The Supreme Court has recently published its rules (the “Rules) on mandatory legal aid service for practicing lawyers (Bar Matter No. 2012 dated February 10, 2009). While the implementing rules are yet to be issued, just a reading of this issuance opens up a pandora’s box of difficulties.
The purpose is ostensibly laudable as it “seeks to enhance the duty of lawyers to society as agents of social change and to the courts as officers thereof by helping improve access to justice by the less privileged members of society and expedite the resolution of cases involving them. Mandatory free legal service by members of the bar and their active support thereof will aid the efficient and effective administration of justice especially in cases involving indigent and pauper litigants.”
Sounds good so far. The rules cover practicing lawyers or those “who appear for and in behalf of parties in courts of law and quasi-judicial agencies, including but not limited to the National Labor Relations Commission, National Conciliation and Mediation Board, Department of Labor and Employment Regional Offices, Department of Agrarian Reform Adjudication Board and National Commission for Indigenous Peoples.”
Excluded are “(i) Government employees and incumbent elective officials not allowed by law to practice; (ii) Lawyers who by law are not allowed to appear in court; (iii) Supervising lawyers of students enrolled in law student practice in duly accredited legal clinics of law schools and lawyers of non-governmental organizations (NGOs) and peoples organizations (POs) like the Free Legal Assistance Group who by the nature of their work already render free legal aid to indigent and pauper litigants and (iv) Lawyers not covered under subparagraphs (i) to (iii) including those who are employed in the private sector but do not appear for and in behalf of parties in courts of law and quasi-judicial agencies.” The last item would very likely include in-house lawyers.
However, we have to wait for the implementing rules to see how “parties” will be defined. Even in-house counsel appear for parties on certain occasions, not necessarily for the company where they are employed. Will such rare forays into litigation make them fall under the unenviable classification of “practicing lawyers?”
Required Hours of Free Legal Aid
What does a lawyer have to do under the Rules? A practicing lawyer “is required to render a minimum of sixty (60) hours of free legal aid services to indigent litigants in a year. Said 60 hours shall be spread within a period of twelve (12) months, with a minimum of five (5) hours of free legal aid services each month. However, where it is necessary for the practicing lawyer to render legal aid service for more than five (5) hours in one month, the excess hours may be credited to the said lawyer for the succeeding periods.”
Trial Preparation not counted
How will this be accomplished? Only the hours actually spent during the hearing is counted which is to be certified by the Clerk of Court. It doesn’t matter where the hearing is or how far the venue may be, only the “actual time spent” at a hearing is measured. Trial preparation which is needed in any litigation is not given any weight at all.
Must draft pleadings in 1 hour
Every pleading except for motions for postponement or for extension is counted as one hour of service. One hour?! A well-researched position paper, appeal or petition cannot be finished in so short a time. This will either promote mediocrity or inequity for pleadings filed in behalf of the indigent. The temptation is thus created to draft ‘legal aid’ pleadings without the kind of attention one gives to ‘paid for’ pleadings.
Legal Consultation and other Case-Related Service not counted
And here’s another thing. Legal aid services only refer to “appearance in court or quasi-judicial body for and in behalf of an indigent or pauper litigant and the preparation of pleadings or motions. It shall also cover assistance by a practicing lawyer to indigent or poor litigants in court-annexed mediation and in other modes of alternative dispute resolution (ADR). Services rendered when a practicing lawyer is appointed counsel de oficio shall also be considered as free legal aid services and credited as compliance under this Rule;”
Providing legal advise or any other kind of legal help such as the drafting of an agreement are not sufficient. To qualify as counted legal service, it has to be formal appearances before the court or other bodies. As if a lawyer does not have enough hearings than he knows how to deal with. An associate in a law firm or even a solo practitioner is busy enough as it is. Either his paying clients or his indigent ones will have to pay the price of his divided attention.
A lawyer will now have less time for himself or even his family. And what about the expenses of going to a hearing, preparing a pleading or just serving documents? How will copies of a motion be given to all the required parties? Will this be the death of the solo practitioner? It is hard to see how a lawyer can do all this in an effective manner when he has his own office to run. It should not be forgotten that lawyering is also a living and one has to make ends meet. The purported nobility of the profession has to give in to practicality too.
Mounting tedious requirements
To prove one is worthy of the privilege to continue practicing, a lawyer has to file four (4) certificates ten (10) days after the last month of each quarter of the year attesting to his compliance with service requirements .
Proof of compliance is now to be included in all pleadings at the risk of dismissal of the case or having the pleading expunged. Assuming lawyers are guilty of non-compliance, why punish the clients as well? So many numbers and dates have to be added to a lawyer’s signature nowadays, starting with the PTR, the Roll Number, MCLE Compliance and now this. Passing the bar and taking the oath is not enough anymore.
If you are exempt, you are to fill up a form under oath to attest to this fact. If your exemption is due to your holding a government or elective office, you pay an “annual contribution” P2,000. If you are not a practicing lawyer, you are assessed P4,000 a year as an “annual contribution.” It is sort of a penalty, tax or fee for not appearing in court regularly.
But one can get MCLE credit for rendering “legal service.” That’s small consolation but let’s not get into the merits of the MCLE and how it is akin in some instances to temporary detention without charges and without trial. How helpful really are MCLE courses when lawyers can attend fully tuned into their ipods or focused solely on entertainment magazines? But, we digress.
What’s the PAO for?
Current law already provides for representation for the indigent through the public attorney’s office. Why the Court has felt it necessary to impose this duty on practicing lawyers and to punish them for non-compliance is a sore issue.
If you don’t meet the hours required, a practicing lawyer will have to explain why. If no explanation has been given or if it is found unsatisfactory, you can be declared a member of the IBP who is not in good standing. Then you have to pay a P4,000 penalty which shall accrue to the special fund for the legal aid program of the IBP. This status shall be effective for a period of 3 months from the receipt of notice of the erring lawyer. He “cannot appear in court or any quasi-judicial body as counsel.” This status shall last beyond the 3 months “until and unless the penalty shall have been paid.”
If a lawyer who fails to comply with his duties under the Rule for at least 3 consecutive years, he shall be the subject of disciplinary proceedings. If found administratively liable, the penalty of suspension in the practice of law for 1 year shall be imposed. A lot depends on the IBP and the NCLA on how these rules will be interpreted.
The accused enjoy the presumption of innocence. Lawyers do not even have the benefit of a presumption that they are men and women of goodwill. That they do help when they can, whether via their law practice or otherwise.
Charity and service should be freely given. And it reflects badly not only on the profession but on the individual-members of the bar that the Supreme Court has seen fit to impose both on them. Lawyers do their share as citizens, and if more is asked or required of them, their own personal consciences should prevail, not the court’s, not the justices’ nor anyone else’s.