LEGAL COUNSELING serves as basis of a court judgment or as a
condition precedent to vest jurisdiction to a
CHAPTER 1
Introduction
A. Definition and Terms
Counseling—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—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.
Courts of Justice—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—is an administrative body
or agency belonging to the executive brand 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—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 rules or
regulation.
Arbitration—is the process of extrajudicial
settlement of controversies in the
administrative level before an arbitrator thru
the voluntary will of the parties arising from
the violation of law, administrative rules, or
regulation.
Conciliation—is the extrajudicial 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
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court of law.
Compromise agreement—is a mutual
agreement or understanding usually reduced
into writing entered into and executed by the
parties litigants whether judicially or
extrajudicially which serves as basis for a court
judgment.
B. Legal Counseling as essential component
of lawyering
Scenario
A wise and prudent person who is
confronted with a legal problem would not
hesitate to run to a lawyer worth his salt to act
as a negotiator, an honest arbitrator who
deserves his full trust and confidence. He may
either employ the legal services from a pro-
bono member of the legal profession or from an
abogado de campanilla.
The initial step
Before one decides to immerse into a
protracted court litigation, a citizen who is
confronted with a legal problem, should not be
timid to first consult a well-meaning lawyer and
exhaust all avenues for amicable settlement. It
is only when all avenues for conciliation have
been resorted to but failed, that one is left with
no recourse but to go to court.
Right of Action to Courts of Law
In the event that the recourse to
amicable settlement and other remedies have
failed, that is the time when he have to resort
to a court proceedings enforcing his right of
action. This addresses every citizen’s
constitutional right to gain access to courts and
this can be done through the help of a lawyer
who is privileged to appear or defend a case
before the courts.
C. Importance of lawyers in society
1. Lawyers are the “advocates of the
poor.”
2. Lawyers solve legal problems of the
people.
3. Lawyers interpret the law and help in
maintaining order in the society.
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 Certainly, lawyers are perpetually
engaged in trying to anticipate, prevent,
mediate, settle, or win human disagreements
involving alleged rights recognized at law.
D. Law practice without 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.
What should be the conduct of a lawyer?
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.
They should properly advice clients
regarding the case they are handling so as to
assure clients that justice will not be frustrated.
Furthermore, the 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.
What should not be the conduct of a lawyer?
It is improper for a lawyer to assert in
argument his personal belief in his client’s
innocence or in the justice of his cause.
A lawyer should likewise prohibit
violation of law or any manner of fraud or
chicanery.
Lastly, a lawyer should not abuse his
position and social standing in the society.
E. What is considered practice of law?
People v. Villanueva, G.R. No. L-19450, 27 May
1965 [14 SCRA 109]
”Law practice is more than an
isolated appearance, for it consists of
frequent and customary actions, a
succession of acts of the same kind. One
is said to be engaged in the practice of
law if he is customarily or habitually
holding himself out to the public as a
lawyer, and demanding payment for such
service. The appearance as counsel on
one occasion, is not conclusive as
determinative of engagement in the
private practice of law. Preparing
documents and rendering legal services
are within the term practice of law.”
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Practice 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.
Instances that constitute “practice of law”
1. One who confers with clients,
advises them as to legal rights
and then takes the business to an
attorney and asks the latter to
look after the case in court, is in
the practice of law;
2. Rendering an opinion as to the
proper interpretation of a statute
and receiving pay for it, is to that
extent, considered practice of law;
and
3. 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 a legal school of
learning, constitutes practice of
law.
Instances that does not constitute “practice of
law”
1. Occasional drafting of simple
deeds and other instruments
when not conducted as an
occupation, has been held not to
constitute the practice of law;
2. Gratuitous furnishing of legal aid
to the poor and unfortunates who
are in pursuit of any civil remedy,
as a matter of charity, does not
constitute practice of law;
3. The search for records of realty to
ascertain what they may disclose
without giving any opinion or
advice as to the legal effects of
what may be found therefrom,
does not constitute practice of
law; and
4. Clerical work of filling the blanks
on stereotyped form or a mere
mechanical act of copying from a
file copy or finished document,
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 which involve no legal thing, is
not practice of law.
F. When not to accept a case
One cardinal advice to the lawyer is:
“Don’t take a case unless you believe in it.” This
does not involve one’s belief as to whether or
not the client is guilty, rather, it must be seen
as to whether or not the client really has a cause
of action or a defense at all.
Other instances that warrants non-acceptance
1. A case grounded solely on
“nuisance value” for purposes of settlement,
for this would demean your stature and
reputation;
Extent of the lawyer’s authority and
advice
1. Lawyers’ authority to choose the
proceedings he will institute on behalf of
his client, as well as the witnesses he will
present in court. A lawyer has control
only with respect to the procedural
aspect of the case; and
2. To make admissions of facts but not of
law. But even with respect to making
admissions of facts, this requires the
execution of a special authority (special
power of attorney) by the client to make
valid stipulations of fact upon which the
court shall base its judgment.
Consequences of the lawyer’s authority
Parties-litigants are bound by the
mistakes committed by their lawyers in matter
of procedure. These mistakes cannot be
utilized as grounds for new trial unless it is
shown that the competency of counsel is so
serious that his client is prejudiced and was
prevented from fairly presenting his case.
Lawyers, on the other hand, cannot
proceed against his client with respect to the
losses he may incur by reason of his client’s
fault or negligence it being considered damnum
absque injuria (or that kind of loss or 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).
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G.R. No. 100113. 3 September 1991.
CAYETANO v. MONSOD
Paras, J.
Doctrine
Practice of law means any activity, in or
out of court, which requires the application of
law, legal procedure, knowledge, training and
experience. To engage in the practice of law is
to perform those acts which are characteristics
of the profession. Generally to practice law is to
give notice or render any kind of service, which
device or service requires the use in any degree
of legal knowledge or skill.
Facts
Atty. Christian Monsod, one of the
respondents, was nominated by then President
Corazon C. Aquino to the position of Chairman
of the Commission on Elections (COMELEC).
Petitioner Renato L. Cayetano opposed the said
nomination, alleging that Atty. Monsod did not
possess the required qualification set forth
under Section 1 (1), Article IX-C of the 1987
Constitution which requires that “xxx the
Chairman, shall be members of the Philippine
Bar who have been engaged in the practice of
law for at least ten year.”
Issue
Whether or not Atty. Monsod possesses
the required qualification of having engaged in
the practice of law for at least ten years.
Ruling
Atty. Monsod is a lawyer, a member of
the Philippines Bar, who has been practicing
law for over ten years.
In Philippine Lawyers Association v.
Agrava, the Court ruled that 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, the
management of such actions and proceedings
on behalf of clients before judges and courts,
and in addition, conveying. Practice of law
under modern conditions consists in no small
part of work performed outside of any court
and having no immediate relation to
proceedings in court. It embraces
conveyancing, the giving of legal advice on a
large variety of subjects, and the preparation
and execution of legal instruments covering an
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extensive field of business and trust relations
and other affairs. Although these transactions
may have no direct connection with court
proceedings, they are always subject to become
involved in litigation.
Practice of law means any activity, in or
out of court, which requires the application of
law, legal procedures, knowledge, training and
experience. To engage in the practice of law is
to perform those acts which are characteristics
of the profession.
The contention that Atty. Monsod does
not possess the required qualification of having
engaged in the practice of law for at least ten
years is incorrect since Atty. Monsod’s past
work experience as a lawyer-economist, lawyer-
manager, lawyer-entrepreneur of industry,
lawyer-negotiator of contracts, and a lawyer-
legislator of both rich and the poor verily more
than satisfy the Constitutional requirement for
the position of COMELEC Chairman.

References:

Legal Counseling for Practicing Lawyers (2015)

by Judge Recaredo Barte. Published by
Central Books Supply Inc.
Supreme Court Reports Annotated (1991)
Volume 201, pages 210-243. Published
by Central Books Supply Inc.
ARCEO, BAYSA, & BIGAY — Legal Counseling under ATTY. BALLESTEROS