CLINICAL LAWYERING AND COUNSELING

A. Interview of Client

(1) Establish essential elements of attorney client relationship

The first thing that a lawyer should to in performing acts constituting as practice of law is to
establish client-lawyer relationship. Until the relationship is clear, defined and created, no rights
and obligations may, that may arise between them, be invoked or enforced. The best proof of the
existence of the relationship is a written contract of lease of service or a retainership contract. The
contract of employment may be in any form, whether express of implied and whether verbal or
written.

In order to forestall any future misinterpretation of the authority that the lawyer should exercise
especially in the financial aspect, the lawyer’s remuneration and the extent of the contingent fee
he is entitled to, a written contract of employment containing specific terms and conditions is still
considered a must. In the course of interview, the client should be made aware of his
responsibilities towards the lawyer, inter alia:

a. Lawyer is entitled to attorney’s fees

Although lawyering is not a mercenary occupation, however, whether as a sheer incentive or

to be regarded as a just wage, it stands to reason that one who has rendered an honest and
appropriate service should be duly compensated.

As to the mode of payment of attorney’s fee, the acceptance fee which usually is the initial
payment upon acceptance of the employment may be made in lump sum cash or in staggered
basis and the balance payable within a specific period. The appearance fee of the lawyer may
depend upon the mutual understanding between the client and lawyer

(2) Client cannot dismiss the lawyer at will

The client has the prerogative to terminate the lawyer’s services but such right is not absolute
without the approval of the court which must first be obtained in a proper proceeding for that
purpose. Before the client may dismiss the services of the lawyer, he must file a motion to that
effect informing the court that he is substituting another lawyer for the present one, giving his
reasons, to allow the court reasonable time to reset the hearing.

On the other hand the lawyer may withdraw his services under any of the following circumstance:

a. When the client pursues an illegal or immoral course of action in connection with the
matter he is handling;
b. When the client insists that the lawyer pursue a conduct violative of these canons or rules;
c. When his inability to work with co-counsel will not promote the best interest of the client;
d. When the mental or physical condition of the lawyer renders it difficult for him to carry out
the employment effectively;
e. When the client deliberately fails to pay the fees for the services or fails to comply with the
retainer agreement
f. Other similar grounds

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 (3) Lawyer’s authority to control trial

The lawyer’s authority to control trial is limited to matters of procedure. The client therefore has
the right to question the lawyer’s authority to choose proceedings or the legal remedy he will adopt
involving his case and the witnesses he is going to present in support of his case.

(4) Interviewing techniques

The technique in interviewing client should be all embracing and exhaustive as possible. But before
allowing the client to start with his narrative, put him at ease and in a relaxed mood as possible by
telling him that you are his faithful friend who will stand by him under all circumstances that led to
the violation. Let him relate spontaneously all that he knows about the case by avoiding a slight
interruption as possible. Let him understand that all that he is supposed to do is to tell the naked
truth, and leave the job to you as to what theory or defense to adopt. But do not allow him to
dictate on what procedure or theory to follow or course of action to take, because those are
matters of procedure that falls within lawyer’s authority.

(5) Be frank and firm to the client

Always expect that there are clients who would deliberately hide the truth in purpose to pursue a
different or illegal course of action in violation of professional ethics. Bluntness is the name of the
game. Be blunt in this kind of client by telling him that you do not need his money if he cannot trust
you, hence, he had better look for another lawyer. No lawyer should hesitate to tell his client what
his impression is about him after hearing the preliminary details of his story.

(6) Avoid frequent interruptions

Once the client or witness started talking, avoid interruption, unless absolutely necessary to
complete a point. Frequent interruptions while the witness is telling his version of the incident
might cause the client or witness is telling his version of the incident might cause the client or
witness to be rattled and confused, such that his narrative will appear incoherent and disjoined. If
you have any questions to ask, ask them after he had finished his narration, and continue to ask
him whether there are incidents which he missed to relate to you and if there are any then allow
him to complete his story.

(7) Conduct your interview in the language that witness speaks

It is inconceivable how a lawyer will be able to elicit the cold and naked facts from a witness who
cannot understand the language of his own tongue. A Filipino lawyer engaged in a solo practice,
must set aside from being articulate in English language and learn how to communicate with
practically all kinds of dialect that are essentially spoken in the Philippines. It is not necessary that
he should be a linguist, but it is sufficient that he can drive home his point or be able to explain in
the manner understandable to the witness he is interviewing.

After the interview, make a draft of the witness’s story and allow him to read his version as it
appears on the paper, likewise in the dialect known to the witness. Thereafter, ask him if he has
related everything as written comprising his problem, and if there are missing points, make some
insertions, and revisions and amendments in your draft before reducing the same into its final form.

(8) Interview all available witnesses

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 The interview should not be confined to the client but it must include all available witnesses who
will corroborate the client’s version, since it shall constitute your evidence in court. If as a result of
your evaluation, the nature of the testimony of a witness is merely corroborative, his testimony
may be dispensed with.

For expert witness, his testimony may not be dispensed with when his testimony is vital to prove
the result of a forensic examination of a handwriting, bullets or slugs recovered from the scene of
the incident, determination of the firearm used in the commission of the offense, traces of
spermatozoa taken from the body of the rape victim, paraphernalia seized from a drug suspect,
determination of whether the suspect is positive for alcohol or prohibited drug, traces of parts of
the human body like strands of hair recovered from the scene of the crime, skin, cut, fingerprints
and footprints that have been photographed or reproduced from the scene of the incident to be
utilized for comparison with the suspect’s own physical foot and finger lines, result of autopsy or
medical examination to determine the healing period and gravity of the wounds inflicted on the
victim’s body, the trajectory of the bullet wound---- all of which are crucial to determine whether
the proper charge.

(9) Trial brief preparation

For a more effective and systematic presentation of evidence in court, the best practice is to
prepare a trial brief before going to trial. The trial brief should contain a list of witnesses and the
order of their presentation as to which witness is going to testify on this or that document or
exhibit.

(10) Determine client’s needs and priorities

Interviewing techniques must cover questions involving the client’s priorities and needs that
produce quick results, as well as for his/her future protection and benefits. The lawyer must possess
a vast knowledge of our procedural laws and be able to define to his client the remedy on the first
interview, and be able to define to the client the appropriate remedy to his/her problem.

(11) Amicable settlement still the best alternative

Amicable settlement is being encouraged by the courts to avoid prolonged litigations by the parties’
filing of dilatory and frivolous motions in the appellate courts that cause further delay in the
disposal of the case from the court’s docket. Even if an action has been filed and remains pending
in court, there is no legal impediment for the parties to forge an amicable settlement of the case
during any stage of the proceedings. As long as the case has not yet become final and executory,
the parties could still enter into an out of court settlement from which the court’s judgment shall
be adopted, subject to court’s approval.

Once a compromise agreement has been signed by the parties litigants and approved by the court,
the compromise agreement is binding and has a force of law between the parties, unless the
consent of the party is vitiated or when there is forgery, or if the terms of the settlement are so
palpably unconscionable (Clark Development Corporation vs. Mondragon Leisure and Resorts
Corporation, G.R. No. 150986 March 2, 2007).

(12) Analysis and Development of Theory

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 Analyze the facts on the basis of the stories as told by the witnesses, in relation to the applicable
legal provisions, then check and counter-check whether your theory will prosper by availing of the
remedies and/or defenses under the Rules of Court that will produce the desired result.

(13) Theory of the case development

It is defined as the particular line of reasoning of either party to suit and aim to bring together
certain facts of the case in a logical sequence and correlate them in such a manner as to produce
in the mind a definite result or conclusion that the advocate believes entitles him to the court
judgment or decree in the face of such conclusion based on certain principles of law.

The theory or defense in a case must remain constant up to the termination of the case, the
termination here means the end of all proceedings not only in the trial stage, but also in the appeal
stage of review by the appellate court.

(14) Hypothetical Case

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(15) Suggested effective theories in criminal cases

As accused’s counsel in a prosecution for homicide, for example you may adopt either the theory
of self-defense, whether complete or incomplete self-defense, mistake of identity, insanity, minority
of the offender or alibi, depending on the strength of your client’s evidence, vis-à-vis a fair and
honest evaluation of the weight of prosecution evidence as can be gleaned from the pleadings, and
as reflected from complainant’s judicial affidavit.

In the forecast of prosecution evidence, it should be borne in mind that the prosecution is burdened
to rely on the strength of its own evidence, and not on the weakness of the defense. Nevertheless,
the defense theory should find support from the competency and credibility of its witnesses, and
the effectiveness of counsel’s presentation of evidence. A wrong or sloppy manner of laying out a
theory on a pleading and the inept presentation of evidence by an incompetent defense lawyer,
may yet be demolished by an able prosecutor.

It is called incomplete self-defense, because all the elements that justify the killing are lacking, the
effect of which when proved, shall reduce the penalty prescribed by law, from one to two degrees
lower. If all the elements or circumstances that justify the act of killing are present then the accused
shall be absolved of criminal liability and should be acquitted, in which case, the theory becomes
complete self-defense.

This theory or defense aforestated, applies in the defense of the person or rights of one’s spouse,
ascendants, descendants or legitimate natural or adopted brothers or sisters, of his relatives by
affinity in the same degrees, and those by consanguinity within the fourth civil degree, Provided:
That the first and second circumstances are present, and the further requisite, in case the
provocation was given by the person attacked, that the one making defense had no part therein.

So also, this theory or defense applies to anyone who acts in the defense applies to anyone who
acts in defense of the person or rights of a stranger, provided that the first and second requisites
mentioned in the first circumstance of this article are present and that the person defending be
not induced by revenge, resentment or other evil motive.

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 A.M. NO. 17-03-09-SC

RULE ON COMMUNITY LEGAL AID SERVICE

The Philippine Supreme Court En Banc issued Administrative Matter No. 17-03-09-SC otherwise known
as the Community Legal Aid Service Rule.

Rationale

The rationale of the law is that the legal profession is imbued with public interest. As such, lawyers are
charged with the duty to give meaning to the guarantee of access to adequate legal assistance under
Article III, Section 11 of the 1987 Constitution by making their legal services available to the public in
an efficient and convenient manner compatible with the independence, integrity and effectiveness of
the profession. As a way to discharge this constitutional duty, lawyers are obliged to render pro bono
services to those who otherwise would be denied access to adequate legal services. (Sec. 2)

Scope

This Rule shall govern the mandatory requirement for covered lawyers to render pro bono legal aid
services to qualified litigants, as defined herein. (Sec. 3)

Covered lawyers

- those who have successfully passed the Annual Bar Examinations and have signed the Roll of
Attorneys for that particular year; for purposes of this Rule, it shall include those who will pass
the 2017 Bar Examination and are admitted to the Bar in 2018 and are now obliged to render
one hundred twenty (120) hours of pro bono legal aid services to qualified parties

Pro Bono Legal Aid Service

- shall refer to supervised post-admission legal services in civil, criminal and administrative cases
consisting of:

1. Legal services provided without charge for the following qualified parties or
litigants:
i. Indigent Party or Pauper Litigants, as defined;
ii. Other persons of limited means, as defined;
iii. Individuals, groups, or organizations rendered unable to secure free
legal assistance by reason of conflict of interest on the part of
government-provided legal assistance through the Public Attorney's
Office; and
iv. Public interest cases that have societal impact and involves a group or
sector of society that otherwise would not be capable of securing legal
assistance by reason of inability of other lawyers, law firms, or
government offices, including the Public Attorney's Office.
2. The following shall be considered legal services for purposes of this Rule:

1. Representation of qualified litigants, as defined, in the trial courts in civil and

criminal cases and quasi-judicial bodies in administrative cases, including
proceedings for mediation, voluntary or compulsory arbitration, and
alternative dispute resolution;

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 2. Legal counselling, rendering assistance in contract negotiations and drafting of
related legal documents, including memoranda of law and other similar
documents that are provided to the client. Drafting may include policy work
involving legal research and advocacy;

3. Developmental Legal Assistance, consisting of rights awareness, capacity-

building, and training in basic human rights, documentation, and affidavit-
making, rendered in public interest cases, including legal assistance rendered
by identified Public Interest Law Groups;

4. Legal services provided as part of employment in the judiciary, executive, or

legislative branches of government shall be considered sufficient compliance
with this Rule, provided that the covered lawyer must already be in
government service at least six months before admission into the Bar, provided
further, that the legal services provided are substantive, as certified by the
Heads of Office; and

5. Legal services provided to marginalized sectors and identities, such as but not
limited to: (a) urban poor; (b) workers/laborers; (c) overseas foreign workers;
(d) children in conflict with the law; and (e) persons involved in gender issues.
"Accredited Legal Aid Service Providers" are legal aid offices duly accredited with the Office of the Bar
Confidant (OBC) where covered lawyers may render pro bona legal aid service. These offices shall
include:

1. Law organizations regularly rendering legal aid services, such as the Philippine Bar
Association, and other similar organizations;
2. Developmental Legal Assistance Groups and Alternative Law Groups rendering
developmental legal assistance and alternative law groups;
3. Public Interest Law Groups;
4. Law School Legal Aid Offices; and
5. Law firms which handle cases for person of limited means, or marginalized group and
entities. This shall include law firms with established legal aid department or which regularly
render pro bono legal aid service or act as counsel de oficio.

Requirements:

(a) Number of Hours

 required to render one hundred twenty (120) hours of pro bona legal aid
services to qualified parties enumerated in Section 4(b), within the first year of
the covered lawyers' admission to the Bar, counted from the time they signed
the Roll of Attorneys.
 For this purpose, covered lawyers shall report to the chairperson of the IBP
Chapter Legal Aid Committee of their choice or the chairperson, director, or
supervising partner or lawyer from the Accredited Legal Aid Service Provider
of their choice for their compliance with this Rule.
(b) Free Legal Aid Services on Weekends
 Upon written request duly approved by the chairperson of the IBP Chapter
Legal Aid Committee or the chairperson, director, or supervising partner or
lawyer from the Accredited Legal Aid Service Provider, covered lawyers may
comply with the requirements of this Rule on weekends. Said lawyers are
entitled to an extension of the compliance period, upon submission of the

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 weekend schedules by the IBP committee chairperson or the appropriate
officer of the Accredited Legal Aid Service Provider.

The following shall be exempted from the requirements of this Rule upon sufficient proof of their
respective circumstances submitted with the Office of the Bar Confidant (“OBC”):

1. Covered Lawyers in the executive and legislative branches of government, provided that the
covered lawyer must already be in government service at least six (6) months before
admission into the Bar, however, those employed upon admission into the Bar with the
judiciary, the Public Attorney’s Office, the National Prosecution Service, the Office of the
Solicitor General, the Office of the Ombudsman shall be automatically exempt from
compliance with this Rule;

2. Those who have already undergone and completed the clinical legal education program duly
organized and accredited under Rule 138-A (The Law Student Practice Rule);
3. Covered Lawyers who have worked for at least one (1) year in law firms offering pro bono
legal services or regularly accepting counsel de oficio appointments;
4. Covered Lawyers who have previously worked for more than one (1) year as staff of a Law
School Legal Aid Office, a Public Interest Law Group, or an alternative or developmental
group; and Covered lawyers who have worked with lawyers for Public Interest Law Groups or
alternative or developmental law groups for more than one (1) year and have filed public
interest cases.

Within thirty (30) days from the date of signing the Roll of Attorneys, any aforelisted lawyer shall submit
his/her sworn statement and that of the chairperson, director or supervising partner or lawyer of the
Accredited Legal Aid Service Provider showing his/her entitlement to the exemption from the rule.
Otherwise, the new lawyer shall not be considered exempt from the Rule.

Period for Compliance.

Covered lawyers shall complete the community legal aid service within twelve (12) months from the
date they sign the Roll of Attorneys. Within one (1) month after the lapse of the said period, covered
lawyers shall submit the Certificate of Compliance issued by the Accredited Legal Aid Service Provider
to the OBC.

The twelve ( 12) month period may be extended upon a petition duly submitted and granted by the Bar
Confidant, who will furnish the Office of the Chief Justice with a copy of the order resolving the petition.
The petition for extension must be filed before the lapse of the period for compliance. In the event a
new lawyer has completed the required number of hours before the end of the one (1) year period,
he/she can already submit the Certificate of Compliance to the OBC. In order to address possible
economic hardships that may be caused by strict compliance with this Rule, or for any justifiable reason,
qualified lawyers may request compliance with this Rule for two (2) years. Covered lawyers who wish
to avail of this privilege must file an application with the OBC, which shall determine the validity of the
deferment on a case-to-case basis.

Prohibition against Solicitation or Acceptance of Gifts

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Covered lawyers shall not solicit, request, or accept, directly or indirectly, any fee, gift, token of
gratitude, or anything of monetary value in the course of rendering the legal aid services under this
Rule. Any and all legal services provided under this Rule shall be on a pro bona basis.

Protection of private practice or employment

This rule is not intended to impair the private practice or employment of covered lawyers. Barring any
conflict of interest or any other violation of the Code of Professional Responsibility, covered lawyers
can engage in private practice and accept paid clients or be employed in the government or in the
private sector within the twelve-month period for compliance.

Full Credit/or Mandatory Continuing Legal Education (MCLE)

A covered lawyer who successfully complies with the requirements of this Rule shall be given a full
credit of thirty-six (36) MCLE units for the three year-period covered by a compliance period under the
Rules on MCLE. The grant of full credit shall be without prejudice to any other legislated benefits that
the covered lawyer may be entitled to, such as tax exemptions and other similar benefits.

Duties of the OBC

The OBC shall perform the following duties and responsibilities:

(a) Verify the contents of the notarized Certificate of Compliance submitted by new lawyers with the
issuing IBP Chapter Legal Aid Committee or the Accredited Legal Aid Service Provider;
(b) Keep a record of all the Certificates of Compliance and submit it to the Court en bane at the end of
each quarter;
(c) Accredit Clinical Legal Aid Offices of Law Schools, Public Interest Groups, Developmental Legal Aid
Groups, Alternative Legal Aid Groups, or Law Firms which intend to participate in this legal aid program.
The IBP Chapter Legal Aid Committees, the Free Legal Assistance Group (FLAG), and previously
accredited Clinical Legal Aid Offices shall be automatically accredited by the OBC;
(d)Monitor the compliance of covered lawyers and the Accredited Legal Aid Service Providers with the
requirements of this Rule;
(e) File administrative charges against non-compliant covered lawyers and any group/person who may
be involved in any violation of this Rule; and (t) Provide the standard forms for the timelog, timesheets,
and notarized Certificate of Compliance.

Penalties

(a) A covered lawyer who fails to comply with the requirements of this Rule shall be required to show
cause in writing within ten (10) days from receipt of notice why no disciplinary action should be taken
against him/her. Should the OBC find the new lawyer's explanation insufficient to justify the non-
compliance, it shall recommend to the Supreme Court that the lawyer be delisted as a "member in good
standing" of the Bar. It may also recommend any appropriate disciplinary measures depending on the
reasons for and the gravity of the non-compliance.

(b) Without prejudice to criminal liability, a covered lawyer who falsifies the Certificate of Compliance
required to be submitted under this Rule shall be administratively charged by the OBC with disciplinary
action up to and including disbarment before the Supreme Court.

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