LEGAL COUNSELING - PRACTICE OF LAW

Ramil F. De Jesus

Introduction

Counseling is The act of exchanging opinions and ideas; consultation,

advice or guidance, especially as solicited from a knowledgeable person

(http://www.thefreedictionary.com/counseling). When the advice came from a

lawyer who used his knowledge in substantive and procedural laws in order to

arrive at such advice, it is called legal counseling.

Legal counseling is a part of the lawyer’s function in the practice of his

profession. Before anyone can provide legal advice he should be a member of

the bar. The importance of legal counseling was not given its due emphasis

because it was overshadowed by the litigation function of a lawyer However it

should be remembered that legal counseling is an important and essential part of

the law profession and the practice of law.

Objective

To provide an overview discussion on the legal counseling function of a

lawyer and its importance in the law profession.

Discussion

The term practice of law is incapable of exact definition. Whether a

particular activity comes within the meaning of the term depends upon the

circumstances of each case. There are, however, general principles and

doctrines laid down by the courts explaining the meaning and scope of the term.

Generally, to engage in the practice of law is to do any of those acts which are

characteristics of the legal profession. It embraces any activity, in or out of court,

which requires the application of law, legal principle, practice or procedure and
calls for legal knowledge, training and experience. It involves the carrying on of

the calling of an attorney, usually for gain, acting in representative capacity

rendering service to another. It includes legal advice and counseling, and the

preparation of legal instruments and contracts by which legal rights are secured,

which may or may not be pending in court.

In the practice of profession, a licensed attorney-at-law generally engages

in three principal types of professional activities: legal advice and instructions to

clients to inform them of their rights and obligations; preparation of clients

documents requiring knowledge of legal principles not possessed by ordinary

layman; and 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.

One who confers with clients and advices them of their legal rights is also

practicing law. Giving advice for compensation regarding the legal status and

rights of another constitutes practice of law as well as rendering an opinion as to

the proper interpretation of a statute and receives pay for it.

Activity outside the Court

The practice of law consists of no small part of work performed outside of

court. It embraces the giving of legal advice on a large variety of subjects,

conveyancing and the preparation and execution of legal instruments covering

extensive field of business and trust relations and other affairs. These require in

many aspects a high degree of legal skills, a wide experience with men and

affairs. These customary functions of an attorney bear an intimate relation to the

administration of justice by the court. No valid distinction can be drawn between

that part of the work of a lawyer which involves the appearance in court and that

part which involves advice and drafting of instruments in his office. The work of

office lawyer has profound effect on the whole scheme of the administration of

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justice. It is performed with the possibility of litigation in mind, otherwise it would

hardly be needed.

In Cayetano v. Monsod, the majority of the court through Mr. Justice Paras

held that person’s past work experience as a lawyer economist, a lawyer

manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and

a lawyer-legislator more than satisfy the constitutional requirement for

appointment as Chairman of the Commission on Elections that he has been

engaged in active practice of law for at least ten years and that practice of law

need not be habitual services rendered in litigations in court. Mr. Justice

Gutierrez, in his dissenting opinion, noted that engaging in the practice of law is

also a qualification for appointment of Justices of the Supreme Court and Judges

of the Lower Courts and then asked: What kind of judges and justices will we

have if their main occupation is selling real estate, managing a business or

media, or operating a farm with no active involvement in the law, whether

Government or private practice, except that in one joyful moment in the distant

past, they happened to pass the bar examinations? Mr. Justice Cruz, in his

dissent, stated that from the term “practice of law” as defined by the majority of

the Court, “one does not even have to be a lawyer to be engage in the practice of

law as long as his activities involve the application of some law, however,

peripherally.” Mr. Justice Padilla, in his dissent, said that the respondent did not

meet the essential criteria enumerated by the Commission on Appointments as

determinative of engaging in the practice of law, said criteria being the following:

The Importance of Legal Counseling

In this era of great advances in science and technology, the services of

persons learned in law have not been dissipated. The law profession has

survived and continually become relevant in this modern world. The need for

legal counseling has never been as important as today. Conflicts between

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persons and problems of future litigants abound and those seeking advice has

grown with the advances in technology.

But not all individuals or persons are capable of providing appropriate

legal advice, as providing legal advice also constitute practice of law. Not all

persons may appear in courts and represent clients or provide legal counseling

as it is only limited to those persons admitted in the bar.

Legal Ethics essential component of Law Practice

The term Legal Ethics is the embodiment of all the principles of morality

and refinement that should govern the conduct of every member of the bar. It has

also been broadly defined as the living spirit of the profession, which limits yet

uplifts it as a livelihood.”. Specifically it refers to that branch of moral science

which treats of the duties which an attorney owes to the court, to his client, to his

colleagues in the profession and to the public. ( Agpalo, Legal and Judicial

Ethics, 2009).

Needless for us to disagree that as life on earth has multiplied a million-fold

and has become more complex, human problems have also multiplied and have

become complicated. Hence, the demand for more lawyers has turned acute,

thereby making Filipino litigant vulnerable to the mercy of unscrupulous

practitioners.

Legal ethics is an essential component of the practice of law. It ensures

that lawyers possess the integrity, probity and excellence that a member of the

law profession should have. Without legal ethics, the quality of legal service and

counseling will deteriorates as time goes by and as the profession is transferred

from one generation of lawyers to the other. With legal ethics, the tradition of

integrity and probity is maintained.

Professional Responsibility

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 There is more to law practice however than just opening and developing a

law office and winning office cases. In the conduct of lawyering an officer of the

court must always be guided by a sense of professional responsibility.

An advocate of law therefore must be equipped with a vast knowledge in

psychology, an expert in human relations, a skillful arbitrator on the bargaining

table, an actor if you may, and above all a man of integrity whose words

command respect and authority not only from his clients but also from his clients’

adversaries in order to be an effective legal counselor.

On accepting cases

One cardinal advice to a lawyer is: Don’t take a case unless you believe in

it”. This advice seem at first blush impractical when a new lawyer needs cases

and is faced with increasing expenses; but in the long run, this advice produces

dividends in the building of good reputation and a successful practice. Of course

this does not involve one’s belief as to whether or not a client is guilty, since you

still have the duty to see to it that he is given the full benefits of the law and all

the legal defenses he is entitled to. But if the client has really no cause of action

or defense at all, but merely seeks your legal services to delay and buy time, to

obstruct justice and harass the court or the adverse party and you ought to know

this as a counselor-at-law, then you should not accept the case. Likewise, do not

accept a case on the ground solely that it has “nuisance value” for purpose of

settlement, for this would demean your stature and reputation.

On the other hand, if you believe that a case is a worthy cause, though

unpopular or difficult it may be, then, do the best you can, for the lawyer is bound

to protect the rights of his client the best he can.

Scope of Lawyers advice and control

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 But whether or not a lawyer should advise his client to submit to arbitration

or compromise agreement, will al depend on the lawyer’s honest and sound

judgment subject to the client’s final word. The better judgment is towards

advising your client to submit amicable settlement, when, in your honest opinion

in the light of the evidence on hand, the prospect of winning court battle is

remote. Much of this judgment will depend on the lawyer’s knowledge of our

procedural laws, because even if he is knowledgeable in the substantive

provisions of the law, if he takes the wrong step in their application or formulates

a wrong theory, his case is already doomed even he drafts the first pleading.

But it is also remembered that a lawyer has control only with respect to the

procedural aspects of the case. The final decision on whether to litigate or not, or

whether or to enter into a compromise agreement or not, or whether or not to

take an appeal or not, should come from the client. But even in the matter of

whether to take an appeal or not, whether or not to litigate at all, or whether to

enter a plea of not guilty or not in a criminal case, or to prosecute malicious suit

or to pursue an illegal course of action, the lawyer should not allow himself to be

dictated by the client simply because the latter can afford to pay him the highest

fees. He must be frank with his client in explaining that his case will not prosper

in court and be ready to substantiate his opinion on this matter based on his legal

knowledge and experiences.

Extent of Lawyer’s Authority

The canons of professional responsibility and accepted norms in legal

advocacy recognize the lawyers’ authority to choose the proceedings he will

institute and the witnesses he will present in court. He can make admissions of

facts but not of law.

Thus, it has been held that admissions in pleadings made by an

attorney without the knowledge of the party, can nevertheless be used as

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evidence against him and cannot be heard to deny that they were authorized.

The lawyer has implied authority to enter or take dismissal, discontinuance or

non-suit, which does not bar the bringing of another suit on the same cause of

action.

Inversely, parties-litigants are bound by the mistakes committed by their

lawyer in matters of procedures. Thus mistakes by a lawyer as to the

competency of a witness, or the sufficiency, or whether a certain evidence is

relevant or not, or whether the defense he had chosen is proper or not, in the

introduction of certain evidence or witnesses, or in argumentation, of what

pleading to file in court or what theory should be adopted, are all mistakes of

procedures and they bind the client, except for honest mistakes.

Code of Conduct of Successful Lawyering

First and foremost, of course, there is no substitute for winning a case. But

being human beings as they are, not all lawyers can guarantee a sure victory for

his client’s cause. Apart from the human factor and this does not discount the

unpredictable disposition of the trial judge and his apparent bias and prejudices,

the inevitable intervention of events beyond our control like disappearance or

death of a vital witness; bribery of witnesses; the loss or disappearance of a vital

documentary evidence; and / or the lapse of memory or impeachment of a

witness by a skillful cross-examiner resulting in witness want of credibility; these

and many more are some of the setbacks that a trial lawyer usually suffers from

the practice of his profession no matter how strong his case appear at the start.

Good human relation, a lot of psychology and tact and diplomacy are

considered essential ingredients that can guarantee satisfaction to a distraught

client. Even in the sad news of losing a case, the client would not feel

disappointed and would still come back to the same lawyer who is loaded with

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these fire-power of encouragement and endeavors to soothe his client’s ruffled

feelings with reasonable and logical explanations why the case collapsed.

The key to a satisfied client therefore, is to treat him with cordiality and

compassion, with sincerity and honest intentions, and with a spirit of not giving up

even when all the odds seem to shatter the brightest hopes. These plus a strong

determination to succeed and sustain a good fight, believing that not all days are

cloudy and that in a court battle only one party is going to win and the other party

will lose. All of these human factors must be practiced not only by the lawyer, but

also by the lawyer’s secretary and office staff.

Advise

Giving advice is the task of a lawyer most commonly perform and

whatever else they do for clients is almost invariably accompanied with advice.

Lawyer’s advice consists of recommendations as to what course of action should

be followed, and the reasons and data supporting these recommendations. It is

usually based in the large part on the lawyer’s conception and learning of

relevant substantive law and doctrine applicable on the particular facts and

subject involved.

The lawyer who does his advisory job well makes the law and legal

processes meaningful to clients. In terms of understandable to laymen, he should

endeavor to explain the applicability and probable impact of the substantive law

and legal doctrine involved.

This individualizing and popularizing of law requires a good deal of facility

with ideas and language, at simplifying concepts often mystifying and strange to

laymen. But the more the lawyer knows about the surrounding circumstances of

the matter at hand, the better position he is in to give accurate and sound advice.

Mastery of legal doctrines and substantive laws by themselves seldom is

enough. The better he understands his client and his client’s affair, the more

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helpful the lawyer can be. Some lawyers, however, when asked for advice which

they know they are equipped to give, will gamble or luck on their client’s gullibility

and give the advice without sufficient preparation. This practice is fraught with

dangers that may adversely affect the lawyer’s reputation someday.

Not infrequently lawyers are asked to give advice having little or nothing to

do with legal doctrine or law-making or adjudicating bodies. Lawyers who are

holding positions in the government and business often become trusted

counselors on a wide range of family, business, administrative and political

problems. Widows spouses with marital troubles, small businessmen in financial

difficulties are among those likely to seek non-legal advice from their lawyers. As

long as the performance of these acts do not prejudice the interest of the public

or are done outside of office hours, there is nothing wrong in the acts of

government lawyers who earn extra income outside their official functions. This

quite true with full time judges and government prosecutors who teaches in law

schools outside of office hours.

In advising clients, the lawyer can often run into role conflict giving rise to

different questions. The lawyer is not faced with problems in identifying and

determining what the client wants. The man who hires a lawyer may not be clear

in his own mind whether or not he wants the lawyer to challenge him or how he

wants the lawyer go in this respect. The problems become trickier when the

client is a large organization. The lawyer’s role then may be shaped by a number

of persons, each with different perceptions of what he wants the lawyer do and

what different degrees of vulnerability lawyer’s criticism. A lawyer may have to

represent a client or establish relationship with him for a long time before feeling

certain about the outer limits of his role.

The best approach in dealing with this particular type of client is define

right upon the acceptance of the employment or before giving advice, the extent

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of client’s role. He should be made to feel that as a lawyer his wishes can be

followed insofar as they appear to be legally feasible and do not collide with the

lawyer’s oath. Frankness is the name of the game. The lawyer’s role is to stand

foursquare with his client’s interest, but only to such limit that will not allow him

compromise his professional and moral standards, by advising on a course of

conduct bordering on ethical principle.

Conclusion

Engaging in a practice of law such as legal counseling must be

predicated on attorney-client relationship. If there is now attorney-client

relationship and the lawyer merely gives advice it will not be considered practice

of law.

References:
Legal Counseling with Notes on: Practicum and Practice Court by Recaredo P. Barte
Legal and Judicial Ethics by Ruben E. Agpalo
Internet

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