Legal counseling

Atty. Daniel T. Farinas Ed. D.

WHO IS A LAWYER? preliminaries
• 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
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. ‫ڊ‬To 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(‫ڄڋ‬Cayetano 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. Solo private practice
2. Assistant or associate or partner in a private law firm
3. Legal officer in corporate law department
4. 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. Client’s file
2. Collection files
3. Personal files
4. General correspondence files
 on billing clients
Two Concepts of Attorney’s Fees
In its ordinary concept, an attorney’s 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 attorney’s 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 attorney’s
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 client’s 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
• Don’t 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 latter’s 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

Essential factors in negotiation

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.
 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

These tasks include the following:

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