IIntroduction

Legal Counseling as essential component of lawyering

The chapter introduces the role of lawyer as a legal counselor. This emphasizes that lawyers do not
exist for the sole purpose of full blown trials, but rather, a well-meaning lawyer is one who can save
a client from immersing into a protracted court litigation. Rather, a good lawyer is one who would be
able to arrange for amicable settlements out of court for he is able to find a better and less
expensive solution to his client’s problem.

Importance of lawyers in society

Lawyering dates back as early as before Christ’s resurrection when he was still on earth according to
accounts cited by the author. Lawyers have played important roles in the society often to defend the
poor and destitute in Roman tribunals or as advocates of the poor.

The illustration that our diverse society is composed of different professions specializing in different
fields but each of them rely on the lawyer to defend them in court for their legal problems. This is
best illustrated by a doctor charged with abortion or negligence in the performance of his duty who
needs a lawyer to solve this legal problem.

The complexity of a lawyer’s functions places him in peculiar situations where his services is sought
by both the wealthy and poor. The lawyer has a vital role of anticipating, preventing, mediating,
settling or winning human disagreements involving alleged rights recognized at law.

Law practice without legal ethics is quackery

Lawyering is a noble profession. It is enshrined in the definition of Legal Ethics which is defined as
the branch of moral science which deals with the four-fold duty of the attorney at law: to the client,
court, bar and the public.

To his client, a lawyer has the duty to obtain full knowledge of his client’s cause before advising and
to give a candid opinion on the merits and probable results of a pending or contemplated litigation.
Lawyers are also admonished against bold and confident assurances and it is within the duty of the
lawyer to advise the client when to avoid or end the litigation. However, he has also the duty to do
whatever to succeed in winning his client’s cause. The lawyer has the duty to assert every remedy
and defense available to the client within the bounds of the law.

What is considered practice of law (Cayetano vs Monsod)

G.R. No. 100113 September 3, 1991

RENATO CAYETANO, petitioner,

vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT, and HON.
GUILLERMO CARAGUE, in his capacity as Secretary of Budget and Management, respondents.

FACTS:

Respondent Christian Monsod was nominated by President Corazon Aquino to the position of
Chairman of the Commission on Elections (COMELEC). The Commission on Appointments confirmed
the said nomination. Petitioner Renato Cayetano opposed the nomination because allegedly
Monsod does not possess the Constitutional qualification requirement.

The 1987 Constitution provides in Section 1, Article IX-C:

(1) There shall be a Commission on Elections composed of a Chairman and six Commissioners who
shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-
five years of age, holders of a college degree, and must not have been candidates for any elective
position in the immediately preceding elections. However, a majority thereof, including the
Chairman, shall be Members of the Philippine Bar who have been engaged in the practice of law for
at least ten years.
(2) The Chairman and the Commissioners shall be appointed by the President with the consent of
the Commission on Appointments for a term of seven years without reappointment. Of those first
appointed, three Members shall hold office for seven years, two Members for five years, and the last
Members for three years, without reappointment. Appointment to any vacancy shall be only for the
unexpired term of the predecessor. In no case shall any Member be appointed or designated in a
temporary or acting capacity.

It was known to us that Monsod, after graduating from the College of Law and having hurdled the
bar, worked in his father’s law office. After then, he worked as operations officer in the World Bank
Group for about two years (1963-1970). Upon returning to the Philippines, he worked with the
Meralco Group as a Chief Executive Officer, and subsequently rendered services to various
companies either as legal and economic consultant or chief executive officer. He also served as
former Secretary-General (1986) and National Chairman (1987) of NAMFREL, as a member of the
Constitutional Commission (1986-1987) and Davide Commission (1990), and as Chairman of
Committee on Accountability of Public Officers.

ISSUE:

1. WHETHER OR NOT Monsod possess the required qualification for the position of Chairman of
the COMELEC.
2. WHETHER OR NOT there has been grave abuse of discretion on the part of Commission on
Appointments regarding the confirmation of nomination of Monsod.

HELD:

1.) YES. In the case of Philippine Lawyers Association v. Agrava, (105 Phil. 173,176-177)
stated: 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.Atty. Monsod’s past work experiences as a
lawyer-economist, a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-
negotiator of contracts, and a lawyer-legislator of both the rich and the poor — verily more
than satisfy the constitutional requirement — that he has been engaged in the practice of
law for at least ten years.
2.) NO. The power of the Commission on Appointments to confirm the nomination of the COMELEC
Chairman by the president is mandated by the Constitution. In the instant case, there is no
occasion for the exercise of the Court’s corrective power, since no abuse, much less a grave
abuse of discretion for has been clearly shown.

Principles:

Constitutional Law; Qualifications of COMELEC Chairman; “Practice of law” defined.—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.”

As commonly understood, “practice” refers to the actual performance or application of knowledge

as distinguished from mere possession of knowledge; it connotes an active, habitual, repeated or
customary action. To “practice” law, or any profession for that matter, means, to exercise or pursue
an employment or profession actively, habitually, repeatedly or customarily.

The Constitution uses the phrase “engaged in the practice of law for at least ten years.” The
deliberate choice of words shows that the practice envisioned is active and regular, not isolated,
occasional, accidental, intermittent, incidental, seasonal, or extemporaneous. To be “engaged” in an
activity for ten years requires committed participation in something which is the result of one’s
decisive choice. It means that one is occupied and involved in the enterprise; one is obliged or
pledged to carry it out with intent and attention during the ten-year period.

When not to accept a case

The cardinal advice that says, “Don’t take a case unless you believe in it”, may seem impractical, ill-
advised, and thoughtless but in the long run, it will produce dividends in the building of a good
reputation and a successful practice.

As a lawyer, it is immaterial whether you believe your client is guilty or not since you have to see to
it that he is given the full benefits of the law and all the legal defenses he is entitled to. But when a
client is only seeking legal services to delay and buy time to obstruct justice and harass the court, the
lawyer should not accept the case. On another hand, if the lawyer believes in a worthy cause even if
unpopular or difficult, the lawyer is bound to do the best he can to protect the rights of the client.

Refusal of a client in civil cases are allowed but not in criminal cases where a lawyer is appointed as
counsel de oficio. As an officer of the court, the lawyer cannot disobey the lawful order of the court,
or defend the defenseless defendant as he can be punished for contempt.

Extent of lawyer’s authority and advice

The lawyer has the authority to choose the proceedings he will institute on behalf of his client as
well as the witnesses he will present. He can make admissions of fact but not of law. But to make
valid stipulations of fact, it needs to be authorized by the client through a special power of authority.
The lawyer may advise his client to submit to arbitration or compromise agreement which should be
based on the lawyer’s honest and sound judgment subject to the final decision of the client. A
lawyer’s judgment plays a big role in advising the client to submit to amicable settlement whenever
winning his client’s cause has slim chances. However, the lawyer should always remember the he
has control over the procedural aspect of the case because the final decision whether to go on full
litigation should still come from the client. But the lawyer should not allow himself to be dictated by
the client simply because the client can pay him.

The lawyer has implied authority to enter or take dismissal, discontinuance or non-suit, in the same
manner that parties litigants are bound by the mistakes of their counsels. The actions of the lawyer
binds his clients. Unless the incompetency of the lawyer is so serious that his client is prejudiced and
was prevented from fairly presenting his case.

While the client can sue his lawyer for damages, the lawyer cannot sue his client for losses he may
incur by reason of his client’s fault of negligence, being it considered as damnum absque injuria.