral character. If

you cant submit 3 affidavits of good moral character, you canttake the bar

No need to be charged in court to be disqualified

In bad moral character, no case is needed to be filed incourt

It may be a sin against the church, but not against thestate

o Goes on until death

Enumeration of instances ruled as bad moral character bythe Supreme Court

1. false statement in your application to take the bar- any error will disqualify one from taking the bar2. Falsification of affidavit of good moral character3. Impersonation of another person- Using another persons school transcript4. Conviction and charge of crime of moral turpitude5. Living of an adulterous life- Even if there are no charges against you6. Entered into a bigamous marriage7. Involvement in a bar anomaly even if acquitted or

absolved.- Must prove beyond reasonable doubt8. unauthorized representation of self as a lawyer

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9. issuance of bouncing checks- estafa and against RA 2022- unethical and questionable checks10. Concealment of a material fact- Obtaining credits through concealment of material

facts

7. Educational qualification 4 years pre law; 4 years law proper8. Pass the bar

- the only professional test not under the control of the professionalregulation commission

- It is given by the Supreme Court- It is only held in Manila and everyone takes it all at the same time- No such thing as partial passing

o fail one, fail all; fail one; repeat all

o passing: 75% no subject should be below 50%

- can only be taken 3 times, on the 4 th take, must go back to 4 th year

law school and get a certification (as a refresher course); 7th take, goback to 4th year again, and so on

- Administrative order by the Supreme Court which will take effect on

July 15, 2004; you can only take the bar 5 times, if you fail by thattime, you will be forever disqualified

o Before 3rd and 5th take, take a refresher course

o There will be a board of examiners

- held on all the 4 Sundays of September in DLSU8:00 12:00 nn and 1:00 5:00 pm

o 1st Sunday: Political Law and Labor Law

o 2nd Sunday: Civil Law and Taxation

o 3rd Sunday: Commercial Law and Criminal Law

o 4th Sunday: Remedial Law and Legal Ethics & Practical

Exercises- all applicants names are published in the newspaper

o BEFORE and AFTER the baro So that anyone who wants to oppose an applicant can still

go to the Supreme Court- You cannot learn in one night what you must learn in 4 years- Name in the application should be the same name in his/her birth

certificate

Pitfalls in taking the bar:1. Because of the law school where you came from

a. Teachers not goodb. Inadequate materialsc. Bad foundation

2. Examiners do not know how to express themselves

3. Poor penmanship

9. Oath0taking 4 tickets10. Signing the book for attorneys roll number for life11. Membership in the IBP

- IBP #, date of issue, place of issue requirement for every pleading

filed in Court

Chapter 2: Rights, Privileges, Duties, and Responsibilities of a Lawyer

Rights and Privileges1. To practice law in judicial, quasi-judicial, and administrative tribunals (all

courts in the Philippinesa. Judicial regular courtsb. Quasi-judicial NLRCc. Administrative SEC

2. To seek in judgment in every case and set the judicial machinery inmotion (as quasi-judicial officers, lawyers are parts of the courts)

3. To seek positions in all courts, prosecution offices, and other legaldepartments in government offices

4. To enjoy the presumption of regularity (done in good faith)5. To enjoy immunity from liability so long as he has not materially departed

from his character as a quasi-judicial officer6. A statement made by a lawyer in court, of relevant, pertinent and

material to the issue and subject of inquiry is absolutely privilegeddespite its defamatory tenor and presence of malice

7. Stand up for your right and even in the face of a hostile court or judgebecause you are allowed great latitude of pertinent comment- stand up for your right- the bench is the symbol of his authority respect it

8. in passing the bar, you are a first grade (requires knowledge of the law)civil service eligible

second grade no knowledge of law in government service9. As a lawyer, you are seen as a model citizen and a leader in the

community10. As a lawyer, given the privilege of authority to be appointed in executiveand legislative positions in the government

Duties and Responsibilities1. Maintain allegiance to and support the constitution of the Philippines and

obey its laws2. Maintain respect to the courts

- the bench on which the judge sits3. Maintain or counsel only those actions or proceedings you believe are

honestly debatable under the laws- best aversions are your clients

4. Employ only means that are consistent with truth and ho

nor and never tomislead or make false statements of facts and the law

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- everything you say is recorded- falsus inomnibus caught lying once, deemed to lie everywhere- avoid using dirty tricks- subject to criminal liability and disbarment

5. Keep the secrets of your clients- client-lawyer privilege communication-

rules of court does not allow priests6. To act accordingly when appearing in courts

- act appropriately in courts with no offensive personality

- come on time late: case can be dismissed for failure to prosecute- eating gum, reading newspaper, etc

7. not to encourage either the commencement or continuance of an actionor delay any mans cause for corrupt motive or intent- knowing that the case has corrupt motive

8. Never to reject for any monetary reason or personal considerations thecase of the defenseless or oppressed

9. Regardless of opinion, present the defense of the accused by fair andhonorable means that the law permits so that no person may be deprivedof life or liberty but by due process of law.- can use any means to defend client

10. Dont delay justice Subordinate your personal duties and interest to those without youowe the court as a quasi-judicial offer and to your client

Chapter 3: Practice of Law and the Different Fields in which I can Engagein

There is no exact definition

Widely Accepted definition

o To do any of those acts which are characteristic of the legal

profession embracing activities in or out of court whichrequire the application of law, legal principles, practice, orprudence and calls for legal knowledge, training andexperience

Can be out of court as long as he applies

knowledge of law in what he was doing Restrictive definition

o Practice of law implies customarily or habitually holding

ones self out to the public as a lawyer for compensation asa source of livelihood

Three parts1. Practice of law in the regular courts

- when you have control and management over the proceedings incourt

2. Practice of law before other government agencies other than the courts- when present evidence before them and make interpretation and

application of the laws

- ex. For the BIR3. Practice of law outside of the courts and other government agencies

- when you give legal advice, prepare and execute legal documentsand instruments practice law outside of courts and othergovernment agencies

Who may practice law? (or continue to practice law?) Any person who has been duly licensed as a member of the bar in accordancewith the statutory requirements and is in good and regular standing

Statutory requirementsa. educational (pre-law), moral and other qualificationsb. pass the barc. take your oath

How to remain in good and regular standing?

continuing requirements til deatha. remain a member of the integrated bar of the Philippinesb. regularly pay all IBP dues and other assessments (depends on

the chapter)c. pay privilege tax (on or before Jan 20 of every year)d. faithful observance of the rules and ethics of the legal profession

i. continuous good moral charactere. continually subject self to the disciplinary control and

supervision by the Supreme Court and the IBP

Fields of SpecializationA. Government Service

1. Member of the Supreme Courta. Nominated by judicial bar council and appointed by the President

2. Member of the Court of Appealsa. 69 members; 23 divisions, 3 in each (1-17 division Manila, 18-

20 division Cebu. 21-23 division Cagayan De Oro)b. Meet en banc to decide administrative mattersc. Cases are raffled division decides; not decided; there is a

special division created with 5 members (3 wins), majority is theponente

d. Salary Php 28,000; receive Php 24,000

e. Allowance Php 15,000 with 13th month payi. Plus: Xmas bonus Php 20,000; JDF Php 3,000; Car

(Php 5,000/month gasoline, driver and plate #10)3. RTC Judge

a. Workhorse of the judiciary perform some appellate functions

b. Court of 1st instance where the trial is donec. Salary; bonus; JDF; Plate# 16

4. Municipal Trial court Judge / Metropolitan Trial Court (city)a. Court in each municipality

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b. Plate number 185. Sandiganbayan

a. Hears cases which involve public officialsb. A trial court heard by a divisionc. Salaries and privileges same as Court of Appeals

6. Court of Tax Appeals

a. Hears cases which only involve tax issuesb. A trial courtc. Decisions directly appeal able to the Supreme Court

Appointed by the President, from a list of nominees submitted by the JudicialBar CouncilRetire: 5 year lump sum

76 years old onwards: receive salary again every month until you die

7. Shariah Courts

- Jurisdiction to solve controversies of the Koran / Muslim Law8. Ombudsman

- Watchdog of government offices9. Court Administrator

- supervises all courts in the Philippines10. Judicial bar Council

a. Composed of 7 peopleb. CJ as chairman, Sec as secretary, HRET representative, former

SC, representative of Academe, Law professor, Representative ofPrivate Sector

11. Arbiter: National Labor Relation Commissiona. Hear cases regarding laborb. Divisions of 3 members

12. Commissioner of COMELEC13. Fiscal

a. Lawyer of the People of the Philippines in a minimal caseb. Conducts preliminary investigationsc. He who files information in Courtd. Can be asked to man police precincts

e. If promoted: RTCf. Counterpart in the US: district attorney

14. State Prosecutora. Under the DOJ, appointed by the President from a list of

recommendation from the Secretary of DOJb. Review decisions of provincial prosecutors rendered in

preliminary investigationsc. Involves high profile casesd. Brought to the province to handle cases of prominent politicianse. Promotion: Court of Appeals

15. Solicitor General- The official lawyer of the Republic of the Philippines

16. Government Corporate Council

- the official lawyer of government controlled and ownedcorporation

17. Executive and Legislative Department18. Officer of any legal office19. NBI Agent

- a lawyer or a CPA

20. Special investigators21. Chief of Police

B. Private Sector / Business Sector1. Professional notary public

a. Can earn more than practicing lawyersb. A lot has been charged with falsification of public documentsc. The act of signing documents matters if it is a public document

2. Corporate lawyera. Lawyer of a corporation who handles its moneyb. Also the corporate secretaryc. Knows the corporation code and deals with the SECd. Some are already being dealt with the RTC

3. Labor lawyersa. 2 kinds

i. for the union / employee have them understand thelaw

ii. for management aim: maintain peaceb. needs qualities

i . diplomacyii. tactfulnessiii. patience

c. knows the labor coded. practice with the National Labor Relation Commission and Court

of Appeals4. Tax lawyer

a. Unlawful: tax evasion do not pay taxes (criminal)b. Lawful: Tax avoidance- use legal loopholes and apply to the clients

-apply facts of case to law to avoid taxes applies statutoryconstruction

c. know the tax coded. Court of Tax Appeals and Bureau of Internal Revenue, and

Commissioner of Customs5. Patent Lawyering6. Real estate lawyering

a. May be:i. House counsel

1. hold office in the corporation with a specificsalary

2. cannot practice outside3. employee of the corporation

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ii. Retainer counsel1. have law office outside2. handle cases as a retained lawyer3. have agreement

7. Special projects lawyering- handles joint ventures, etc

C. Trial Practice (the real McCoy)- going and arguing in court

1. de parte counsel- lawyer retained by a party litigant for a fee to prosecute or defend a

case for a party litigant2. de oficio lawyer

- lawyer appointed by court to defend an indigent defendant /accused on a criminal case or represent a destitute in a civil case

Difference:

De Parte Counsel De Oficio Lawyer

Lawyer Paid Lawyer not paid

Client has a choice Client has no choice

3. Counsel of record-

name and addresses entered in the record of case as designatedcounsel of litigant and to whom notices are sent- notices sent to him binds the client- only one sent notices

4. Amicus curiae / Friend of the Court- Impartial and experienced attorney invited y the court to appear

and help the court in the disposition of intricate issues join big law firms first to get experience advertisements not allowed

Attorneys Fees- has different styles: Chinese, American, Filipino- Some do not prosper due to their mentality (Filipino Culture)- Always put agreement in writing

Different arrangements:1. contingent fee

- agreed upon only in losing cases- lawyer not paid anything if case is lost. If won, high percentage of

lawyers fees- reasonable success fee: 20 30%- higher than regular

2. straight fee- arrangements demanded by abogados de campanillas, big lawyers- win or lose you have to pay

3. sharing in the property recovered- resorted to by provincial lawyers where case involves land- a relative of contingent fee

4. per hour fee arrangement- Americans like this arrangement but Filipinos dont like this- Americans presume that everybody is honest

5. per appearance fee arrangement- everytime you go to court, postponed or not, gets paid- province: Php 1,000-1,500-

manila: Php 2,000 3,000- promotes prolonged cases one of the reasons of delayed cases

6. acceptance and success fee

- acceptance fee win or lose lawyer

- recover something, get a percentage of it7. per appearance and success fee

- everytime go to court, paid- win get percentage

8. acceptance and per appearance fee arrangement9. acceptance + per appearance + success fee arrangements

if you want to earn, do the American way law is harder than medicine

- the law changes everyday by stare decisis

-you have to go to the supreme court for recent decisions, whilefor medicine, they are fed by the med reps

In law, you have to be specific

- has to be accurate with words, sentences, and punctuations- do not be careless when you write

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