Necessity of representation by counsel

The right of a litigant to counsel is a recognition of, and is intended to give meaning to, the necessity that
a litigant appear by counsel.

Thus, the court cannot compel the litigant to do the following:

 To compel a litigant to prosecute or defend his cause personally if he has chosen to appear by
counsel;
 To assign a counsel de oficio for an accused and require said counsel to proceed with the trial
when the accused has previously manifested his desire to secure the services of a counsel de
parte;
 To refuse to hear a party by counsel employed by and appearing for him.

In consequence of the above, the Court would be denying the litigant’s right to due process in the
constitutional sense.

Representation in Criminal Cases, felt more urgently

Reason: The life or liberty of the accused are at stake.

When right to counsel can be availed of in criminal proceedings:

1. Custodial interrogation
2. Preliminary investigation or
3. Detention pending trial;
4. Arraignment;
5. Promulgation of judgment and
6. Appeals to the appellate courts.

Custodial Investigation

General Rule: No custodial investigation can be conducted unless it be in the presence of counsel
engaged by the person arrested.

Reason: A counsel’s presence would insure that statements made in the government-established
atmosphere are not the product of compulsion. If the accused decides to talk to his interrogators, the
assistance of counsel can mitigate the danger of untrustworthiness.

Exception: The right to counsel may be waived, but such waiver must still be with the assistance of a
lawyer.

The right to counsel is absolute and may be invoked at all times.

Fake Lawyers
Q: If the judgment has become final and executory, can the accused still raise that he has been
denied the right to counsel?
A: Yes, this was illustrated in People vs. Santocildes Jr. The accused’s counsel who represented him
throughout the proceedings was not really a lawyer, so accused was entitled to have his conviction set
aside and a new trial undertaken.

Real, but Grossly Incompetent Lawyers

Q: What if the counsel is a real lawyer, but it just so happened that he was incompetent and caused
the client’s case?
A: In the case of People vs. Nicolas, the SC held that, if the incompetence, ignorance or inexperience of
counsel is so great and the error committed as a result thereof is so serious that the client, who otherwise
has a good cause, is prejudiced and denied his day in court, the litigation may be re-opened to give the
client another chance to present his case.

Consequences of denial of right to counsel

1. Any confession of the person or any document signed by him expressly or impliedly admitting the
commission of the crime without having been assisted by his lawyer is inadmissible in evidence.

2. Even if the judgment of conviction had become final and executory, it may still be recalled, and the
accused afforded the opportunity to be heard by counsel, where he has been denied the right to counsel
during the hearing.

3. If the incompetence, ignorance or inexperience of counsel is so great and the error committed as a
result thereof is so serious that the client, who otherwise has a good cause or defense is prejudiced and
denied his day in court, the litigation may be reopened to give the accused another chance to present his
case.

When appearance by counsel not obligatory

1. Municipal Trial Courts
2. In RTCs and Appellate Courts;
3. Administrative Proceedings;

Note: The rule that appearance by counsel is not obligatory applies only in civil and administrative
cases. The rule does not apply in criminal cases involving grave and less grave offenses, where an
accused must be represented by counsel de parte or counsel de oficio and in which his right to
counsel is not waivable.