Saturday, January 24, 2015

External legal retainer; sample agreement.




“x x x.

            Thank you for communicating the desire of your company to retain our legal services.
We are glad to extend our external legal Retainership for the legal needs of your Company, the xxx Corp
Stated below are the terms and conditions, for your conforme hereunder:

1.        Purpose/Coverage: Legal advice/consultations thru personal meetings, telephone, SMS, email, fax or postal mail.

Contracts for review or for draw up by the law office shall be charged at a discounted fee of fifty per cent (50%) from the normal charges thereof, which depend on the time invested therein by the handling lawyer.

Other operations advise shall also be charged at a 50% discount, compared to the normal charges therefor.

2.       Monthly Retainer Fee and Mode of Payment:  xxx Thousand Pesos (Pxxx/month, to be automatically deposited to our “xxx Bank Account, xxx Branch, xxx City, Current Account Name: xxx, Current Account No. xxx ”, not later than every 15th day of every month, without need of notice/demand therefor.

There shall also be added an additional one-month retainer fee every December of each year that the herein Legal Retainership Agreement is effective.

3.      Period and Renewability:  This Legal Retainership Agreement SHALL CONTINUE TO BE IN EFFECT, WITHOUT NEED OF YEARLY RENEWAL, UNLESS TERMINATED IN WRITING, by either party, within thirty (30) days before the intended termination date.

4.      Meetings Outside the Law Office – A lawyer of the law office who attends a legal meeting outside Las Pinas City and within the cities of Makati, Manila, Pasay, Paranaque or Muntinlupa shall be entitled to an appearance fee of xxx THOUSAND PESOS (Pxxx) per such outside meeting in the said specified cities.

Outside the abovementioned five (5) cities but within Metro Manila, the appearance fee shall be Pxxx.00 per such meeting.

5.      Deposit for Actual Costs. – The client shall maintain a deposit with the law office in the amount of xxx Thousand Pesos (Pxxx) to cover all actual costs of the law office for the client, e.g., paralegal staff time, transportation, meals for field work required by the client, postage, xerox/reproduction, computer printing, fax, long distance calls, mobile phone calls, and other actual out-of-pocket expenses incurred by the law office as it serves the legal needs of the client.

The said deposit shall be liquidated and reported to the client in writing by the law office for replenishment purposes from time to time when the said deposit is about 50% depleted.

6.      Special Legal Matters or Court Cases. – Specific court cases or special legal missions or assignments in behalf of the client shall be covered by separate special legal retainership agreements, the terms and conditions of which shall be subject to negotiation and agreement by the parties.

Thank you.


X x x.”


LASERNA CUEVA-MERCADER LAW OFFICES

Friday, January 23, 2015

Pardon the politics | Inquirer Opinion

See - Pardon the politics | Inquirer Opinion





"x x x.

Judge for yourself: “Whereas, Joseph Ejercito Estrada has been under detention for six and a half years; whereas, [he] has publicly committed to no longer seek any elective position or office … I hereby grant executive clemency to Joseph Ejercito Estrada, convicted by the Sandiganbayan of plunder and imposed a penalty of reclusion perpetua. He is hereby restored to his civil and political rights.”

This was carefully crafted to tiptoe around the issue of whether Estrada can seek public office again—that is to say, whether the punishment of perpetual disqualification remained despite the pardon. After all, that is what the Revised Penal Code says: “A pardon does not work the restoration of the right to hold public office … unless such rights be expressly restored by the terms of the pardon.”

But on the other hand, Arroyo did give an unconditional pardon, no ifs or buts about it (“I hereby grant executive clemency…”). Under the Revised Penal Code, the effect of that pardon is the “total extinction of criminal liability.” In addition to that, she stated expressly that Estrada was thus “restored to his civil and political rights.” Since his right to run for public office was the only such right that he lost by virtue of his conviction, that was as express a restoration of right as one can find in the terms of a pardon. That presumably was the reading of 13 justices as against the three dissenting members of the high court.

x x x."


Read more: http://opinion.inquirer.net/81951/pardon-the-politics#ixzz3Pdl5S3kf
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Thursday, January 22, 2015

How to fight restrictions on access to court cases (US law) - Columbia Journalism Review

See - How to fight restrictions on access to court cases : Columbia Journalism Review





"x x x.

Don Blankenship, the former CEO and chairman of Massey Energy, is accused of conspiring to violate various federal laws and regulations in connection with a fatal explosion in 2010 at the company’s Upper Big Branch-South mine.
It’s unquestionably a big story, but the reporters covering it face a challenge. Last week, in response to requests from both local and national news organizations, the federal judge presiding over Blankenship’s criminal trial refused to lift a gag and sealing order that (1) restricts access to most court records filed in the case, and (2) prohibits trial participants, including the attorneys and parties, from making statements or releasing information about it.
US District Judge Irene Berger did modify her initial order: The judge made public Blankenship’s indictment and other orders in the case, which she had previously sealed. But otherwise, she affirmed her decision to gag the trial participants and to restrict access to records containing “information or argument” related to the “facts and substance” of the case. Berger said the restrictions are necessary to protect Blankenship’s fair trial rights. 
News coverage of the judge’s decision has been pretty good, but I thought it might be helpful to add some broader analysis of when it’s proper for a judge to gag people or to restrict access to court records. I hope these notes will add to the coverage so far, and help any journalists facing similar restrictions. (These are the general principles, so there may be slight variations from one jurisdiction to the next.)

— Don’t try to rely on FOI statutes. We use those to obtain executive branch records, but we use case law to obtain judicial branch records. There’s a First Amendment right of access to court proceedings and a common law right of access to court records. Neither one is absolute.

— For criminal proceedings, the US Supreme Court established a right of access in the 1980 case Richmond Newspapers v. Virginia. Since then, the justices have expanded that right to apply to sensitive testimony (Globe Newspaper v. Superior Court), jury selection (Press Enterprise I), and pretrial hearings (Press Enterprise II and Waller v. Georgia).
But, again, the right is not absolute. The court held in Richmond that before closing a proceeding, a judge must make findings to explain why closure is necessary, and the judge must consider alternatives. And in Press Enterprise II, the justices created a two-part test for closure decisions.
First, the judge must determine whether there is a right of access by taking into account both experience (whether that type of proceeding historically has been open) and logic (whether openness would play a positive role in the proceeding). Second, if such a right exists, the judge determines whether “higher values” nonetheless require closure (e.g., national security or a defendant’s fair trial rights).

— For civil proceedings, the Supreme Court hasn’t said whether there’s a right of access, but many courts have recognized one by citing Richmond, and then applying the Press Enterprise II test for closure decisions.  

— For court records, the Supreme Court recognized a right of access in the 1978 case Nixon v. Warner Communications. The right includes pleadings, motions, evidence, and other materials. The justices said the right was grounded in the common law, but several federal circuits also have recognized the right through the First Amendment, applying the same principles to records that are applied to proceedings. Regardless of its source, the right’s existence is clear.
But, yet again, it’s not absolute. A judge may seal records if a party shows “good cause.” This is supposed to allow a party to shield sensitive information (e.g., trade secrets), but too often sealing is requested to shield something simply unflattering. The press can challenge sealing orders, as the media group did in the Blankenship case, and the key is to use the Press Enterprise II test to evaluate whether there’s a “higher value” to be protected.

— For pretrial publicity and gag orders, the classic case is Sheppard v. Maxwell, even though it’s not really an access case. It was a murder trial whose news coverage was so circus-like that the Supreme Court ruled that the publicity made it impossible for the defendant to get a fair trial. The court focused on the defendant’s Fourteenth Amendment rights, and outlined what courts could do to address prejudicial publicity (e.g., ordering a change of venue, sequestering a jury, importing a jury, delaying a trial).
Courts can impose gag orders, too. They come in two basic forms. The first prohibits the press from publishing certain things about a case, and these typically are struck down as unconstitutional, per the 1976 case Nebraska Press Association v. Stuart. The second prohibits trial participants (e.g., attorneys, parties, witnesses, etc.) from speaking to the press. The Supreme Court hasn’t heard a case on that issue, but lower courts have upheld such gag orders if the trial participants’ speech is “substantially likely” to prejudice the defendant’s fair trial rights.
In any case, if you want to challenge an order—closure, sealing, or gag—as a member of the press, you can ask the trial court for permission to be a party for the purpose of challenging it, or you can ask an appellate court to order the trial court to reverse its decision. Whatever you do, unless you’re prepared to pay fines or go to jail, don’t violate an order to challenge it. You can be held in contempt for doing so, even if the order is struck down later as unconstitutional.

- See more at: http://www.cjr.org/united_states_project/don_blankenship_court_case_access_restrictions.php?page=all#sthash.EGyf1zFV.dpuf



x x x."

Poll body violated church rights, says court

See - Poll body violated church rights, says court





"x x x.

The Supreme Court declared as unconstitutional the order of the election commission in 2013 to remove a Catholic cathedral's tarpaulins in Bacolod City campaigning against candidates who supported the reproductive health law and endorsing those who opposed the measure. In a January 21, 2015 decision, the Court said the Commission on Elections violated the church’s right to free speech, expression and property, when it ordered the take-down of the tarpaulins. Comelec considered the tarpaulins election campaign materials, but the Bacolod diocese maintained they were are part of the church campaign against what was being drafted then as the reproductive health law. Despite a fierce church lobby, Congress was able to pass the law.

Read the full story on Rappler

x x x."

Wednesday, January 21, 2015

Corporations; dissolution of.

THE
CORPORATION CODE
OF THE
PHILIPPINES
[Batas Pambansa Blg. 68]


TITLE XIV
DISSOLUTION

Sec. 117. Methods of dissolution. - A corporation formed or organized under the provisions of this Code may be dissolved voluntarily or involuntarily. (n)

Sec. 118. Voluntary dissolution where no creditors are affected. - If dissolution of a corporation does not prejudice the rights of any creditor having a claim against it, the dissolution may be effected by majority vote of the board of directors or trustees, and by a resolution duly adopted by the affirmative vote of the stockholders owning at least two-thirds (2/3) of the outstanding capital stock or of at least two-thirds (2/3) of the members of a meeting to be held upon call of the directors or trustees after publication of the notice of time, place and object of the meeting for three (3) consecutive weeks in a newspaper published in the place where the principal office of said corporation is located; and if no newspaper is published in such place, then in a newspaper of general circulation in the Philippines, after sending such notice to each stockholder or member either by registered mail or by personal delivery at least thirty (30) days prior to said meeting. A copy of the resolution authorizing the dissolution shall be certified by a majority of the board of directors or trustees and countersigned by the secretary of the corporation. The Securities and Exchange Commission shall thereupon issue the certificate of dissolution. (62a)

Sec. 119. Voluntary dissolution where creditors are affected. - Where the dissolution of a corporation may prejudice the rights of any creditor, the petition for dissolution shall be filed with the Securities and Exchange Commission. The petition shall be signed by a majority of its board of directors or trustees or other officers having the management of its affairs, verified by its president or secretary or one of its directors or trustees, and shall set forth all claims and demands against it, and that its dissolution was resolved upon by the affirmative vote of the stockholders representing at least two-thirds (2/3) of the outstanding capital stock or by at least two-thirds (2/3) of the members at a meeting of its stockholders or members called for that purpose.
If the petition is sufficient in form and substance, the Commission shall, by an order reciting the purpose of the petition, fix a date on or before which objections thereto may be filed by any person, which date shall not be less than thirty (30) days nor more than sixty (60) days after the entry of the order. Before such date, a copy of the order shall be published at least once a week for three (3) consecutive weeks in a newspaper of general circulation published in the municipality or city where the principal office of the corporation is situated, or if there be no such newspaper, then in a newspaper of general circulation in the Philippines, and a similar copy shall be posted for three (3) consecutive weeks in three (3) public places in such municipality or city.
Upon five (5) day's notice, given after the date on which the right to file objections as fixed in the order has expired, the Commission shall proceed to hear the petition and try any issue made by the objections filed; and if no such objection is sufficient, and the material allegations of the petition are true, it shall render judgment dissolving the corporation and directing such disposition of its assets as justice requires, and may appoint a receiver to collect such assets and pay the debts of the corporation. (Rule 104, RCa)

Sec. 120. Dissolution by shortening corporate term. - A voluntary dissolution may be effected by amending the articles of incorporation to shorten the corporate term pursuant to the provisions of this Code. A copy of the amended articles of incorporation shall be submitted to the Securities and Exchange Commission in accordance with this Code. Upon approval of the amended articles of incorporation of the expiration of the shortened term, as the case may be, the corporation shall be deemed dissolved without any further proceedings, subject to the provisions of this Code on liquidation. (n)

Sec. 121. Involuntary dissolution. - A corporation may be dissolved by the Securities and Exchange Commission upon filing of a verified complaint and after proper notice and hearing on the grounds provided by existing laws, rules and regulations. (n)

Sec. 122. Corporate liquidation. - Every corporation whose charter expires by its own limitation or is annulled by forfeiture or otherwise, or whose corporate existence for other purposes is terminated in any other manner, shall nevertheless be continued as a body corporate for three (3) years after the time when it would have been so dissolved, for the purpose of prosecuting and defending suits by or against it and enabling it to settle and close its affairs, to dispose of and convey its property and to distribute its assets, but not for the purpose of continuing the business for which it was established.
At any time during said three (3) years, the corporation is authorized and empowered to convey all of its property to trustees for the benefit of stockholders, members, creditors, and other persons in interest. From and after any such conveyance by the corporation of its property in trust for the benefit of its stockholders, members, creditors and others in interest, all interest which the corporation had in the property terminates, the legal interest vests in the trustees, and the beneficial interest in the stockholders, members, creditors or other persons in interest.
Upon the winding up of the corporate affairs, any asset distributable to any creditor or stockholder or member who is unknown or cannot be found shall be escheated to the city or municipality where such assets are located.
Except by decrease of capital stock and as otherwise allowed by this Code, no corporation shall distribute any of its assets or property except upon lawful dissolution and after payment of all its debts and liabilities. (77a, 89a, 16a)



Nov..-Dec. 2014 decisios of the Supreme Court of the Philippines

See - Supreme Court of the Philippines



RECENT DECISIONS

Senate OKs bill limiting JBC members to serving two consecutive terms

See - Senate OKs bill limiting JBC members to serving two consecutive terms





"x x x.

MANILA, Philippines - On its first session day of the year, the Senate approved on Tuesday a bill on third and final reading seeking to limit the tenure of a regular member of the Judicial and Bar Council (JBC) to no more than two full terms of four years each.

Senator Aquilino "Koko" Pimentel III, author and sponsor of Senate Bill 2419, said the ban would ensure that no regular JBC member would indefinitely sit in the council and serve the appointing authority’s bidding.

The measure was co-authored by Senators Chiz Escudero, Miriam Defensor Santiago, Jinggoy Estrada and Cynthia Villar.

Under existing law, Pimentel said, regular members of the JBC may be reappointed without limitation and under different capacities.

He said the practice of perpetual indebtedness diminished and compromised the member’s impartiality, especially in screening applicants who may have close connections or association with the appointing authority.'


"The concept of perpetual re-appointment of a regular member may open the possibility of the appointee incurring political indebtedness to the appointing authority such that the more a regular member seeks his or her re-appointment, the deeper the political indebtedness becomes," Pimentel explained in his sponsorship speech.

"The enactment of the measure into law would prevent political interference in the affairs of the JBC, which is tasked to recommend appointees to the Judiciary," he added.

Pimentel said the bill would not limit the power of the President to appoint appointees but that would limit the qualification of persons who would sit as regular members of the JBC.

"The bill is not an undue limitation on the prerogative of the President to make appointments and neither does it impose an additional qualification which is not found in the Constitution," he said.

The essence of the measure, Pimentel stressed, was that no regular member of the JBC would be appointed for more than two full terms and that new blood were introduced in the council.   

The Judicial and Bar Council of the Philippines is a constitutionally-created body that recommends appointees for vacancies that may arise in the composition of the Supreme Court and other lower courts.

The JBC is composed of the Supreme Court Chief Justice as ex officio chairperson; the Secretary of Justice, the chairperson of the Committee on Justice of the House of Representatives and the chairperson of the Senate Committee on Justice and Human Rights as ex officio members; a representative of the Integrated Bar of the Philippines, a professor of law, a retired member of the Supreme Court, and a representative of the private sector as regular members.

The council is the only government body that has members from all three branches of the government, excluding ad hoc and advisory bodies.



x x x."

Wednesday, January 7, 2015

How to prove filiation; evidence needed.




BEN-HUR NEPOMUCENO Vs. ARHBENCEL ANN LOPEZ, represented by her mother ARACELI LOPEZ, G.R. No.  181258,  March 18, 2010


“x x x.

Herrera v. Alba[1] summarizes the laws, rules, and jurisprudence on establishing filiation, discoursing in relevant part as follows:


Laws, Rules, and Jurisprudence
Establishing Filiation

The relevant provisions of the Family Code provide as follows:

      ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children.

x x x x 

ART. 172. The filiation of legitimate children is established by any of the following:

      (1)  The record of birth appearing in the civil register or a final judgment; or
      (2)  An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.

      In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
     
      (1)  The open and continuous possession of the status of a legitimate child; or
      (2)  Any other means allowed by the Rules of Court and special laws.

            The Rules on Evidence include provisions on pedigree. The relevant sections of Rule 130 provide: 

SEC. 39.    Act or declaration about pedigree. — The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree.

            SEC. 40.          Family reputation or tradition regarding pedigree. — The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engraving on rings, family portraits and the like, may be received as evidence of pedigree.

            This Court's rulings further specify what incriminating acts are acceptable as evidence to establish filiation.  In Pe Lim v. CA, a case petitioner often cites, we stated that the issue of paternity still has to be resolved by such conventional evidence as the relevant incriminating verbal and written acts by the putative father.  Under Article 278 of the New Civil Code, voluntary recognition by a parent shall be made in the record of birth, a will, a statement before a court of record, or in any authentic writing.  To be effective, the claim of filiation must be made by the putative father himself and the writing must be the writing of the putative father.  A notarial agreement to support a child whose filiation is admitted by the putative father was considered acceptable evidence.  Letters to the mother vowing to be a good father to the child and pictures of the putative father cuddling the child on various occasions, together with the certificate of live birth, proved filiation.  However, a student permanent record, a written consent to a father's operation, or a marriage contract where the putative father gave consent, cannot be taken as authentic writing.  Standing alone, neither a certificate of baptism nor family pictures are sufficient to establish filiation. (emphasis and underscoring supplied)


          In the present case, Arhbencel relies, in the main, on the handwritten note executed by petitioner which reads:


                                                                      Manila, Aug. 7, 1999

            I, Ben-Hur C. Nepomuceno, hereby undertake to give and provide financial support in the amount of P1,500.00 every fifteen and thirtieth day of each month for a total of P3,000.00 a month starting Aug. 15, 1999, to Ahrbencel Ann  Lopez, presently in the custody of her mother Araceli Lopez without the necessity of demand, subject to adjustment later depending on the needs of the child and my income.

                                                                                      

The abovequoted note does not contain any statement whatsoever about Arhbencel’s filiation to petitioner.  It is, therefore, not within the ambit of Article 172(2) vis-à-vis Article 175 of the Family Code which admits as competent evidence of illegitimate filiation an admission of filiation in a private handwritten instrument signed by the parent concerned.

The note cannot also be accorded the same weight as the notarial agreement to support the child referred to in Herrera.  For it is not even notarized.  And Herrera instructs that the notarial agreement must be accompanied by the putative father’s admission of filiation to be an acceptable evidence of filiation.  Here, however, not only has petitioner not admitted filiation through contemporaneous actions.  He has consistently denied it.  

 The only other documentary evidence submitted by Arhbencel, a copy of her Certificate of Birth,[2] has no probative value to establish filiation to petitioner, the latter not having signed the same

At bottom, all that Arhbencel really has is petitioner’s handwritten undertaking to provide financial support to her which, without more, fails to establish her claim of filiation.  The Court is mindful that the best interests of the child in cases involving paternity and filiation should be advanced.  It is, however, just as mindful of the disturbance that unfounded paternity suits cause to the privacy and peace of the putative father’s legitimate family.  

x x x."





[1]           G.R. No. 148220, June 15, 2005, 460 SCRA 197, 206-208.

[2]       Rollo, p. 121.

Who are obliged to support each other




BEN-HUR NEPOMUCENO Vs. ARHBENCEL ANN LOPEZ, represented by her mother ARACELI LOPEZ, G.R. No.  181258,  March 18, 2010
 

                             

                            

          “x x x.

          The relevant provisions of the Family Code[1] that treat of the right to support are Articles 194 to 196, thus:

Article 194. Support compromises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family.
           
The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work.
           
      Article 195. Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article:

      1.   The spouses;
      2.   Legitimate ascendants and descendants;
      3.   Parents and their legitimate children and the legitimate and illegitimate children of the latter;
      4.   Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and
      5.   Legitimate brothers and sisters, whether of the full or half-blood.
           
      Article 196. Brothers and sisters not legitimately related, whether of the full or half-blood, are likewise bound to support each other to the full extent set forth in Article 194, except only when the need for support of the brother or sister, being of age, is due to a cause imputable to the claimant's fault or negligence.  (emphasis and underscoring supplied)

          Arhbencel’s demand for support, being based on her claim of filiation to petitioner as his illegitimate daughter, falls under Article 195(4).  As such, her entitlement to support from petitioner is dependent on the determination of her filiation.

X x x.”



[1]      Executive Order No. 209 as amended.