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Legal counseling

Atty. Daniel T. Farinas Ed. D.

WHO IS A LAWYER? A lawyer is one who: 1. passed the bar exams, 2. taken an oath , 3. registered in the roll of attorneys, 4. received a certificate of license to practice law from the Clerk of Court of the Supreme Court. AFTER ADMISSION HE OR SHE MUST: 1. remain an IBP member in good standing by regularly paying IBP dues and other assessments 2. pay annual privilege tax 3. observe the rules on proper ethics

preliminaries

preliminaries
What constitutes practice of law?
A: 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(Cayetano v. Monsod, G.R.No. 100113, Sept. 3, 1991)

preliminaries
Who is a practicing lawyer? A: A practicing lawyer is one engaged in the practice of law, who by license is an officer of the court and is empowered to appear, prosecute and defend a client cause. A practicing lawyer is a member of the Philippine Bar who appears for and in behalf of parties in courts of law and quasi-judicial agencies.

preliminaries
What is not considered practice of law?
1. Gratuitous furnishing of legal aide to the poor and unfortunates who are in pursuit of any civil remedy, as a matter of charity; 2. Mere search of records of realty to ascertain what they may disclose without giving any option or advise as to the legal effects of what may be found; 3. Clerical labor of filing in the blanks on stereotyped form or a mere mechanical act of copying from a file copy or finished document which involves no legal thing.

Beginning a law practice


A new lawyer who has just hurdled the bar examinations, has several options to pursue in order to start a law practice, among which are:

1. 2. 3. 4.

Solo private practice Assistant or associate or partner in a private law firm Legal officer in corporate law department Government employment

Law office
Things to consider: Filing system: As to what kind of files should be sorted out and rearranged, will depend on each individual preferences, but basically office files are summarized as follows 1. Clients file 2. Collection files 3. Personal files 4. General correspondence files

on billing clients
Two Concepts of Attorneys Fees

In its ordinary concept, an attorneys fee is the reasonable compensation paid to a lawyer for the legal services he has rendered to a client. The basis of this compensation is the fact of employment by the client.
In its extraordinary concept, an attorneys fee is an indemnity for damages ordered by the court to be paid by the losing party to the prevailing party in a litigation. The basis of this is any of the cases authorized by law and is payable not to the lawyer but to the client unless they have agreed that the award shall pertain to the lawyer as additional compensation or as part thereof.

on billing clients
The Rules of Court provides under Rule 138, s.24 only three factors:
the importance of the subject matter of controversy; the extent of the services rendered; and the professional standing of the attorney.
Under Rule 138, s.24 it is also provided that the court is not bound by the opinion of attorneys as expert witness as to proper compensation and that written contract shall control the amount paid unless found by the court to be unconscionable or reasonable.

According to jurisprudence, the court may also take into consideration the clients capacity to pay.

Dealing with clients


It is noteworthy to reflect on the following suggestions how to make your clients happy:

1. Remember whom you are working for 2. Define the relationship 3. Keep in touch 4. Keep at least two docketing systems 5. Accept phone calls 6. Promptly return your phone calls 7. Spend time with your staffs 8. Paper the worlds 9. Do not procrastinate 10.Send out an evaluation sheet.

How to obtain clients


But clients come before reputation Begin with yourself Go on with the people who know you Joining a society or service organization Assignment by a Court or Judge Donating your time for speaking engagements Keeping your name before the public How to hold client What lawyers think clients should expect Your own approach to your client What to tell your clients

How to obtain clients


How to keep your clients happy Avoid unnecessary delays Bother your client Be there when our client wants you Look as effective as you are Dont lose your client after you win his case Changing from solo to partnership practice When you change -

Work tasks of lawyers

Law practice may be classified into the following tasks undertaken by a lawyer in the pursuit of his profession. 1. Advice 2. Negotiation and conciliation 3. Drafting 4. Litigation 5. Financing 6. Property management 7. Acting as executor or trustee 8. Specialization

Advice
Rule 2.02, Canon 2, CPR In such cases, even if the lawyer does not accept a case, he shall not refuse to render legal advice to the person concerned if only to the extent necessary to safeguard the latters rights.

What does rendering of legal advice include?


It shall include preliminary steps that should be taken, at least, until the person concerned has obtained the services of a proper counsels representation. Even though no attorney-client relationship is created between the parties, the lawyer, by providing interim advice, preserves the dignity of the profession by inspiring public faith in the profession. (CPR Annotated, PhilJA)

Note: If only to the extent necessary to safeguard the latter s right means such as advising him what preliminary steps to take until he shall have secured the services of counsel. However, he shall refrain from giving this preliminary advice if there is a conflict of interest between a present client and a prospective one. Extending such legal advice will create and establish an attorney-client relationship between them and may involve a violation of the rule prohibiting a lawyer from representing conflicting interest.

The advice may center on the informations and probable results 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 4. Alternative courses of action.

Alternative courses of action


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

Negotiation and conciliation


The essential elements in negotiation are: 1. Proposals to the other side 2. Counter-proposals 3. Reconsiderations 4. Compromise 5. Advice to clients 6. Client instructions to counsel.

Essential factors in negotiation

Mechanics of negotiation
One important thing to remember when negotiating for a client is that lawyer must be equipped with special power of attorney before sitting at the negotiating table:

Mechanics of negotiation
Instances that require special power of attorney: 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 judgment, 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 ownership of an immovable is transmitted or acquired either gratuitously or for a valuable consideration

Mechanics of negotiation
Instances that require special power of attorney: 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 the 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 service without compensation 10. To bind the principal in a contract of partnership

Mechanics of negotiation
Instances that require special power of attorney: 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 15.Any other act of strict dominion. (Article 1878 New Civil Code)

Most common subjects of negotiation


Lawyers play a prominent role in negotiating such real estate matters are as follows: 1. Closings 2. Coverage of title 3. Insurance policies 4. Eminent domain awards 5. Conflicts between real estate brokers over sales commissions

Most common subjects of negotiation


Lawyers play a prominent role in negotiating such real estate matters are as follows: 6. Mortgages 7. Real estate tax adjustments 8. Lease terminations 9. Tenant relocations and settlement of litigations

Effective negotiation techniques


1. Speeding up litigation process 2. Concealment of facts 3. Shifting negotiation technique

Drafting
It is the writing and revision of written instruments, and as the term is used in the profession, includes not only the complete preparation of an instrument by one person but its review and modification by others.

LITIGATION Definition
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

Essential difference between negotiation and litigation


In litigation, a third party decides issues involving others; In negotiation parties with conflicting interests seek to resolve or accommodate to them by mutual agreement among themselves.

financing
As had been seen, there are lawyers who act as brokers or entrepreneurs in putting together and promoting real estate deals and in connection with these deals seek financing from present and past clients of their law practice. There is nothing unethical about these business deals which have no taint of shady or fraudulent underpinnings. As a matter of fact, most successful practitioners in this country engage in numerous business transactions and / or make their law offices merely as forefronts of their big business ventures.

Property management
1. 2. 3. 4. 5. 6. 7. Leasing Eviction Contract for repairs Rent collection Arranging for maintenance services and insurance Payment of taxes and other expenses Acting as executors and trustees

These tasks include the following:

Acting as executor or trustee


A lawyer who drafts and acts as executor of a will should possess vast knowledge of the law on wills and succession. He must be conversant about how much portion of the testators estate he is permitted to dispose of by will without encroaching on the legitime of the compulsory heirs. He should be precise about the specific area and kind of property of the estate that should pertain as aliquot share of the devisees and legatees in order to prevent intestacy.

specialization
The term specialist is usually used to refer to what a worker does, to wit: 1. The task he performs 2. The goods or services he produces 3. The persons he works or with 4. The place where he work

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