Legal Ethics Chapter 2 (Agpalo)

Chapter 2 (Agpalo)

Admission to Practice

A. Judicial Control

a. Admission to practice a judicial function

· The power to admit applicants to the practice of law is judicial in nature and involves exercise of judicial discretion.

· The authority to decide who may be admitted to the bar naturally or logicallybelongs to to the judiciary represented by the Supreme Court

· Any legislative or executive judgment substituting that of the Supreme Court in matters concerning the admission to the practice of law or the suspension, disbarment or reinstatement of an attorney infringes upon and constitutes an invalid exercise of the legislative power.

b. Legislative Power to repeal, alter or supplement

· The legislature may enact laws with respect to first requisite for the admission to the bar, that there be previously established rules and principles that applicants should observe.

· The legislature may pass a law prescribing additional qualifications for candidates of admission to practice or filling up deficiencies in the requirements for admission to the bar.

· The legislature has no power to grant a layman the privilege to to practice law nor to control supreme court to decide who should be admitted to practice

· The legislature may enact a law declaring illegal and punishable unauthorized practice of law.

c. Executive Power in relation to practice

· The chief executive cannot admit a person to the practice of law nor can he modify the rules concerning admission to the bar.

d. Prescribing standards for law school

· The CHED exercises regulatory power over practice of law schools.

B. What constitutes practice of law

a. Practice of law, generally

· It embraces any activity, in or out of the court, which requires the applicationof law, legal principle, practice or procedure and calls for legal knowledge, training and experience.

· It involves carrying on the calling of the attorney, usually for gain, acting in a representative capacity and rendering service to another.

· It includes legal advice and counseling and preparation of legal instruments and contracts by which legal rights are secured

· Licensed atty-at-law:

o Legal advice and instructions to clients to inform them of their rights and obligations

o Preparation for clients of documents requiring knowledge of legal principles not possessed by ordinary layman

o Appearance for clients before public tribunals which possess power and authority to determine rights of life, liberty and property according to law, in order to assist in the proper interpretation and enforcement of law

· Participates in a trial and advertises himself as a lawyer

· Confers with clients and advises them of their legal rights

· Renders opinion as to the proper interpretation of a statute and receives pay for it

· Presupposes that there is an attorney-client relationship.

b. Characteristics of term ‘practice of law’

· The phase practice of law implies customarily or habitually holding oneself out to the public for compensation as a source of livelihood or in consideration of hisservice.

· Private practice is more than an isolated appearance for it consists of frequent or customary actions, a succession of acts of the same kind.

c. Representation before the court

· The practice of law is the rendering of services to a person, natural or juridicial, in court of justice on any matter pending therein through its various stages and in accordance with establishoed rule of procedure. Includes:

o Appearance before the court

o Preparation and filing of a pleading, motion, memorandum

o Conduct of litigation i.e. determination of the procedural steps to be taken, the examination of witnesses, presentation of evidences or exhibits, management and control of the proceedings in court

d. Representative before other agencies

· Generally, the appearance before any quasi-judicial, administrative or legislative agency, which calls for the interpretation and application of laws and presentation of evidence to establish certain facts, contributes practice of law

· The fact that service is quasi-judicial or administrative agency and not beforethe court is immaterial to the question as to whether the service constitutes practice of law because the character of the service and not the place where it is performed, is the decisive factor determinative of that question.

e. Activity outside the court

· It embraces the giving of legal advice on a large variety of subjects, conveyancing and the preparation and execution of legal instruments covering an extensive field of business and trust relations and any other affairs,

· Criteria enumerated by the Commission on Appointments as determinative of engaging in the practice of law:

o Habituality

§ More than an isolated appearance, for it consists in frequent or customary action,a succession of acts of the same kind.

o Compensation

§ If compensation is expected, all advice to clients and all action taken for them in matters connected with the law are ‘practicing law’.

o Application of law, legal principle, practice or procedure

§ Which calls for legal knowledge, training and experience is within the term ‘practice of law’

o Attorney-Client Relationship

§ Where a lawyer undertakes an activity which requires knowledge of law but involves no attorney-client relationship (teaching, writing books) he cannot be said to be engaged in the practice of his profession.

C. Who May Practice Law

a. Persons entitled to practice law, generally.

· Must be admitted to the bar

· Furnishing satisfactory proof of educational, moral and other qualification

· Passing the bar examinations

· Taking the lawyer’s oath before the supreme court itself

· Signing the roll of attorneys and receiving from the clerk of court of the Supremecourt a certificate of the license to practice

· Must remain in good and regular standing, continuing requirement for the practice of law.

1. Remain a member of the IBP

2. Regularly pay all IBP membership dues and other lawful assessments, as wellas the annual privilege tax

3. Faithfully observe the rules and ethics of the legal profession

4. Continually subject to judicial disciplinary control

b. Right and privilege to practice

· The practice of law is not a natural, property or constitutional right but a mere privilege.

· It is in the nature of a franchise conferred only to merit which must me be earned by hard study, learning and good conduct. It is a privilege accorded only to those who measure up to certain rigid standards of mental and moral fitness.

· No court can deny an attorney of the right to appear it for a party litigant, in the absence of valid statutory limitation of ground disqualifying him to practice.

· The practice of law is in the nature of a right which cannot be lightly or capriciously restricted or taken away from him.

c. Practice without examination

· Citizens of the United States who, before July 4, 1946, were duly licensed member of the Philippine Bar, in active practice of the courts of the Philippines and in good regular standing as such may, upon satisfactory proof of these facts before the supreme court, be allowed to continue such practice after taking the oath of office.

· Those who are comprehended in and take advantage of the provision which states that applicants for admission who, being a Filipino citizen, are enrolled attorneys is good standing in the supreme court in the united states, who can show satisfactory certificates that they had practice before july 4, 1946 and that they have never been suspended or disbarred, may in the discretion of the Court, be admitted without examination.

d. Practice without admission

· In the municipal trial court, a party may conduct his litigation with the aid of an agent of friend appointed by him for that purpose.

o A layman should confine his work to non-adversary contentions. Should not undertake purely legal work such as cross examination

o The service should not be habitually rendered

o Should not collect attorney’s fee

e. Right of the party to represent himself

· Individual litigant in a civil case has the right to conduct his own litigation personally. However, he may not be heard to complain later that he has been deprived of the right to assistance of counsel.

f. Practice by corporation

· Corporations can hire attorney to attend to and conduct its own legal business and affairs.