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Practice of law, C3S1 CPRA

Section 1, Canon III

SECTION 1. Practice of law. – The practice of law is the rendition of legal service or performance of acts or the application of law, legal principles, and judgment, in or out of court, with regard to the circumstances or objectives of a person or a cause, and pursuant to a lawyer-client relationship or other engagement governed by the CPRA. It includes employment in the public service or private sector and requires membership in the Philippine bar as qualification. (2023 Code of Professional Responsibility and Accountability or CPRA)

1. Practice of law

Practice of law – refers to “the rendition of legal service or performance of acts or the application of law, legal principles, and judgment, in or out of court, with regard to the circumstances or objectives of a person or a cause, and pursuant to a lawyer-client relationship or other engagement governed by the CPRA. It includes employment in the public service or private sector and requires membership in the Philippine bar as qualification.” (CPRA, Section 1, Canon III)

According to jurisprudence, the “practice of law embraces any activity, in or out of court, which requires the application of law, as well as legal principles, practice or procedure[,] and calls for legal knowledge, training[,] and experience.” (Paras v. Paras, A.C. No. 5333, March 13, 2017, Per Perlas-Bernabe, J.)

Cayetano v. Monsod, G.R. No. 100113, September 3, 1991, Per Paras, J.:

• Black defines “practice of law” as:

The rendition of services requiring the knowledge and the application of legal principles and technique to serve the interest of another with his consent. It is not limited to appearing in court, or advising and assisting in the conduct of litigation, but embraces the preparation of pleadings, and other papers incident to actions and special proceedings, conveyancing, the preparation of legal instruments of all kinds, and the giving of all legal advice to clients. It embraces all advice to clients and all actions taken for them in matters connected with the law. An attorney engages in the practice of law by maintaining an office where he is held out to be-an attorney, using a letterhead describing himself as an attorney, counseling clients in legal matters, negotiating with opposing counsel about pending litigation, and fixing and collecting fees for services rendered by his associate. (Black’s Law Dictionary, 3rd ed.)

• The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650) A person is also considered to be in the practice of law when he:

… for valuable consideration engages in the business of advising person, firms, associations or corporations as to their rights under the law, or appears in a representative capacity as an advocate in proceedings pending or prospective, before any court, commissioner, referee, board, body, committee, or commission constituted by law or authorized to settle controversies and there, in such representative capacity performs any act or acts for the purpose of obtaining or defending the rights of their clients under the law. Otherwise stated, one who, in a representative capacity, engages in the business of advising clients as to their rights 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. (State ex. rel. Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852)

• This Court in the case of Philippine Lawyers Association v. Agrava, (105 Phil. 173,176-177) stated:

The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings and other papers incident to actions and special proceedings, the management of such actions and proceedings on behalf of clients before judges and courts, and in addition, conveying. In general, all advice to clients, and all action taken for them in matters connected with the law incorporation services, assessment and condemnation services contemplating an appearance before a judicial body, the foreclosure of a mortgage, enforcement of a creditor’s claim in bankruptcy and insolvency proceedings, and conducting proceedings in attachment, and in matters of estate and guardianship have been held to constitute law practice, as do the preparation and drafting of legal instruments, where the work done involves the determination by the trained legal mind of the legal effect of facts and conditions. (5 Am. Jr. p. 262, 263).

• Practice of law under modem conditions consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces conveyancing, the giving of legal advice on a large variety of subjects, and the preparation and execution of legal instruments covering an extensive field of business and trust relations and other affairs. Although these transactions may have no direct connection with court proceedings, they are always subject to become involved in litigation. They require in many aspects a high degree of legal skill, a wide experience with men and affairs, and great capacity for adaptation to difficult and complex situations. These customary functions of an attorney or counselor at law bear an intimate relation to the administration of justice by the courts. No valid distinction, so far as concerns the question set forth in the order, can be drawn between that part of the work of the lawyer which involves appearance in court and that part which involves advice and drafting of instruments in his office. It is of importance to the welfare of the public that these manifold customary functions be performed by persons possessed of adequate learning and skill, of sound moral character, and acting at all times under the heavy trust obligations to clients which rests upon all attorneys. (Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.] , p. 665-666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139,144).

• The University of the Philippines Law Center in conducting orientation briefing for new lawyers (1974-1975) listed the dimensions of the practice of law in even broader terms as advocacy, counselling and public service.

• One may be a practicing attorney in following any line of employment in the profession. If what he does exacts knowledge of the law and is of a kind usual for attorneys engaging in the active practice of their profession, and he follows some one or more lines of employment such as this he is a practicing attorney at law within the meaning of the statute. (Barr v. Cardell, 155 NW 312)

• Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. “To engage in the practice of law is to perform those acts which are characteristics of the profession. Generally, to practice law is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill.” (111 ALR 23)

• Corollary to this is the term “private practitioner” and which is in many ways synonymous with the word “lawyer.” Today, although many lawyers do not engage in private practice, it is still a fact that the majority of lawyers are private practitioners. (Gary Munneke, Opportunities in Law Careers [VGM Career Horizons: Illinois], [1986], p. 15).

• At this point, it might be helpful to define private practice. The term, as commonly understood, means “an individual or organization engaged in the business of delivering legal services.” (Ibid.). Lawyers who practice alone are often called “sole practitioners.” Groups of lawyers are called “firms.” The firm is usually a partnership and members of the firm are the partners. Some firms may be organized as professional corporations and the members called shareholders. In either case, the members of the firm are the experienced attorneys. In most firms, there are younger or more inexperienced salaried attorneys called “associates.” (Ibid.).

• The test that defines law practice by looking to traditional areas of law practice is essentially tautologous, unhelpful defining the practice of law as that which lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p. 593). The practice of law is defined as the performance of any acts . . . in or out of court, commonly understood to be the practice of law. (State Bar Ass’n v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]). Because lawyers perform almost every function known in the commercial and governmental realm, such a definition would obviously be too global to be workable. (Wolfram, op. cit.).

• The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar role for lawyers as well as an uncommon role for the average lawyer. Most lawyers spend little time in courtrooms, and a large percentage spend their entire practice without litigating a case. (Ibid., p. 593). Nonetheless, many lawyers do continue to litigate and the litigating lawyer’s role colors much of both the public image and the self perception of the legal profession. (Ibid.).

• In this regard thus, the dominance of litigation in the public mind reflects history, not reality. (Ibid.). Why is this so? Recall that the late Alexander SyCip, a corporate lawyer, once articulated on the importance of a lawyer as a business counselor in this wise: “Even today, there are still uninformed laymen whose concept of an attorney is one who principally tries cases before the courts. The members of the bench and bar and the informed laymen such as businessmen, know that in most developed societies today, substantially more legal work is transacted in law offices than in the courtrooms. General practitioners of law who do both litigation and non-litigation work also know that in most cases they find themselves spending more time doing what [is] loosely desccribe[d] as business counseling than in trying cases. The business lawyer has been described as the planner, the diagnostician and the trial lawyer, the surgeon. I[t] need not [be] stress[ed] that in law, as in medicine, surgery should be avoided where internal medicine can be effective.” (Business Star, “Corporate Finance Law,” Jan. 11, 1989, p. 4).

• In the course of a working day the average general practitioner wig engage in a number of legal tasks, each involving different legal doctrines, legal skills, legal processes, legal institutions, clients, and other interested parties. Even the increasing numbers of lawyers in specialized practice wig usually perform at least some legal services outside their specialty. And even within a narrow specialty such as tax practice, a lawyer will shift from one legal task or role such as advice-giving to an importantly different one such as representing a client before an administrative agency. (Wolfram, supra, p. 687).

• By no means will most of this work involve litigation, unless the lawyer is one of the relatively rare types — a litigator who specializes in this work to the exclusion of much else. Instead, the work will require the lawyer to have mastered the full range of traditional lawyer skills of client counselling, advice-giving, document drafting, and negotiation. And increasingly lawyers find that the new skills of evaluation and mediation are both effective for many clients and a source of employment. (Ibid.).

• Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in very important ways, at least theoretically, so as to remove from it some of the salient features of adversarial litigation. Of these special roles, the most prominent is that of prosecutor. In some lawyers’ work the constraints are imposed both by the nature of the client and by the way in which the lawyer is organized into a social unit to perform that work. The most common of these roles are those of corporate practice and government legal service. (Ibid.).

a. A profession, not a business

In this day and age, members of the bar often forget that the practice of law is a profession and not a business. Lawyering is not primarily meant to be a money-making venture, and law advocacy is not a capital that necessarily yields profits. The gaining of a livelihood is not a professional but a secondary consideration. Duty to public service and to the administration of justice should be the primary consideration of lawyers, who must subordinate their personal interests or what they owe to themselves. The practice of law is a noble calling in which emolument is a byproduct, and the highest eminence may be attained without making much money. (Burbe v. Magulta, A.C. No. 99-634, June 10, 2002, Per Panganiban, J.)

Time and time again, lawyers are reminded that the practice of law is a profession and not a business; lawyers should not advertise their talents as merchants advertise their wares. To allow a lawyer to advertise his talent or skill is to commercialize the practice of law, degrade the profession in the public’s estimation and impair its ability to efficiently render that high character of service to which every member of the bar is called. (Linsangan v. Tolentino, A.C. No. 6672, 04 September 2009)

A member of the Bar may be penalized, even disbarred or suspended from his office as an attorney, for violation of the lawyer’s oath and/or for breach of the ethics of the legal profession as embodied in the CPR. For the practice of law is “a profession, a form of public trust, the performance of which is entrusted to those who are qualified and who possess good moral character.” (Alcantara v. Salas, A.C. No. 3989, December 10, 2019, Per Reyes, J., Jr., J.)

a. A privilege, not a right

“The practice of law is not a vested right but a privilege, a privilege clothed with public interest. To enjoy the privilege of practicing law as officers of the Court, lawyers must adhere to the rigid standards of mental fitness x x x” and above all, they should always uphold the dignity of each and every person by observing the basic principles of decency and respect for others. (Ladim v. Ramirez, En Banc, A.C. No. 10372, February 21, 2023)

[T]he practice of law is not a right, but a mere privilege which is subject to the inherent regulatory power of this Court.47 It is imperative for lawyers “to observe the highest degree of morality and integrity not only upon admission to the Bar, but also throughout their career in order to safeguard the reputation of the legal profession.” Thus, lawyers are duty-bound to adhere to the rigid standards of mental fitness and faithful compliance with the rules of the legal profession to continue enjoying the privilege to practice law. (Ladim v. Ramirez [2023], supra.)

Plumptre v. Rivera, A.C. No. 11350, 09 August 2016

• By implying that he can negotiate a favorable ruling for the sum of ₱8,000.00, respondent-lawyer trampled upon the integrity of the judicial system and eroded confidence on the judiciary. This gross disrespect of the judicial system shows that he is wanting in moral fiber and betrays the lack of integrity in his character. The practice of law is a privilege, and respondent has repeatedly shown that he is unfit to exercise it.

2. Unauthorized practice of law

While a reading of Canon 9 [of the old CPR] appears to merely prohibit lawyers from assisting in the unauthorized practice of law, the unauthorized practice of law by the lawyer himself is subsumed under this provision, because at the heart of Canon 9 is the lawyer’s duty to prevent the unauthorized practice of law. This duty likewise applies to law students and Bar candidates. As aspiring members of the Bar, they are bound to comport themselves in accordance with the ethical standards of the legal profession. (In Re: Petition to Sign in the Roll of Attorneys, Michael A. Medado, B.M. No. 2540, 24 September 2013)

Where a bar passer took the attorney’s oath in 1980, failed to appear on his schedule for signing the attorney’s rolls after misplacing his Notice to Sign the Roll of Attorneys, several years later found the notice and realized that what he signed at the PICC entrance was probably just an attendance record, during the entire time he was doing mostly corporate and taxation work without actively participating in litigation, and in 2005 when required to present his roll number during a Mandatory Continuing Legal Education (MCLE), he filed a petition praying to be allowed to sign the roll of attorneys. He was considered to have engaged in the unauthorized practice of law. While he was allowed to sign, he was fined and suspended for one (1) year after becoming a full-fledged lawyer. (In Re: Petition to Sign in the Roll of Attorneys, Michael A. Medado [2013], supra.)

a. Public interest and policy

The lawyer’s duty to prevent, or at the very least not to assist in, the unauthorized practice of law is founded on public interest and policy. Public policy requires that the practice of law be limited to those individuals found duly qualified in education and character. The permissive right conferred on the lawyer is an individual and limited privilege subject to withdrawal if he fails to maintain proper standards of moral and professional conduct. The purpose is to protect the public, the court, the client, and the bar from the incompetence or dishonesty of those unlicensed to practice law and not subject to the disciplinary control of the Court. It devolves upon a lawyer to see that this purpose is attained. Thus, the canons and ethics of the profession enjoin him not to permit his professional services or his name to be used in aid of, or to make possible the unauthorized practice of law by, any agency, personal or corporate. And, the law makes it a misbehavior on his part, subject to disciplinary action, to aid a layman in the unauthorized practice of law. (Noe-Lacsamana v. Busmente, A.C. No. 7269, 23 November 2011)

b. No practice of law during suspension

Where a suspended lawyer participated in an auction sale and negotiations thereto on behalf of clients, it was an unauthorized practice of law. It is true that being present in an auction sale and negotiating matters relating to the same may not be exclusively for lawyers. However, in this case, Atty. Era’s acts clearly involved the determination by a trained legal mind of the legal effects and consequences of each course of action in the satisfaction of the judgment award. Precisely, this is why his clients chose Atty. Era to represent them in the public auction and in any negotiation/settlement with the corporation arising from the labor case as stated in the SPA being invoked by Atty. Era. Such trained legal mind is what his clients were relying upon in seeking redress for their claims. This is evident from the fact that they agreed not to enter into any amicable settlement without the prior written consent of Atty. Era, the latter being their lawyer. It could readily be seen that the said SPA was executed by reason of Atty. Era being their legal counsel. Thus, We are one with the Board’s submission that the said SPA cannot be invoked to support Atty. Era’s claim that he was not engaged in the practice of law in performing the acts above-cited as such SPA cunningly undermines the suspension ordered by this Court against Atty. Era, which the Supreme Court cannot countenance. (Bonifacio v. Era, A.C. No. 11754, 03 October 2017)

Where a counsel assisted a suspended lawyer from unauthorized practice of law, the counsel is likewise liable. (Bonifacio v. Era [2017, supra.)

c. Indirect contempt

The regulation of the practice of law is unquestionably strict. In Beltran, Jr. v. Abad, a candidate passed the bar examinations but had not taken his oath and signed the Roll of Attorneys. He was held in contempt of court for practicing law even before his admission to the Bar. Under Section 3 (e) of Rule 71 of the Rules of Court, a person who engages in the unauthorized practice of law is liable for indirect contempt of court. (Aguirre v. Rana, B.M. No. 1036, 10 June 2003)

1) Formal charge, required

Under the Rules of Court, the unauthorized practice of law by one’s assuming to be an attorney or officer of the court, and acting as such without authority, may constitute indirect contempt of court, which is punishable by fine or imprisonment or both. Such a finding, however, is in the nature of criminal contempt and must be reached after the filing of charges and the conduct of hearings. In this case, while it appears quite clearly that petitioner committed indirect contempt of court by knowingly engaging in unauthorized practice of law, we refrain from making any finding of liability for indirect contempt, as no formal charge pertaining thereto has been filed against him. (In Re: Petition to Sign in the Roll of Attorneys, Michael A. Medado, supra.)

References

Canon III, 2023 Code of Professional Responsibility

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