LICEO DE CAGAYAN

College of Law

LEGAL COUNSELING

Professor: Atty. Francis U. Ku

School Year 2021-2022

COURSE OUTLINE

DESCRIPTION OF THE COURSE

An introduction to the art and technique of legal counseling and

the different fields of legal practice ,with focus on private
practice and litigation.

This is also incorporates essential aspects of Law Student

Practice under A.M. 19-03-23-SC dated June 25, 2019
covering Rule 138-A of the Rules of Court where students of
law engage in limited practice including "legal counseling and
advice" especially under Level 1 activities under section 4, as
follows:
1. interview prospective clients;
2. Give legal advice to the client;
3. Negotiate for and on behalf of the client;
4. Draft legal documents ;
5. Represent eligible parties before quasi-judicial or
administrative bodies;
6. Provide public legal orientation; and
7. Assist in public interest advocacies for policy
determination and implementation.

COURSE OBJECTIVES:

 To know and understand the fundamental concepts, art,

and technique of legal interview and counseling;
 Handling clients and witnesses for settlement and trial;
 Operating a law office;
 Counseling and special tips in handling practical/unique
situations; and
 Exposure to different fields of legal practice.
METHODOLOGIES:

 Interactive discussion, Recitation and written examinations

 Video presentation
 Workshop, Simulation/Role Playing and Group Activities
 Assignment of cases , legal articles and laws
 Resource speakers
 Field work and attending cases.

COURSE OUTLINE:

I. Legal Profession
A. Definition and concept of Lawyering/Practice of law
(who are lawyers?)
B. Section 1 Rule 138 Rules of Court
C. Lawyer--client relationship (implications of the law
profession, privileged communication, etc)

BURBE V MAGULTA June 10, 2002

II. Legal Counseling

A. Definition-
(read: A Theoretic Framework for Lawyering
Behavior and Techniques of legal Diagnosis by
Richard T. Oakes)

III. Legal Interview

IV. Case Analysis
- Determination of Factual and Legal Issues

V. Billing styles , retainers and attorney's lien.

(Time billing and Collecting on contingency cases).
VI. Facets of Document preparation ( Legal Services
Agreement, Affidavits, use of vernacular,
quitclaims/compromise, etc.)
VII. Notary Practice - 2004 Rules of Notarial Practice
 (Jurat and difference with Certification required by the
DOJ under section 3 (a) Rule 112 of the Rules on
Criminal Procedure).
- 2020 Interim Rules on Remote Notarization of Paper
Documents
- Apostille vs. "Red Ribbon" authentication
- Deathbed signings, billing of deeds ; tax issues

Notary must be vigilant in the use of his Notarial Seal -

Atty. Socrates Maranan v Francisco Domagoso A.C. NO.
12877 Dec. 7, 2020

VIII. Choices for lawyering- solo, law firm (partner/associate),

government, politics, limited practice with government
office, etc..
(When the best time to engage in private practice?)

- Maintaining a law office ( work from home? website?)

IX. How to obtain clients - referrals, exposure to academe,
etc.
Other sources of income- realty, notary, arbitration,
retainer , etc.

- Arbitration: voluntary arbitrator, CIAC arbitration, IBP,

Phil. Arbitration Center; see ADR law
X. Social responsibility - pro bono and "puro abono", choice
of cases and financial aspect of practice.
XI. Deportment in court , clients and the public
-Gravitas
--Is there is a place for levity or humor?

XII. Attire/Proper Dressing -

Case of gay lawyer Jesus Nicardo Falcis III v. Civil
Registrar General (G.R. No. 217910 July 3, 2018)-
Attire and how to address judges
- see OCA CIRCULAR 150-2018 for "office uniforms" as
what SC considers as proper attire
 - how about women's attire - conservative? "not
distracting"?
-hair, hats, tattoos, make up, religious symbols like
cross, hijab/niqab, clerical collar.
-make a good impression. Do not draw attention to
yourself. Respect for decorum and tradition

-Suggested attire for witnesses like accused - emphasize

the age? Identification issues ( Hubert Webb case)

-Is a dress code in Hall of Justice anti-poor and against

Social Justice and sec. 1 Art. XIII of the Constitution and
"Free access to court" (Section 11 Art. III) ?

Article: Appropriate Attire and Conduct For An Attorney in The

Courtroom by Lynda K. Hopewell

Court attire is to protect the rights of the parties since lawyer is

an officer of the court. It will show he/she respects the court's
authority and accord dignity by following rules on decorum or
local customs of courtesy or practice. it will promote respect and
should not be disruptive. The rules are not regulating dress but
regulating appearance to attain the above purposes.Otherwise , it
is contemptuous behavior which obstruct justice as a willful
disobedience to the court order .

There must be substantial justification for the exemption

(religious, health, etc.).

XIII. Business permit or PTR? -Taxes and fees. Is it a

business?
( Petition for Authority to Continue Use of the Firm
Name "Sycip, Salazar, Feliciano, Hernandez &
Castillo", July 30, 1979) - Partnership for practice of law
for business or trade? but is it obiter dictum citing
Aniceto Saludo Jr. v PNB (Aug. 20, 2018)?
 The four (4) differences between the legal profession
and business.

is it a legal entity? Saludo v PNB - it is a juridical entity

and a partnership and not a single proprietorship

(Read Feb. 3, 2004 article of Senen Gonzaga in Practice of

law not a "trade or business"-Why the VAT?

Read: DOF Local Finance Circular No. 001-2019 Guidelines on the

Imposition and Collection of local taxes fee and charges on
Professionals

XIV. Guidelines ( Quoted in part from Justice Romulo Borja's

lectures)

1. Listen to your client analytically and with empathy.The

first job of counsel is to listen to his client to find out the
latter’s legal problem requiring his services. Let him tell his
story his own way at first but you must listen analytically,
i.e., with an eye to determining what, if any, cause of action
he may have if he is to be a plaintiff, or what defenses, if
any, he may have if he is to be a defendant. Take notes but
minimize interrupting his narrative. Do not be overly
concerned for now with evidentiary matters although you
should take some notes as to what documentary and
testimonial evidence is readily apparent from his story.
Show empathy, i.e., understanding, without losing a
lawyer’s perspective.

- Some clients like a clinical impersonal approach but

some like their lawyer to be a counselor in a
supportive/friendship context.

2. Determine the merits of the case.The next step is for you

to give an opinion on the merits of your client. After much
 experience, you can probably do it off-the-cuff. But the
novice may need to read up on the law and cases involved,
especially in complicated cases. Do not hesitate to ask the
client to come back for a “studied opinion”. Essentially you
should determine the merits of your client’s case by asking
yourself: “If I accept his story as true, does he have a cause
of action (i.e., a right violated) or a valid defense? If the
answer is yes, the next question is: “What evidence is
available to your client?”

3. Determine the goals and objectives of your client. If your

client’s case appears meritorious and the evidence
sufficient, it might be a good idea to examine with your
client his goals and objectives. This is not as obvious as it
sound and many lawyers fail to perform this important step.
The goal of winning a court case may not be, after serious
review, his real objective, especially in view of how long
these cases can last. Nor is “winning at all cost” always a
viable goal if it entails your life, career, or integrity.
Clarifying goals is important to determine if non-judicial
alternatives may be resorted to.

- motive for the case could be for leverage; principle;

spite; etc.

4. Lay down the options available to your client. Once the

goals of the exercise have been established, it is fairly easy
to lay down the options open to your client. These options
should not be limited to judicial ones but ought to include
extra-judicial remedies including negotiations, resort to
mediation, and the full gamut of modes of alternative or
non-judicial dispute resolutions. The relative expense
involved in each option should be examined. In examining
the “price” of each option, the lawyer’s fees should also be
considered.

(Explain consequences of each course of action; make a

"Decision Tree" analysis for the choice of actions)

-Risk/Benefit Analysis - financial factors, precedent,

 family pride ( e.g. "maratabat"), imprisonment/fines,
criminal record, etc.

5. Encourage non-judicial remedies.It is your duty to

discourage judicial recourse for no other reason than to help
de-clog court dockets. Many modes of non-judicial remedies
are not only less time-consuming and expensive but may
restore parties to their former harmonious state.

(Best mode to make it binding? Barangay mediation,

Contract/MOA, Need Court approval for
compromise?)

Read: The Lawyer as Counselor and The Prevention of

Litigation by Judge Edward D. Re

6. Set the terms of engagement.Once the client has chosen,

with your advice, the course of remedial action, it is time to
reduce into writing the terms of your engagement as
counsel. This is true whether he chooses judicial or non-
judicial remedies. You must establish the cost of your
services under any remedy in which you are involved. This
may be in the form of a formal contract or simply in a letter
by you to him in which he merely signs on his conforme.
Acceptance fees, appearance fees, contingency fees, etc.,
must be clearly stated along with the expenses that may be
incurred in prosecuting or defending the case. Your fees
should be within the guidelines set by legal ethics and the
local IBP chapter.

Documentation must be thorough - retainers; receipt

of papers; email instructions .

(Ask advances for expenses; like a petty cash fund)

7. Prepare a trial brief. If judicial relief is opted for, prepare a

 good trial brief. Do not confuse this with the pre-trial brief
that the Rules of Court require for pre-trial or with the
memorandum or the brief of the evidence and authorities
that the court may require at the end of trial or the various
appellate briefs. This is the trial brief and this contains an
outline of how you will prosecute or defend your case. It is a
private document in the sense that it is something you
share with your client only. Nevertheless, the astute lawyer
knows that this brief, after modification and reformatting,
can serve as all these other briefs. But the important thing
is that you have a game plan, a strategy paper, and a road
map for trial. In a complicated case, your client will need to
place incidents in the trial in context. You, as counsel, will
need to prepare for each stage of trial and to keep track of
the strength of your evidence.

(NOTE: logistics; interpreters; make notes after each

hearing, especially exhibits (and purpose), and update
your trial brief)

- new amendments on civil procedure require evidence

to be revealed

8. Secure your evidence.With your trial brief as your guide,

you can now proceed to secure all evidence at hand. Obtain,
if possible, affidavits or sworn statements of potential
witnesses if for no other reason than to “freeze” their story,
i.e., prevent retractions. Original documentary evidence
should be deposited in a secure place. What you keep on
hand should be machine copies. If there are documents that
can be obtained from private and public offices, obtain
originals; otherwise secure copies certified as true by their
custodians. Object evidence should likewise be placed in
secure containers; keep pictures of these in your working
file. If it is necessary to use private detectives or paralegals,
go ahead and use them. Utilize as fully as you can all the
modes of discovery under the Rules of Court. The weakness
of the typical Filipino lawyer is his unwillingness or
incompetence to utilize these modes. But note how powerful
 they are and note further the sanctions for not cooperating
with requests for these modes as well as the sanctions for
not utilizing them.

(Use Modes of Discovery; Judicial Affidavits and check

new 2019 amendments to the Rules of Court)

duty of counsel under sec 3 (c) Rule 7 of the Rules of Court

- In criminal cases, accused has a mode of discovery allowed to

defense only through production of evidence under Section 10,
Rule 116 of the Rules of Criminal Procedure state, to wit:

SECTION. 10. Production or inspection of material evidence in

possession of prosecution.- Upon motion of the accused
showing good cause and with notice to the parties, the court,
in order to prevent surprise, suppression, or alteration,
may order the prosecution to produce and permit the
inspection and copying or photographing of any written
statement given by the complainant and other witnesses in
any investigation of the offense conducted by the prosecution
or other investigating officers, as well as any designated
documents, papers, books, accounts, letters, photographs,
objects, or tangible things not otherwise privileged, which
constitute or contain evidence material to any matter involved
in the case and which are in the possession or under the
control of the prosecution, police, or other law investigating
agencies.

It is a Constitutional Right specified under Section 14 of the

Bill of Rights:
SECTION 14. (1) No person shall be held to answer for a criminal
offense without due process of law.

(2) In all criminal prosecutions, the accused shall be presumed

innocent until the contrary is proved, and shall enjoy the right to be
heard by himself and counsel, to be informed of the nature and
cause of the accusation against him, to have a speedy, impartial,
and public trial, to meet the witnesses face to face, and to have
compulsory process to secure the attendance of witnesses and the
production of evidence in his behalf. However, after
arraignment, trial may proceed notwithstanding the absence of the
accused provided that he has been duly notified and his failure to
appear is unjustifiable (emphasis supplied).

Handling Different Clients/Witnesses: (Child witness, prisoner ,

lying client, counsel for special witnesses like foreigners,
journalists, congressional hearings, etc.)

- How to deal with hostile witnesses?

9. File your pleadings. File the appropriate pleadings. Note

that this is one activity that extreme care in your language
is imperative. For your pleadings are the opening moves in a
complicated game of chess. Advantages can be achieved by
shrewd opening moves. Beware of making unwitting
admissions damaging to your cause or defense. In case of
palpable mistakes, amend your pleadings. Be clear. If denial
is to be made, make sure it is a specific denial as required
by the Rules. Only ultimate facts need be stated; resist the
temptation to include evidentiary matters or argue in a
memorandum manner. Check if: 1) declarations or denials
are required to be under oath; 2) verifications are required;
2) certificate of non-forum shopping is required.

- Try to say the last word in an exchange of pleadings.

Starting litigation as plaintiff:

 a.) "Ambush" style (file then resort to discovery ; Under
the new amendments to the rules of court there
should be evidentiary support ; to evade mandatory
barangay conciliation ); and

d.) " Serve and volley" (tennis or ping-pong style)-

Initiate exchange of letters and demands until facts are
clear and decide if proceed or settle.

10. Absorb all information that may play a role in the

case. If it is your first time at a courthouse, check out the
building, parking space, and comfort rooms. Get to know
the clerk of court and other staff. Get their phone numbers.
Find out as much as you can about the presiding judge. At
every opportunity check out the records of the case if you
missed anything. Maintain a logsheet or journal of the case
and compare it periodically with the records of the case.

- Vocalize your spiel or questions; practice mock trial and

arguments
- Overload/Over analyze/Intuitive Approach in decision making
(read Blink by Malcolm Gladwell)

11. Update your client/ send copy of pleadings and take

time to explain
- reassure them but also give them the hard facts. Do not delude
your clients
- "Cover Your Ass" correspondence on decisions, financials, etc.
- how to terminate relationship (winning and losing cases)

12. Respect your opponent and do not patronize fellow

lawyers . React with dignity whatever the result.

Have a good personal relationship with all; avoid being personal ;

and refrain from filing administrative cases as much as possible.
- Inhibition as a controversial legal tactic , especially on choice
of judges and on motions for reconsiderations after an adverse
ruling.

- Difference between provincial and Manila practicioners in terms

of courtroom deportment and pleadings .
- Read Achernar Tabuzo v Atty. Jose Alfonso Gomos July 23,
2018 - are IBP officials public officials? duty of courtesy
and to refrain from filing cases

13. Read books not related to law; meet people; watch

videos like TedTalk ; Be well-rounded and explore different
life experiences; Join organizations; be both book-smart and
street-smart; try to see it from the judge's , witness' and
opponent's perspectives.

- see TEDx talk video: How To Speak Out so That People Want
To Listen by Justin Treasure

In order to be creative, you have to learn all the disciplines!

Cases , laws and articles:

Law Student Practice under A.M. 19-03-23-SC Rule 138-A of

the Rules of Court dated June 25, 2019
BURBE V MAGULTA June 10, 2002

Jesus Cui v. Cui Aug. 31, 1964- definition of "abogado".

Phil. Lawyers Association v Agrava- Feb. 16, 1959- power to

regulate law practice in a quasi-judicial body

People v Simplicio Villanueva 14 SCRA 109 May 27, 1965 L-

19450 - habituality
Cayetano v Monsod Sept. 3, 1991 (read the dissenting and
concurring opinions)- Practice of Law

Alawi v Alauya- is a Sharia counselor an "attorney"? ( February

24, 1997).

The Legal and Ethical implications of Online Attorney-Client

Relationships and Lawyer Advertising in The Philippines
(Bautista, Marie Camille and Su, Anna Liza) Ateneo Law Journal

SPECIAL SITUATIONS:

1. Labor Cases - SENA and preliminary conferences; Regional

Office; administrative personnel investigation; strikes.
- Rules of Porcedure of the Single Entry Approach dated Fe. 25,
2011 DOLE
- essentials of compromise agreements

J-Phil Marine v. NLRC (Aug. 11, 2008; G.R. No. 175366) - Is

assistance of counsel during compromise agreements necessary?

2. Settlement in Barangay, Mediation Center and Judicial

Dispute Resolution - Certificate To File Action and To Bar Action
(Section 515 of the Local Government Code)

- Settlement with Government Agencies (COA issues; Binga

Hydroelectric Plant, Inc. v. Commission on Audit, G.R. No. 218721,
July 10, 2018 and Strategic Alliance Development Corp. v.
Radstock Securities Ltd., G.R. Nos. 178158 & 180428, December
4, 2009)

3. Responding to Emergencies.

- Searches; Arrests ; Inquest , Bail, Crime Scene Assistance -

Record violations in implementation/Miranda warnings .
- Can lawyers be arrested for asserting the rights of their clients?
Is it obstruction of justice? see P.D. 1829

Can you apply for bail- when cases not yet filed in court or
undergoing/waiting for inquest.; can you ask for reduction?

Read: A.M. No. 12-11-2-SC

GUIDELINES FOR DECONGESTING HOLDING JAILS BY
ENFORCING THE RIGHTS OF ACCUSED PERSONS TO BAIL
AND TO SPEEDY TRIAL

-should you file a counter-affidavit during inquest?

-Article 125 Revised Penal Code - hot pursuit and warrantless
arrest
- see DOJ Department Circular 050 dated 15 August 2012
and 50-A dated June 15, 2015

- Does Waiver mean unlimited detention?

In the Matter of the Petition for Issuance of Writ of Habeas
Corpus; IBP and Senin vs. DOJ (G.R. 232413; July 25, 2017)

Homicides:

-Prosecutors can investigate per R.A. 10071 ( see also sec. 16

Rules on Inquest under DOJ Circular No. 61, 1993) at the
crime scene when a dead body is found and that death is a result
of unlawful acts or omissions (a coroner's function allowing
prosecutor to "supervise the investigation")

- who conducts autopsies?

- hostage situations ( are agreements with criminals binding?)

-Hold orders against travel (before and after information is filed)

- Impound of cars and other evidence

(Bagalihog v Judge Fernandez June 27, 1991)
(PDEA v. Brodett; Sept. 28, 2011)- drug cases

4. Quasi-Judicial Agencies- Rules of Procedure. Different

systems ( DOJ issuances like Manual of Prosecutors, rules on
inquest, Comelec, congress, NLRC and sheriff's manual)

- even in judicial proceedings, read the issuances of the Supreme

Court like Continuous Trial Guidelines and issuances on bail,
archiving , mediation, etc.

5. How to deal with media - how it helps your case? clam up?
does publicity help the client or the counsel? de facto
spokesman.
- a confidentiality issue
-police tactic to pressure potential witnesses/perpetrators to
show up

Sub-Judice rule vs. right to free speech - P/Supt. Hansel

Marantan v. Atty. Jose Manuel Diokno (G.R. No. 205956;
Feb. 12, 2014

Statements given to media by accused are admissible even

without Miranda warnings (People v. Eric Guillermo, Jan. 20,
2004) - how about counsel's statements?

6. Collaborating Counsel- Advantage and disadvantages-

Land bank v Pamintuan Oct. 25, 2005

lead counsel may be only one entitled to receive copies

(Home Guaranty v R-II Builders June 22, 2011)

Law office with more than one lawyer

Alanis Ballaho Alanis III v Court of Appeals
Nov/ 11, 2020

7. Realty Practice- Due Diligence and Deeds/ Register of Deeds

Issues. Fees for notary practice and taxes.

8. Politics /Ombudsman cases.

- Nature , jurisdiction and Remedies

Sherwin Gatchalian v Office of the Ombudsman Aug. 1, 2018

9. Public Interest Cases for policy formulation and

implementation
-Writ of Kalikasan in environmental issues
- Politically charged issues: Writs of Habeas Corpus, Amparo and
Habeas Data.
-Constitutionality Issues - procedure

Writ of Amparo- Ruben Salcedo v Judge Gil Bollozos (July 5,

2010)

10. "Squatter" cases- demolition

-police assistance; PCUP clearance
-self-help doctrine (Art. 429 Civil Code) - German Management
and Services v Court of Appeals ( Sept. 14, 1989)

DPWH v Eddie Manalo et al. G.R. 217656 Nov. 16, 2020 -

right of "informal settlers"

11. Applying for warrants, writs of search and seizure, writs of

possession, injunction, TRO , etc..- element of surprise

- recovery from the posted bond; must indicate OR and CR

- collecting fees from the bond
- NLRC different since check in workers' name
--writ of possession; no need new ejectment case

12. Drug cases- automatic appeal in DOJ, chain of custody, etc.

- Analysis of prosecutor/police/PDEA/law enforcer's

professional mentality as pillars of justice ( i.e play safe, tunnel
vision, "solving" crime for use of informants/poseur buyer);
Read: Adopting a Uniform Criteria in Determining When a Crime
Is Considered Solved (Napolcom Memorandum Circular 94-017).
- Death Under Investigation (DUI)

- dilemma of plea bargaining

13. Collection cases - B.P. 22 , estafa or civil? small claims

14. Annulment cases/ Issue of Collusion/R.A. 9262 VAWC

- special rules by the Supreme Courts on these cases

15. Criminal cases involving minors - can it be settled?

DOJ Department Circular No. 54 dated Sept. 9, 2002

16. DNA and science. ( see video : Dershowitz on the OJ Simpson

Case, Murder, Facial Recognition and the Future of Law)
- Rule on DNA Evidence ( SC A.M. 06-11-5-SC dated Oct. 2,
2007)

- analyzing autopsy report

17. Visiting Detained Client:

Republic Act No. 7438            ( AN ACT DEFINING CERTAIN

RIGHTS OF PERSON ARRESTED, DETAINED OR UNDER
CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES OF
THE ARRESTING, DETAINING AND INVESTIGATING
OFFICERS, AND PROVIDING PENALTIES FOR VIOLATIONS
THEREOF)

Section 2. Rights of Persons Arrested, Detained or Under

Custodial Investigation; Duties of Public Officers. –

(a) Any person arrested detained or under custodial

investigation shall at all times be assisted by counsel.

(xxx)

(f) Any person arrested or detained or under custodial

investigation shall be allowed visits by or conferences with
any member of his immediate family, or any medical doctor
or priest or religious minister chosen by him or by any
member of his immediate family or by his counsel, or by
any national non-governmental organization duly accredited
by the Commission on Human Rights of by any
international non-governmental organization duly
accredited by the Office of the President. The person's
"immediate family" shall include his or her spouse, fiancé or
fiancée, parent or child, brother or sister, grandparent or
grandchild, uncle or aunt, nephew or niece, and guardian or
ward.

As used in this Act, "custodial investigation" shall include the

practice of issuing an "invitation" to a person who is investigated
in connection with an offense he is suspected to have committed,
without prejudice to the liability of the "inviting" officer for any
violation of law.

Section 3. Assisting Counsel. – Assisting counsel is any lawyer,

except those directly affected by the case, those charged with
conducting preliminary investigation or those charged with the
prosecution of crimes.

The assisting counsel other than the government lawyers shall be

entitled to the following fees;

(xxx)

In the absence of any lawyer, no custodial investigation shall be

conducted and the suspected person can only be detained by the
investigating officer in accordance with the provisions of Article
125 of the Revised Penal Code.

-Should prisoners discuss open cases with other prisoners or

jailers?

18. Traffic accidents

- should drivers be automatically charged?
-Traffic Accident Report
-LTO deputized?

19. Attorney's Fees/Liens:

Written, verbal, quantum meruit?

Article 111 of the Labor Code - " (a) In cases of unlawful

withholding of wages, the culpable party may be assessed
attorney's fees equivalent to ten percent of the amout of wages
recovered"
(b)It shall be unlawful for any person to demand or accept, in any
judicial or administrative proceedings for the recovery of wages,
attorney's fees which exceed ten percent of the amount of wages
recovered ."

What if there is a contract? Article 111 is the default provision.

Contingent fee arrangement of 50% in labor cases ? must be in

an express contract ? Is it limited to 10 percent per Art. 111 of
the Labor Code? or can be maximum 12% percent ? - Cortez v
Cortez March 12, 2018; A.C. No. 9119

Gabucan v.Atty. Florencio Narido Sept. 3, 2019- separate

contingent fee at every level

-contingent fee in land cases

How to protect attorney's fees - Malvar vs. Kraft Foods ( Sept.

9, 2013) - client compromised without lawyer's consent- How to
remedy?
contingent- if case is lost, lawyer gets nothing. if case is won,
client gets nothing.

Attorney's lien under Section 37 of the Rules of Court-

Jun Luna vs. Atty. Dwight Galarrita July 7, 2015

20. How to help poor clients? indigent or pauper litigants

sec 21 Rule 3 of new rules of court

- effect of failing to pay docket fees

- avail of exemption to payment of docket fees

Under Section 19 Rule 141 of A.M. No. 04-2-04-SC entitled RE:

PROPOSED REVISION OF RULE 141, REVISED RULES OF
COURT LEGAL FEES, it is stated:
“SECTION 19. Indigent litigants exempt
from payment of legal fees. — INDIGENT
LITIGANTS (A) WHOSE GROSS INCOME AND
THAT OF THEIR IMMEDIATE FAMILY DO NOT
EXCEED AN AMOUNT DOUBLE THE MONTHLY
MINIMUM WAGE OF AN EMPLOYEE AND (B) WHO
DO NOT OWN REAL PROPERTY WITH A FAIR
MARKET VALUE AS STATED IN THE CURRENT
TAX DECLARATION OF MORE THAN THREE
HUNDRED THOUSAND (P300,000.00) PESOS
SHALL BE EXEMPT FROM THE PAYMENT OF
LEGAL FEES.
The legal fees shall be a lien on any
judgment rendered in the case favorable to the
indigent litigant unless the court otherwise
provides.
 To be entitled to the exemption herein
provided, the litigant shall execute an affidavit that
he and his immediate family do not earn a gross
income abovementioned, nor they own any real
property with the lair value aforementioned,
supported by an affidavit of a disinterested person
attesting to the truth of the litigant's affidavit. The
current tax declaration, if any, shall be attached to
the litigant's affidavit.
Any falsity in the affidavit of litigant or
disinterested person shall be sufficient cause to
dismiss the complaint or action or to strike out the
pleading of that party, without prejudice to
whatever criminal liability may have been incurred
(emphasis supplied).

Read : Sps. Algura v LGU of Naga Oct. 30, 2006 G.R. No.
150135- Indigent litigants and filing fees

Note: Cases//references indicated in this syllabus are to be read

and others will be assigned later.

Some Classroom policies:

a.) Except for the professor, use of cellphone , ipad and

laptop and other similar gadgets is not allowed.

Exception: To access online class, cases or data with the

permission of the professor but if the student uses the
chance for personal entertainment , advantage or for an
irrelevant purpose, the student will suffer a demerit in the
final grade at the discretion of the professor.

b.) Excuse letters/medical certificates for medical and other

reasons- the professor retains the privilege to accept or
reject the offered reason and mark the student as absent.
c.) Tardiness is prohibited. However, reasonable delay will be
allowed on a case-to-case basis. Professor retains the right to
mark the student absent.

d.) Recitations- Absent student will get a failing grade if

called (unless excuse is accepted).

e.) Professor will retain privilege to increase or decrease

grades based on student's deportment ( attentiveness,
interaction, tardiness, integrity etc.), and the totality of the
conduct during the course.

f.) Recitation will cover all topics . The student will have the
responsibility to check the assigned cases in this syllabus
with the assignments.

g.) Professor's cellphone is 09177079203 and email

francis_ku@yahoo.com . In case he will be absent or late, he
will contact the assigned student(s) or notify online .

h.) Class will form a Viber or Messenger group for convenient

sharing of information, articles and videos.

i.) Rules will adjust to online situation.

Grading:

Practical Exercises/
Digests 15%
Midterm Examination 20%
Final Examinations 25%
Recitation/Quiz 20%
Attendance 20%

Total: 100%

PRESCRIPTION OF OFFENSES:
INTERRUPTION OF RUNNING OF PRESCRIPTION OF CRIMES
COVERED THE RULES ON SUMMARY PROCEDURE
By Judge Marlo Campanilla

According to the Supreme Court through Justice Leonen in Jadewell

Parking Systems Corp. vs. Lidua, Sr., G.R. No. 169588, October 7,
2013, the filing of complaint involving violation of ordinance for
preliminary investigation will not interrupt the running of 2-month
prescription. The provision in the Rules on Criminal Procedure regarding
the interruption of prescription by institution of criminal action is not
applicable to violation of ordinance because case involving this crime is
covered by the Rules on Summary Procedure.

It is however submitted that the Jadewell principle is only applicable to

crime punishable by an ordinance and not to a felony (e.g. slight physical
injuries or unjust vexation) under the Revised Penal Code, which is
covered by the Rules on Summary Procedure. 

The prescription of offense covered by an ordinance is governed by Act

No. 3326, which provides that “the prescription shall be interrupted when
the proceedings are instituted against the guilty person.” According to
Jadewell case, the word “proceedings” in Act No. 3326 pertains to
judicial proceeding. In sum, only the institution of judicial proceeding for
violation of ordinance or the filling of information in court interrupts the
running of prescription.

On the other hand, prescription of felony is governed by Article 91 of the

Revised Penal Code, which provides “the period of prescription shall be
interrupted by the filing of the complaint or information.” According to the
case of Francisco vs. CA, G.R. No. L-45674, May 30, 1983, the filling of
complaint for preliminary investigation if the fiscal’s office interrupts the
running of prescription of simple slander because Article 91 does not
distinguish whether the complaint is filed in the Office of the Prosecutor
for preliminary investigation or in court for action on the merits. It should
be noted that simple slander is covered by the Rules on Summary
Procedure. 

In People vs. Bautista, G.R. NO. 168641, April 27, 2007, the Supreme
Court applied the Francisco principle to slight physical injuries, which is
also covered by the Rules on Summary Procedure. 

The Supreme Court in Jadewell case is not sitting En Banc, and thus, it
cannot abandon the principle in Francisco case. Under Section 5 of
Article VIII, of the Constitution, no doctrine or principle of law laid down
by the court in a decision rendered en banc or in division may be
modified or reversed except by the court sitting en banc. Moreover,
Jadewell case is interpreting Act 3326 and not Article 91 of the Revised
Penal Code, which is the governing law on prescription of felony.

Another point to consider is that the interpretation of the Supreme Court

in several cases as to the word “proceedings” in Act No. 3326 in
connection with prescription of offense punishable under special law is
different to that in the Jadewell case. According to the case of SEC vs.
Interport Resources Corporation, G.R. No. 135808, October 6, 2008, the
term “proceedings” in the said law is either executive or judicial. In sum,
the institution of executive proceedings or the filing of complaint for
preliminary investigation interrupts the running of prescription of crime
under special law. 

In People vs. Pangilinan, G.R. No. 152662, June 13, 2012, 

Panaguiton vs. Department of Justice, G.R. No. 167571, November 25,
2008, Disini vs. Sandiganbayan, G.R. No. 169823-24 and 174764-65,
September 11, 2013, and People vs. Romualdez and Sandiganbayan,
G.R. No. 166510, April 29, 2009 reaffirmed the Interport Resources
case.

It is worthy to note that in Pangilinan case, and Panaguiton case, the

crime involved is violation of BP Blg. 22. This crime is covered by the
Rules on Summary Procedure, and yet, the Supreme Court ruled that
the filing of complaint in the fiscal office interrupts the running of
prescription. 

Again, the Jadewell case cannot abandon the principle in Pangilinan

case and Panaguiton case since the Supreme Court is not sitting En
Banc. In fact, in the case of People vs. Lee, G.R. No. 234618,
September 16, 2019, the Supreme Court said that Jadewell did not
abandon the doctrine in Pangilinan. Jadewell presents a different factual
milieu as the issue involved therein was the prescriptive period for
violation of a city ordinance, unlike here as well as in the Pangilinan and
other above-mentioned related cases, where the issue refers to
prescription of actions pertaining to violation of a special law.

The Jadewell case is a controversial case. It made an interpretation of

Act No. 3326 different from that in Interport Resources case and other
cases simply because an ordinance is covered by the rules on Summary
Procedure. The Jadewell case reaffirmed the Zaldivia principle, which
provides that the filing of complaint in the fiscal office interrupts the
running of prescription while Interport Resources case and other cases
abandoned that principle. At any rate, the Supreme Court in the
Jadewell case has already spoken that the filing of complaint for
preliminary investigation will not interrupt the running of prescription of
violation of ordinance. But such principle in the Jadewell must be
confined to violation of ordinance, and not to felonies under the Revised
Penal Code or offenses under special law such as BP Blg. 22,
regardless of whether they are covered by the Rules on Summary
Procedure or not.

inherent powers of courts- not in rules but in rule 135

Lorenzo Shipping v Villarin March 6, 2019