Admission to the Bar or Practice of Law Admission to the Bar or Practice of Law Opelanio, Michael Jethro g. Umerez, karl Eugene a. Problem areas in legal ethics â Thursday 5:30 â 7:30 JUDICIAL CONTROL Sec 5, Art. VIII of the 1987 Constitution provides that: âThe Supreme Court has the power, among others, to promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, THE ADMISSION TO THE PRACTICE OF LAW, the Integrated Bar, and legal assistance to the underprivileged.â JUDICIAL CONTROL In the case of In Re Cunanan (94 Phil 534), the Court ruled that Sec. 2 of R.A. 972 is unconstitutional due to the fatal defect of not being embraced in the title of the Act. The Act should only affect the bar flunkers of 1946 â 1955 Bar examinations. It was struck down for allowing partial passing, thus failing to take account of the fact that laws and jurisprudence are not stationary. Moreover, the law was passed in 1952, to take effect in 1953. Hence, it will not revoke existing Supreme Court resolutions denying admission to the bar of any petitioner. Enroachment â because SC had a different set of rules and Section 2 went against the SCâs discretionary power. 3 PRACTICE OF LAW To do any acts which are characteristic of the legal profession. Embraces any activity, in or out of court, which requires the application of law, legal principle, practice or procedure. Carrying on the calling of an attorney, usually for gain, acting in a representative capacity and rendering service to another. Includes legal advice and counseling, and the preparation of legal instruments and contracts, which may or may not be pending in court. Philippine Lawyers Assân vs Agrava Pp vs Villanueva Ulep vs. Legal Clinic 4 Section 1, Rule 138 of the Rules of Court provides that: âAny person who is duly licensed member of the bar and who is in good and regular standing is entitled to practice lawâ PRACTICE OF LAW Only natural person are allowed to the practice of law in view of the requirements imposed by the rules. Juridical person cannot practice law because of the nature of trust relation between attorney and client, as well as the condition required for the membership in the bar. 5 In Cayetano vs. Monsod, Court ruled that a person is also considered to be in the practice of law when he: In a representative capacity, engages in the business of advising clients as to their right under the law, or while so engaged performs any act or acts either in court or outside of court for that purpose, is engaged in the practice of law. J. Padilla, in his dissenting opinion, states that practice of law as commonly understood, âPracticeâ 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 mean, to exercise or pursue an employment or profession actively, habitually, repeatedly or customarily. There must be continuity or a succession of acts. PRACTICE OF LAW J. Guttierez Jr., further states that: âa person may have passed the bar examinations but if he has not dedicated his life to the law, if he has not engage in an activity where membership in the bar is a requirement, I failed to see how he can claim to have been engaged in the practice of law.â PRACTICE OF LAW In Ulep vs Legal Clinic Inc. (223 SCRA 378), the Court ruled that the respondent is engaged in the practice of law. Practice of law is not limited to the conduct of cases. One who renders an opinion as to the proper interpretation of a statute, and receives payment for it, is to that extent, practicing law. PRACTICE OF LAW 8 Section 2, Rule 128 of the Rules of Court provides that: Every applicant for admission as a member of the bar must be: A citizen of the Philippines; At least 21 years of age; Of good moral character; A resident of the Philippines; Must produce before the Supreme Court satisfactory evidence of good moral character, and that no charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines. REQUIREMENTS FOR ADMISSION In the case of In Re: Application for Admission to the Philippine Bar, Vicente Ching (Bar Matter No. 914, Oct 1999), the Court ruled that the petitioner cannot be allowed to take his oath as a member of the Bar because he is not a Filipino citizen not having elected Philippine Citizenship âwithin the reasonable timeâ. His continuous and uninterrupted stay in the Philippines, being a CPA, a registered voter and a former elected public official cannot vest him Philippine citizenship. REQUIREMENTS FOR ADMISSION In Tan vs Sabandal ( Bar Matter No. 44, 24 Feb 1992), the Court denied the petition of Sabandal to take his oath as a lawyer. It has been held that the practice of law is a privilege bestowed upon individuals who are not only learned in the law but who are also known to possess good moral character. His failure to reveal the civil case for Reversion filed against him during his submission of petitions and motion for reconsiderations reveal his lack of truthfulness and candor. Good Moral Character has been defined as âincluding at least common honestyâ. REQUIREMENTS FOR ADMISSION Sec 5 (1), Rule 138 of the Rules of Court requires further that: âApplicants must satisfactorily show that they have regularly studied law for four years and successfully completed all prescribed courses, in a law school or university, officially approved and recognized by the Secretary of Education.â Sec 6, Rule 138, states: âNo applicant for admission to the bar examination shall be admitted unless he presents a certificate that he has satisfied the Secretary of Education that, before he began the study of law, he had pursued and satisfactorily completed in an authorized and recognized university or college, requiring for admission thereto the completion of a four-year high school course, the course of study prescribed therein for bachelorâs degree in arts and sciences. REQUIREMENTS FOR ADMISSION In the case of Re: Application of Adriano Hernandez to take the 1993 Bar Examinations (225 SCRA), the Court allowed Hernandez to take the 1993 Bar Examinations because of the fact that the Court, in the past, had exempted Filipino citizens who have studied in foreign law schools from the strict requirements of Sections 5 and 6 of Rule 138 and allowed them to take the bar examinations. However, the Court also ruled in this case that beginning next year [1994], an applicant desiring to take the bar examinations must not only have studied law in a local school but has to present certifications required Sections 5 and 6 of Rule 138. REQUIREMENTS FOR ADMISSION 1. Practice without Examination Citizens of the US, before July 4 1946, were duly licensed members of the Philippine Bar, in active practice in the courts of the Philippines and in good and regular standing as such may, be allowed to continue such practice after taking the oath of office. Applicant for admission who, being Filipino citizens, are enrolled attorneys in good standing in the Supreme Court of the United States or in any Circuit Court of Appeals or District Court therein or in the highest court of any state or territory of the US and who can show that they have practiced before July 4, 1946 maybe admitted without examination. EXCEPTIONS TO THE REQUIREMENTS In the case of In Re: Petition of Ramon Quisumbing for Admission to the Bar (Bar Matter No. 419, Nov 1988), the Court denied the petition. Quisumbing admits that he does not satisfy the requirement that practice in the foreign jurisdiction must have commenced prior to 4 July 1946. It stressed by the court that there is at present no Philippine rule authorizing the admission to the Philippine Bar on the basis of reciprocity or comity. The limited application of comity as a ground for admission is embodied in Section 4 of Rule 138. EXCEPTIONS TO THE REQUIREMENTS 2. Practice without Admission In the Municipal Trial Court, a party may conduct his litigation with the aid of an agent or friend appointed by him for that purpose. In a criminal proceeding, in a locality where a duly licensed member of the bar is not available, MTC may admit or assign a person, resident in the province and of good repute for probity, and ability to defend the accused in his defense. (Rule 116, Sec 7) But in a place where a duly licensed member of the bar is available, the MTC may not admit or assign a layman to defend the accused. (PAAR v. BORROMEO, 79, PHIL. 344) EXCEPTIONS TO THE REQUIREMENTS Right of Party to Represent Himself An individual in a CIVIL CASE has the right to conduct his litigation personally. In criminal cases involving grave and less grave offenses, an accused who is a layman must always appear by counsel. His representation on his behalf is not considered to be the practice of law. EXCEPTIONS TO THE REQUIREMENTS A union representative may appear for his organization or any of its members before the National Labor Relations Commission, labor arbiter or arbitrator; A person representing a land claimant in cadastral court; In case of a law student practice as permitted by the Rules. (RULE 138 â A); In case of those authorized to represent the government. EXCEPTIONS TO THE REQUIREMENTS BAR EXAMINATION The applicantâs learning and proficiency in law is ascertained by requiring him to submit to the bar examination. A general average of 75% in all subjects without falling 50% in any subject, is the passing grade. In determining the average, the subjects are given the following relative weights: Civil law 15% Labor and Social Legislation 10% Mercantile Law 15% Criminal Law 10% Political and international Law, 15% Taxation 10% Remedial law 20% Legal Ethics and Practical Exercises, 5% The rule does not permit partial passing of the examinations at indefinite intervals because of the grave defects of such a system in failing to account that the laws and jurisprudence are not stationary. Bar Matter No. 1161 in 2004 promulgated the 3 flunk rule, where an applicant must finish a refresher course each time on its 4th and 5th take and that those who flunk 5 times or more may take the bar one more time. This rule was lifted by the Supreme Court en banc on 2013. BAR EXAMINATION PROCEDURE FOR ADMISSION An applicant must file with the clerk of court of the Supreme Court at least 15 days before the beginning of the bar examination a duly accomplished application form provided for the purpose, together with supporting documents concerning his qualifications. An applicant must show that no charges against him involving moral turpitude, have been filed or pending in court in the Philippines. The question as to whether an offense involves moral turpitude is for the Supreme Court to decide. Applicants whose qualifications are found to be sufficient are required to take written examinations. The examinations take place annually in Manila. They are held in four days designated by the chairman and distributed as follows: 1st day: Political and International Law (morning), Labor and Social Legislation (afternoon); 2nd day: Civil Law (morning), Taxation (afternoon); 3RD day: Mercantile Law (morning), Criminal Law (afternoon); 4th day: Remedial Law (morning), Legal Practice and Practical Exercises (afternoon) PROCEDURE FOR ADMISSION An applicant who has passed the required bar examinations or who has been otherwise found to be entitled to be admitted to the bar shall take and subscribe the oath of office as a lawyer. Oath is a prerequisite to the admission to the practice law and may only be taken before the Supreme Court by a person authorized to engage in the practice of law. The court may deny the applicantâs petition to take the lawyerâs oath for grave misconduct. The court may also defer the applicantâs taking the oath if there is a pending case against him, which, if found to be true, will disqualify him from becoming a lawyer. PROCEDURE FOR ADMISSION PROCEDURE FOR ADMISSION After the applicant has taken his oath, the Supreme Court admits him as a member of the bar for all the courts of the Philippines and directs that an order be entered to that effect upon the records and that a certificate of such record be given him by the clerk of court. Upon acceptance of the certificate, he signs the roll of attorneys. The roll is the official record containing the names and signatures of those who are authorized to practice law . References: Legal and Judicial Ethics. Agpalo, Ruben. Rex Printing Company Inc., 2009 Legal Profession. Villareal II, Edgardo.