Legal Counseling Group 1

GROUP 1: LEGAL COUNSELING
REPORTERS: ALAMEDA, Manuel Jr.; BONTUYAN, Jessie; DAYANGHIRANG, Alexa Danielle; DELFIN, Jennica Gyrl; RAYA,
Charles; RIVERA, Marynit; SANTOALLA, Stephanie; SISTUAL, Hector; MACAS, Pauline; MOMPOL, Delfin
LEGAL COUNSELING
Legal Counseling as a Subject It is the art of giving advice and information
concerning the solution to a legal problem arising
from a given state of facts and the adoption of
Course Description: appropriate reliefs or remedies under the law and
“An introduction to the art and technique of legal enforcement of legal obligation before a judicial or
counseling as well as consideration of the responsibilities quasi-judicial body.
of the lawyer as counselor.”
Not a bar subject, but most law schools LEGAL COUNSELING AS A PROCESS
incorporated this in the 4th year review subjects.
Counseling As Procedural Technique and Skill:
WHO IS A LAWYER? 1. Empathy.
A LAWYER IS ONE WHO: It is a quality of interest and caring that one person
- Passed the bar exams; may feel and perhaps express towards another.
- Has taken an oath (Rules of Court, Sec 17); A degree of empathy appears essential in
- Has registered in the roll of attorneys; and counseling if the counselor is to be adequately
- Has received a certificate of license to practice law concerned for and inquisitive about the client, and if
from the Clerk of Court of the Supreme Court. the client is to be reasonably open and cooperative
with the counselor.
AFTER ADMISSION HE OR SHE MUST: A counselor who remains personally remote from
• Remain an IBP member in good standing by his client (uninvolved and perhaps unaccepting), but
regularly paying IBP dues and other assessments; punctiliously correct in his approach, does as much
• Pay annual privilege tax; and as seems required and not necessarily as much as is
• Observe the rules on proper ethics needed or wanted by the client.
A client who is not comfortable in his relationship to
his legal counselor is likely to be less candid and
DEALING WITH CLIENTS:
less participatory than would best serve his
It is noteworthy to reflect on the following
interests.
SUGGESTIONS how to make your clients happy:
- Remember whom you are working for
2. Impression and Information.
- Define the relationship (Attorney-Client
The voluntariness of the client in rendering
Relationship)
information and the receptiveness of the counselor
- Keep in touch
in receiving it form an important foundation on
- Accept phone calls
which legal counseling and intervention in client
- Promptly return your phone calls
affairs takes place.
- Spend time with your staffs
The complexity of the information-gathering and
- Do not procrastinate
information-sifting process suggests that it may be
pre-eminent in importance in legal counseling.
INTRODUCTION
What is Legal Counseling?
3. Analysis
In the larger sense of the term, refers to the broad
Analysis is a generic term for, among other things,
range of consultation lawyers can provide clients.
the processing of information.
In a narrower sense legal counseling is that group
of particular attitudes, skills, and strategies that a
Analysis in legal counseling may deal with a variety
lawyer utilizes mostly in his office to help individual
of needs and desires, facts, issues, risks, effects, and
clients to meet specific needs and resolve specific
consequences.
problems.
1
4. Suggestion and Decision administrative agencies official or quasi-

Suggestion and decision involve the bringing judicial bodies;
together or closure of prior counseling experiences 2) Probative value of evidence;
in information-gathering and analysis 3) Desires and resources of clients and other
Closure may also involve a congruence of attitudes parties; and
between counselor and client where they agree as 4) Alternative courses of action.
to the assessment of a client's situation and a
course of action. Alternative Courses of Action
• In giving advice, the lawyer should program any or
5. Implementation all of the following alternatives:
Implementation is, in substance, the translation of • 1. Indicate his preference as to which course of
decision into action. action should be followed by the client;
• 2. Proceed to argue persuasively as to why the client
6. Reconsideration should adopt this course of action; or
Reconsideration may call into account, though • 3. He may try to avoid showing any preference at all
perhaps on a smaller scale or in a more selected on which course should be taken, merely posing
area, the need for further information gathering and available alternatives in as neutral terms as possible.
sifting, more analysis, and perhaps the
reformulation of some suggestion and decision Sidelights of Advisory Job
• The lawyer who does his advisory job well makes the
WORK TASKS OF LAWYERS law and legal processes meaningful to clients.
Law practice may be classified into the following
tasks undertaken by a lawyer in the pursuit of his • In terms understandable to laymen, he should
profession, as follows: endeavor to explain the applicability and probable
- A. Advice impact of the substantive law and legal doctrine
- B. Negotiation and conciliation involved.
- C. Drafting
- D. Litigation Non-Legal Advice
- E. Financing • Frequently lawyers are asked to give advice having
- F. Property Management little or nothing to do with legal doctrine or law-
- G. Acting as Executor or Trustee making or adjudicating bodies.
- H. Specialization • Lawyers who are holding positions in government
and business often becomes trusted counselors on a
LEGAL ADVICE wide range of family, business, administrative and
• Giving of advice is the task lawyers most commonly political problems.
perform, and whatever else they do for clients is • Widow spouses with marital troubles, and small
almost invariably accompanied by advice. businessman in financial difficulties are among
• Lawyer’s advice consists of recommendations as to those likely to seek non-legal advice from their
what course of action should be followed, and the lawyers.
reasons and data supporting these • As long as the performance of these acts do not
recommendations. prejudice the interest of the public or are done
• It usually based in the large part on the lawyer’s outside of office hours, there is nothing wrong in
conception and learning relevant substantive law the act of government lawyers who earn extra
and doctrine applicable on the particular facts and income outside of their official functions. This is
subject involved. quite true with fulltime judges and government
• The advice may also center on the information and prosecutors who teach in law schools outside of
probable results based on the following additional office hours
consideration such as:
1) anticipated reactions of courts other
2
Negotiation and Conciliation - Typical legal instruments:

Negotiation - Decisions and resolutions
 Involves a process whereby the parties can either - Press releases
meet face to face on an informal basis or exchange - Letters
settlement offers to try and resolve a dispute. - Staff memoranda
Conciliation: - Advertisements
 Is a process whereby the parties to a dispute with
the assistance of a dispute resolution which is - One does not need to be a gifted writer; as long as
binding on the parties. the writing will contain the essential requisites and
Elements: formalities provided by law.
• Proposals to the other side - The simpler the language used, the better.
• Counter-proposals - The use of high sounding and obscure language
• Reconsiderations which often confuse the courts and the
• Compromise implementers of the written document.
• Advice to clients
• Client instructions to counsel Litigation
 It is an action brought in court to enforce a particular
Parties to negotiation right.
• Negotiation - handled by but two persons, one on
each side, with one or both of these persons  It is an act or process of bringing a lawsuit in and of
frequently being lawyer itself; a judicial contest; any dispute.
• Conciliation – handled by both parties but with a Litigation attorneys -- “litigators” or “trial lawyers”
Conciliator  Represent plaintiffs and defendants
 Manage all phases of the litigation process
C. Drafting  It is proceeding before any tribunal, whether judicial

- The writing and revision of written instruments or quasi-judicial or administrative body vested with
- Includes not only the complete preparation of an jurisdiction to decide issues involving parties who are
instrument by one person, but its review and entitled to appear before the decision maker and
modification to others. prosecute their cause.
- A participating lawyer may be called upon to draft

many kinds of instruments, including originally Negotiation v. Litigation
phrased documents tailored to a single transactions
and standard forms adaptable to many transactions.  In litigation a third party decides involving others
- Typical legal instruments:  In negotiation parties with conflicting interests seek

- Usual contracts and deeds to resolve or accommodate to them by mutual
- Sales agreement among themselves.
- Leases
- Mortgages  A case is contested when one of the parties disagree
- Wills on some or all of the issues raised.
- Partnership agreements
- Articles of incorporation  A case is uncontested as long as each side
- Pleadings, compromise agreements seriously threatens to oppose the other before the
decision making tribunal. It ordinarily is uncontested
if the defendants default of fail to appear.
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 Most common of these business arrangements between

(2) How to proceed effectively in uncontested lawyer and client reap lucrative benefits in favor of the
annulment suits. lawyer in terms of attorney’s fees usually on a contingent
basis in sums fatter than what he could realize from court
 This is achieved by an out of court understanding. litigations
 The defendant should not answer the complaint, from .Sometimes, when the client cannot put you up an
which the court may proceed to calendar the case for advance payment of the lawyer’s remuneration, he will be
hearing during which the defendant does not appear. compelled to agree on exorbitant amounts or shares out
of the deals which are unproportionate to the actual
services reassignment of the client’s property to take
3) Recommended short-cuts in non-contested suits
effect during the pendency of the litigation
 Guilty pleas
 Suits to quite title
 There can be no violation of the lawyer’s oath nor
anything unethical with the gargantuan fees, provided
Financing
they are not champertous.
The lawyer receives a share in the venture in return for
 Champerty is an agreement (which might be illegal or
cash or legal services. The more risky the venture and
unenforceable) between two parties whereby one pays
less financially sound the client, the more chances that
expenses for a party to a lawsuit in return for a share of
the client will want lawyer to come in.
any proceeds.
 This practice present an excellent opportunity for making
 Rule 16.04
money, although an argument may be raised against a
 A lawyer shall not borrow money from the client unless
lawyer going in client deals that if litigation is likely and he
the clients interest are fully protected by the nature of the
is expected to conduct such litigation, his financial
case or by independent advice. Neither shall a lawyer lend
involvement may contravene the provisions of Article 1491
money to a client except, when in the interest of justice, he
of the Civil Code.
has to advance necessary expenses in a legal matter he is
handling for the client
 Art. 1491 (5). The following persons cannot acquire by
 Rule 2.03 A lawyer shall not do or permit to be done any
purchase, even at a public or judicial auction, either in
act designed primarily to solicit legal business
person or through the mediation of another:
 Rule 1.03 A lawyer shall not for any corrupt motive or
 (5) Justices, judges, prosecuting attorneys, clerks of
interest, encourage any suit or proceeding or delay any
superior and inferior courts, and other officers and
man’s cause
employees connected with the administration of
Confidentiality
justice, the property and rights in litigation or levied
Attorney-client privilege
upon an execution before the court within whose
jurisdiction or territory they exercise their respective
functions; this prohibition includes the act of acquiring Legal advice of any kind is sought
by assignment and shall apply to lawyers, with respect  From a professional legal adviser in his capacity
to the property and rights which may be the object of  That the communications made in that purpose
any litigation in which they may take part by virtue of  Was made in confidence by the client
their profession.  Are at his instance permanently protected
 From disclosure by himself or the legal advisor
 The venture may be fraught with dangers to the lawyer’s -Mercado vs. Vitriolo
profession, but as long as early safeguards against getting
entangled with ethical standards are met, the attendant A lawyer shall preserve the confidence and secrets of his
risks may well be averted. client even after the attorney-client relationship
4
 The mere attorney-client relationship does not raise a that the property manager will stipulate in the
presumption of confidentiality. The client must intend the contract “The LESSOR shall insure the leased
communicatio n to be confidential. The essence is that the premises against fire. Should the leased premises be
communication is intended for the purpose o seeking damaged by fire, earthquake, storm or any
legal advice. fortuitous events to the extent that the same be
rendered untenable this agreement shall be
Property Management automatically canceled and the deposit as well as
 Leasing the unused portion of the advance rentals be
-
refunded within SIXTY (60) days, minus any unpaid
it is often the case that a landlord will engage a obligation.
property manager (a lawyer) to act as their agent
in managing a lease. This formal engagement is 6. Payment of taxes and other expenses
commonly set out in a contract and involves the
property manager standing in the shoes of the - The property manager (lawyer) knows when (due date)
landlord and dealing with the tenant. to pay the taxes of the property and/or other expenses
involving the maintenance, repairs, etc. of the property.
 Eviction
- Landlords must follow eviction procedures set forth by
state and local law. The lawyer will help the property- 7. Acting as Executor or Trustee
owner in the proper eviction procedures so that the tenant - The lawyer should possess vast knowledge on the law
cannot bring an action against the owner as for “illegality” on wills and succession. He must be conversant about
of eviction. how much portion of the testator’s estate he is permitted
to dispose of by will without encroaching on the legitime
 Contract for repairs of the compulsory heirs. He should be precise about the
specific area and king of the devises and legatees in order
- Commercial leases often contain provisions to prevent intestacy.
regarding maintenance expectations. The lease may
contain provisions that states that the landlord will LEGAL COUNSELING: SPECIALIZATION
provide for all necessary repairs. However, it may
also contain information related to the tenant being LEGAL COUNSELING FOR THE YOUNG LAWYER and APPEALS IN
PHILIPPINE COURTS published by Central Books.
responsible for certain maintenance procedures.
Additionally, the lease may contain information
about when the tenant is responsible for paying for The term specialist is usually used to refer to what a
damages that it causes. worker does, to wit:
1. The task he performs;
 Rent collection 2. The goods or services he produces;
- will discuss the amount of rent that must be paid and 3. The persons he works for or with;
when it must be paid. It may also include language 4. The place where he works; and
about late fees or how much the rent will cost if it is late.
There may also be provisions regarding eviction if the More specifically when applying to practicing lawyers in
rent goes unpaid for a certain amount of time. the Philippines, a specialist refers to someone who
specializes or is highly competent at performing a
 Arranging for maintenance services and specified kind of work or practice.
insurance
Thus, there are lawyers who specialize in trial work, a
- Leases and rental agreements often include a clause corporation lawyer who specializes in dealing with legal
alerting tenants to the fact that the landlord’s problems involving corporations, an insurance lawyer
property insurance will not cover any losses to the who specializes in insurance cases or legal problems
tenant’s personal property. But there are instances involving insurance.
5
(a) The aggressive/difficult client

There are trial lawyers who specialize in a particular field of (b) The mentally ill client.
law and they are often referred to as (c) The illiterate client.
• Criminal lawyer, (d) The NESB client.
• A civilist,
• A practicing lawyer who specializes in naturalization The aggressive/ difficult client
proceedings, • Recognize that clients may be difficult or aggressive
• Immigration law, as they are frightened or distressed.
• Patent law, • Be patient and tolerant. Yelling or raising your voice
• Titling of properties, is not the solution. If you do that you become part
• Labor cases, of the problem.
• Special proceedings like adoption, guardianship, • Rudeness on the part of the client should not be
hospitalization of the mentally retarded, agrarian tolerated – again set the boundaries early.
law, transportation law, tax cases and SEC • Advice the client that you understand their
registration. frustration but clearly tell them it is difficult to assist
them with their matter if they continue on in that
GENERAL PRACTITIONER manner. Also look at the situation and sometimes
A general practitioner refers to a lawyer who engages say the following to the client.
in general practice of law, incompatible of specialization, “Look what you are saying (doing etc) really doesn’t help
even though there are a few kinds of clients and causes you and does not progress your matter further. I think
unacceptable to him. you want to achieve (“X”) let’s look at how we can
achieve that”.
More specifically, a general practitioner is one who is
willing to represent almost any kind of matter if the • The aggressive client is similar to the difficult client.
client will pay the practitioners going rate. They often see the lawyer as the weapon they have
to inflict pain on the ex. How often have you heard
All lawyers are blocked out by conflict of interest from “my solicitor said this” “I’ll tell my solicitor”. Some
taking some matters. Clients demanding unethical clients want to claim us as their own. That may be so
conduct by counsel to pursue an illegal or immoral but don’t become part of their problem. A close
course of action should be rejected. working relationship is fine but it is a critical that the
• By the test of acceptability, a general practitioner lawyer is not there to bow to the unreasonable, and
may also be a specialist providing that he remains at time unethical client’s demands.
willing to take a sufficiently broad of range of
matters and clients in addition to those in his • Remember your reputation cannot be bought and
specialty. once you lose it, it can damage your career.
Remember profession standards always comes first.
• The variety of legal problems is so great that not If the client sees the answer to all his/her problems
infrequently no lawyer even if it is in a big reputable is litigation or a particular course of conduct and
firm, will have any prior familiarity with the complex you do not, advice the client and explain why.
legal problems brought in by various clients.
The Mentally Ill Client

SAMPLE SCENARIOS • This is a difficult area to deal with. One of the main
LEGAL COUNSELING: CLIENT COMMUNICATION areas of concern is being able to receive proper
TECHNIQUE instructions from your client.
• If you are giving ‘advice only’, you would need to
Specific mention now needs to be given to those clients ascertain the capacity of the client to give
who may broadly fall into the following categories: instructions.
• If you are starting court proceedings you should
6
seek the assistance of the treating psychiatrist to 3. Explain the process from the beginning.
ascertain whether the client has the capacity to give 4. Define your role clearly.
instructions before instituting. 5. Work in partnership with your client – joint
• Meeting the client expectations in these ownership/joint responsibility.
circumstances is challenging and it would be wise to 6. Adopt the ‘helicopter’ approach to dealing with
enlist the assistance of a professional person or clients.
support groups from the outset. Consult your 7. Always ask yourself “Does this progress the matter
colleagues too. further”. If not dump it!
8. Reality check often.
9. Recognize special needs clients (mentally ill, NESB,
The Illiterate Client illiterate) and enlist the assistance of support people or
• A huge gap that has been identified at the legal professionals.
service is that some clients that attend the service 10. If the strategies that you employ do not work – look
are illiterate and they therefore cannot comply with at alternatives – remember there is no perfect answer.
court directions in completing the court documents 11. “Brainstorm” and “debrief” with your team members
required. Even though we have excellent family law or other colleagues to work out strategies that can assist
kits to assist the client with preparation of you and your colleagues.
documents, the ongoing management of the client’s 12. If you have a complaint about you – learn from it.
legal needs require attention. We all make mistakes at some time; we will never be
• The steps identified earlier in client management are that ‘perfect legal advisor’ for all clients. However, if you
still important but in addition to this you should always maintain professional standards, you will not be
enlist the services of a support person immediately. subject to negligence claims.
• Ask the client if there is anyone that can come to the 13. If you get praise about your efforts – learn from it.
interview with them. There is always room for improvement.
• It may assist if you to verbally communicate what 14. Maintain your professional standards always.
you intend to do in writing, that is, if you are
sending documents/letter to them, verbally explain Getting Testimonies from Rape Victims
what it is and what is required by them. Initial Considerations
• Confirm that they have a support person to assist • Building rapport with client.
them when that material arrives. • Use of language that will be understood.
• Before asking questions, interviewer should decide
or know what actions they will pursue after they get
The NESB Client
the testimony of the victim
• It should go without saying, if you have a client from
• Questions should use specific language when
a Non English speaking background, you need to
referring to the crime.
enlist the services of an interpreter immediately.
• Questions should be open-ended and designed to
• Go through the steps identified early and provide as
facilitate disclosure.
much information in the form of brochures in the
client’s own language to assist them. From a family
lawyer’s perspective, there are many family court Legal Counselling of Children
brochures in different languages. Be aware and keep Initial Considerations
up to date with what is available for NESB clients. • Building rapport with client.
• Also become familiar with the various support • Use of language that will be understood.
groups in the community which assist NESB clients. • Talk with the parents to establish what course of
action they want to take.
SUMMARY • Use open-ended questions to obtain testimony from
Key client management steps. the child.
1. Maintain your professional standards always!
2. Set the boundaries from the start.
7
Counselling for Child offenders

• Build Rapport with child.
• Use of language that will be understood.
• Obtain testimony from child.
• Advising the parents that the child will be exempt
from criminal liability, but they can be held civilly
liable for injuries and damage caused by their child.

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GROUP 1: LEGAL COUNSELING

4. Suggestion and Decision administrative agencies official or quasi-

Negotiation and Conciliation - Typical legal instruments:

C. Drafting  It is proceeding before any tribunal, whether judicial

- A participating lawyer may be called upon to draft

- Typical legal instruments:  In negotiation parties with conflicting interests seek

 Most common of these business arrangements between

(a) The aggressive/difficult client

The Mentally Ill Client

Counselling for Child offenders

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