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
