Tuesday, September 29, 2009

Judicial excellence awardees

May I reproduce below a recent news item from the Philippine Supreme Court website (http://sc.judiciary.gov.ph) announcing the names of the deserving 2009 judicial excellence awardees (judges and court personnel).

May they inspire the entire Philippine judiciary in the midst of public perceptions of judicial corruption, right or wrong, in the Philippines.

By their moral example, may they put to shame the corrupt brigands and obnoxious robbers in the Philippine government whose unconscionable greed and selfishness are the main causes of poverty and hopelessness among the poor and downtrodden Filipino masses.


SC Honors 2009 Outstanding Judges, Clerks of Court
Posted: September 15, 2009
By Jay B. Rempillo


The Supreme Court, in conjunction with the Society for Judicial Excellence (SJE), today announced the Judiciary’s outstanding judges for this year. The winners will be honored in an awarding ceremony to be held at 3 p.m. this Friday, September 18, at the Supreme Court Session Hall, Main SC Building, Padre Faura, Manila.

The Judicial Excellence Awardees for 2009 in the Second-Level Courts are Judge Myra V. Garcia-Fernandez of Manila Regional Trial Court, Branch 18, Chief Justice Cayetano Arellano Awardee; Judge Jose Godofredo M. Naui of Bambang, Nueva Vizcaya RTC, Branch 37, Chief Justice Jose Abad Santos Awardee; and Judge Jaime Estanislao Contreras of Naga City RTC, Branch 25, Chief Justice Ramon Avanceña Awardee.

Judge Fernandez is not a first-time JEA winner, having been hailed Best Pre-Trial Judge for Metropolitan Trial Court (METC) in 2003 and Outstanding MeTC Judge in 2004. She also garnered the Special Award for Best Decision in a Civil Case, also in 2004. She started as a private practitioner and later joined the Supreme Court, which eventually paved the way for her promotion as Judge of Manila Metropolitan Trial Court (MeTC), Branch 10 in 2000. She was later promoted to Manila RTC, Branch 18. She finished her Bachelor in Arts, Philosophy and Bachelor of Laws, graduating cum laude in both, at the University of Santo Tomas.

Judge Naui was conferred the Judicial Achievement Award by the Philippine Judges Association in 2008. He is an Assistant Professor at Saint Mary’s University, College of Law and authored books including Notebook in Criminal and Civil Procedure, Quick Index of Supreme Court Cases in Remedial Law, and Case Review Questions in Civil Procedure. He earned his degree at the then Baguio Colleges Foundation (now University of the Cordilleras), graduating cum laude.

Judge Contreras was awarded Most Outstanding Judge of the Philippines by the Volunteers Against Crime and Corruption in 2004. He obtained his Law degree at the University of Nueva Caceres in Naga City. He joined the Judiciary immediate after successfully hurdling the 1983 Bar Examinations.

The winners in the First-Level Courts are Judge Marie Yvette Dedel-Go of Iloilo Municipal Trial Court in Cities (MTCC), Br. 4, Don Antonio P. Madrigal Award, Judge Cleto R. Villacorta III of Baguio City MTCC, Branch 2, and Judge Sisinio C. Virtudazo of Tagbilaran City MTCC, Branch 1.

The Outstanding Clerks of Court are Atty. Marivic S. Tibayan, Pasay City, RTC, OCC, Atty. Luzviminda Delgado Puno Award for Multiple Sala; and Atty. Remiebel U. Mondia, Pasay City RTC, Br. 118 for Single Sala.

The Society for Judicial Excellence, through its Board of Trustees, administers the annual search for outstanding judges and clerks of court. It is headed by retired SC Justice Bernardo P. Pardo as Chairperson, retired SC Justice Angelina Sandoval-Gutierrez as Chairperson Emeritus, and Court of Appeals (CA) Justice Portia Aliño-Hormachuelos, as Vice-Chairperson. Its members include SC Justice Lucas P. Bersamin, retired SC Justice Romeo J. Callejo, Sr., CA Justices Edgardo P. Cruz, Josefina Guevara-Salonga, Apolinario D. Bruselas, Jr., and Sixto C. Marella, Jr., retired Court Administrator Zenaida N. Elepaño, retired CA Justices Godardo A. Jacinto and Jose C. de la Rama, Judges Oscar C. Herrera, Jr. and Kaudri L. Jainul, retired Judge Rosalina Luna Pison, and Atty. Engracio M. Escasinas, Jr. Judge Emily L. San Gaspar-Gito is Secretary, while Atty. Ma. Luisa L. Laurea is Executive Director and also head of the JEA Secretariat.

The final selection of awardees was undertaken by the Board of Judges composed of SC Justice Antonio T. Carpio, Justice Diosdado M. Peralta, Justice Pardo, Justice Gutierrez, retired SC Justice Carolina Griño-Aquino, retired SC Justice Santiago M. Kapunan, CA Presiding Justice Conrado M. Vasquez, Jr., Dean Amado L. Dimayuga of the Judicial and Bar Council, and Dean Cesar L. Villanueva of the Ateneo Law School.

Monday, September 28, 2009

Legal aid; new rules.

I have asked the current board of the Las Pines City Bar Association (LPBA), Inc., of which I am the founder (2001)/consultant, to revive and strengthen the LPBA committee on free legal aid, in light of the new free legal aid implementing rules and regulations issued last month by the Supreme Court of the Philippines, in order to fulfill the original vision/mission of the LPBA to defend the rights of the oppressed, the ignorant, the weak and the poor in Las Pines City and its suburbs.

In the recent resolution of the Supreme Court in RE: REQUEST OF NATIONAL COMMITTEE ON LEGAL AID TO EXEMPT LEGAL AID CLIENTS FROM PAYING FILING, DOCKET AND OTHER FEES, En Banc, A.M. No. 08-11-7-SC, August 28, 2009, it approved the new “Rule on the Exemption From the Payment of Legal Fees of the Clients of the National Committee on Legal Aid (NCLA) and of the Legal Aid Offices in the Local Chapters of the Integrated Bar of the Philippines (IBP)”.

The IBP national legal aid committee (NCLA) submitted to the Court a comment, stating that:

“(a) Under Section 16-D of RA 9406, clients of the Public Attorneys’ Office (PAO) are exempt from the payment of docket and other fees incidental to the institution of action in court and other quasi-judicial bodies. On the other hand, clients of legal aid offices in the various IBP chapters do not enjoy the same exemption. IBP’s indigent clients are advised to litigate as pauper litigants under Section 21, Rule 3 of the Rules of Court;

(b) They are further advised to submit documentary evidence to prove compliance with the requirements under Section 21, Rule 3 of the Rules of Court, i.e., certifications from the barangay and the Department of Social Welfare and Development. However, not only does the process involve some expense which indigent clients could ill-afford, clients also lack knowledge on how to go about the tedious process of obtaining these documents;

(c) Although the IBP is given an annual legal aid subsidy, the amount it receives from the government is barely enough to cover various operating expenses;

(d) While each IBP local chapter is given a quarterly allocation (from the legal aid subsidy), said allocation covers neither the incidental expenses defrayed by legal aid lawyers in handling legal aid cases nor the payment of docket and other fees collected by the courts, quasi-judicial bodies and the prosecutor’s office, as well as mediation fees and

(e) Considering the aforementioned factors, a directive may be issued by the Supreme Court granting IBP’s indigent clients an exemption from the payment of docket and other fees similar to that given to PAO clients under Section 16-D of RA 9406. In this connection, the Supreme Court previously issued a circular exempting IBP clients from the payment of transcript of stenographic notes.”


Citing Sec. 11, Art. III, of the 1987 Constitution, the Court stated that access to justice by all, especially by the poor, is not simply an ideal in our society. Its existence is essential in a democracy and in the rule of law. As such, it is guaranteed by no less than the fundamental law.

The Court recognized the right of access to justice as the most important pillar of legal empowerment of the marginalized sectors of our society. Under Sec. 5, Art. VIII, of the Constitution, among others, the Court has the power to “promulgate rules concerning the protection and enforcement of constitutional rights” to open the doors of justice to the underprivileged and to allow them to step inside the courts to be heard of their plaints. In particular, indigent litigants are permitted under Section 21, Rule 3 and Section 19, Rule 141 of the Rules of Court of the Philippines to bring suits in forma pauperis.

The IBP, pursuant to its general objectives to “improve the administration of justice and enable the Bar to discharge its public responsibility more effectively,” assists the Court in providing the poor access to justice. In particular, it renders free legal aid under the supervision of the NCLA.

Under the old IBP’s Guidelines Governing the Establishment and Operation of Legal Aid Offices in All Chapters of the IBP (Guidelines on Legal Aid), the combined “means and merit tests” shall be used to determine the eligibility of an applicant for legal aid: The means test aims at determining whether the applicant has no visible means of support or his income is otherwise insufficient to provide the financial resources necessary to engage competent private counsel owing to the demands for subsistence of his family, considering the number of his dependents and the conditions prevailing in the locality. The merit test seeks to ascertain whether or not the applicant’s cause of action or his defense is valid and chances of establishing the same appear reasonable.

Improving the “means and merit tests”, the Court approved the following new implementing rules and regulations (IRR) on the free legal aid program of the IBP and its local chapters, including the matter of exemption from legal fees of legal aid clients, which rules may serve as a model for other local voluntary bar associations in the Philippines, one of the most active among which is the Las Pines City Bar Association (LPBA), Inc., thus:

A.M. No. 08-11-7-SC (IRR): Re: Rule on the Exemption From the Payment of Legal Fees of the Clients of the National Committee on Legal Aid and of the Legal Aid Offices in the Local Chapters of the Integrated Bar of the Philippines

Rule on the Exemption From the Payment of Legal Fees of the Clients of the National Committee on Legal Aid (NCLA) and of the Legal Aid Offices in the Local Chapters of the Integrated Bar of the Philippines (IBP)

ARTICLE I
Purpose

Section 1. Purpose. – This Rule is issued for the purpose of enforcing the right of free access to courts by the poor guaranteed under Section 11, Article III of the Constitution. It is intended to increase the access to justice by the poor by exempting from the payment of legal fees incidental to instituting an action in court, as an original proceeding or on appeal, qualified indigent clients of the NCLA and of the legal aid offices in local IBP chapters nationwide.

ARTICLE II
Definition of Terms

Section 1. Definition of important terms. – For purposes of this Rule and as used herein, the following terms shall be understood to be how they are defined under this Section:

(a) “Developmental legal aid” means the rendition of legal services in public interest causes involving overseas workers, fisherfolk, farmers, laborers, indigenous cultural communities, women, children and other disadvantaged groups and marginalized sectors;

(b) “Disinterested person” refers to the punong barangay having jurisdiction over the place where an applicant for legal aid or client of the NCLA or chapter legal aid office resides;

(c) “Falsity” refers to any material misrepresentation of fact or any fraudulent, deceitful, false, wrong or misleading statement in the application or affidavits submitted to support it or the affidavit of a disinterested person required to be submitted annually under this Rule which may substantially affect the determination of the qualifications of the applicant or the client under the means and merit tests;

(d) “Legal fees” refers to the legal fees imposed under Rule 141 of the Rules of Court as a necessary incident of instituting an action in court either as an original proceeding or on appeal. In particular, it includes filing or docket fees, appeal fees, fees for issuance of provisional remedies, mediation fees, sheriff’s fees, stenographer’s fees (that is fees for transcript of stenographic notes) and commissioner’s fees;

(e) “Means test” refers to the set of criteria used to determine whether the applicant is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family;

(f) “Merit test” refers to the ascertainment of whether the applicant’s cause of action or his defense is valid and whether the chances of establishing the same appear reasonable and

(g) “Representative” refers to the person authorized to file an application for legal aid in behalf of the applicant when the said applicant is prevented by a compelling reason from personally filing his application. As a rule, it refers to the immediate family members of the applicant. However, it may include any of the applicant’s relatives or any person or concerned citizen of sufficient discretion who has first-hand knowledge of the personal circumstances of the applicant as well as of the facts of the applicant’s case.

ARTICLE III
Coverage

Section 1. Persons qualified for exemption from payment of legal fees. – Persons who shall enjoy the benefit of exemption from the payment of legal fees incidental to instituting an action in court, as an original proceeding or on appeal, granted under this Rule shall be limited only to clients of the NCLA and the chapter legal aid offices.

The said clients shall refer to those indigents qualified to receive free legal aid service from the NCLA and the chapter legal aid offices. Their qualifications shall be determined based on the tests provided in this Rule.

Section 2. Persons not covered by the Rule. – The following shall be disqualified from the coverage of this Rule. Nor may they be accepted as clients by the NCLA and the chapter legal aid offices.

(a) Juridical persons; except in cases covered by developmental legal aid or public interest causes involving juridical entities which are non-stock, non-profit organizations, non-governmental organizations and people’s organizations whose individual members will pass the means test provided in this Rule;

(b) Persons who do not pass the means and merit tests;

(c) Parties already represented by a counsel de parte;

(d) Owners or lessors of residential lands or buildings with respect to the filing of collection or unlawful detainer suits against their tenants and

(e) Persons who have been clients of the NCLA or chapter legal aid office previously in a case where the NCLA or chapter legal aid office withdrew its representation because of a falsity in the application or in any of the affidavits supporting the said application.

Section 3. Cases not covered by the Rule. – The NCLA and the chapter legal aid offices shall not handle the following:

(a) Cases where conflicting interests will be represented by the NCLA and the chapter legal aid offices and

(b) Prosecution of criminal cases in court.

ARTICLE IV
Tests of Indigency

Section 1. Tests for determining who may be clients of the NCLA and the legal aid offices in local IBP chapters. – The NCLA or the chapter legal aid committee, as the case may be, shall pass upon requests for legal aid by the combined application of the means and merit tests and the consideration of other relevant factors provided for in the following sections.

Section 2. Means test; exception. – (a) This test shall be based on the following criteria: (i) the applicant and that of his immediate family must have a gross monthly income that does not exceed an amount double the monthly minimum wage of an employee in the place where the applicant resides and (ii) he does not own real property with a fair market value as stated in the current tax declaration of more than Three Hundred Thousand (P300, 000.00) Pesos.

In this connection, the applicant shall execute an affidavit of indigency (printed at the back of the application form) stating that he and his immediate family do not earn a gross income abovementioned, nor own any real property with the fair value aforementioned, supported by an affidavit of a disinterested person attesting to the truth of the applicant’s affidavit. The latest income tax return and/or current tax declaration, if any, shall be attached to the applicant’s affidavit.

(b) The means test shall not be applicable to applicants who fall under the developmental legal aid program such as overseas workers, fisherfolk, farmers, laborers, indigenous cultural communities, women, children and other disadvantaged groups.

Section 3. Merit test. – A case shall be considered meritorious if an assessment of the law and evidence at hand discloses that the legal service will be in aid of justice or in the furtherance thereof, taking into consideration the interests of the party and those of society. A case fails this test if, after consideration of the law and evidence presented by the applicant, it appears that it is intended merely to harass or injure the opposite party or to work oppression or wrong.

Section 4. Other relevant factors that may be considered. – The effect of legal aid or of the failure to render the same upon the rule of law, the proper administration of justice, the public interest involved in a given case and the practice of law in the locality shall likewise be considered.

ARTICLE V
Acceptance and Handling of Cases

Section 1. Procedure in accepting cases. – The following procedure shall be observed in the acceptance of cases for purposes of this Rule:

(a) Filing of application – An application shall be made personally by the applicant, unless there is a compelling reason which prevents him from doing so, in which case his representative may apply for him. It shall adhere substantially to the form made for that purpose. It shall be prepared and signed by the applicant or, in proper cases, his duly authorized representative in at least three copies.

Applications for legal aid shall be filed with the NCLA or with the chapter legal aid committee.

The NCLA shall, as much as possible, concentrate on cases of paramount importance or national impact.

Requests received by the IBP National Office shall be referred by the NCLA to the proper chapter legal aid committee of the locality where the cases have to be filed or are pending. The chapter president and the chairman of the chapter’s legal aid committee shall be advised of such referral.

(b) Interview – The applicant shall be interviewed by a member of the chapter legal aid committee or any chapter member authorized by the chapter legal aid committee to determine the applicant’s qualifications based on the means and merit tests and other relevant factors. He shall also be required to submit copies of his latest income tax returns and/or current tax declaration, if available, and execute an affidavit of indigency printed at the back of the application form with the supporting affidavit of a disinterested person attesting to the truth of the applicant’s affidavit.

After the interview, the applicant shall be informed that he can follow up the action on his application after five (5) working days.

(c) Action on the application – The chapter legal aid committee shall pass upon every request for legal aid and submit its recommendation to the chapter board of officers within three (3) working days after the interview of the applicant. The basis of the recommendation shall be stated.

The chapter board of officers shall review and act on the recommendation of the chapter legal aid committee within two (2) working days from receipt thereof; Provided, however, that in urgent matters requiring prompt or immediate action, the chapter’s executive director of legal aid or whoever performs his functions may provisionally act on the application, subject to review by the chapter legal aid committee and, thereafter, by the chapter board of officers.

The action of the chapter board of officers on the application shall be final.

(d) Cases which may be provisionally accepted. – In the following cases, the NCLA or the chapter legal aid office, through the chapter’s executive director of legal aid or whoever performs his functions may accept cases provisionally pending verification of the applicant’s indigency and an evaluation of the merit of his case.

(i) Where a warrant for the arrest of the applicant has been issued;

(ii) Where a pleading has to be filed immediately to avoid adverse effects to the applicant;

(iii) Where an appeal has to be urgently perfected or a petition for certiorari, prohibition or mandamus filed has to be filed immediately; and

(iv) Other similar urgent cases.

(e) Assignment of control number – Upon approval of the chapter board of officers of a person’s application and the applicant is found to be qualified for legal assistance, the case shall be assigned a control number. The numbering shall be consecutive starting from January to December of every year. The control number shall also indicate the region and the chapter handling the case.

Example:
Region Chapter Year Month Number
GM - Manila - 2009 - 03 - 099

(f) Issuance of a certification – After an application is approved and a control number duly assigned, the chapter board of officers shall issue a certification that the person (that is, the successful applicant) is a client of the NCLA or of the chapter legal aid office. The certification shall bear the control number of the case and shall state the name of the client and the nature of the judicial action subject of the legal aid of the NCLA or the legal aid office of a local IBP chapter.

The certification shall be issued to the successful applicant free of charge.

Section 2. Assignment of cases. – After a case is given a control number, the chapter board of officers shall refer it back to the chapter legal aid committee. The chapter legal aid committee shall assign the case to any chapter member who is willing to handle the case.

In case no chapter member has signified an intention to handle the case voluntarily, the chapter legal aid committee shall refer the matter to the chapter board of officers together with the names of at least three members who, in the chapter legal aid committee’s discretion, may competently render legal aid on the matter. The chapter board of officers shall appoint one chapter member from among the list of names submitted by the chapter legal aid committee. The chapter member chosen may not refuse the appointment except on the ground of conflict of interest or other equally compelling grounds as provided in the Code of Professional Responsibility, in which case the chapter board of officers shall appoint his replacement from among the remaining names in the list previously submitted by the chapter legal aid committee.

The chapter legal aid committee and the chapter board of officers shall take the necessary measures to ensure that cases are well-distributed to chapter members.

Section 3. Policies and guidelines in the acceptance and handling of cases. – The following policies and guidelines shall be observed in the acceptance and handling of cases:

(a) First come, first served – Where both the complainant/plaintiff/petitioner and defendant/ respondent apply for legal aid and both are qualified, the first to seek assistance shall be given preference.

(b) Avoidance of conflict of interest – Where acceptance of a case will give rise to a conflict of interest on the part of the chapter legal aid office, the applicant shall be duly informed and advised to seek the services of a private counsel or another legal aid organization.

Where handling of the case will give rise to a conflict of interest on the part of the chapter member assigned to the case, the client shall be duly informed and advised about it. The handling lawyer shall also inform the chapter legal aid committee so that another chapter member may be assigned to handle the case. For purposes of choosing the substitute handling lawyer, the rule in the immediately preceding section shall be observed.

(c) Legal aid is purely gratuitous and honorary – No member of the chapter or member of the staff of the NCLA or chapter legal aid office shall directly or indirectly demand or request from an applicant or client any compensation, gift or present for legal aid services being applied for or rendered.

(d) Same standard of conduct and equal treatment – A chapter member who is tasked to handle a case accepted by the NCLA or by the chapter legal aid office shall observe the same standard of conduct governing his relations with paying clients. He shall treat the client of the NCLA or of the chapter legal aid office and the said client’s case in a manner that is equal and similar to his treatment of a paying client and his case.

(e) Falsity in the application or in the affidavits – Any falsity in the application or in the affidavit of indigency or in the affidavit of a disinterested person shall be sufficient cause for the NCLA or chapter legal aid office to withdraw or terminate the legal aid. For this purpose, the chapter board of officers shall authorize the handling lawyer to file the proper manifestation of withdrawal of appearance of the chapter legal aid office in the case with a motion for the dismissal of the complaint or action of the erring client. The court, after hearing, shall approve the withdrawal of appearance and grant the motion, without prejudice to whatever criminal liability may have been incurred.

Violation of this policy shall disqualify the erring client from availing of the benefits of this Rule in the future.

(f) Statement in the initiatory pleading – To avail of the benefits of the Rule, the initiatory pleading shall state as an essential preliminary allegation that (i) the party initiating the action is a client of the NCLA or of the chapter legal aid office and therefore entitled to exemption from the payment of legal fees under this Rule and (ii) a certified true copy of the certification issued pursuant to Section 1(e), of this Article is attached or annexed to the pleading.

Failure to make the statement shall be a ground for the dismissal of the action without prejudice to its refiling.

The same rule shall apply in case the client, through the NCLA or chapter legal aid office, files an appeal.

(g) Attachment of certification in initiatory pleading – A certified true copy of the certification issued pursuant to Section 1(e), of this Article shall be attached as an annex to the initiatory pleading.

Failure to attach a certified true copy of the said certification shall be a ground for the dismissal of the action without prejudice to its refiling.

The same rule shall apply in case the client, through the NCLA or chapter legal aid office, files an appeal.

(h) Signing of pleadings – All complaints, petitions, answers, replies, memoranda and other important pleadings or motions to be filed in courts shall be signed by the handling lawyer and co-signed by the chairperson or a member of the chapter legal aid committee, or in urgent cases, by the executive director of legal aid or whoever performs his functions.

Ordinary motions such as motions for extension of time to file a pleading or for postponement of hearing and manifestations may be signed by the handling lawyer alone.

(i) Motions for extension of time or for postponement – The filing of motions for extension of time to file a pleading or for postponement of hearing shall be avoided as much as possible as they cause delay to the case and prolong the proceedings.

(j) Transfer of cases – Transfer of cases from one handling lawyer to another shall be affected only upon approval of the chapter legal aid committee.

Section 4. Decision to appeal. – (a) All appeals must be made on the request of the client himself. For this purpose, the client shall be made to fill up a request to appeal.

(b) Only meritorious cases shall be appealed. If the handling lawyer, in consultation with the chapter legal aid committee, finds that there is no merit to the appeal, the client should be immediately informed thereof in writing and the record of the case turned over to him, under proper receipt. If the client insists on appealing the case, the lawyer handling the case should perfect the appeal before turning over the records of the case to him.

Section 5. Protection of private practice. – Utmost care shall be taken to ensure that legal aid is neither availed of to the detriment of the private practice of law nor taken advantage of by anyone for purely personal ends.

ARTICLE VI
Withdrawal of Legal Aid and Termination of Exemption

Section 1. Withdrawal of legal aid. – The NCLA or the chapter legal aid committee may, in justifiable instances as provided in the next Section, direct the handling lawyer to withdraw representation of a client’s cause upon approval of the IBP Board of Governors (in the case of the NCLA) or of the chapter board of officers (in the case of the chapter legal aid committee) and through a proper motion filed in Court.

Section 2. Grounds for withdrawal of legal aid. – Withdrawal may be warranted in the following situations:

(a) In a case that has been provisionally accepted, where it is subsequently ascertained that the client is not qualified for legal aid;

(b) Where the client’s income or resources improve and he no longer qualifies for continued assistance based on the means test. For this purpose, on or before January 15 every year, the client shall submit an affidavit of a disinterested person stating that the client and his immediate family do not earn a gross income mentioned in Section 2, Article V, nor own any real property with the fair market value mentioned in the same Section;

(c) When it is shown or found that the client committed a falsity in the application or in the affidavits submitted to support the application;

(d) When the client subsequently engages a de parte counsel or is provided with a de oficio counsel;

(e) When, despite proper advice from the handling lawyer, the client cannot be refrained from doing things which the lawyer himself ought not do under the ethics of the legal profession, particularly with reference to their conduct towards courts, judicial officers, witnesses and litigants, or the client insists on having control of the trial, theory of the case, or strategy in procedure which would tend to result in incalculable harm to the interests of the client;

(f) When, despite notice from the handling lawyer, the client does not cooperate or coordinate with the handling lawyer to the prejudice of the proper and effective rendition of legal aid such as when the client fails to provide documents necessary to support his case or unreasonably fails to attend hearings when his presence thereat is required; and

(g) When it becomes apparent that the representation of the client’s cause will result in a representation of conflicting interests, as where the adverse party had previously engaged the services of the NCLA or of the chapter legal aid office and the subject matter of the litigation is directly related to the services previously rendered to the adverse party.

Section 3. Effect of withdrawal. – The court, after hearing, shall allow the NCLA or the chapter legal aid office to withdraw if it is satisfied that the ground for such withdrawal exists.

Except when the withdrawal is based on paragraphs (b), (d) and (g) of the immediately preceding Section, the court shall also order the dismissal of the case. Such dismissal is without prejudice to whatever criminal liability may have been incurred if the withdrawal is based on paragraph (c) of the immediately preceding Section.

ARTICLE VII
Miscellaneous Provisions

Section 1. Lien on favorable judgment. – The amount of the docket and other lawful fees which the client was exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless the court otherwise provides.

In case, attorney’s fees have been awarded to the client, the same shall belong to the NCLA or to the chapter legal aid office that rendered the legal aid, as the case may be. It shall form part of a special fund which shall be exclusively used to support the legal aid program of the NCLA or the chapter legal aid office. In this connection, the chapter board of officers shall report the receipt of attorney’s fees pursuant to this Section to the NCLA within ten (10) days from receipt thereof. The NCLA shall, in turn, include the data on attorney’s fees received by IBP chapters pursuant to this Section in its liquidation report for the annual subsidy for legal aid.

Section 2. Duty of NCLA to prepare forms. – The NCLA shall prepare the standard forms to be used in connection with this Rule. In particular, the NCLA shall prepare the following standard forms: the application form, the affidavit of indigency, the supporting affidavit of a disinterested person, the affidavit of a disinterested person required to be submitted annually under Section 2(b), Article VI, the certification issued by the NCLA or the chapter board of officers under Section 1(f), Article V and the request to appeal.

The said forms, except the certification, shall be in Filipino. Within sixty (60) days from receipt of the forms from the NCLA, the chapter legal aid offices shall make translations of the said forms in the dominant dialect used in their respective localities.

Section 3. Effect of Rule on right to bring suits in forma pauperis. – Nothing in this Rule shall be considered to preclude those persons not covered either by this Rule or by the exemption from the payment of legal fees granted to clients of the Public Attorney’s Office under Section 16-D of RA 9406 to litigate in forma pauperis under Section 21, Rule 3 and Section 19 Rule 141 of the Rules of Court.

Section 4. Compliance with Rule on Mandatory Legal Aid Service. – Legal aid service rendered by a lawyer under this Rule either as a handling lawyer or as an interviewer of applicants under Section 1(b), Article IV hereof shall be credited for purposes of compliance with the Rule on Mandatory Legal Aid Service.

The chairperson of the chapter legal aid office shall issue the certificate similar to that issued by the Clerk of Court in Section 5(b) of the Rule on Mandatory Legal Aid Service.

ARTICLE VIII
Effectivity

Section 1. Effectivity. – This Rule shall become effective after fifteen days following its publication in a newspaper of general circulation.


The above rules complement Section 21, Rule 3 and Section 19, Rule 141 of the Rules of Court, the Rule on Mandatory Legal Aid Service, and the Rule of Procedure for Small Claims Cases.



Prepared by:


Atty. Manuel J. Laserna Jr.
Partner, Laserna Cueva Mercader Law Offices
Founder/Consultant, Las Pinas City Bar Assn Inc.
lcmlaw@gmail.com

Wednesday, September 23, 2009

Top law schools in the Philippines

Showing the desire of the Philippine Government to improve the standards of legal education in the country, the Commission on Higher Education (CHED) has announced that it would close down seven law schools in the country because not one of their graduates had passed the bar exams in the last 10 years, according to CHED chairman Emmanuel Angeles..

Angeles said that they would start with the law programs of the East Central Colleges, Eastern Samar State University, Polytechnic College of La Union, Samar College, Ramon Magsaysay Technological University, Southern Bicol College, and Abra Valley College.

The Virgen De Los Remedios College, International Harvardian University , Manuel A. Roxas Educational Institution, and the Zamboanga A.E. College had earlier voluntarily phased-out their law programs after a review of their bar exam records.

He added that universities and colleges that had only “less than five percent” of their graduates passing the bar from 1999 to 2009 would also be warned to improve their performance.

While cracking down on “non-performing” law schools, the CHED chairman also released a list of the country‘s “Top 20 law schools in terms of their percentile passing rate.”

These schools were Ateneo de Manila University, San Beda College, University of the Philippines, Far Eastern University-DLSU (Juris Doctor-MBA), Ateneo de Davao University, University of San Carlos, University of Santo Tomas, University of Cebu, University of Perpetual Help-Rizal, Arellano University, Xavier University, Far Eastern University, Pamantasan ng Lungsod ng Maynila, University of San Agustin, University of Batangas, Palawan State University, Polytechnic University of the Philippines, Saint Louis University, Lyceum of the Philippines, and the San Sebastian College-Recolectos de Manila.


See:
http://newsinfo.inquirer.net/breakingnews/nation/view/20090923-226561/7-law-schools-to-be-closed----CHED

Judge Bonifacio Sanz Maceda

The prominent Philippine non-governmental organization, VOLUNTEERS AGAINST CRIME AND CORRUPTION, has awarded my good friend JUDGE BIONIFACIO SANZ MACEDA the title of 2009 MOST OUTSTANDING JUDGE in the Philippines, a recognition that he truly deserves.

I personally know how hard he works to improve the local justice system in Las Pinas City. Judge Maceda is the former Executive Judge of the city.

I had the privilege of working with him in the past when we jointly established the 180-Day Express Court System in Las Pinas City, which was duly recognized by the Supreme Court as a humble effort of the local justice system and the local voluntary bar to improve the dispensation of justice in Las Pinas City.

Despite his poor health, Judge Maceda has opted not to retire early, so that he could continue to serve the Philippine justice system for the good of the community.

Below is an extensive press release about Judge Maceda prepared by his office.


LAS PINAS JUDGE INCORRUPTIBLE: VACC

Las Pinas City: - Judge Bonifacio Sanz Maceda, Presiding Judge, RTC, Branch 275, Las Pinas City was selected as Outstanding Judge for 2009 by the Volunteers Against Crime and Corruption (VACC) for his "incorruptibility, exemplary competence and commitment to his profession." This is the second award bestowed by the VACC. The first VACC award was presented to him as Outstanding Judge for the Year 2004 for being "a genuine servant of law and justice". Judge Maceda received the 2009 award through Executive Judge Raul B. Villanueva last September 14, 2009 during Monday morning's flag raising ceremony in front of the Las Pinas Hall of Justice.

Judge Maceda was born on April 22, 1944 to pioneer hoteliers Bonifacio
Advincula Maceda, Sr. and Brigida Sanz Maceda in Tacloban City.
He took the 1971 bar examinations and passed it the first time he took it. On October 30, 1986, Judge Maceda was appointed by ex-President Corazon Aquino as Presiding Judge of RTC Branch 12, San Jose, Antique where he served as Executive Judge for 6 consecutive years. The IBP, Antique Chapter unanimously passed on November 26, 1992 a resolution citing Judge Maceda as a judicial statesman.

In November 1992, he was detailed by the Supreme Court in RTC Branch
16, Naval, Biliran and RTC Branch 11, Calubian, Leyte
, in concurrent capacity to straighten the topsy-turvy Branch 16. The Provincial Board of Biliran thanked Judge Maceda via Resolution No. 127 for a job well done and instilling a new moral order in the judiciary of Biliran. Leyte Governor Leopoldo E. Petilla wrote to retain Judge Maceda in Calubian Leyte's Branch 11 because the Leytenos clamor for the kind of justice he dispenses- "firm, fair and fast".

About 3 years later, the Supreme Court reassigned Judge Maceda in Branch
275 in November 1995 to diffuse the feud between two former Las Pinas RTC
Judges. A senior staff member of Branch 275 says that the reputation of Judge
Maceda as a strict and fearsome judge preceded his arrival. He introduced in Las
Pinas "Express Court: A 180-day Justice System". Las Pinas Mayor Vergel
"Nene" Aguilar
supported it and said that "Judge Maceda has been a welcome
addition and a positive force in the administration of justice in the city.
Judge Maceda reduced Branch 275's docket from 474 cases when he took over in
November 1995 to 332 in June 1997 and patched-up the feud. The feuding judges
shook hands in his presence to affirm their unity.

The Supreme Court later reassigned Judge Maceda in the premier station of
RTC Makati. Former Makati Mayor Elenita Binay recommended his appoint-
ment to Makati's RTC Branch 57 and wrote that Judge Maceda "is known for
his honesty and integrity." But, he came back to Las Pinas and was appointed
in November 1999 as regular Judge in Branch 275. Senator Villar wrote: "I am
pleased that a man of unquestionable ability and integrity has been ap-
pointed to the eminent judicial post. Meanwhile, the docket of Branch 275
ballooned to 496 cases in Judge Maceda's absence.

Judge Maceda led the Las Pinas RTC Judges Association in passing on October 8, 2002
Resolution No. 02-001 initiating "Express Court: A 180-Day Justice System" to
speed-up disposition of cases in the RTC of Las Pinas City.

On January 22, 2003 the PHILJA Caseflow Management (CFM) Committee
headed by its Chancellor, Hon. Justice Ameurfina Melencio-Herrera, com-
mended Judge Maceda and the Las Pinas City Bar Association led by Atty,
Manuel Laserna, Jr., Founding President and Attorney Myrna C. Mercader,
Founding Treasurer
, for their initiative to expedite the disposition of cases in Las Pinas courts.

On February 18, 2004 Multi-Sectoral Representatives of the Criminal Justice
System of Las Pinas City
convened to formally adopt "Express Court" in the RTC of Las Pinas and validated the initiatives taken by the Judges in the October 8, 2002 Resolution No. 02-001.

The Las Pinas City Bar Association, Inc. presented to Judge Maceda on March 26, 2004 a Plaque of Recognition through Justice Magdangal De Leon,
Chairman, and Atty. Myrna C. Mercader, President,
"in recognition of his exemplary performance, wisdom and dedication as a dispenser of justice and his initiative in actively introducing the concept of The Express Court: 180-Day
Justice System, in Las Pinas City"


Judge Maceda again reduced Branch 275's docket from 496 cases when he
took over in the year 2000 to 142 cases in July 2009, a reduction of 354 cases or a 71.37% reduction.

For the period January to July 2009 alone, a total of 198 cases were added to his docket while 226 cases were deducted therefrom ending July 2009, registering
a performance rating of 114%. 226 cases were disposed in 118 trial dates or an
average of 1.92 cases disposed every trial day or about two (2) cases disposed every single working day from January to July 2009.

No less than 3 former Chief Justices commended Judge Maceda in the past.
In Antique, his first station, CJ Marcelo B. Fernan praised Judge Maceda in 1989. CJ Fernan said that: "you are better organized than most Courts, including the Supreme Court." CJ Andres R. Narvasa penned this note to Judge Maceda: "Congratulations on these fine accomplishments! Keep up the good work." CJ Hilario G. Davide, Jr. wrote to Judge Maceda: "I commend you for your dedication to the effective and efficient administration of justice. x x x. Your fortitude must be commended." Judge Maceda also received innumerable plaques and certificates of recognition from various sectors.

Judge Maceda's sterling performance has not escaped the Supreme Court En
Banc. On April 20, 1999 the High Court noted in A.M. No. 98-6-201-RTC that "Judge Maceda has been very efficient in the performance of his official duties wherever he is assigned". More can be said of him but Judge Maceda's own words in his 1995 staff meeting in Branch 275 could perhaps say it all. Judge Maceda said: "I did not come to Las Pinas to join a popularity contest. I came here to do a job and I intend to do my job well. I pay no obedience to anyone. My obedience is only to God, the Constitution and my Conscience."

Tuesday, September 15, 2009

Injustice and poverty

There are only two rootcauses of the 40-year old insurgency in the Philippines: poverty and injustice.

Poverty hurts the body. Injustice harms the mind. Ether way, the end results are hopelessness, anger, lack of self-dignity, and desire to kill or to escape.

What are the recent death statistics related to Philippine insurgency? Here’s a recent press release from the Armed Forces of the Philippines (AFP). Among other things, one out of five insurgency-related deaths is a civilian.


Monday, September 14, 2009

Over 3,000 killed in NPA
insurgency since 2001



Violence spawned by the communist insurgent movement in the Philippines has claimed more than 3,000 lives over the last eight years, figures released by the military on Sunday showed.

The figures revealed that 1,072 soldiers and police, 1,476 rebels and 559 civilians had died in communist insurgent-related violence since 2001.

The death toll included civilians killed in crossfire during battles, the Philippine Army said.

In the latest outbreak of violence, New People’s Army (NPA) fighters ambushed a logging company truck in the southern part of the country also on Friday, killing three people including a security guard and an 8-year-old girl, the Army added.

Eight other logging company employees were wounded in the attack, the military said, adding that the communist guerrillas from the NPA then robbed the employees and set fire to the truck.

The Communist Party of the Philippines (CPP) and its armed wing, the NPA, have waged a Maoist campaign to seize power for 40 years.
The conflict peaked in the 1980s, when rebel ranks reached 26,000.

But the military’s spokesman, Lt. Col. Romeo Brawner, said that the number of NPA fighters has fallen to just above 3,000.

Last week, the Presidential Adviser on the Peace Process, Avelino Razon Jr., said that the government would find it hard to end the communist insurgency in 2010, the deadline set by President Gloria Arroyo.

Meanwhile, proposed resumption of peace talks between the insurgents and the government recently hit a snag after both sides failed to resolve the issue on the status of “consultants” to rebel negotiators.

Earlier, hopes were high that the negotiations would take place in Norway this month.


See:
http://www.manilatimes.net/national/2009/sept/14/yehey/top_stories/20090914top7.html

Culture of corruption and secrecy

Branded as the so-called showcase of American democracy in Asia, the State Policies and the Bill of Rights of the 1987 Constitution of the Philippines, in theory, speak of the universal principles of transparency, good governance, accountability, and, most of all, freedom of access to public information. But that is only in theory.

In practice, the Philippine Government, led by corrupt, greedy, insecure, immature, and violent politicians and generals, is one of the most secretive feudal-type nations in Asia insofar as access to public information and records is concerned.

In fact, up to now, it does not have a Freedom of Information Act, following the model of the equivalent US law.

Quoted below is the latest editorial of the Philippine Daily Inquirer assailing the recent decision of the much-maligned incumbent Ombudsman of the Philippines (Hon. Merceditas Gutierrez, whose main qualification to office is that of being very close, loyal and subservient to the incumbent President Gloria Arroyo and the First Gentleman Miguel Arroyo) to limit public access to the individual statements of assets, liabilities, and networth (SALN) of elective and appointive pubic officials and personnel.

Another state-sanctioned protective tool in favor of the promoters and beneficiaries of the culture of corruption in the Philippine Government.


Editorial
Access denied

Philippine Daily Inquirer
First Posted 00:49:00 09/15/2009


A memorandum circular recently issued by Ombudsman Merceditas Gutierrez would make it difficult for people to get copies of the Statements of Assets, Liabilities and Net Worth of government officials. It is the latest move of the Arroyo administration to hamper access to information on matters of public concern.

The memorandum is unconstitutional and undemocratic. Unconstitutional because the Constitution recognizes “the right of the people to information on matters of public concern.” Undemocratic because information is the oxygen of democracy; the citizens of a democratic nation cannot form intelligent opinions and make wise decisions unless they have the necessary information on which they can base their judgment on matters that affect them.

The Office of the Ombudsman apparently issued the memorandum circular to prevent the further release of damaging information about the property acquisitions of Pampanga Rep. Juan Miguel “Mikey” Arroyo, one of the sons of President Gloria Macapagal-Arroyo. The younger Arroyo disclosed on national television on Sept. 1 that his net worth increased from P5.7 million in 2001 to P74.4 million in 2004 and to P99.2 million in 2008 partly because of campaign contributions and wedding gifts.

Many people, including media people who interviewed him on TV, did not find his explanation credible and acceptable. Ferdinand Gaite, president of the Confederation for Unity, Recognition and Advancement of Government Employees, observed that the congressman failed to submit to the Commission on Elections a detailed statement of his campaign contributions and expenditures 30 days after the election as required by law. How much did he receive in campaign contributions, and how much was left after he had paid for campaign expenses? We do not know; he has not given the Comelec and the people a detailed accounting.

The memorandum of the Ombudsman is not the first administration move to hinder and restrict the public’s access to information, nor is it going to be the last. Former Agriculture Undersecretary Jocelyn “Joc-joc” Bolante, the main witness in the Senate inquiry into the P728-million fertilizer scam, disappeared just before the committee on agriculture could open the probe. The commonly held suspicion was that the money was spent mostly to help fund the campaign of many candidates for national and local posts in the 2004 elections. Bolante, who had flown to the United States, was later deported back to the Philippines and appeared at a Senate hearing where he cleared Ms Arroyo of involvement in the fertilizer scandal.

Former Socio-Economic Planning Secretary Romulo Neri, concurrently director of the National Economic and Development Authority, was stopped from giving more details about the controversial $329-million NBN-ZTE deal and was told to plead executive privilege. That prevented the Senate and the people from getting vital information about the project. Up to what level did the attempted bribery reach in this transaction? People have their suspicions, but are not able to know the whole truth because of the plea of “executive privilege.”

People, and even senators, are frustrated at every turn in their attempt to obtain information on matters of public interest. Government officials are required to file Statements of Assets, Liabilities and Net Worth every year precisely to allow the people to find out if their officials are enriching themselves while in office. There is the presumption that if the net worth of an official is grossly out of proportion to his or her annual salary, that official must be engaged in some questionable practices. It is up to him to prove that he acquired his new wealth honestly.

In the 1989 case of Valmonte v. Belmonte, the Supreme Court said that in our republican system of government, “government agencies and institutions operate within the limits of the authority conferred by the people. Denied access to information on the inner workings of government, the citizenry can become prey to the whims and caprices of those to whom power has been delegated.”
Gutierrez’s memorandum circular on the SALNs has no place in a free, democratic nation whose citizens should enjoy access to information on matters of public concern. We urge her to withdraw it immediately.


See:
http://opinion.inquirer.net/inquireropinion/editorial/view/20090915-225246/Access-denied

Saturday, September 12, 2009

Lawyer advertising; archaic rule.

In my past related blogs, I wrote about lawyer advertising in the USA, which is deemed by the US Supreme Court as part of a lawyer’s “freedom of commercial speech”.

As in the USA, unethical solicitation of clients and cases by Filipino lawyers is punished by the Philippine Supreme Court, pursuant to Rule 138 of the Rules of Court and the Code of Professional Responsibility.

In my very recent blog, I posted an item entitled “Lawyer Steals Clients”. That item was based on the very fresh Philippine Supreme Court decision in the case of PEDRO L. LINSANGAN vs. ATTY. NICOMEDES TOLENTINO, A.C. No. 6672, September 4, 2009, which I wish to reproduce in full below, for legal research purposes of the visitors of this blog.

In the said case, the Philippine Supreme Court continues to adhere to the very archaic doctrine absolutely prohibiting any form and kind of lawyer advertising in the Philippines on the theory that a lawyer’s best advertisement is a well-merited reputation for professional capacity and fidelity to trust based on his character and conduct. In the Philippines, Filipino lawyers are only allowed to announce their services by publication in reputable law lists or use of simple professional cards. Professional calling cards may only contain the following details:

(a) lawyer’s name;
(b) name of the law firm with which he is connected;
(c) address;
(d) telephone number and
(e) special branch of law practiced.


I personally feel that it is high time for the Supreme Court to liberalize its anti-lawyer advertising rule and to open the door to the possibility of allowing ethical, truthful, accurate and dignified lawyer advertising, thus, giving due respect to the lawyers' freedom of commercial speech and giving the consumers of legal services a fair opportunity to access accurate information about the Bar, the pricing of its legal services, and other law market information. We must modernize our way of looking at things.

Here is the full text of the above-mentioned case.


PEDRO L. LINSANGAN vs. ATTY. NICOMEDES TOLENTINO, A.C. No. 6672, September 4, 2009


This is a complaint for disbarment filed by Pedro Linsangan of the Linsangan Linsangan & Linsangan Law Office against Atty. Nicomedes Tolentino for solicitation of clients and encroachment of professional services.

Complainant alleged that respondent, with the help of paralegal Fe Marie Labiano, convinced his clients to transfer legal representation. Respondent promised them financial assistance and expeditious collection on their claims. To induce them to hire his services, he persistently called them and sent them text messages.

To support his allegations, complainant presented the sworn affidavit of James Gregorio attesting that Labiano tried to prevail upon him to sever his lawyer-client relations with complainant and utilize respondent’s services instead, in exchange for a loan of P50,000. Complainant also attached “respondent’s” calling card:

Front

NICOMEDES TOLENTINO
LAW OFFFICE
CONSULTANCY & MARITIME SERVICES
W/ FINANCIAL ASSISTANCE

Fe Marie L. Labiano
Paralegal

1st MIJI Mansion, 2nd Flr. Rm. M-01
Tel: 362-7820
6th Ave., cor M.H. Del Pilar
Fax: (632) 362-7821
Grace Park, Caloocan City
Cel.: (0926) 2701719


Back

SERVICES OFFERED:
CONSULTATION AND ASSISTANCE
TO OVERSEAS SEAMEN
REPATRIATED DUE TO ACCIDENT,
INJURY, ILLNESS, SICKNESS, DEATH
AND INSURANCE BENEFIT CLAIMS
ABROAD.

(emphasis supplied)


Hence, this complaint.

Respondent, in his defense, denied knowing Labiano and authorizing the printing and circulation of the said calling card.

The complaint was referred to the Commission on Bar Discipline (CBD) of the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.

Based on testimonial and documentary evidence, the CBD, in its report and recommendation, found that respondent had encroached on the professional practice of complainant, violating Rule 8.02 and other canons of the Code of Professional Responsibility (CPR). Moreover, he contravened the rule against soliciting cases for gain, personally or through paid agents or brokers as stated in Section 27, Rule 138 of the Rules of Court. Hence, the CBD recommended that respondent be reprimanded with a stern warning that any repetition would merit a heavier penalty.

We adopt the findings of the IBP on the unethical conduct of respondent but we modify the recommended penalty.

The complaint before us is rooted on the alleged intrusion by respondent into complainant’s professional practice in violation of Rule 8.02 of the CPR. And the means employed by respondent in furtherance of the said misconduct themselves constituted distinct violations of ethical rules.

Canons of the CPR are rules of conduct all lawyers must adhere to, including the manner by which a lawyer’s services are to be made known. Thus, Canon 3 of the CPR provides:

CANON 3 - A LAWYER IN MAKING KNOWN HIS LEGAL SERVICES SHALL USE ONLY TRUE, HONEST, FAIR, DIGNIFIED AND OBJECTIVE INFORMATION OR STATEMENT OF FACTS.

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.

Rule 2.03 of the CPR provides:

RULE 2.03. A LAWYER SHALL NOT DO OR PERMIT TO BE DONE ANY ACT DESIGNED PRIMARILY TO SOLICIT LEGAL BUSINESS.

Hence, lawyers are prohibited from soliciting cases for the purpose of gain, either personally or through paid agents or brokers. Such actuation constitutes malpractice, a ground for disbarment.

Rule 2.03 should be read in connection with Rule 1.03 of the CPR which provides:

RULE 1.03. A LAWYER SHALL NOT, FOR ANY CORRUPT MOTIVE OR INTEREST, ENCOURAGE ANY SUIT OR PROCEEDING OR DELAY ANY MAN’S CAUSE.


This rule proscribes “ambulance chasing” (the solicitation of almost any kind of legal business by an attorney, personally or through an agent in order to gain employment) as a measure to protect the community from barratry and champerty.

Complainant presented substantial evidence (consisting of the sworn statements of the very same persons coaxed by Labiano and referred to respondent’s office) to prove that respondent indeed solicited legal business as well as profited from referrals’ suits.

Although respondent initially denied knowing Labiano in his answer, he later admitted it during the mandatory hearing.

Through Labiano’s actions, respondent’s law practice was benefited. Hapless seamen were enticed to transfer representation on the strength of Labiano’s word that respondent could produce a more favorable result.

Based on the foregoing, respondent clearly solicited employment violating Rule 2.03, and Rule 1.03 and Canon 3 of the CPR and Section 27, Rule 138 of the Rules of Court.

With regard to respondent’s violation of Rule 8.02 of the CPR, settled is the rule that a lawyer should not steal another lawyer’s client nor induce the latter to retain him by a promise of better service, good result or reduced fees for his services. Again the Court notes that respondent never denied having these seafarers in his client list nor receiving benefits from Labiano’s “referrals.” Furthermore, he never denied Labiano’s connection to his office. Respondent committed an unethical, predatory overstep into another’s legal practice. He cannot escape liability under Rule 8.02 of the CPR.

Moreover, by engaging in a money-lending venture with his clients as borrowers, respondent violated Rule 16.04:

Rule 16.04 – A lawyer shall not borrow money from his client unless the client’s interests are fully protected by the nature of the case or by independent advice. Neither shall a lawyer lend money to a client except, when in the interest of justice, he has to advance necessary expenses in a legal matter he is handling for the client.

The rule is that a lawyer shall not lend money to his client. The only exception is, when in the interest of justice, he has to advance necessary expenses (such as filing fees, stenographer’s fees for transcript of stenographic notes, cash bond or premium for surety bond, etc.) for a matter that he is handling for the client.

The rule is intended to safeguard the lawyer’s independence of mind so that the free exercise of his judgment may not be adversely affected. It seeks to ensure his undivided attention to the case he is handling as well as his entire devotion and fidelity to the client’s cause. If the lawyer lends money to the client in connection with the client’s case, the lawyer in effect acquires an interest in the subject matter of the case or an additional stake in its outcome. Either of these circumstances may lead the lawyer to consider his own recovery rather than that of his client, or to accept a settlement which may take care of his interest in the verdict to the prejudice of the client in violation of his duty of undivided fidelity to the client’s cause.

As previously mentioned, any act of solicitation constitutes malpractice which calls for the exercise of the Court’s disciplinary powers. Violation of anti-solicitation statutes warrants serious sanctions for initiating contact with a prospective client for the purpose of obtaining employment. Thus, in this jurisdiction, we adhere to the rule to protect the public from the Machiavellian machinations of unscrupulous lawyers and to uphold the nobility of the legal profession.

Considering the myriad infractions of respondent (including violation of the prohibition on lending money to clients), the sanction recommended by the IBP, a mere reprimand, is a wimpy slap on the wrist. The proposed penalty is grossly incommensurate to its findings.

A final word regarding the calling card presented in evidence by petitioner. A lawyer’s best advertisement is a well-merited reputation for professional capacity and fidelity to trust based on his character and conduct. For this reason, lawyers are only allowed to announce their services by publication in reputable law lists or use of simple professional cards.

Professional calling cards may only contain the following details:

(a) lawyer’s name;
(b) name of the law firm with which he is connected;
(c) address;
(d) telephone number and
(e) special branch of law practiced.


Labiano’s calling card contained the phrase “with financial assistance.” The phrase was clearly used to entice clients (who already had representation) to change counsels with a promise of loans to finance their legal actions. Money was dangled to lure clients away from their original lawyers, thereby taking advantage of their financial distress and emotional vulnerability. This crass commercialism degraded the integrity of the bar and deserved no place in the legal profession. However, in the absence of substantial evidence to prove his culpability, the Court is not prepared to rule that respondent was personally and directly responsible for the printing and distribution of Labiano’s calling cards.

WHEREFORE, respondent Atty. Nicomedes Tolentino for violating Rules 1.03, 2.03, 8.02 and 16.04 and Canon 3 of the Code of Professional Responsibility and Section 27, Rule 138 of the Rules of Court is hereby SUSPENDED from the practice of law for a period of one year effective immediately from receipt of this resolution. He is STERNLY WARNED that a repetition of the same or similar acts in the future shall be dealt with more severely.

Let a copy of this Resolution be made part of his records in the Office of the Bar Confidant, Supreme Court of the Philippines, and be furnished to the Integrated Bar of the Philippines and the Office of the Court Administrator to be circulated to all courts.

SO ORDERED.

Friday, September 11, 2009

Reminiscing my own bar exams (1984)

September is the bar examination month in the Philippines. Once again, parents and bar examinees suffer the grueling effects of extreme anxiety and mental fatigue as they nervously face the annual bar examination.

If there is one life experience I do not wish to repeat, it is to take the bar examination all over again. The bar examination is mentally and physically exhausting, no matter how strong, able, stable, intelligent and competent the examinees may be.

I recall that when I took my own bar examination in 1984, where I placed 3rd nationwide (with a grade of 90.95% and where only 22% passed out of about 2,500 examinees), I exerted my utmost best to really study very hard, to the extent of living away from my wife and children for a few months and taking a full-time leave from my management-level office work in order to fully concentrate on my demanding bar review classes and voluminous readings.

I thank my former employer, the late Rep. Maria Clara L. Lobregat, in her capacity as the president of the Philippine Coconut Producers Federation, Inc. (Cocofed), for the full law scholarship that she and the federation had given me. My scholarship was part of the aggressive and well-funded staff development program of the federation, where I worked as a young executive managing the Cocofed municipal and provincial chapters of the coconut industry in the entire Visayas Region (Central Philippines) from 1975 to 1994.

I wish the 2009 bar examinees all the best.

May I share below the recent column of former Supreme Court Associate Justice Isagani Cruz on the current bar exams.


Separate Opinion

The bar tests again
By Isagani A. Cruz

Philippine Daily Inquirer
First Posted 00:38:00 09/06/2009


TODAY is the first day of the regular scheduled on the four Sundays of September by the Supreme Court to determine who among the examinees shall be admitted as members of the Philippine bar and entitled to practice law in this country.

Such recognition is extended only to those who shall have passed the prescribed subjects, viz., Political Law and International Law, Labor Law, Civil Law, Taxation, Commercial Law, Criminal Law, Remedial Law, and Legal Ethics and Practical Exercises, or gained an average grade of 75 percent in all the said subjects without obtaining a disqualifying grade of 50 percent in any subject despite obtaining perfect grades in the other tests.

Citizens of the Philippines who have finished the Law course approved by the Supreme Court and not otherwise disqualified by moral or other causes, including those who have before flunked the bar examinations, subject to their taking review courses if they shall have previously flunked the tests three times, but never again if they have failed for the fifth time.

The performance of the first takers with the record of the bar flunkers in previous years (who usually fail again) necessarily decreases the national passing percentage of the bar takers. At times, however, the Supreme Court may adopt a more lenient attitude in the admission of the bar candidates by lowering the general requirements and the quality of the bar as well.

Still, there are those who say that the bar examinations are an unreliable guide in assessing the qualifications of the ordinary lawyer, whose credentials are best demonstrated by his subsequent conduct in his choice of what is vaguely defined as the practice of the law.

In one controversial case, the phrase was liberally construed as almost everything requiring knowledge of the law, including all lawful undertaking in modern society, such as operating any business, running a philanthropic service, or delivering speeches in the streets, all of which involve somehow or other knowledge of the applicable law. I dissented from the absurd rule and said that the only activity that would not be included would be the efforts of a retired lawyer teaching ballroom dancing and escorting wrinkled ladies with pubescent pretensions.
The honor roll of bar candidates who have topped the bar examinations and proved equal to their just expectations are proudly numberless. Roxas, Laurel, Pelaez, Concepcion, Labrador, Macapagal, Tolentino, Padilla, Salonga, Diokno, Teehankee (including the ladies like Muñoz-Palma, Agrava, Melencio-Herrera, and Griño-Aquino), and lately Montecillo, Regalado, Robles, Brion – the list is practically resplendent.

Unfortunately, there are others who have not exploited their former prestige and failed to make good their promise as leaders of the Philippine bar even as there are also those who barely passed the bar tests and yet made it to the Supreme Court like Justice Antonio Barredo, not that his decisions were top of the line.

Some justices who ranked among the top 10 in the bar examinations have been disciplined and even disbarred for improper conduct as in the case of one who was proved to have purposely destroyed the evidence against a hostile party but was later restored to the practice of law on recommendation of respected jurists because of his academic record. Once rehabilitated, however, he openly repeated his old roguery and was barred again, this time for good. Lawyers with more renown and less rectitude have also marred what has proudly and correctly been called the noblest profession in the world.

Of late, women have outnumbered the men in the population of law schools, including their honors in the bar examinations. The reason may be that ladies are more serious in their studies, including memory work in which they have established some sort of record. Their male counterparts have been more active as litigators, leaving the ladies to do research work in which they have proved more patient and less provocative.

The exception is for their more belligerent sisters, like the late Haydee Yorac, who once seriously challenged a male prosecutor to a boxing bout.

The basic problem with the bar examinations is that they ask questions to prove what the examinees do not know and not matters they know and have diligently reviewed. Only recently, they were asked to identify the president of the International Court of Justice, whom even our Chief Justice probably did not know. Earlier, the question asked was about the writ of amparo which had not yet been adopted by our Supreme Court as part of our Rules of Court at the time. Only Justice Adolfo S. Azcuna probably could have answered that curious number then.

Even worse is the ignorance of the examiner, who often never even taught in law school. In one test, he could not distinguish between the budget and the appropriation bill, which law professors take pains to distinguish. And earlier, the examinees were asked about the Island of Palmas case, which they only vaguely remembered but not its doctrine that they understood and could have earned them full credit. They later angrily burned their books in International Law.

Pray, bar takers, that the examiners will ask the right questions and the Supreme Court will have the correct answers.

See:
http://opinion.inquirer.net/inquireropinion/columns/view/20090906-223771/The-bar-test
s-again

Fiduciary duties

For many years I taught Private Corporation Law at the Institute of Law of the Far Eastern University (FEU) in Manila, my high school and law alma mater.

I noticed that among Filipino trial lawyers, Section 144 of the Corporation Code of the Philippines is not commonly invoked. It is the penal clause of the code.

Recently, however, Sections 31 to 34 of the code, re: directors’ fiduciary duties, are more and more being invoked in commercial litigations in the Philippines, which is a good thing, because it helps in disciplining and regulating the greedy and anti-social behavior of misguided directors and corporate officers in the Philippines whose malevolent models are the power-hungry and profit-conscious bankers of Wall Street, including the likes of the notorious Bernie Madoff.

Below is an article by Atty. Raul J. Palabrica, a columnist of the Philippine Daily Inquirer, which discusses a recent litigation on the matter, which I wish to share to the visitors of this law blog.


Corporate Securities Info

Directors’ fiduciary duties
By Raul J. Palabrica

Philippine Daily Inquirer
First Posted 01:58:00 09/11/2009


IN WHAT MAY BE CONSIDERED A “FIRST” in Philippine business history, the chair, president and director of a local corporation are today facing criminal charges for violation of their fiduciary duties and responsibilities.

The case started with the complaint filed with the prosecutor’s office in 2008 by Tullett Prebon (Phils.) Inc., a company that acts as broker between market participants in high-level financial transactions, against the three director-officers.

Tullett alleged that, in conspiracy with other parties, they orchestrated the mass resignation of its entire brokering staff to join a rival company, Tradition Financial Services Phils. Inc.

Tradition, which was in the process of organization at that time, planned to go into the same business that Tullett was engaged in.

The pirating was supposedly done to grab Tullett’s business without Tradition having to go through the process of developing its own staff and clientele.

According to the complaint, the president intentionally let the employees’ contracts lapse when they fell due, in violation of his duty to have them renewed.

The employees, upon the directors’ promise of higher pay and indemnity payments if they get sued for quitting their jobs, resigned en masse and moved to Tradition.
Employment

Worse, the complaint pointed out, the president (who later transferred to Tradition) asked the employees to call up their clients to tell them about their relocation to Tradition.

The directors denied Tullett’s allegations and argued that, among others, there was nothing illegal or criminal about their actions, employee movements among competitors are normal in their business, and every citizen has a right to seek or change his employment.

They also claimed that the employees’ transfer to Tradition was “done out of free will without any force, intimidation or pressure on their part.”

Tullett accused the directors of violating Sections 31 and 34, in relation to Sec. 144, of the Corporation Code.

Under Sec. 31, directors may be held liable for damages if they are “guilty of gross negligence or bad faith in directing the affairs of the corporation, or they acquire any personal or pecuniary interest in conflict with their duty as such director ...”

On the other hand, Sec. 34 provides that a director who acquires for himself a business opportunity which should belong to the corporation must account for all such profits by refunding them to the corporation.

Accordingly, Tullett asked that the directors be held liable under Sec. 144 which provides that violations “shall be punished by a fine of not less than P1,000 but not more than P10,000 or by imprisonment of not less than 30 days but not more than five years or both, at the discretion of the court.”

The complaint went through the legal mill. Initially, it was dismissed by the prosecutor for lack of merit. Acting on the complainant’s petition, then Justice Secretary Raul Gonzales set aside the dismissal and ordered the filing of charges against the directors.

The accused brought the case to the Court of Appeals. The court threw out the appeal and gave the go-signal for the filing of the case.

In substance, the justice secretary and the court stated there was probable cause to hold the directors and their coaccused liable for breach of the subject provisions of the Code.

The resolution stated that the directors acted in bad faith in directing the affairs of their own corporation.

Holding positions of high responsibility and great trust, they were “required to exercise the best care, skill and judgment in the management of the corporate business and act solely for the interest of the corporation.”

The court also saw a clear conflict of interest in the directors “advancing the interest of an emerging competitor in the field rather than fiercely protecting the business of their own company.”

Damage

The resolution further said that dishonesty and fraud were committed by the directors when they held meetings, conducted loyalty checks and caused the signing of ready-made employment and indemnity contracts to pressure and induce the employees to join their new company, Tradition.

On the matter of acquiring a business opportunity adverse to that of the corporation, this became evident when the directors told the employees to convince their clients to transfer their business to Tradition so that the profits of Tullett, which rightfully belong to it, will be transferred to a competitor company to be headed by the directors.

If found guilty of the crimes charged, the accused face stiff civil and criminal sanctions.

According to the court, the damages that an erring director is obliged to pay the aggrieved corporation under Sec. 31 are in addition to the fine or imprisonment, or both, that Sec. 144 imposes for violation of that provision.

Although no pronouncement was made in case Sec. 34 is proven to have been similarly violated, it is safe to say that the profits earned by the directors as a result of their illegal acts may be ordered reimbursed to the corporation.

Moral of the story? Pirating other company’s employees can be hazardous to your health. More so, if the company involved is your own.


See:
http://business.inquirer.net/money/columns/view/20090911-224613/Directors-fiduciary-duties

Poverty and justice

I my past blogs, I described the negative effects of malignant and pervasive poverty in the Philippines, which to this very day continue to harm, enervate, debilitate and demoralize the hopeless and oppressed Filipinos in relation to the fair, just, speedy, and inexpensive administration of justice in the Philippines.

I wish to share below a recent letter to the editor published in the Philippine Daily Inquirer detailing the extent of Philippine poverty vis-a-vis Philippine oligarchy.


‘Flawed judgment’ confirmed

Philippine Daily Inquirer
Opinion Section (Letters to the Editor)
First Posted 01:13:00 09/09/2009


This is a reaction to the column of Amando Doronila titled “Flawed judgment.” (Inquirer, 08/19/09) In that piece, he said that “In many an assessment of the legacy of the Arroyo presidency, the concrete achievements in the economy and infrastructure development are diminished by the glaring downsides in the areas of governance, human rights violations, and abuse of power.”

I would like to substantiate such statement with certain data. The NSCB data show that poverty incidence has leveled off at 33 percent— 32.9 percent during the period 2000-2006, yet the GDP grew by 4.4 percent in 2000 to 7.3 percent in 2007, which is the highest in 31 years. This is explained by the fact that the economic strategy is focused more on the industrial and service sectors and has neglected agriculture on which the poor are largely dependent.

An Ibon Foundation report, titled “Sona 2001 revisited: Performance against targets” (Inquirer, 7/26/09), noted that “the net income of the Top 1,000 corporations in the Philippines increased 490 percent between 2001 and 2007—from P116 billion to P686 billion. In 2006, the net worth of the 20 richest Filipinos—including close Arroyo allies Lucio Tan, Enrique Razon Jr., Eduardo Cojuangco Jr. and Enrique Aboitiz—was P801 billion ($15.6 billion), which was equivalent to the combined income for the year of the poorest 10.4 million Filipino families. (Forbes Asia, NSCB)

The above economic data, which are reflective of a situation unfavorable to the majority of the Filipino people, directly correlate with the downside in governance performance. The World Governance Indicators (WGI), released by the World Bank, measures how more than 200 countries fared in the six dimensions of governance; a percentile ranking of 100 percent is the highest while a percentile ranking of 0 percent is the lowest. For the second year period 2000-2008, there is a significant reduction in the percentile ranking of the Philippines: for political stability and absence of violence the country received percentile ranking of 41 to 11; for voice and accountability: 59 to 41, and control of corruption: 42 to 27.

The studies conducted in several countries have shown that poverty and falling income are critical drivers toward violent conflict. It is only by changing the current economic and political situation into a better one through broad-based approach in making policies and decisions that we will ensure the end of violent conflicts happening in depressed and poor areas of the country.

—EDMUNDO ENDEREZ,
edenderez@yahoo.com


See:
http://opinion.inquirer.net/inquireropinion/letterstotheeditor/view/20090909-224321/Flawed-judgment-confirmed

Lawyer steals clients; suspended.

In the USA, it is common for some specialized financing companies to issue clean loans to prospective plaintiffs to fund their potential suits, the same to payable from damages to be recovered from the defendants.

There is no such funding system in the Philippines. Not even a pre-need legal insurance system. (I wonder why Philippine insurance companies have not thought of exploring this line of business since the birth of the insurance industry in the early 1900s).

In a recent decision, the Philippine Supreme Court suspended an enterprising lawyer for pirating/stealing clients of another lawyer, with the enticement from the guilty lawyer that he would lend money to the clients to fund their suits, in the process earning twice from the deal: unethical contingent attorneys’ fees and interest income from the loan.

Illegal and unethical solicitation of clients and cases is punished under Rule 138 of the Rules of Court of the Philippines and the Code of Professional Responsibility. It debases the legal profession and degenerates lawyers into hungry and greedy market-type vendors of litigation skills.

Read the article below.


SC Suspends Money-Lending Lawyer for ‘Stealing’ Clients
Posted: September 10, 2009
by Annie Rose A. Laborte
http://sc.judiciary.gov.ph


Thou shall not ‘steal’ another lawyer’s clients.

The Supreme Court has cracked the whip on a lawyer who had encroached on the professional practice of another lawyer and in doing so, contravened the rule against soliciting cases for gain.

In a the 12-page resolution penned by Justice Renato B. Corona, the Court suspended from the practice of law for one year Atty. Nicomedes Tolentino for violating the Code of Professional Responsibility (CPR) and the Rules of Court.

The Court found that Tolentino committed an “unethical, predatory overstep into another’s legal practice.” Specifically, Tolentino violated Rules 1.03, 2.03, 8.02, and 16.01, and Canon 3 of the CPR and Section 27, Rule 138 of the Rules of Court.
The case stemmed from a complaint filed by Atty. Pedro L. Linsangan of the Linsangan Linsangan & Linsangan Law Office against Tolentino for solicitation of clients and encroachment of professional services.

In his complaint, Linsangan alleged that Tolentino, with the help of paralegal Fe Marie Labiano, convinced three of Linsangan’s clients, who are all overseas seafarers, to transfer legal representation.

One of the said seafarers attested that Labiano tried to prevail upon him to switch to Tolentino’s services in exchange for a loan of PhP50,000. Labiano’s calling card had the words “with financial assistance” on the front, and “services offered: consultation and assistance to overseas seamen repatriated due to accident, injury, sickness, death and insurance benefit claims abroad” on the back.

In his defense, Tolentino initially denied knowing Labiano and authorizing the printing and circulation of the said calling card, but later on admitted it during the mandatory hearing held by the Integrated Bar of the Philippines. It found that respondent encroached on the professional service of Linsangan, violating Rule 8.02 and other Canons of the CPR. Tolentino also contravened Section 27, Rule 138 of the Rules of Court, which prohibits solicitation of cases for gain, personally or through paid agents or brokers, it added. Rule 8.02, on the other hand, provides that a lawyer should not steal another lawyer’s client nor induce the latter to retain him by a promise of better service, good result or reduced fees for his services.

While the Court adopted the findings of the IBP, it raised the recommended penalty from reprimand to suspension.

The Court said Linsangan presented substantial evidence to prove that Tolentino benefited through Labiano’s actions, enticing hapless seamen to transfer representation due to Labiano’s promise that Tolentino could produce a more favorable result.

The Court pointed out that the phrase “with financial assistance” contained in Labiano’s calling card was clearly to lure clients who already had the services of another lawyer to change counsels with a promise of loan to finance their legal actions. Money was dangled the clients, taking advantage of their financial distress and emotional vulnerability, it said. The Court cited Rule 2.03 of the CPR, which provides that “(A) lawyer shall not do or permit to be done any act designed primarily to solicit legal business.” Thus, lawyers are not allowed to solicit cases for the purpose of gain, either personally or through paid agents or brokers as such constitutes malpractice, which is a ground for disbarment.

The suspension takes effect immediately from Tolentino’s receipt of the Court’s resolution. The Court also sternly warned Tolentino that a repetition of the same or similar acts in the future shall be dealt with more severely. (AC No. 6672, Linsangan v. Tolentino, September 4, 2009)

See:
http://sc.judiciary.gov.ph/news/courtnews%20flash/2009/09/09100901.php

Judge hides his pending cases; dismissed, disbarred.

A judge who hides from the Supreme Court the fact that he has pending cases by misrepresenting the matter when asked in his personal data sheet deserves dismissal from the judiciary and disbarment from the Philippine Bar, as discussed in a news item published on the Philippine Supreme Court website recently. A very stiff penalty, indeed.

SC Disbars RTC Judge and Dismisses Him from Service in the Government
Posted: August 28, 2009
By Caleen T. Chanyungco


Steadfast in the “implementation of the Court’s relentless drive to purge the judiciary of morally unfit members,” the Supreme Court recently dismissed a judge for dishonesty and falsification of an official document.

In a 16-page per curiam decision, the Court En Banc forfeited all benefits, except accrued leave credits, of Judge Virgilio G. Caballero, of Cabanatuan City, Nueva Ecija Regional Trial Court (RTC) Branch 30, and ordered her perpetual disqualification from holding office in any government branch or instrumentality, including government-owned or-controlled corporations. Likewise, Caballero was also disbarred and his name stricken from the Roll of Attorneys for violation of the Code of Professional Responsibility which mandates ever lawyer to uphold the Constitution; maintain the integrity of the legal profession; observe the respect due to the courts; and not do any falsehood nor mislead the court by any artifice.
Judge Caballero was faulted for committing “dishonesty when he checked the box indicating “no” to the question “Have you ever been formally charged?” in his Personal Data Sheet (PDS) filed in the Office of Administrative Services- Office of the Court Administrator (OAS-OCA) RTC Personnel Division” during his application for the position of RTC Judge.

The Court held that “a judge, knows (or should have known) fully well that the making of a false statement in his PDS could subject him to dismissal.” Caballero, “being a former public prosecutor and a judge now, has the duty to ensure that all laws and rules of the land are followed to the letter.” His being a judge makes it all the more unacceptable to do such falsehoods. Caballero’s action showed “an obvious lack of integrity, the most fundamental qualification of a member of the judiciary.”

“A judge should conduct himself in a manner which merits the respect and confidence of the people at all times, for he is the visible representation of the law,” emphasized the Court. If found Caballero however, to be unbridled in his “capacity to lie and evade the truth.”

Caballero was also disbarred by the Court finding that his “dishonest act was against the lawyer’s oath to ‘do no falsehood, nor consent to the doing of any in court,’ Caballeros’s “dishonesty did not only affect the image of the judiciary, it also put his moral character in serious doubt and rendered him unfit to continue in the practice of law,” said the Court.

The Court concluded with the reminder that it is “extraordinarily strict with judges because, being the visible representation of the law, they should set a good example to the bench, bar and students of the law. The standard of integrity imposed on them is – and should be – higher than that of the average person for it is their integrity that gives them the right to judge.” (AM No. RTJ – 08-2138, Samson v. Judge Caballero August 5, 2009)

See:
http://sc.judiciary.gov.ph/news/courtnews%20flash/2009/08/08280902.php

Thursday, September 3, 2009

Modus operandi

May I share with you below a recent item from The Legal Forum, composed mainly of Filipino lawyers, which narrates the new modus operandi of internet-based syndicates in defrauding lawyers worldwide.

Visit: http://www.thelegalforum.org/lawyers/lawyers/viewtopic.php?f=15&t=15.



Post subject: Fraud Targeting Lawyers
Posted: Tue Sep 01, 2009 6:48 pm


Last July 29, 2008, I received an e-mail from a company in Hongkong which reads:


"Dear Sir,

The purpose of this email is to evidence that we have visited your web page and
found your profile very interesting. We would like to enter into a one year Attorney-Client Retainer agreement with you as our accredited Attorney for the collection of debt mainly from our America debtors.

IN GENERAL, you shall have all of the responsibilities, duties, powers and authorities which are consistent with your position as our accredited Attorney solely for debt collection.

It is our opinion that your ability to consolidate payments will eradicate delays due to inter-continental monetary transaction between Asia and America.

More so, we understand that a proper retainer agreement will provide the necessary service and we are most inclined to commence talks with you on this matter as soon as possible.

Your consideration of our request is highly anticipated as we look forward to your prompt response.

For further information, please call +852 - 301 - 59103 during office hours or send a fax anytime to: +852 -301 -72504 or email: yejiantech@aim.com


Most Sincerely,

Ms. Ai Wa
Sales Manager,
Hongkong Yejian Technology Co., Ltd.
7/F, Sino Centre, 582-592 Nathan Road,
Mongkok KL. Hong Kong.
Tel No: +852 - 301 - 59103.
Fax No: +852 -301 -72504."

(end of quote)


I immediately e-mailed my contacts at the international due diligence community and I was told that this is a scam. I visited the website Yejian Technology Co. Ltd and it appears that the company is legit. Nonetheless, I told them that I agreed to their offer in principle and it would be appreciated if they send us a Retainer Agreement appointing our Firm as their collection agent in the Asean region. They sent me a signed Retainer Agreement in a flash (Please see attachments) but I e-mailed it back to them because I wanted it authenticated at the Philippine Embassy in Hongkong to establish their legitimacy. Never heard of them since then.

Here is the catch to this scam:

The Hongkong Company will engage your services to collect a debt for US$20,000.000 from another bogus company, say in Malaysia ,Indonesia or Thailand. The bogus company will immediately send you a settlement check for the claimed amount upon receipt of your demand letter . The Hongkong company will instruct you to deposit the settlement check into your account. While waiting for the international check clearing (30 days), the Hongkong company will instruct you to wire to them at least 25% to 50% of the debt payments using your own money citing financial difficulties as reasons. They will also tell you that your fee will now be increased from 5% to 50% of the claimed amount if you can wire to them part of debt payments in due time. You thought that you hit bigtime in this transaction. But the settlement check is counterfeit, and you loses the money you wired abroad.

Is it not true that a big law firm in the Philippines was a victim of this scam?


Note: The item was written and posted by the web administrator of The Legal Forum.
. Visit it.