LEGAL COUNSELING; Friday 5:30-7:30pm

Group 2:
Holman
Espina
Estadilla
Flores
Lasala
Laureta

Chapter II

THE LAWYER IN MAIDEN PRACTICE

Options to pursue in order to start a law practice:

1. Solo private practice

As long as he comports himself as a trustworthy lawyer before the eyes of the public by
his performance, will surely reap dividends in the long run and earn for himself a name as a
successful courtroom advocate.

2. Assistant or associate in a private law firm

A written contract of partnership is necessary to define the role of each partner and the
management of th partnership venture so as to avoid future misunderstanding.

3. Joining a corporate law department

The advantage of joining a corporate law department is that it offers a higher salary,
aside from the enjoyment of generous fringe benefits and perks not usually enjoyed from a
private law firm.

4. Charting an ideal law office

An ideal office will help one to invite the attention of prospective clients.

5. Library, equipment, staff, billing

An ideal law office with a library, equipment, staff, and billing will make a positive
impression to a client as he or she enters the office.

6. How to deal with the client

Whether as general practitioner or specialized practitioner, the new lawyer should
endeavor to protect and take good care of his relations with his clients since they are the
breadbasket of his law practice.

7. Make the client happy and comfortable

The client should be made happy during the first interview, and to continue to make
him happy while the case is in progress by keeping him well posted about the development of
the case.

Small vs Banares 516 SCRA 323

 Respondent's failure to communicate with complainant was an unjustified denial
of complainant's right to be fully informed of the status of the case. By his inaction,
respondent disregarded his duties as a lawyer. The relation of attorney and client is highly
fiduciary, requiring utmost good faith, loyalty, and fidelity on the part of the attorney.

8. Sustaining a law practice; specialization

Once a lawyer has acquire a substantial number of clientele to start with a maiden
practice, the new lawyer should strive to maintain their patronage while attracting some more
clients.

9. Norms of conduct for successful lawyering

A lawyer must always keep in his mind that ‘there is no substitute for winning’, thus, one
must devote time and effort to assure the victory of his/her client’s cause because in the first place
the client entrusted such legal matter to the lawyer expecting that it would be resolved in his/her
favor. Here are some suggestions in keeping one’s client happy, to wit:

(a) Remember whom you are working for. - keep in mind that the real boss is your client.
Your client’s satisfaction is the key to stay in the legal business and not the senior partner’s or a
superior’s satisfaction in a law firm/office set-up.

(b) Define the relationship. – be honest to your clients, let them understand what you can
and cannot do for them. Explain every aspect of the case, the extent of your services.

(c) Keep in touch. – Be transparent as to the actions you will and you are going to take.
Always update your clients. Keep an open communication.

(d) Keep at least two docketing systems. – one that you manage, and one your staff
manages. Inform and remind your client as to important dates, such as hearing dates, depositions,
meetings, etc.

(e) Accept phone calls. – Be accessible to your client. Even after business hours, accept
their calls, or if you can’t attend to them, tell them that you will call back or let your secretary or
staff answer their queries.

(f) Promptly return your phone calls. – if you commit to your client that you will call
back, make sure to call them back the moment you are free to talk to them. Value their time. Keep
your word.

(g) Spend time with your staff. – talk to your staff on a regular basis, update each other on
the status of the cases. Keep them happy.

(h) Paper the worlds. - Furnish your client a copy of everything you file to the courts so
they would know the status of their cases.

(i) Send out an evaluation sheet. - ask your client to evaluate your performance after
every case so that you will know your weak and strong points. Have a room for improvement.
 10. Random criteria for obtaining clients, as per IBP survey investigations, a lawyer is
chosen by their clients because of the: a. Reputation for capability as a lawyer – 26%; b. Reputation
for trustworthiness – 23%; c. Personal acquaintance with lawyer – 20%; d. Referral by a neighbor
or friend – 13%; e. Participation in civic, religious, and community activities – 3%; f. Referral by
another lawyer – 2%; g. Lawyer’s political activity – 1%; h. Lawyer’s appearance and conduct in
court – 1%; and i. Other reasons – 3%. Based on the said survey, it can be assumed that ta lawyers;
reputation and personal contact is the top reasons. It is safe to say that a lawyer must always do
his job well to attract and be known to clients.

11. Reputation only come later before clients.

One’s reputation can only be proven and described by previous clients, thus, the most
important traits to get a client is to maintain professional capability and reputation all the time.
Potential clients may be anywhere, it can be within your circle of friends, your family, church, civic
club or association. In cases of Judicial appointments, acquaintance with the judge plays a vital role
as the judge will choose a counsel de oficio whom he knows personally.

12. Find time for speaking engagements.

Speaking engagements in certain localities can be a venue of self-advertisement in an
accepted way. People attending such engagements will know about you and your achievements as
a lawyer. It gives you the opportunity to be face-to-face with a large number of people and be able
to show them your capabilities through these talks.

13. How to hold a client

A lawyer’s usual tasks are: giving of a sound advice; drafting of valid documents; win your
client’s cases by adopting a correct theory; and backing of the law that is applicable to his problem.
People also look for these characteristics in a lawyer: Friendliness, promptness, courtesy, respect
for clients, businesslike attitude, consideration in keeping clients informed.

14. Standards that lawyers expect from clients.

a. Prompt and thorough communication to keep the client updated;

b. Prompt handling of the client’s work;
c. Honest and straightforward dealing with the client, including careful evaluation of the
case;
d. Courteous and sympathetic attitude towards the client. Sincere interest in the issues;
e. Competence and diligence in handling client’s affairs.

Your first interview with a client is a make-or-break. Make sure to give all your attention to
him, be respectful all the time, keep the interview private, let him feel that he is important, his
causes are important to you. Make the first impression that all correspondence would be kept
private. Show him your outline of proposed actions to take. This would make an impression to our
client that you are interested with his cause.

15. Look as effective as you are

Always see to it to look professional, firm and knowledgeable of your client’s cause or
conflict. Do not come to a battle unprepared. Make sure that the tactics you will use are dignified
and courteous.
 16. Whether you win or lose a case, don’t lose your client.
It won’t be always a win for a you as a lawyer, there will come a time that you’ll have to lose
a case. Despite losing, a lawyer shall strive not to lose his clients. Some ways to expand your
practice of law is to change from solo to partnership practice, open a home or branch office,
specializing, retrieving lost legal business, and keep your client legally up-to-date.

The modern clientele assumes that their lawyer are specialized in everything, in reality, one
person cannot specialize in every field of the law. Entering into partnership practice with lawyer
friends will help a lot and is a common trend now.

Advantages of partnership practice are:

a. Greater earnings - it gives you more edge to solo practitioners who lack the required
skills, since one of your partners is known in such skill/field of law;

b. Greater efficiency - tasks can be divided to those who are more skillful on the subject
matter;

c. Lower overhead – since partners would have to pool resources for the overhead
expenses. Everything would be of common expense; and

d. More clients – as the number of partners increases, the client list increases also. Every
partner can bring opportunities with his/her own circle.
 Chapter III:

WORKLOAD OF A LAWYER

The standard yardstick of successful lawyering may be defined from the accomplishment
of the following work tasks of the practicing lawyer, to wit:
a. Advice
b. Negotiation and conciliation
c. Drafting, whether of pleadings to be filed in court, or of documents and written
contracts;
d. Litigation
e. Financing
f. Property management
g. Acting as executor or trustee of a will, or special administrator in case of intestate
succession;
h. Specialization

In the field of advice, every lawyer is presumed to be competent in giving spontaneous

and off-hand advice advice to prospective clients during the first interview on the foreshadowing
and relative possible outcome of a potential litigation. This is to pre-empt the falling out from
conciliation and mediation process. But if there is a hope of pursuing further negotiations and
compromises, this process should first be pursued and exhausted before giving up.

On matters involving an intricate question of law and latest jurisprudence, the lawyer
should be frank on the client, that the same cannot be answered on the spot, and needs
reservation on the lawyer’s part to make prior research and verification with the recent
applicable stature and jurisprudence.

Giving of advice is the task lawyer’s most commonly perform. This is usually based to
measure the lawyer’s conception and learning of relevant substantive law and doctrines. The
advice may also revolve on the informations and probable outcome based on the following
considerations:
1. Anticipated reactions of courts and other administrative agencies or official or quasi-
judicial bodies;
2. Probative value of evidence;
3. Desires and resources of clients and other affected parties; and
4. Alternative causes of action.

The following are alternative courses of action that the lawyer may suggest to his client,
he should pursue either any or all of them:

1. Indicate the preference as to which course of action should be pursued by the client;
2. Proceed to argue persuasively as to why the client should adopt this course of
action; or
3. He may try to avoid showing any preference at all on which course of action should
be taken, merely posing available alternatives in as neutral terms as possible.

In pursuing the latter alternative, the lawyer merely restricts his role to illuminating
choices, not recommending and any opinion he expresses are directed only at the relevancy
and merits of the alternatives, not at deciding among them. But he should never seek to coerce
the client, or threaten to impose sanctions if the client does not decide a certain way. His role
is to assist the client in deciding he has no power to force him to do so, although he frequently
will point out the dangers of coercion from other sources.

a. Non-legal advice

Lawyers are asked to give advice having little or nothing to do with legal doctine or law-
making or adjudicating bodies. Government and business often become trusted counselors on
a wide range of family, business, administrative and political problems. As long as the
performance of these acts do not prejudice the interest of the public or are done outside of
office hours, there is nothing wrong in the acts of government lawyers who earn extra income
outside of their official functions.

b. Role conflict in giving advice

In advising clients, the lawyer can often run into role conflict giving rise to the following:

1. When should the lawyer be the client’s servant and when his critic?
2. To what extent should he identify with the client’s goal and follow his expressed
wishes?
3. To what extent should he question them?

most of the answers to these questions focus on what the client wants. Whatever the
real motive of the client is, before he expresses concrete overtures on hiring your services,
simply accommodate in answering his queries with honest and straightforward explanations on
the probable outcome of his problem by the court’s adjudication.

c. The lawyer’s ultimate word

The best approach in dealing with this particular client is to define right upon the
acceptance of the employment or before giving any advice, the extent of the client’s role. The
lawyer’s role is to stand foursquare with his client’s interests, but only to such limit that will not
allow him to compromise your professional and moral standards, by advising on a course of
conduct bordering on ethical principles.

d. Essential factors on negotiation and concialliation

1. Proposals to the other side;

2. Counter-proposals;
3. Reconsiderations;
4. Compromise;
5. Advice to clients; and
6. Client instructions to counsel.

e. Effective negotiation techniques

 Negotiation usually transpire in a face to face conferences, by the active role of a third
party negotiator. In some cases a key figure in negotiation, a lawyer may go to each
party individually and secure commitments, thereby piecing together an agreement without the
other participants meeting face to face. Lawyers may enter negotiations at any stage. But there
is nothing more effective medium of negotiation that leads to a quick compromise agreement
than, when the trial judge himself personally intervenes with or without their lawyers, in having
the parties litigants attend an impromptu conference, by inviting them inside his chambers,
playing the role of a baton leader or like a conductor in an orchestra.

One important thing to remember when negotiating for a client is that the lawyer must
be equipped with a special power of attorney before sitting at the negotiating table. As aptly
ruled, a compromise agreement without a special power of attorney or special written authority
from the client, renders the judgement based on a compromise agreement null and void. But
once approved by the court, a compromise agreement has the force of res judicata between
the parties, unless vitiated by forgery or other vices of consent.

Our law on agency under Article 1878 of the civil code requires a special power of
attorney in the following:

1. To make such payments as are not usually considered as acts of administration;

2. To effect novations which put an end to obligations already in existence at the time
the agency was constituted;
3. To compromise, submit questions to arbitration, to renounce the right to appeal from
a judgement, waive objections to the venue of an action, to abandon a prescription
already acquired;
4. To waive any obligation gratuitously;
5. To enter into any contract by which the ownership of an immovable is transmitted or
acquired either gratuitously or for a valuable consideration;
6. To make gifts, except customary ones for charity or those made to employees in the
business managed by the agent;
7. To loan or borrow money , unless the latter act be urgent and indispensable for the
preservation of things which are under administration;
8. To lease any real property to another person for more than one year;
9. To bind the principal to render some services without compensation;
10. To bind the principal in a contract of partnership;
11. To obligate the principal as a guarantor or surety;
12. To create or convey real rights over immovable property;
13. To accept or repudiate an inheritance;
14. To ratify or recognize obligations contracted before the agency;
14. To ratify or recognize obligations contracted before the agency;
15. Any other act of strict dominion;

f. A general power does not include special power

A general power of attorney does not include a special power to perform a particular act.
Nevertheless, the performance of the acts without the consent of the client does not ipso facto
render the transaction or deed void, but only voidable until ratified by the client. But without such
special authority from the client, the judgment of the court based on the compromise agreement cannot
be enforced it being null and void, unless ratified thereafter but before the finality of the decision.
g. Most common subject of negotiation
(a) closings; (b) coverage of title; (c) insurance policies; (d) eminent domain awards;
(e) conflicts between real estate brokers over sales commissions; (f) mortgages; (g) real estate
tax adjustments; (h) lease terminations; (i) tenant relocations and settlement litigations.
h. Availment of effective negotiation techniques
Delay, without reaching the brink of unethical practice, is one of the effective techniques in
negotiations. As long as there is bright hope for settlement, further delay in going to trial, even
though the plaintiff has a good claim, will in the long end redound to the benefit of all parties
concerned.
i. Concealment of facts
It is not unethical for a lawyer to lawfully conceal facts, as long as it is done with the primary
purpose of forestalling the possibility of a court litigation or of abbreviating a court trial already
started.
j. Drafting
It includes not only the preparation and drafting of written documents and every written
agreement in the course of business but including the review and modification by others.
One does not need to be a gifted writer to be able to draft a nearly perfect document but
the ability to write with clarity and precision and to anticipate all relevant legal and factual
considerations is a lawyer's skill of high order.
The following are typical of such instruments:
1. usual contracts and deeds;
2. sales;
3. leases;
4. mortgages;
5. wills;
6. partnership agreement;
7. articles of incorporation;
8. pleadings, compromise agreements;
9. decisions and resolutions;
10. press releases;
11. letters of demand and various kinds of written communication;
12. staff memoranda;
13. advertisements;
14. special powers of attorney;
15. petitions and motions to be filed in appellate courts;
16. appeal briefs;
17. appeal memoranda;
18. letters of administration;
19. letters rogatory; and
20. letters of publication.

II. Litigation
It means proceedings before any tribunal, whether judicial or quasi-judicial or
administrative body vested with jurisdiction to decide issues involving parties who are entitled
to appear before the decision-maker and prosecute their cause.

1. Litigation and negotiation distinguished

In litigation, a third party decides issues involving others. The lawyer's task in
litigation vary greatly depending on whether the proceedings are contested or uncontested. A
case is contested as long as each side seriously threatens to oppose the other before the
decision-making tribunal. It ordinarily is uncontested if the defendants default or fail to appear
Whereas, in negotiation, parties with conflicting interests seek to resolve or
accommodate to them by mutual agreement among themselves.

2. How to proceed effectively in uncontested annulment suits

If a lawyer wants to end the litigation very quickly in an annulment of marriage
suit, all that the parties got to do is to arrange thru their counsel for an uncontested litigation
(non-contendere). This is achieved by an out of court understanding that the defendant should
not answer the complaint, from which the court may proceed to calendar the case for hearing
during which the defendant does not appear.
Upon proof of service of notice to the defendant, complainant can then move for
reception of his or her evidence ex-parte which will serve as basis for the court’s decision
granting annulment.

3. Recommended short-cuts to non-contested suits

In criminal cases, a recommended short cut remedy is to enter a plea of guilty
when the imposable penalty for the offense thus charged, does not exceed prision correctional
or not exceeding 6 years, in which case, the convict may avail of the benefits of the probation
law. If accused is on bail, he can avail of his bail bond for his immediate release, or apply for a
recognizance.
Suits to quiet title, common real estate title clearing procedures in many Regional
Trial Courts in the provinces are seldom contested. This practice of uncontested litigation is
highly recommended and encouraged where the parties have failed to agree on the negotiating
table. The same proceeding may be achieved in the settlement of estates of deceased persons,
administration of estates of incompetents and minors.
 4. Property Management and Leasing
Considered of lesser lucrative value is a segment in the lawyer’s task especially
patterned for small law firms and solo practitioners, focusing on property management for
clients. These work tasks include leasing, eviction, contract for repairs, rent collection,
arranging for maintenance services and insurance, payment of taxes and other expenses of
clients, and acting as executors and trustees.
a. Leasing
It is the common lawyer’s work task of those who practice law in the United
States, but there are also clients here in the Philippines with enormous real estate
holding which hire the services of lawyers to effectively manage their properties without
incurring consideration loss in income, wasteful payment of taxes as well. A lawyer who
is skilled in this kind of specialization, can save his client from liability under the rental
law, by the employment of appropriate language in the lease contract to suit the terms
and conditions more favourable to clients arising from the interpretation of contracts of
lease, the job of a lawyer pay more dividends than that of an ordinary layman.

b. Rent collection and eviction

Effective and speedier technique, otherwise, the defaulting-debtor will
snob demand letters and eventually frustrate collection process
Remedies of rent-collector lawyer:

1. Statute of Limitations
 requires filing of ejectment cases not later than one (1) year from final demand
 next remedy is accion publiciana to recover possession of the property after the
expiration of one (1) year cognizable by the Regional Trial Court

2. preliminary mandatory injunction and preliminary attachment of the lessee’s properties,

and/or garnishment under Rule 39, Section 9 (c) of the 1997 Rules of Civil Procedure
(garnishment may only be availed after a favorable judgment has become final and
executory)

Right to appeal a final judgment of the court is granted by law to the losing party,
however, same judgment is immediately executory, unless the defendant has perfected an
appeal to the Regional Trial Court.

Requisites before appeal are deemed perfected:

1. posting of supersedeas in the amount to be fixed by the court condition to answer for
all loses and damages that plaintiff may suffer should the judgment be affirmed on
appeal
 2. payment of periodic deposits to answer for the reasonable use and occupation of the
premises down to the final judgment by the appellate court and during the pendency of
the appeal, the same amount to be deposited with the sentencing court.

Appeal does not lie from the decision of the RTC in the exercise of its appellate
jurisdiction, to the Court of Appeals in ejectment proceedings but rather by Petition for Review
under Rule 42 within fifteen (15) days from notice of the decision, or denial of the motion for
new trial or reconsideration

c. Effect of perfection of appeal under Rule 41

Under Interim Rule, the trial court loses jurisdiction over the entire case. Section 9, Rule
41 of the Rules of Civil Procedure, the court does not lose jurisdiction upon perfection of appeal
by notice of appeal or approval of the record. The court of origin cannot be deprived of its
power to exercise jurisdiction over matters in the exercise of its residual jurisdiction, for the
“preservation and protection” of the rights of the parties which do not involve any matter
litigated by the appeal.

Case:

Fortune Life and General Insurance Co., Inc., vs. Court of Appeals 224 SCRA 829

FACTS: This is a Petition for Review on certiorari brought by Petitioner Fortune Life and
General Insurance Co. Inc. to the Supreme Court from the ruling of the Court of Appeals
annulling and setting aside the Orders of the Regional Trial Court of Manila, in Civil Case
No. 85-29991, granting Fortune Life’s motion for reception of evidence on the
application for damages against the bond of private respondent Delsan Transport Lines,
Inc. Earlier, the court a qou rendered judgment ordering Fortune Life to pay Delsan
P1,952,302.00 for damages and P50,000.00 for attorney’s fees. On this basis, Delsan filed
a motion for execution pending appeal. It invoked as “good reason” petitioner’s alleged
fraud and deceit in not informing respondent Delsan of the latter’s change of corporate
name. the motion was supported by a bond in the amount of P500,000.00 answerable
in favor of appellant Fortune Life. Private respondent filed a motion for reconsideration
which was denied by the court a quo. Thereafter, private respondent filed another
motion for reconsideration assailing the trial court’s jurisdiction in issuing the
questioned orders, and praying that the records of the case be immediately elevated to
the appellate court pursuant to the notice of appeal filed by Petitioner. Thenceforth,
private respondent filed a petition for certiorari, prohibition and mandamus before
respondent Court of Appeals, seeking to annul the questioned orders, and to compel the
trial court to forward the records to the Court of Appeals, since it has allegedly lost
jurisdiction in view of petitioner’s appeal, to which CA ruled in favor of private
respondent. Hence, this petition under Rule 45.
 HELD: The sole issue raised by the petition is upon perfection of petitioner’s appeal of
the trial court’s decision, does said court retain jurisdiction to hear the application for
damages against the bond that was posted in support of private respondent’s motion
for execution pending appeal? There is no controversy that the appeal of petitioner has
been perfected. As a necessary consequence thereof, the trial court was divested of
jurisdiction over the case. Section 9, Rule 41 of the Rules of Court mentions three (3)
instances where the trial court is allowed to exercise residual jurisdiction, after the
perfection of the appeal, namely: (1) to issue orders for the preservation and protection
of the rights of the parties which do not involve any matter litigated by the appeal; (2)
to approve compromises offered by the parties prior to the transmittal of the record on
appeal to the appellate court, and (3) to permit the prosecution of pauper’s appeal.
Petitioner relies on the first instance as basis for its stand that the trial court has
the authority to hear its application for damages. Its reliance thereon is misplaced.
Although the application for damages is beyond the scope of the matter litigated by the
appeal, there is no “protection and preservation,” of its right to speak of. Respondent
CA was emphatic in its disquisition on this subject matter: Petitioner’s application for
damages being heard by the respondent court, may not be considered an exception to
Section 9, Rule 41 of the Rules of Court. The provisions speaks of “protection and
preservation” of the rights of the parties which do not involve any matter litigated by
the appeal. The action for damages, in fact, and in actuality, however, is an act of
vindication, is punitive in nature and not an act to protect and preserve, but to punish
and make one party, the private respondent herein, to pay damages. The demolition
aspect of the decision subject of the writ of execution pending appeal cannot be
implemented without special order for that purpose. The power to grant or deny a
motion for execution is discretionary with the court, unless it is prevented by an ancillary
preliminary injunctive relief.

5. Acting as Executor or Trustee

The task of management of the real and personal properties of the decedent in his
fiduciary capacity. Drafts and acts as executor of a will should possess a vast knowledge of the law on
wills and succession, he must be conversant and precise about the specific area and kind of property of
the decedent’s estate that should pertain as aliquot share of each and every devisee and legatee in
order to prevent intestacy

6. Specialization

Refers to the work task of a practicing lawyer who specializes or has vast expertise or is
highly competent at performing a specific kind of work or practice. May likewise refer to trial lawyers
who specialize in a particular field of law, such as criminal lawyer, a civilist, a practicing lawyer who
specializes in naturalization proceedings, immigration law, patent law, titling properties, labor cases,
special proceedings like adoption, guardianship, hospitalization of mentally retarded, agrarian law,
transportation law, tax cases and SEC registration. General practitioner refers to a lawyer who engages
in general practice pf law, incompatible with specialization, even though there are a few kinds of clients
and causes unacceptable to him