Legal Counselling

April 2, 2018 | Author: Valdenarro Nehru | Category: Lawyer, Negotiation, Lawsuit, Advice (Opinion), Executor



1WORK TASKS OF LAWYERS Law practice may be classified into the following tasks undertaken by a lawyer in the pursuit of his profession, to wit: A. Advice B. Negotiation and conciliation C. Drafting D. Litigation E. Financing F. Property Management G. Acting as Executor or Trustee H. Specialization A. Advice Giving of advice is the task lawyers most commonly perform, and whatever else they do for clients is almost invariably accompanied by 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 usually based in the large part on the lawyer’s conception and learning relevant substantive law and doctrine applicable on the particular facts and subject involved. The advice may also center on the information and probable results based on the following additional consideration such as: 1) anticipated reactions of courts other administrative agencies official or quasi-judicial bodies; 2) Probative value of evidence; 3) Desires and resources of clients and other parties; and 4) Alternative courses of action. Indicate his preference as to which course of action should be followed by the client. (3) Non-Legal Advice – Not infrequently lawyers are asked to give advice having little or nothing to do with legal doctrine or law-making or adjudicating bodies. Widow spouses with marital troubles. In terms understandable to laymen. and small businessman in financial difficulties are among those likely to seek non-legal advice from their lawyers. (2) Sidelights of Advisory Job – The lawyer who does his advisory job well makes the law and legal processes meaningful to clients. He may try to avoid showing any preference at all on which course should be taken. As long as the performance of these acts do not prejudice the interest of the public or are done outside of office hours. Lawyers who are holding positions in government and business often becomes trusted counselors on a wide range of family. administrative and political problems. the lawyer should program any or all of the following alternatives: 1. there is nothing wrong in the act of government lawyers who earn extra income outside of their official .2 (1) Alternative Courses of Action – In giving advice. merely posing available alternatives in as neutral terms as possible. Proceed to argue persuasively as to why the client should adopt this course of action. or 3. he should endeavor to explain the applicability and probable impact of the substantive law and legal doctrine involved. business. 2. and negotiation efforts for any side may be made by a team of persons. architects. as may tax advisers. The client and his lawyer are a common team. In real estate transactions. This is quite true with fulltime judges and government prosecutors who teach in law schools outside of office hours. or other professional and business personnel. brokers often engage in negotiations representing one side. Negotiation and Conciliation (1) Essential factors in negotiation One of those most common lawyer tasks is negotiation. The essential elements in negotiation are: a) Proposals to the other side b) Counter-proposals c) Reconsiderations d) Compromise e) Advice to clients f) Client instructions to counsel (2) Parties to negotiation There usually are only two sides involved in a negotiation. with one or both of these persons frequently being lawyers. contractors.3 functions. one on each side. the dealing with another in an effort to reach an accord between the client and this other person. But negotiations may involve more than two sides or parties. Lawyers for large chain store . B. and usually all exchanges between two sides handled by but two persons. A participating lawyer may be called upon to draft many kinds of instrument. As aptly ruled. includes not only the complete preparation of an instrument by one person. but some or all exchanges may be accomplished by telephone or correspondence. a compromise agreement without a special authority from the client renders the judgment based on a compromise agreement null and void. This is so because the essence of lawyer and client relationship is likened to that of agent and principal in a contract of agency forging out a compromise agreement. In some cases a key figure in the negotiation. including originally phrased documents tailored to a single transaction and standard forms adaptable to many transactions. Some clients want their lawyers to participate at the inception of dealings. may go to each party individually and secure commitments. others wait until after the essential terms of a bargain have been agreed upon. Drafting Drafting by lawyers is the writing and revision of written instruments. (3) Mechanics of negotiation Negotiation usually occurs in a face to face conferences. but its review and modification to others. Lawyers may enter negotiations at any stage. thereby piecing together an agreement without the other participants meeting face to face. . and as the term is used in the profession. One important thing to remember when negotiating for a client is that the lawyer must be equipped with a special power of attorney before sitting at the negotiating table.4 operations sometimes negotiate mortgages for owners of real properties who have agreed to remodel and lease to the chain if it can secure a mortgage financing for the owners. C. perhaps a lawyer. Decisions. 3. 11. other than a holographic will. Wills. 2. 7. Sales. Advertisements. Letters. 10 Press releases. 9.5 Typical of such legal instruments creating legal rights and nonlegal documents are as follows: 1. 6. Pleadings. the better and with much facility can the will be probated. For added convenience so as to avoid delay especially when the lawyer is . than with the use of high sounding and obscure language which often confuse the courts and the implementers of the will. Staff memoranda. The simpler the language is used. 5. Usual contracts and deeds. Even in the drafting of a will which involves highly technical and precise legal terms to convey the real wishes of the testator should not be accomplished with much difficulty as long as it contains the essential requisites and formalities provided by law. and 13. and resolutions. Partnership agreement. Mortgages. Articles of incorporation. The better practice is to keeps sets of legal and non-legal forms in your private files consisting of carbon or xerox copies of samples of instruments developed by the lawyer or his firm in past transactions. Leases. One does not need to be a gifted writer to be able to draft a nearly perfect document. 12. 8. 4. compromise agreement. so that when the need arises. you do not have to grope or cram for them especially when you are preparing for trial. Here it means proceeding before any tribunal. but in this discussion it is intended to connote a broader meaning. examples can be found that shade off into negotiation and legislation. (1) Essential difference between negotiation and litigation a) In litigation a third party decides involving others. this includes many of the proceedings before government administrative agencies and even those before such private adjudicative bodies as arbitration boards and member disciplinary committees of trade and professional associations. This is true for instance . whether judicial or quasi-judicial or administrative body vested with jurisdiction to decide issues involving parties who are entitled to appear before the decision maker and prosecute their cause. Litigation The term litigation is frequently used to refer only to proceedings before courts. D. A case is uncontested as long as each side seriously threatens to oppose the other before the decision making tribunal. It ordinarily is uncontested if the defendants default of fail to appear.6 running against time is to compile these sample copies into loose-leaf volumes duly marked in chronological order. In addition to matters head by courts. as the defendants make no move to press their position either through negotiation or before the tribunal. Under such extended definition. The lawyer’s tasks in litigation vary greatly depending on whether the proceedings are contested or uncontested. b) In negotiation parties with conflicting interests seek to resolve or accommodate to them by mutual agreement among themselves. A large number of Philippine litigation is uncontested. both parties desire that the court terminate the marriage. (2) suits. the court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the state to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. without even any serious contest at the plea negotiation stage.7 in many legal separation or annulment of marriage cases. all that the parties have got to do is to arrange thru their counsels for an uncontested litigation.” (3) Recommended short-cuts in non-contested suits With respect to criminal cases. from which the court may proceed to calendar the case for hearing during which the defendant does not appear. Frequently. thus the defendant does not oppose the proceedings paving a speedy vehicle to contract a second marriage. This is achieved by an out of court understanding that the defendant should not answer the complaint. common real estate title clearing procedures in How to proceed effectively in uncontested annulment . Of course this practice may appear unethical. complainant can then move for reception of his or her evidence ex-parte which will serve as basis for the court’s decision granting annulment. bordering on conclusion which the law abhors. There is for example a certain safeguard which should be observe before is a decree of annulment can be used by the court under Article 48 of the Civil Code which provides that “in all cases of annulment or declaration of absolute nullity of marriage. Upon proof of service of notice to the defendant. Suits to quite title. If a lawyer wants to end the litigation very quickly in an annulment of marriage suit. they are often disposed of by guilty pleas. than any other phase of lawyer’s work. The more risky the venture and less financially sound the client. but as long as early safeguards against getting entangled with ethical standards are met. The venture may be fraught with dangers to the lawyer’s profession. but also their litigation expenses will thus be drastically minimized if not altogether avoided. Not only will they be relieved of the anxiety and emotional stress attendant to a prolonged litigation.8 many Regional Trial Courts in the provinces are seldom contested. the attendant risks may well be averted. when the client cannot put you up an advance payment of the lawyer’s remuneration. E. This practice present an excellent opportunity for making money. The lawyer receives a share in the venture in return for cash or legal services. Most common of these business arrangements between lawyer and client reap lucrative benefits in favor of the lawyer in terms of attorney’s fees usually on a contingent basis in sums fatter than what he could realize from court litigations . although an argument may be raised against a lawyer going in client deals that if litigation is likely and he is expected to conduct such litigation. although probably more important in real property transactions.Sometimes. is participation as a principal in business deals with client. Financing A lawyer’s task of over-all minor significance. his financial involvement may contravene the provisions of Article 1491 of the Civil Code. This practice of uncontested litigation is highly recommended and encouraged where the parties have failed to agree on the negotiating table. the more chances that the client will want lawyer to come in. he will be compelled to agree on exorbitant amounts or shares out of the deals which are unproportionate to the actual services reassignment of the client’s property to take effect . it is very likely that the same lawyer will be appointed as executor of the said will. Acting as Executor or Trustee The traditional practice is that whenever a client hires a lawyer to draft his will. F. Eviction 3. Having acquired sufficient knowledge and identification of the testator’s properties. Rent collection 5. Leasing 2. records. there can be no violation of the lawyer’s oath nor anything unethical with the gargantuan fees. Property management Another segment of lawyer’s task especially patterned for small law firms and sole practitioners is doing property management for clients. kind and extent of the estate of the testator. and familiarity with the nature.9 during the pendency of the litigation. the executor who drafts the will is the logical person to act as trustee in the management of the real and personal properties of the decedent in his fiduciary capacity. Acting as executors and trustees G. Arranging for maintenance services and insurance 6. Contract for repairs 4. provided they are not champertous. so much so that it would be difficult for one who did not participate in the drafting of such will to act as executor thereof. Drafting of will requires such thorough investigation and gathering of facts. These tasks include the following: 1. Payment of taxes and other expenses 7. date and documentary evidence. Except with respect to large estates . a corporation lawyer who specializes in dealing with legal problems involving corporations. to wit: 1. There are trial lawyers who specialize in a particular field of law and they are often referred to as criminal lawyer. an insurance lawyer who specializes in insurance cases or legal problems involving insurance. Thus. 3. The persons he works for or with. and More specifically when applying to practicing lawyers in the Philippines. The task he performs. a practicing lawyer who specializes in naturalization proceedings. He should be precise about the specific area and king of the devises and legatees in order to prevent intestacy. Specialization The term specialist is usually used to refer to what a worker does. A lawyer who drafts and acts as executor of a will should possess vast knowledge on the law on wills and succession. The goods or services he produces. labor cases. He must be conversant about how much portion of the testator’s estate he is permitted to dispose of by will without encroaching on the legitime of the compulsory heirs. The place where he works. 4. a civilest.10 management of which is better left to the care of banks that specialize in trusteeship tasks. 2. there are lawyers who specialize in trial work. immigration law. a specialist refers to someone who specializes or is highly competent at performing a specified kind of work or practice. H. special proceedings like . patent law. titling of properties. will have any prior familiarity with the complex legal problems brought in by various clients. On the other hand. Barte 2006 Edition . a general practitioner may also be a specialist providing that he remains willing to take a sufficiently broad of range of matters and clients in addition to those in his specialty. Source: Legal Counseling By: Recaredo P. hospitalization of the mentally retarded. a general practitioner refers to a lawyer who engages in general practice of law. a general practitioner is one who is willing to represent almost any kind of matter if the client will pay the practitioners going rate. More specifically. Clients demanding unethical conduct by counsel to pursue an illegal or immoral course of action should be rejected. All lawyers are blocked out by conflict of interest from taking some matters.11 adoption. transportation law. By the test of acceptability. incompatible of specialization. The variety of legal problems is so great that not infrequently no lawyer even if it is in a big reputable firm. even though there are a few kinds of clients and causes unacceptable to him. agrarian law. guardianship. tax cases and SEC registration.
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